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Central Law Journal.

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a tiger is in the street, the main question is not the degree of his freedom of will or

guilt. Every man who is dangerous to propST. LOUIS, MO., OCTOBER 4, 1901.

erty or life, whether insane, criminal, or feeble-minded, should be confined, but not

necessarily punished. 5. The publication The late catastrophe that befell our in the newspapers of criminal details and country in the violent death of our beloved | photographs is a positive evil to society, on President at the hands of an assassin has account of the law of imitation; and, in adawakened into controversy important ques dition, it makes the criminal proud of his tions relating to the treatment and suppres record, and develops the morbid curiosity sion of crime, which have never been satis of the people; and it is especially the menfactorily answered. Prof. Arthur McDon tally and morally weak who are affected. ald, specialist in the United States Bureau | 6. It is admitted by some of the most intelof Education, who has made a most extens ligent criminals, and by prison officers in ive study of criminals and criminalogy and general, that the criminal is a fool; for he is who is now engaged in promoting the estab opposing himself to the best, the largest, lishment by the United States government and the strongest portion of society, and is of a Psycho-Physical Laboratory for the study | almost sure to fail. of criminal, pauper and defective classes, recently stated several conclusions as to the | One of the most unfortunate aspects of origin and proper treatment of the criminal | the work of the Supreme Court of the United man based upon the experience of those who States during the last few years has been have studied criminals directly or who have the more than ordinary lack of harmony and bad practical control of large numbers in concurrence between the different members prisons or reformatories. These suggestions of the court on many very important quesare very pertinent at this crisis and are earn | tions of law. In addition to the Income estly commended to lawyers and law-mak Tax and Insular Tariff decisions, which were ers as a basis for a sound, practical advance attended with so many embarrassing cirin the treatment of criminals and the sup cumstances and which cannot be said to pression of crime. These conclusions are as evidence that clear grasp of the law wbich is follows: 1. The prison should be a re to be expected from members of the highest formatory and the reformatory a school. court in the land, we are compelled to add The principal object of both should be to to tbis list the decisions of the court on the teach good, mental, moral, and physical hab constitutionality of the "front-foot” rule of its. Both should be distinctly educational. assessment in apportioning the cost of street 2. It is detrimental financially, as well as improvements. This decision was handed socially and morally, to release prisoners down April 29, 1901, in the now celebrated when there is probability of their returning case of French v. Barber Asphalt Paving to crime; for in this case the convict is Co.,-celebrated, however, more because of much less expensive than the ex-convict. the importance of the subject under consid3. The determinate sentence permits many eration than for the brilliancy or correctness prisoners to be released who are morally cer of the argument extended in support of the tain to return to crime. The indeterminate decision. In a very unsatisfactory opinion, sentence is the best method of affording the in that it leaves the important question it prisoner an opportunity to reform without | attempts to discuss still undecided, Justice exposing society to unnecessary dangers. Shiras, representing a majority of the court, 4. The ground for the imprisonment of the practically overrules the case of Norwood v. criminal is, first of all, because he is danger- Baker, although expressly denying any such ous to society. This principle avoids the un intention, and holding that the apportioncertainty that may rest upon the decision as ment of the entire cost of a street improveto the degree of freedom of will; for upon ment upon the abutting lots according to this last principle some of the most brutal | their frontage, without any preliminary hearcrimes would receive a light punishment. If ing as to benefits, may be authorized by the

legislature, and this will not constitute a either come together or are afterwards united in taking of property without due process of

him, the legal will prevail, the equitable is totally law. Aside from the unbecoming attitude

gone for the purpose of being acted on by any

person in this court." Selby v. Alston, 3 Ves., of the court in overruling itself in so short a

p. 342. The principle has recently been applied time on such an important rule of property, by Farwell, J., in Re Selous, 49 W. R. 440 un. the decision offers further evidence of the der somewhat curious circumstances to the case dangerous tendency toward the subversion of two owners. A testator who died in 1890 be

