UNBORN CHILD RIGHT OF ACTION FOR WRONGFUL DEATH.-What rights have unborn children or their parents for injuries sustained while in that state of existence? This is certainly a very novel question of law, even if it is not one which is likely to arise with important frequency. An interesting phase of the question arose in the recent case of Gorman v. Budlong, 49 Atl. Rep. 704, where the Supreme Court of Rhode Island held that where a mother was injured through the negligence of defendant so that she gave premature birth to a child, which died as a result of the premature delivery, the statute did not entitle the child's father to maintain an action, as the next of kin, for its wrongful death. In this case Gen. Laws, ch. 233. § 14, provides that whenever death shall result from a wrongful act the next of kin may maintain an action therefor, if the negligence was such that the deceased could have maintained an action had he survived. A child en ventre sa mere is a child while yet unborn. Under Lord Campbell's Act, therefore, an infant may claim compensation for the loss, while en ventre sa mere, of an immediate relative. Nelson v. Railroad, 78 Tex. 621. This is about as far as the cases go in giving right to infants or parents to sue for injuries to either while the former are en ventre sa mere. That a parent cannot have a right of action in such case is based upon the fact that the sole reason giving a right of action in such cases is altogether wanting, i. e., loss of services. The services of a child in that stage of being is, of course, of no value whatever, and the father suffers no pecuniary loss in its death. J. Q. B. Div. 119, shook the authority of NOTES OF IMPORTANT DECISIONS. some of the older decisions in England and America. In that case, which was very extensively considered, boiler makers in commom employment with the respondents, who were shipwrights working on wood, objected to work with the latter on the ground that in a previous employment they had been engaged on iron work. The appellant an official of the boiler makers' union, in response to a telegram from one of the boiler makers, came to the yard and dissuaded the men from immediately laying down their work, as they threatened to do, indicating that, if they did so, he would do his best to have them deprived of the benefits of the union, and also fined. They must wait until the matter was settled. The appellant then saw the managing director, to whom he said that if the respondents, who were engaged from day to day, were not dismissed, the boiler makers would leave their work or be called out. The respondents were thereupon dismissed. Held by six of their lordships as against three, that no actionable wrong had been committed by the appellant. In the very recent case of Hollenbeck v. Ristine, 86 N. W. Rep. 377, the Supreme Court of Iowa held generally that one person cannot advise another to discharge an employee, accompanying his advice with libelous charges and escape liability therefor. In this case the surgeon of a street railroad intimated to the president that he would discontinue his relation with the company unless a certain employee, a conductor on the road, was discharged. It seemed that the conductor owed the physician a bill for services which the latter claimed he refused to pay but was "cowardly slinking behind the statute of limitations." The court, in commenting on the case of Allen v. Flood, says: "In that case the appellant made no malicious charge against the complainants. There was no evidence of threat or coercion. We ASSIGNMENT OF UNEARNED SALARY.-The question of the validity of an assignment of unearned wages is often litigated. In its application to public officers this question arose recently in the case of Holt v. Thurman, 63 S. W. Rep. 280, where the Supreme Court of Kentucky held that the assignment by a public officer of salary to be earned in future is void as against public policy. We review the latest authorities on this question as follows: An assignment of wages to become due, without limit as to amount or time, and without acceptance by the employer, and without notice to attaching creditor is void as to such creditor. Steinbach v. Brant, 29 Minn. 383, 82 N. W. Rep. 651. An assignment of future wages which may be earned under a contract of employment. ings. Dolan v. Hughes (R. I. 1898), 40 Atl. Rep. 344; Wellborn v. Buck (Ala. 1897), 18 South. Rep. 786. Where an assignment of salary or fees to become due to a district attorney is not filed until after such services are rendered, the assignment will be considered as made before the rendition of such services. State v. Barnes (S. D. 1897), 73 N. W. Rep. 80. An assignment by an assessor or other public officer of his salary or compensation, for future service, is contrary to public policy and void. This rule applies also where the service is continuing and incomplete, not yet payable. Stevenson v. Kyle (W. Va. 1896), 24 S. E. Rep. 886. REMAINDERS-SALE BY PARENT AS LIFE TENANT FOR REINVESTMENT.