« PreviousContinue »
The Central Law Journal. ence is not fraudulent either in law or in fact.
Uhler v. Maulfair, 11 Harris, 481; Hart v.
Covanhovan, 9 id. 495; Hopkins v. Beebe, 2 SAINT LOUIS, JUNE 14, 1878.
Casey, 85. A debtor may even prefer a bona
fide creditor by a confession of judgment, alCURRENT TOPICS.
though the claim were not enforceable at law. Keen v. Kleckner, 6 Wright, 529.
In Brown v. Pyle, 5 W. N. 394, recently decided by the Supreme Court of Pennsylvania, a father had agreed to pay his son
The Supreme Court of the United States specific sum for work to be done during his
in re Jackson, have just delivered an important minority; but no ote was given, nor was any
opinion concerning the postal laws of the
United States. written agreement made between them. Six
Section 3,894, of the Reteen years afterwards the father, when insolv
vised Statutes as amended, provides that ent, gave his son his judgment note, payable
“No letter or circular concerning lotteries, on demand, in payment of his son's services.
so-called gift-concerts, or other similar enTo the fund arising from a sheriff's sale of the
terprises offering prizes, or concerning
schemes devised and intended to deceive and personal property of the father upon execution under this judgment, the father's credi
defraud the public for the purpose of obtaintors contested the son's claim, averring that
ing money under false pretenses, shall be it was a fraud upon their rights, and therefore
carried in the mail;' and that “ any person void. The court held (reversing the decree of
who shall knowingly deposit or send anything the court below), that the judgment was valid,
to be conveyed by mail in violation of this and that the preference was not a fraud upon
section, shall be punishable by a fire of not
more than five hundred dollars nor less than the creditors, the consideration being honest and the debt justly due.
That a father may
one hundred dollars, with costs of prosecuso manumit his son as to authorize him to tion.” The petitioner was indicted under contract with an employer, and receive his
this law in the Circuit Court of the United earnings to his own use, is well established.
States for the Southern District of New York, Galbraith v. Black, 4 S. & R. 407; United
for unlawfully depositing in the United States States v. Mertz, 2 Watts, 406.
mail, to be conveyed by it, a circular conthis although he be insolvent. Holdship v.
cerning a lottery prize enterprize enclosed in Patterson, 7 id. 547. Although he be legally
an envelope addressed to another person. entitled to the wages of his minor son, he is
He was convicted and sentenced to a fine of not bound to claim them for the benefit of his
$100. He thereupon appealed to the Sucreditors. McCloskey v. Cyphert, 3 Casey, preme Court for a habeas corpus on the 220. In this last case, it was said by Mr. Jus- ground of the unconstitutionality of the act tice BLACK: “This emancipation of the son
under which he was convicted. This the from the father's control may be as perfect Supreme Court refused, holding as follows: when they both live together under the same 1. The power vested in Congress to establish roof as if they were separated. The father's
"post-offices and post-roads" embraces the renunciation of all legal right to the son's la
regulation of the entire postal system of the bor is not the less absolute because other family
country. Under it Congress may designate ties continue unbroken.” He may so relin- what shall be carried in the mail, and what quish his right to the services of his minor shall be excluded. 2. In the enforcement of son that he can not reassert that right, either regulations excluding matter from the mail, a against the son or other persons.
distinction is to be made between different Campbell, 24 P. F. S. 470. If the consider- kinds of mail matter; between what is ination in this case was honest, and the debt
tended to be kept free from inspection, such justly due, it was no fraud on the other cred- as letters and sealed packages subject to letitors to thus prefer the son, except as
ter postage; and what is open to inspection, against a bankrupt law. A debtor may pre- such as newspapers, magazines, pamphlets, fer one creditor to another, and such prefer- and other printed matter, purposely left in a
Vol. 6—No. 24.