queathed leasehold property to a trustee, in trust of private and property rights of the individ

for his two daughters in equal sbares as tenants ual in the large cities of the country. Quite

in common. By a deed made in 1895 between often of late bas attention been called to the trustee and the daughters, the trustee, at the the fact that our large cities were becoming request and by the direction of the daughters, hot-beds of anarchy and socialism, due to assigned the property to the daughters as joint the fact that the freedom of tbe individual

tenants, the daughters giving bim a joint cov

enant of indemnity against liability under the was being sacrificed in favor of what are

lease. The death of one of the daughters in 1900 known as “municipal conveniences.” In

raised the question whether this conveyance bad deed, one of the arguments used so often in put an end to the equitable tenancy in common the persistent attempts to overrule the case

and had substituted a joint tenancy at law free of Norwood v. Baker, was that street im.

| from any equitable interest, so that the surviving

daughter was entitled to the whole! This was provements must stop unless the expense of

tbe view taken by the learned judge. The their construction could be taxed upon the

rule that one person cannot be trustee for himself abutting property owner. The sufficient applies, he held, equally to the case of two absoanswer to such an argument is that all such lute owners, and the daughters, by taking the conenterprises ought to stop and the people

veyance, had lost their previous interests. The

difference between a tepancy in common and a compelled to use God's green earth in the

joint tenancy was not sufficient to avoid this recondition in which he left it without any of

sult. It would seem to be clear also, on the form man's “improvements” rather than sacrifice of the conveyance, that the daughters had no one iota of individual right. The words of idea of keeping alive their former estates. Church, C. J., as expressed in Guest v.

--- -- - - ---- Brooklyn, 69 N. Y. 506, are very pertinent


TER FOR ACTS OF ILL-TEMPERED OVERSEER. in this connection: “The right to make a

-Man's inhumanity to man has recently been public street is based upon public necessity,

the subject of many sad and theoretical oband the public should pay for it. To force

servations and discourses as well as the an expensive improvement upon a few prop outlet of much useless sentiment, liseless erty owners against their consent, and com

in this, that a man very often consents in theory

to that which he indifferently disregards in pel them to pay the entire expense, under

practice. The law, however, is always practical the delusive pretense of a corresponding

and regards with more favor the actual illustraspecific benefit conferred upon their prop

tion of the principle than the principle itself. erty, is a species of despotism that ought In the relation of master and servant the not to be perpetuated under a government temptation is very strong for the one in authority wbich claims to protect property equally

to gratify his sense of power by ill-treating and

insulting those who have submitted themselves with life and liberty."

to his fcontrol. But this practice of maltreat

ment and insolence is not so often found in the NOTES OF IMPORTANT DECISIONS. master himself as in some narrow gauged hire

ling whom he has raised to a position of authorTRUSTS-MERGER OF LEGAL AND EQUITABLE ity over his other servants. The principle ESTATE.--With all the favor which courts of wbich the law announces in such cases is that a equity show to trust estates, it seems impossible master owes an obligation to his servants not to to keep such an estate alive when the person in place incompetent, ill-tempered or unskilled whom the absolute equitable interest is vested is overseers or foreman over them. The practical also entitled to exactly the same interest at law. | application of this principle was well illustrated In other words, a man who is absolute owner is | by the recent case of Lamb v. Littmann, 38 S. E. not allowed to be a trustee for himself, and ac Rep. 911, when the Supreme Court of North cordingly "by whatever means, whether by con | Carolina held that where a mill owner places veyance or otherwise, a person obtains the abso | a man generally reputed to be ill-tempered and lute ownership at law of the estate, though he mean to children and other belp over a 10 year acquired that by an equitable title, and both | old boy, he will be liable for his violent handling

of the boy in urging him to the proper perform of deceit still hold good. The common law of ance of his work. Tbe court said:

England, though it exhorts honeste vivere, does Had the master committed the assault bis not visit civility as a tortious act, or criminally, liability would not be questioned. Then why | except in the witness-box, the mere telling of not be responsible for his representative, whom lies. In the case of contracts, of course, it is he knew, or ought to have known, to have been different; but to constitute a tort, to found an of such nature and cbaracter that the like result | action of deceit, there must be something more. would follow? Under the contractual relations The plaintiff must prove (i.) actual fraud; (ii.) existing between plaintiff and defendant, it was that the fraud was dans locum contractui; (iii.) the duty of plaintiff to render proper service and that he was, in fact, misled by it; (iv.) that he obey the commands and directions of his supe suffered loss as a natural consequence of his riors in the service. It was likewise the duty of doing so. All that the Directors' Liability Act, defendant, under those relations, to appoint as 1900, bas done is to qualify the second of these his representative a fit and competent person, conditions (ii.)-the necessity for the plaintiff not one of a cruel and mean nature, who would proving actual fraud by making it enough that use violent means in urging the performance of the directors bave made a misstatement without duty. We do not wish to be understood as hold. reasonable ground for believing it true. It was ing ibat the master is generally an insurer of the thought politic by the legislature thus to stretch good conduct of bis representative, or an insurer the law of deceit for the protection of the public against his violence resulting from bis own against a particular class of persons who enjoy malice or ill will or sudden outbursts of temper, special facilities for committing frauds, and are although in charge of the master's business but under a peculiar obligation to deal honestly and only when he puts in such representative as is candidly with the public. But the relaxtion of by him known, or ought to have been known, to the law of deceit goes no further. It would add be violent and mean, and the injury is the a new terror to life if for every idle word or carenatural result of such character."

less opinion a man bad to give an account in this

world as well as in the next.- Solicitors' Journal. CORPORATIONS – IMPROVIDENT ACTIONS AGAINST DIRECTORS.-"Yo wrong without a BANKRUPTCY-LIMITATION OF TIME PRIOR remedy" is one of those flattering illusions with TO BANKRUPTCY IN WHICH A PAYMENT MAY BE which law-or equity-beguiles the unwary into CONSIDERED A PREFERENCE.-One of the few litigation. The fallacy lies in the ambiguity of remaining controversies of any importance over the word "wrong." In the maxim sense it is the new bankruptcy act is that over the question injuria—a legal wrong--and so read, the proposi whether the time limit of four months, specified tion becomes little more than a truism; but to in subdivision -b” of section 60, apply to preferthe plain man a wrong means a grievance, and a

ences referred to in subdivision “g” of section 57, grievance may or may not be cognizable by the so as to limit the return of preferential payments law. The plain man caupot, therefore, be too care to those received during four months prior to ful in ascertaining, or having it ascertained for

| bankruptcy proceedings. District and circuit him, whether his particular grievance falls courts of appeals bave answered the question within the category of legal grievances-is, in differently, and are awaiting patiently the decisother words, an actionable wrong. Sbareholders ion of the supreme court to set the matter at are peculiarly prone to neglect this. They have rest. We called attention to this question and its been led to invest their money in an enterprise serious cbaracter in our editorial comment on wbich bas turned out disastrously; they have the recent case of Carson, Pirie, Scott & Co. v. lost it, and a retaliatory instinct urges them to ! Trust Co., 53 Cent. L. J. 1, where we said: seek redress from the directors, the supposed au "One question is yet undecided. Is the time thors of the wrong. Now, in this matter of re- limit of four months provided for in section 60b, dress against directors the law is highly tech- in regard to preferences wbich may be recovered nical, not to be invoked, as a recent case in the by the trustee, applicable also to sections 60a and court of appeals shows, without great care and 57g in regard to preferences which must be surcircumspection. To begin with, a personal action rendered to entitle the creditor to participate in by a shareholder against directors is quite the estate of the bankrupt? In section 60a no another thing from an action by a shareholder limit is set to when a payment may be a preferagainst the company to obtain rescission of his ence, except the insolvency of the debtor. It contract to take shares; so in an action by the would, therefore, seem that the decision in the company against directors as its managing case of In re Jones, reported in 4 Am. B. R. 563, agents to account or answer for misfeasance. The and holding that section 57g compels a surrender gist of the personal action against directors by a of a preferential payment of money, even though sharebolder is a tort, not a trust; it is that they received more than four months prior to bankbave by fraudulent or reckless misstatements in | ruptcy, as a condition precedent to sharing in the prospectus induced the plaintiff to join in a the assets, is the only logical deduction to be commercial venture, whereby he has sustained drawn from the plain wording of these sections loss. For this purpose the principles of an action and the construction put upon them by the su