-Whether a court of equity has authority to authorize a parent, who has a life estate in realty, with remainder over to her min orchildren, to sell the property in fee for the purpose of reinvestment, or to enhance the interest of the remainder-men, and whether such a sale defeats the interest of such remainder-men, has always been an interesting and controverted question. In the recent case of Hoskins v. Ames, 29 South. Rep. 828, the Supreme Court of Mississippi held that where a mother, who owns a life estate in real estate, with remainder over to her minor children, sells the property in fee under an order of court, which sale is invalid as to the remainder, limitations in favor of the purchaser do not commence to run against the remainder men until the death of the mother. The court gives this interesting review of the origin of the review in England: "In England the rule is well settled that such equity has no inherent power to sell the real estate of an infant as being for its best interest or for rein. vestment. Lord Chancellor Hardwicke, declared by Lord Campbell to be the most consummate judge who ever sat in the court of chancery, in Taylor. Philips, 2 Ves. Sr. 23, said: "There is no instance of this court's binding the inherit. ance of an infant by any discretionary act of the court. As to personal things, as in the composition of debts, it has been done, but never as to the inheritance; for that would be taking on the court a legislative authority.-doing that which is properly the subject of a private bill.' And since that time-a period of more than 150 years-we find no case in the English decisions that contravenes the doctrine established in that case. English parliament was accustomed, at the suggestion of the judges, to pass a bill authorizing the court of equity to decree a sale of the infant's real estate for reinvestment; but the court of its own authority, as an equity court and without the power conferred by a legislative act, has always declined to order the sale of the inheritance of an infant. Edmund Hatch, in his will, devised a life interest to his daughter and a fee to her children, his grandchildren. It is the clear intention of the testator that the life tenant should have no power to dispose of the fee; and yet if, by a petition in the chancery The court, it can invest him with the power of sale, the intention of the testator is defeated. The power to make the devise is useless if equity can, in effect, annulit. Many American courts hold to the English doctrine on this subject; while many also hold that equity may decree the sale of land of an infant whenever it shall be for its interest to have a sale of them made. In reference to these American cases we are disposed to repeat what was said by the court in Freeman v. Guion, 11 Smedes & M. 58, above quoted, at most, if not all, the American cases holding a doctrine adverse to the English rule, have been decided since the adoption of our constitution of 1832, and of necessity it was not adopted with any reference to their holdings." A list of the authorities on each side of the question may be found in the ease of Kichards v. Railway Co., 106 Ga. 614, 33 S. E. Rep. 193. JUDGMENT EQUITABLE ASSIGNMENT.-The equitable assignment of judgment is a question often litigated. An interesting phase of the question appeared recently in the case of Harris v. Manufacturing Co., 30 South. Rep. 273. In that case complainant recovered a judgment of $436.13 against defendant, and a few days later defendant recovered a judgment of $200 against complainant. Defendant was insolvent, and had agreed to give his attorneys 40 per cent. of the judgment recovered in his favor. Complainant sued to set off the defendant's entire judgment of $200 against a like amount of complainant's judgment. Held, that there was an equitable assignment in præsenti of 40 per cent. of the judgment to defendant's attorneys, and it was error to grant the set off for the full amount. The most striking part of the court's opinion is its reference to the briefs of counsel. The court said: The principles of law applicable, and the auhorities in which they may be found on both sides, are so admirably set forth by the respective counsel for appellant that we direct their briefs to be published in full." We quote from appellant's brief as follows: "An assignment of a cause of action may be either a legal assignment or it may be equitable assignment. In case of a legal assignment, as a matter of course, all the formalities of transfer have to be complied with. But where it is an equitable assignment it does not obtain its validity from the observance of legal formalities, but from the intention of the parties. Any order, writing, or act, or any oral or written declaration evidencing an intention to make an assignment, is just as effectual as the most formal instrument. The leading authority is to be found in Pass v. McRhea, 36 Miss. 143; 3 Pom. Eq. Jur. §§ 1271, 1282; and Williams v. Ingersoll, 89 N. Y. 518. Also the following authorities are cited: Bisp. Eq. § 167; Macklin v. Kinealy, 141 Mo. 113, 41 S, W. Rep. 893; Story, Eq. Jur. 376. The agreement by Harris to give his attorneys 40 per cent. of the amount' that they should recover in judg ment vested in the attorneys, then and there a valid equitable interest in the judgment. Harris has done all that he could do to make an equitable assignment to his attorneys. And if it is an equitable assignment as to him, it must be an equitable assignment to all parties who represent him, and they cannot avail themselves of any irregularties that Harris himself could not take advantage of. A leading case on this subject is to be found in Patton v. Wilson, 34 Pa. 299, and at the close of the opinion to be found in Ramsey's Appeal, 27 Am. Dec. 301; 3 Pom. Eq. Jur. §§ 1271, 1282; Bish. Eq. § 167. "A judgment creditor only gets the right to satisfaction of his judgment out of the property that his judgment debtor actually owns, and his judgment lien only extends to the actual interest of the judgment