condition to be examined. 3. Letters and solution of the question," said the court, sealed packages subject to letter postage in depends on the construction of the words the mail can only be opened and examined un- 'for a less sum than one dollar. The obder like warrant, issued upon similar oath or ject of the provision was obviously to secure affirmation, particularly describing the thing as far as possible the field for the circulation to be seized, as is required when papers are of stamps, as provided in the preceding secsubjected to search in one's own household. tion, without competition from any quarter. The constitutional guaranty of the right of This currency was superseded by the fracthe people to be secure in their papers against tional notes authorized to be issued by the unreasonable searches and seizures extends to act of March 3, 1863, § 4, 12 Stat. 711. their papers, thus closed against inspection, Small notes payable in any specific articles, if wherever they may be 4. Regulations against issued, could have only a neighborhood cirthe transportation in the mail of printed mat- culation, and but a limited one there. It ter, which is open to examination, can not be could be but little in the way of the stamps enforced so as to interfere in any manner with or small notes issued for the purposes of cirthe freedom of the press. Liberty of circu- culating change by the United States. Conlating is essential to that freedom. When, gress could, therefore, have had little or no therefore, printed matter is excluded from the motive to interfere with respect to the former. mail, its transportation in any other way can This must be borne in mind in the examinanot be forbidden by Congress. 5. Regula- tion of the question in hand. A dollar is the tions excluding matter from the mail may be unit of our currency. It always means monenforced through the courts, upon competent ey, or what is regarded as money. In evidence of their violation obtained in other this case the statute makes it the standways than by the unlawful inspection of let- ard of measure with reference to tbe forters and sealed packages; and with respect to bidden notes and obligations. If one of objectionable printed matter, open to examin- them be for a larger • sum than one dollar,' tion, they may in some cases also be enforced it is not within the prohibition and is not afby the direct action of the officers of the fected by the law. It is a fair, if not a necpostal service upon their own inspection, as essary inference, that the standard of measwhere the object is exposed and shows un- urement named was intended to be applied mistakably that it is prohibited, as in the case only to things ejusdem generis, in other words, of an obscene picture or print.
to notes for money and to nothing else. It is certainly inapplicable to any thing not
measurable by the pecuniary standard. The act of Congress, of July 17, 1872, $ could not be applied where the measurement 2, (12 Stat. 592 ; Rev. Stat. 711, § 3583) de- was to be ex gratia, by the pound, the gallon, clares that “no private corporation, banking the yard, or any other standard than money. association, firm or individual shall make, This view is supported by the statutory reissue, circulate, or pay out any note, check, quirement that the forbidden thing must memorandum, token or other obligation, for be “intended to circulate as money, or to be a less sum than one dollar, intended to circu- received or used in lieu of the lawful money of late as money, or to be received or used in the United States.' One of the lexical defilieu of the lawful money of the United nitions of the word 'sum,' and the sense in States," under a penalty of fine or imprison- which it is most commonly used, is ' money.' ment, or both. In United States v. Van "Sum. (2) A quantity of money or curAuken, decided by the Supreme Court of the rency; any amount indefinitely, as a sum of United States during its present term, the money, a small sum, or a large sum.'—Webdefendant was indicted under this act for cir- ster's Dic. · For a less sum than one dollar,' culating an instrument in the following words: means exactly the same thing as, for a less sum “The Bangor Furnace Company will pay the of money than one dollar. In the former case bearer on demand fifty cents in goods at their there is an ellipsis. In the latter it is supplied. store in Bangor, Mich.” The court held The implication where the omission occurs that the instrument not being payable in legal is as clear and effectual as the expression money, was not within the statute. “The where the latter is added. The grammatical
construction and the obvious meaning are the
An acquittal or conviction, thereThe statute makes the offense to con- fore, of killing B, ought not, on principle, to sist of two ingredients: (1) The token or ob- bar a subsequent indictment for killing C, ligation must be for a less sum than a dollar. though the killings were by the same blow.23 (2) It must be intended to circulate as A similar question arises in larceny. Thus money, or in lieu of the money of the United when several articles belonging to the same States. Here the note is for goods,' to be owner are stolen by the same person simultapaid at the store of the Furnace Company. It neously, they may be grouped in the same is not payable in money, but in goods, and in count, and a conviction or acquittal on such goods only. No money could be demanded count, or on any divisible allegation thereof, upon it. It is not solvable in that medium. bars a future indictment for the stealing of Watson v. McNairy, 1 Bibb, 356. The sum the articles enumerated in the count. 24 of 'fifty cents' is named, but merely as the But as the better opinion is that there can limit of the value in goods demandable and to be no joinder of larcenies of distinct articles be paid upon the presentment of the note. belonging to different owners, 25 it follows Its mention was for no other purpose and has that a conviction or an acquittal for stealing no other effect. In the view of the law the or feloniously receiving the goods of B, note is as if it called for so many pounds, does not bar a prosecution for stealing or yards, or quarts of a specific article. The receiving the goods of C, though the acts were limit of value, there being none other, gave simultaneous. Indeed, though the offenses the holder a range of choice as to the articles were nominally the same, they may be subto be received in payment-limited only by stantially different, since one article may be the contents of the store.”