preme court. The question of expediency under Tbis doctrine rests, not merely on the legal such construction becomes even more vital than

identity of busband and wife, but more par. before, but it is one for congress and not the ju

ticularly on ber duty to dwell with the busdiciary to determine." This question bas just recently come up for de

band wherever be dwells. If be commits cision in the case of In re Steers Lumber Co., 6 an offense wbich entitles the wife to seek : Am. B. R. 315, where the court follows the case dissolution of the marriage, she must abanof In re Jones, supra, and holds that there is no

don him or future cobahitation will gen. time limit to the operation of section 60a or to the

erally amount to condonation and bar ber preferences mentioned in section 57g, and a payment received from a bankrupt while insolvent,

claim to remedy.? though more than four montbs prior to the com So long as the unity of the marriage remencement of bankruptcy proceedings, creates a lation remains undisturbed the wife cannot preference under both of said sections. The

acquire & domicile other than that of her court in rendering the opinion said:

husband, nor can she acquire a separate "The court is constrained to the conclusion that there is no time limit to the operation of

domicile if separated from him, unless section 60a. The suggestion of the supreme

such separation is justified, or sbe is aban. court in Carson, Pirie, Scott & Co. v. Chicago doned. His domicile will be her domicile Title & Trust Co., 5 Am. B. R. 814, tends in such and will change with his thoroughout their direction, and the discussion of Judge Lowell

married life. Only for the purpose of (In re Jones, 4 Am. B. R. 563) states the view

bringing a suit for divorce may the wife actbat may be adopted most reasonably. Some limitation of time upon the operation of 60a may

quire a domicile or residence distinct from be advisable, but an examination of the act and that of her husband.8 of tbe different parts thereof fails to disclose The fact tbat busband and wife have that it exists."

separated by agreement will not enable The question at bar did not arise in the Carson

the wife to acquire a separate domicile. case, but counsel in that case referred to the four

This seems to be the rule in England and month' limit for the purpose of showing tbat if that was allowed the court-could travel outside": for the purpose of taking in the connecting ele 2 Twyman v. Tivyman, 27 Mo. 383; Quincy 6. ment of intent also. This argument was met by

Quincy, 10 N. H. 272; Delliber v. Delliber, 9 Conn. the court as follows:

235; Bishop, Mar. & Div. vol. 2, $$ 38, 40, 125; Pbelan "The argument is strong which is urged to sup

v. Phelan, 135 III. 447; Weigand v. Weigand, 42 N. J.

Eq. (15 Stew.) 699, 11 Atl. Rep. 113; Harper v. Har. port a four months' limitation; but it can be ar

per, 29 Mo. 301; Dutcher v. Dutcher, 39 Wis. 659; gued in opposition that subdivision 'a' needs no

Smith v. Smith, 19 Neb. 706, 28 N. W. Rep. 296. explanation from other parts of the statute in

3 Howland v. Granger, 45 Atl. Rep. 740, citing In re order to obtain a time limit on the question of Florance, 54 Hun, 328, 7 N. Y. S. 578; Sbute 1. preference. It can be argued that subdivision Sargent, 67 N. H. 305, 36 Atl. Rep. 282; Ditson v. Dit*a' gives such limit in the existence of insolve son, 4 R. I. 87; Harrison v. Harrison, 20 Ala. 629; ency. But we are not required to decide either Hardin v. Allen, 9 Greenlt. 140. way on this record. If the element of intent is

Maguire v. Maguire, i Dana, 181; Colburn v. Holnot to be interpolated into subdivision “a' of sec

land, 14 Rich. Eq. 176; Johnson v. Johnson, 12 Bush,

485; Greene v. Greene, 28 Mass. (11 Pick.) 410; MCtion 60, it must seem that the element of time is

Gown v. McGown, 18 Misc. Rep. 708, 43 N. Y. S. 745; not to be so interpolated.”