debtor in any property on which he attempts to have his judgment satisfied, and if his judgment debtor is the apparent owner of any property, and an execution is levied by the judgment creditor on that property, and it is impressed with an equitable ownership in some third party, the equitable owner of the title is obliged to prevail, as against the execution of the judgment creditor without notice, for the reason that he can only succeed to such interest as the judgment debtor had in the property, and, being a volunteer, so to say, he cannot complain that he has no notice of the equitable ownership. Foute v. Fairman, 48 Miss. 536; Mississippi Val. Co. v. Chicago, St. L. & N. O. R. Co., 58 Miss. 846." Other cases which might be cited: Ames v. Bates, 119 Mass. 399; Hovey v. Morrill, 60 Am. Rep. 316; Van Pelt v. Boyer, 8 How. Pr. 320; Swift v. Prouty, 64 N. Y. 546; Hackett v. Connett, 2 Edw. Ch. 73; Deans v. Robertson, 64 Miss. 195. DOES THE UNITED STATES CONSTI TUTION INHIBIT STATE LAWS LIM- It is proposed to deal with this question irrespective of the wording of particular statutes, on its merits, in the light of judicial determination which seems to be in point, and the language of the constitution itself, as construed by the courts and leading text book writers. Should it or not seem possible, under existing law, that such statutes may be enacted, it is beyond the purpose of this article to discuss the desirability of doing so. In the absence of a constitutional bar, the latter question is purely legislative in character and thus beyond the purview of judicial inquiry to which is confined the anestion colonies and Great Britain, it is declared "that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do." This clause, considered in connection with the events succeeding the promulgation of the instrument which contains it, indicates an intention on the part of the colonists to be "free and independent" from restraint of whatever character, to the fullest extent consistent with the protection and conservation of their individual rights and liberties. The same instrument indicates further the state of mind to which oppression of various kinds had led the founders of our government, when it is declared that "we hold these truths to be self-evident that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness." * It cannot be doubted that the same ideas were present in the minds of the framers of our constitution, or that it was sought in the latter instrumeat to give permanent effect to the declarations of the former. In the present inquiry it becomes, therefore, pertinent to investigate the meaning of the "full power to establish commerce," and of "life, liberty, and the pursuit of happiness." The federal constitution, article 1, section 8, provides that: The congress shall have power, to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Concerning what constitutes commerce between the several states Judge Cooley, in his Principles of Constitutional Law, at p. 66, says: "To constitute commerce between states it is essential that it be not confined to one state exclusively, but concern more than one. * The commerce of a state which congress may control must in some stage of its progress be extraterritorial.” In this connection he cites the following cases. In Veazie v. Moor2 it is said: "A pretension as far reaching as this-'that because the products of domestic enterprise in agriculture or manufactures or in the arts may ultimately become the subjects of commerce outside the state, that the control of the means or the encouragements by which enterprise is fostered and protected is implied in the important grant of power'-would extend to contracts between citizen and citizen of the same state, would control the pursuits of the planter, the grazier, the manufacturer, the mechanic, the immense operations of the collieries, the mines and furnaces of the country; for there is not one of these avocations the results of which may not become the subjects of foreign commerce, and be borne, either by turnpikes, canals, or railroads, from point to point within the several states, towards an ultimate desti Such a pretension would effectually prevent or paralyze every effort at internal improvement of the several states; for it cannot be supposed that the states would exhaust their capital and their credit in the construction of turnpikes, canals, and railroads, the remuneration derivable from which might be immediately wrested from them, because such public works would be facilities for commerce which, whilst availing itself of these facilities, was unquestionably internal, although immediately or ultimately it might become foreign." It follows that, because of its very nature, labor is not to be included within the commerce, power to control and regulate which is granted to congress. What, then, may be the federal powers, touching labor, under other clauses of the constitution? The clauses which bear upon the question are as follows: "The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."'3 "No person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation."4 "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." In his Article 4, Section 2. ✦ Amendments, Article 5. Amendments, Article 14. Principles of Constitutional Law, p. 225, Judge Cooley says: "Life and liberty.These words are used in constitutional law as standing for and representing all personal rights whatsoever, except those which are embraced in the idea of property. The comprehensive word