taken under a claim of right, and the other
with felonious intent, the only point in comCONSECUTIVE TRIALS FOR THE SAME mon being concurrence in time in the tak
OFFENSE.-II. The cases we have just been considering Another reason for the conclusion just given hinge upon the identity of offenses so far as is that if, in those jurisdictions which hold the concerns their subjective scope.
joinder of articles belonging to different proach an interesting line of cases where the owners to be duplicity, we should refuse a dispute is, not as to the nature of the offense, subsequent indictment for goods stolen from considered by itself, but as to whether the va- an owner different from the owner named in riation of the object, or the grouping of two the first indictment, we would deprive the objects together, constitutes divisibility in the offense. If A, for instance, in shooting
See R. v. Champneys, 2 M.& R. 26; R. v. Jennings,
R. & R. 368; State v. Damon, 2 Tyler, 390; State v. at B, kills both B and C, is his conviction un- R. 338; State v. Fife, 1 Bailey, 1; State v. Fayetteville, der an indictment for killing B a bar to a
Benham, 7 Conn. 414; People v. Warren, 1 Parker C.
2 Murphy, 371; State v. Standifer, 5 Port. 523; prosecution against him for killing C? In answering this question let us remem- 7 Grat. 593; See, however, State v. Womack, 7 ber that to join the killing of B and C in the
Cold. 508. And as disputing the text, see Clem v.
State, 42 Ind. 420. See, also, Whart. on Hom. $$ 28-48. same count would be a duplicity that would
for a discussion of whether grade in all cases of double not be tolerated ; and that if joined in the killing is identical. same indictment in separate counts, the court
(24) R. v. Caison, R. & R. 303; Furneaux's case, R.
& R. 335; State v. Cameron, 40 Vt. 555; Com. v. Wilwould compel an election between the offenses. liams, 2 Cush. 583; Com. v. O'Connell, 12 Allen, 451; It would be necessary, therefore, to prosecute
Com. v. Eastman, 2 Gray, 76; Jackson v. State, 14 Ind.
327; State v. Williams, 10 Humph. 101; Torton v. the cases separately; and if so, it is hard to
State, 7 Mo. 55; People v. Wiley. 3 Hill (N. Y.) 194; see how a conviction or acquittal of the one though see 1 Hale, 241; R. v. Brettiel, C. & M. 609; could bar a prosecution of the other. To the
Com. v. Sutherland, 109 Mass. 342; State v. Thurston,
2 McMul. 382. indictment for killing B, for instance, A might (25) State v. Newton, 42 Vt. 537; Com. v. Andrews, set up self-defense and be acquitted ; but this
2 Mass. 409; State v. Thurston, 2 McMullen, 382;
though see Com. v. Williams, Thatcher's C. C. 722; might be plausibly argued to be an issue dif
State v. Nelson, 29 Me. 329; Ben v. State, 22 Ala. 9; ferent from that which would be presented on Com v. Dobbin, 2 Pars. 380; Lorton v. State, 7 Mo. 55. his trial for killing C, should it appear that
(26) R. v. Knight, L. & C. 378; 9 Cox C. C. 439; Com.
v. Andrews, 2 Mass. 409; State v. Thurston, 2 McMul. the killing of C was an unprovoked or negli- ! 382; People v. Warren, 1 Parker, C. R. 338.
We now ap
owner in the second case of his right to a res
ROBBERY EN ROUTE-VENUE. toration of the goods by sentence of court, when it might be that he had no notice of the
MARGERUM AND SEYMOUR STATE OF
TENNESSEE. first prosecution. An apparent exception to the rule before us
Supreme Court of Tennessee, April Term, 1878. exists in cases of assaults and batteries, in which it is conceded that if there be a battery
Hox. JAMES W. DEADERICK, Chief Justice.