Johnson v. Jobnson, 75 Ky. 485. Contra: Chapman v. Chapman, 129 III. 386; Rundle v. Van Inwegan, 9.

Civ. Proc. Rep. 328; Arrington v. Arrington, 102 %. DUTY OF WIFE TO FOLLOW DOMI

Car. 491, 9 S. E. Rep. 200.

5 Cheever v. Wilson, 9 Wall. 108, L. Ed. 604; Lyon

v. Lyon, 30 Hun, 455; Derby v. Derby, 14 III. 645; It is a generally accepted rule of law that Hill v. Hill, 166 III. 54. the domicile of the wife follows that of her 6 Sbute v. Sargent, 67 N. H. 303, 36 Atl. Rep. 282. husband.

i Cooper v. Biers, 143 III. 25; Mason v. Homer, 105 Mass. 116; Barber v. Barber, 21 How. (U. S.) 103:

Bank v. Balcom, 35 Conn. 351; 5 Am. & Eng. Ency. Greene v. Greene, 28 Mass. (11 Pick.) 410; Hair 868. ston v. Hairston, 27 Miss. 701; Burnbam v. Rangeley, 8 Jeness v. Jeness, 24 Ind. 355, 87 Am. Dec. 333; 1 Woodb. & M. 7, Fed. Case No. 2176; Johnson v. Craven v. Craven, 27 Wis. 418; Derby v. Derby, 14 Ill. Turner, 29 Ark. 280; Jeness v. Jeness, 24 Ind. 355; App. 645; Lazovert v. Lazovert, Id. 653; White 1. McAfee v. Kentucky University, 70 Ky, (7 Busb) White, 18 R. I. 292, 27 Atl. Rep. 506; Mellen v. Mel. 135; Hick v. Hick, 68 Ky. (5 Bush) 670; len, 10 Abb. N. C. 329; Turner v. Turner, 44 Ala. 437; Baldwin v. Flagg, 13 N. J. Law (14 Vroom.), 495;, | Hewes v. Hewes, 61 Hun, 625, 16 N. Y. Supp. 119; Henderson s. Ford, 46 Tex. 627; Yule v. Yule, 10 N. | Hopkins v. Hopkins, 35 N. H. 474. J. Eq. (2 Stockt.) 138; Ditson v. Ditson, 4 R. I. 87; 9 Dolphin v. Robbins, 7 H. L. C. 390; Warrender v. Williams v. Saunders, 45 Tenn. (5 Cold.) 60.

Warrender, 3 Cl. & F. 488.

in many of our states, but in New York the application, saying: “It is her duty as a the rule is now well established that a wife faithful and obedient wife to accompany may acquire a domicile separate from that bim there."19 of her husband whenever it is necessary for In the Kennedy case, supra, the court said : her to do so, and wben husband and wife “In the case of Davis v. Davis, 30 Ill. 180, bave separated and agreed to live apart the the general and well-recognized rule of law wife's domicile cannot be drawn to that of was announced that the domicile of the busher husband without her consent or without | band is that of the wife, and the rule was ber actual presence at his place of resi. recognized in the case of Ashbaugh v. dence." The husband has the right to de. Asbbaugh, 17 III. 476, wbere it was said cide .where the matrimonial residence shall the residence of the wife follows that of the be, 12 and may without the consent of the husband."20 Whcre the husband's income wile, change it as often as his health, pleasure became reduced, and in order to curtail ex. or buisness dictates, 18 and when in good penses be removed to another bome in the faith be thus changes his residence and his same city, which was in every way suitable, wife refuses to go with him such refusal and his wife refused to accompany bim, the amounts to desertion.'4