is liberty; and by this is meant, not merely freedom to move about unrestrained, but such liberty of conduct, choice and action as the law gives and protects." In his Constitutional Limitations, at p. 734, the same author says: "In the early days of the common law it was sometimes thought necessary, in order to prevent extortion, to interfere, by royal proclamation or otherwise, and establish the charges that might be exacted for certain commodities or services. The price of wages was oftener regulated than than of anything else, the local magistrate being generally allowed to exercise authority over the subject. The practice was followed in this country and prevailed to some extent up to the time of independence. Since then it has commonly been supposed that a general power in the state to regulate prices was inconsistent with constitutional liberty. It has nevertheless been conceded that in some cases this might be done; * the ground appears to be that the employment ployment *** is a public or quasipublic employment; that their property in the business is 'affected with a public interest.' and thereby brought under that general power of control which the state possesses in the case of other public employment. What circumstances shall affect property with a public interest is not very clear. The mere fact that the public have an interest in the existence of the business and are accommodated by it cannot be sufficient, for that would subject the stock of the merchant and his charges to public regulation. The public have an interest in every business in which an individual offers his wares, his merchandise, his services, or his accommodations to the public; but his offer does not place him at the mercy of the public in respect to charges and prices. In the following cases we should say that property in business was affected with a public interest: 1. Where the business is one the following of which is not of right, but s permitted by the state as a privilege or i Thus clearly is it stated by the eminent authority quoted that the rights indicated by the words "life, liberty and property," as here used, include all personal rights whatsoever, emphasizing meanwhile the proposition that the only rights which our constitution contemplates shall be conserved to the individual are such as may be exercised with due consideration to the equal rights of others. He also points out that the right to labor and to contract for the employment of labor as shall seem best to the contracting parties, has, since the institution of our government, been considered so distinctively a matter of personal concern, properly independent of governmental interference, as that its regulation by the state has been deemed "inconsistent with constitutional liberty." Concerning the right of the individual to seek employment for his labor, the same learned authority says: "The general rule is that every person sui juris has a right to choose his own employment, and to devote his labor to any calling, or at his option to hire it out in the service of others. This is one of the first and highest of all civil rights, and any restrictions that discriminate against persons or classes are inadmissible. undertake to provide that persons following some specified lawful trade or employment should not have capacity to make contracts, or to receive conveyances, or to build such houses as others were allowed to erect or in any other way to make such use of their property as was permissible to others, it can scarcely be doubted that the act would transcend the due bounds of legislative power, even though no express constitutional provision could be pointed out with which it would come in conflict. To forbid an individual or a class the right to the acquisition or enjoyment of property in such manner as should be permitted to the community at large, would be to deprive them of liberty in particulars of primary importance to their 'pursuit of happiness;' and those who should claim a right to do so ought to be able to show a specific authority therefor, instead of calling upon others to show how and where the authority is negatived." Also: "The general rule undoubtedly is, that any person is at liberty to pursue any lawful calling, and to do so in his own way, not encroaching upon the rights of others. This great right cannot be taken away. It is not competent, therefore, to forbid any person or class of persons, whether citizens or aliens, offering their services in lawful business, or to subject others to penalties for employing them."s Again: "Every person sui juris has a right to make use of his labor in any lawful employment on his own behalf or to hire it out in the service of others. This is one of the first and highest of civil rights." Also: "Every man controls his own property as he pleases, puts it to such use as he pleases, improves it or not, as he may choose, subject. only to the obligation to perform, in respect to it, the duties he owes to the state and to his fellows. The state cannot substitute its judgment for his as to the use he should make of it for his own advantage.' 10 79 Along similar lines is the following: "In so far as the employment of a certain class in a particular occupation may threaten or inflict damage upon the public or third persons, there can be no doubt as to the constitionality of any statute which prohibits their 7 Cooley's Constitutional Limitations, p. 486. 8 Cooley's Constitutional Limitations, p. 745. 9 Cooley on Torts, p. 326. 10 Cooley on Torts, p. 337. |