ROBT. MCFARLAND, on several persons by one blow, a conviction
Associate Justices. or acquittal for a battery on one of these per
T.J. FREEMAN, sons bars a subsequent prosecution for a bat- The defendants having committed a robbery in Fay. tery on the other. And the reason of this is ette county while traveling to Shelby county as pris. plain. It is agreed on all sides that a count
oners in charge of an officer, and the property having
been recovered from them in the latter county; Held, charging a battery on A, B and C is good. that they were lawfully indicted and tried in the Such being the case, if the prosecution neg
latter county. lects to make such a joinder, it is properly
8. B. Horrigan, for plaintiff in error; Attorneyprecluded from further proceedings based on General Heiskell, for the state. the same blow. It would be an undue vexa- FREEMAN, J., delivered the opinion of the tion of the defendant to permit him to be thus court. oppressed.
The only question in this case is whether the To the doctrine thus stated another quali- parties could be rightfully tried in Shelby county, fication has been proposed. Suppose the
the original taking being in Fayette county. The
facts are that the parties were chained together, prosecution could have, if it chose, prose
and in custody of the sheriff of Madison county, cuted the offenses in a single count, (e. g., being carried from this county to the jail of Shelby assault and assault with intent to wound) but county, to which they had been remanded by ordid not do so, yet on a count for assault put
der of this court, for new trials granted in their
cases. The prosecutor, one Curry, was in the car the aggravated offence in evidence, and ob
where the prisoners were, when the defendants got tained a conviction on the aggravated case, into a difficulty with him, and robbed him of his and a sentence accordingly. Can a second watch and chain. They carried it on to Shelby indictment be maintained for the aggravated
county, where it was taken from the possession of
another prisoner, who was along with them in the offerse? The answer must be in the negative,
It is insisted this was not a voluntary carrysince the prosecution cannot take advantage ing of the property into Shelby county, so as to of its own negligence in the imperfect pre- make the parties indictable in that county, but sentation of its case, and since the defendant
that Fayette county is the county of the venue. has been tried and convicted on the basis of
In support of this view, the case of Rex v. Sim
monds, Moody's Cr. Cas., vol. 1, 408, is cited. In the aggravated offense. 27
that case the prisoner was indicted in the county Should the defendant be acquitted on the of Kent, for stealing two horses. He was apprefirst trial, the whole case of the second being
hended in Surrey, and stated he had been to before the jury, then as he has been acquit- Dorking to bring
the horses, and they belonged
to his brother. The police officer then proposed ted of what is an essential ingredient in the
to go to Bromley with him, in order to ascertain second case, the second case cannot proceed. the facts. After going part of the way, the de
fendant said he had left a parcel at some place in
Kent, whereupon the police officer went to Kent (27) R. v. Elrington, 9 Cox C. C. 86, 1 B. & S. 689;
with him. When they arrived at the designated 10 W. R. 13; citing R. v. Stanton,5 Cox C. C. 324;Thomp- place, the horses were put up and the prisoner esson, in re, 9 w. R. 203; see State v. Smith, 43 Vt. 324; caped, but was afterwards arrested and tried in State v. Stanley, 4 Jones L. (N. C.) 290. The English Kent. It was held by the judges of England, that rulings above cited, however, took place under a stat
there was no evidence of stealing in Kent, and that ute providing that after a trial by justices there shall be no further proceedings civil or criminal, “for the
the prisoner was only triable in Surrey, where the same cause."
horses were taken. This is all very well, but does not meet this case. Here the prisoners stole
the articles while in custody of the sheriff WILLIAM F. ALLEN, an Associate Justice of the
with the purpose of carrying them to Shelby New York Court of Appeals, died at his home in Os
county, their certain destination. The watch and wego, in that state, on the 3d inst. He was admitted
chain were so carried in pursuance of this purpose, to the bar in 1829, appointed United States District Attorney in 1845, elected to the Supreme Court of the
so that the carrying into Shelby was as much their state in 1848 and 1856, and to the Court ef Appeals in voluntary act as if they had been free froin cus1870.
tody, and had stolen the articles in one county with
ACTING under authority of a statute of Arkansas, a probate court of that state ordered and adjudged that the disability of non-age of G be removed, “so far as to authorize him to demand, sue for and receive all moneys belonging to him in the state of Missouri, in the bands of his curator or any other person, and to execute releases therefor in the same manner as if he was of full age.” In a suit brought by G, in Missouri, against his curator: Held, that the statute of Arkansas was inoperative in Missouri, and that the infant could not sué in his own name.