court granted a divorce.2 In the case of It is the husband's right to fix the domi Hunt v. Hunt the parties were married in cile of the family, and the refusal of the Wisconsin, and later the husband established wife to accompany him and live with him on himself in the legal profession in New York, a change of residence, is desertion on her | supporting bis wife who remained in Wisconpart. She cannot control his right to fix sin. He requested her to live with him in bis residence where he will. 16

New York but she refused his requests say. In Cutler v. Cutler, the court said: “The ing "she could not think of it; she could not husband has the undoubted right to tbink of giving up her arrangements in Wischange his home as often as his business, | consin ; tbat she could not break up all her bis comfort or bis health may require; and arrangements and plans in compliance with so long as his conduct in this particular is that letter.” The court granted a divorce. 22 free from taint or cruelty we have no Willful refusal of the wife to live with her authority to criticise it.''17

husband in South Carolina where he had In Illinois, where the husband moved from moved after their marriage in Alabama con: bis old homestead to a new one about a mile stituted desertion on her part.23 distant, and his wife refused to join him, Desertion to constitute a ground for and insisted on remaining in the old home divorce under the statutes of most of with her brother to whom it had been con- | the states is generally, if not always veyed by herself and husband, the court qualified and “willful," "willful and granted the husband a decree of divorce on malicious" or "willful, continued and the ground of desertion. 18

obstinate' desertion must be proven.24 And On application of the wife for separate there are, however, limitations and excepmaintenance under the Illinois statute, tions to tbe general rule that it is the wife's where it was shown that the husband bad re | duty to follow her husband to a new resimoved to Michigan for good reasons, and dence. The busband cannot arbitrarily and the wife refused to follow, the court denied without reason compel the wife to conform 10 See ante note 4. 11 Rundle v. Van Inwegan, 9 Civ. Proc. Rep. 328. 19 Babbitt v. Babbitt, 69 II. 277.

12 Kennedy v. Kennedy, 87 Ill. 250; Hanberry v. 20 Kennedy v. Kennedy, 87 IV. 252. Hanberry, 29 Ala. 719; Cutler v. Cutler, 2 Brewst. 21 Beck v. Beck, 163 Pa. St. 649. (Pa.) 511; Stewart, Mar. & Div. $$ 221-253; Firebrace 22 29 N. J. Eq. 96. v. Firebrare, Law Rep. 4 Pro. & D. (Eng.) 63.

23 Hanberry v. Hanberry, 29 Ala. 719. 13 Cutler v. Cutler, 2 Brewst. (Pa.) 511.

24 Broughton v. Brougbton, 1 Del. Co. Rep. 273; 14 Gabn v. Darby, 36 La. Ann. 70; Hunt v. Hunt, 29 Bean v. Bean, 11 Lanc. Bar, 138; Appeal of Clark, 2 N. J. Eq. (2 Stew.) 96; Thompson v. State, 28 Ala. 12; Chest, Co. Rep. 38; Rose v. Rose, 50 Mich. 92, !4 N. Ralston v. Ralston, 10 Phila. 30.

W. Rep. 711; Davis v. Davis, 60 Mo. App. 545; Ser: 15 Angier y. Angier, 7 Phila. 305.

gent v. Sergent, 33 N. J. Eq. (6 Stew.) 204; Orr v. Orr, 16 In re Bye, 2 Daly, 525.

71 Ky. (8 Bush) 156; Jennings v. Jennings, 13 N. J. 17 2 Brewst. (Pa.) 511.

Eq. (2 Beasl.) 38; Rutledge v. Rutledge, 37 Tenn. (5 18 Kennedy v. Kennedy, 87 III. 250.

Sneed) 554; Cornish v. Cornish, 23 N. J. Eq. 208.

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