ERROR to the Cooper Circuit Court:
SHERWOOD, C. J., delivered the opinion of the court:
Suit upon the defendant's bond as curator of the estate of the relator.
The petition avers that the relator, Willie Gilbreath, is an infant under the age of twenty-one years, and is now a resident of Washington county, in the State of Arkansas, and that Bunce is the curator of his estate, acting under appointment of the Probate Court of Cooper county, Missouri, and has in his hands as curator notes and money amounting to the sum of two thousand dollars; that the General Assembly of the State of Arkansas, by an act approved February 18th, 1869, entitled, “An act to confer upon the probate and circuit courts, of the State of Arkansas, certain powers for removing legal disabilities of minors;" empowered the several probate courts of the state to authorize any person who is a resident within their jurisdiction, and who is under twenty-one years of age to transact business in general, or any particular business specified, in like manner and with like effect as it the act or thing was done by a person above that age, and that such act should have the same force and effect as if done by a person of full age; that in pursuance of said act the Probate Court of Washington county, Arkansas, at its September term, 1875, ordered and adjudged that the disability of non-age of said Willie Gilbreath be removed so far as to authorize him to demand, sue for and receive all moneys belonging to him in the State of Missouri, in the hands of his curator or any other person, and to execute re
leases therefor in the same manner as if he was of full age;" that by virtue of said act and judgment the legal disability of non-age was removed so far as to authorize him to demand, sue for and receive all money belonging to him in the hands of his curator in the State of Missouri. The petition then sets out the bond of the defendant Bunce as curator, and for breach thereof alleges the refusal of Bunce to pay over the money upon demand and asks judgment for the amount in his bands.
The suit is prosecuted by plaintiff in his own name and he appears thereto by attorney. The defendants demurred to this petition alleging as grounds thereof that the petition showed upon its face that Willie Gilbreath was an infant under twenty-one years of age, and that he could not prosecute this suit by attorney but must do so by next friend; that it also showed that Bunce was lawfully possessed of the money and therefore stated no cause of action; that the act of the legislature and the order of the Probate Court of Arkansas was of no validity in this state, and could not affect the property under Bunce's control; and lastly because the petition stated no cause of action. The petition was held insufficient and final judgment entered for the defendant and the case comes here by writ of error.
The demurrer was well taken in that the petition showed upon its face that the party to whose use this suit is brought is an infant under the age of twenty-one years and does not appear by guardian in conformity to the statutory regulation. $ 6 p. 1014, 2 W. S.; Ib. § 1 et seq., p. 1003; Higgins v. R. R. Co., 36 Mo. 419; Jones v. State, Ib. 324; Copeland v. Yoakum, 38 Mo. 319.
But the demurrer was well taken for a far weightier reason, a reason going to the very foundation of the suit. The legislature of Arkansas did not possess the power to pass a law to override and control our laws, no more could it authorize the Probate Court of Washington county to do this. Smith v. McCutchen, 38 Mo. 415; Story Confl. Laws 88 539, 18, 103. Our own statutes (1 W. S. p. 672 § 1, and p. 681 § 48) provide when infants shall attain their majority, and they must be our guides and not the laws which emanate from a foreign jurisdiction.
Judgment affirmed. All concur.
NOTE.-Statutes regulating capacity have given rise to no little conflict of authority. The civilians generally hold that the law of the domicil determines personal capacity, but in this country and in England it has generally been held that statutes recognizing and regulating natural capacity and disability are valid whenever drawn in question; but that statutes creating artificial disability, or removing natural disabili. ties, have no extra-territorial force. And it may be said generally that the lex loci contructus aut actus governs capacity as to contracts relating to movables; and that the lex rei sitæ governs contracts relating to immovables.
In the noted case of Saul v. His Creditors, 17 Mart. 596, it was held that the law of the domicil or the lex loci contractus aut actus would be applied, so as to give capacity if possible. It was said: “The writers on this subject agree that the laws or statutes which regulate minority and majority, and those which fix the