id. 574; Christie v. Gage, 2 T. & C. 344; State v. Gerard, 2 Ind. Eq. 210; Cresson's Appeal, 30 Penn. 437; Philadelphia v. Gerard, 45 Peun. St. 9; Mayer v. Society for Visitation, 2 Brews. 385; Blennom's Estate, Bright, 338; Polts v. Philadelphia, 8 Phila. 326; Heddleston's Estate, id. 602; Whitman v. Lex, 17 Serg. & R. 88; Grandom's Estate, 6 Watts & Serg. 547; Derby v. Derdy, 4 R. I. 414; Hamburgh v. Hamburgh, 12 Heisk. 635; McAllister v. McAllister, 46 Vt. 272; Clement v. Hyda, 50 id. 716; Whitman v. Lex, 17 S. & R. 88; Owens v. Missionary Society, 14 N. Y. 380; Beekman v. Bonsor, 23 id. 298; Phelps Ex'rs. v. Pond, id. 69; Wheeler v. Smith, 9 How. 55; Attorney-General v. Soule, 28 Mich. 153; Holland v. Peck, 2 Ired. Eq. 255; Ruth v. Overbrunner, 40 Wis. 238; Heiss' Ex'rs. v. Murphy, id. 276; White v. Fiske, 22 Conn. 31; Le Page v. McNamara, 5 Iowa, 124; Gallego's Ex'rs. v. AttorneyGeneral, 3 Leigh, 450; Barker v. Wood, 9 Mass. 419; Trippe v. Frazier, 4 Harr. & J. 392; Wildman v. City of Baltimore, 8 Md. 551; Grimes' Ex'rs. v. Harmon, 35 Ind. 198; Deshiel v. Attorney-General, 5 Harr. & J. 392; Fountain v. Ravenel, 17 How. 369; Perry on Trusts, $$ 720, 722; Baptist Association v. Hart, 4 Wheat. 1.

ROBINSON, J. The second and third counts in the declaration allege that the plaintiffs' engine and cars, while making one of their regular trips between Annapolis Junction and Aunapolis, were thrown off the track and greatly damaged from a collision with the defendant's ox, which was, at the time, on the track through the negligence of its owner, and that said collision occurred without any negligence or want of care on the part of the company or its agents.

The demurrer admits the facts thus averred, and the question is, whether upon this concession, the defendant is liable for damages.

This is the first case in this court in which a railroad company has sued the owner for damages resulting from a collision with stock trespassing on its road; but upon the concession of the defendant we do not see on what ground he is to escape liability.

The injury, it is argued, is too remote. In actions of this kind the damage, it is true, must be the direct consequence of the defendant's negligence. In other words, as it is put in the books, the negligence must be the proximate cause of the injury. But here the plaintiff was entitled to the unobstructed use of its road, and the defendant admits that his ox was upon the track through his negligence, in consequence of *To appear in 60 Maryland Reports.

which the plaintiff's cars and engine were thrown off the track and damaged. The injury then was the direct result of the defendant's negligence. If negligence is once admitted or established, it is no answer that the defendant did not foresee the injury, or that the damage was greater than he anticipated. Suppose the defendant could not have foreseen that the ox would be upon the track at the time the plaintiff was making one of its regular trips, and did not anticipate the engine and cars would be thrown from the track, even if a collision did occur. That is no answer. In point of fact the ox was upon the track, and there too through the defendant's negligence, and the engine and cars were thrown off the track by the collision. The injury was the direct result of the negligence, and if so, the defendant was clearly liable.

This however is not a case of first impression. In other States where the question has arisen, the courts have uniformly held the owner liable for damages resulting from a collision with stock trespassing on a railroad track through the negligence of the owner. Housatonic R. Co. v. Knowles, 30 Coun. 313; Hannibal and St. Jo. R. Co. v. Kenney, 41 Mo. 272; Sinram v. Pittsburgh, F. W. and C. R. Co., 28 Ind. 244; Railroad Co. v. Skinner, 19 Penn. St. 298-304, and Drake v. Pittsburgh and E. R. Co., 51 id. 240.

The English decisions in actions of negligence fully sustain, we think, this view. In Child v. Hearn, L. R., 9 Exc. 176, the plaintiff, in the employment of a railroad company, was returning from his work along the line upon a trolley propelled by hand, and rau over the defendant's pigs which had escaped from the defendant's land, the trolley was upset and the plaintiff injured. In an action of damages by the plaintiff against the owner of the pigs, it was held the owner was not liable, because the proof showed that the pigs escaped through a defect in the fence, which belonged to the company, and which it was the duty of the company to keep in repair. The liability of the defendant was not however questioned, if the pigs had in fact es caped from his lane through his negligence.

So in Lee v. Riley, 18 C. B. (N. S.) 722, where the plaintiff's mare strayed into an adjoining close through defect in a fence which it was the duty of the defendant to keep in repair, and while there kicked and injured the plaintiff's horse, it was held the defendant was liable.

And in Powell v. Salisbury, 2 Y. & J. 391, where the plaintiff's horse escaped into the defendant's close through a defective feuce which it was the duty of the defendant to keep in repair, and was killed by the falling of a haystack, it was held, even in such a case as that, the damage was not too remote.

Lawrence v.

And then again, in the still later case Jenkins, L. R., 8 Q. B. 274, where the plaintiff's cow escaped upon the defendant's land, through a fence which the defendant was bound to keep in repair, and while there ate the leaves of a yew tree, in conse quence of which the cow died, the defendant was held liable for the damage.

In all these cases the court held the injury to be the consequence of the defendant's negligence, and such being the case he was liable.

The first count presents quite a different question. It merely alleges that the ox was trespassing upon the road, and does not allege that it was trespassing through the negligence of the defendant. Every one, it is true, is obliged to keep his stock within his in closures, and if they escape upon the land of another, whether through the negligence of the owner or not, and tread down the grass or destroy the crops, the owner is, in an action of trespass, liable for the damage. The common law, which requires every one to keep his stock within his own bounds at his peril, is the law of this State. But this is not an action of

trespass to recover for direct and immediate injuries resulting from au estray. It is an action on the case for consequential damages resulting from the estray. And to entitle the plaintiff, in such an action, to consequential damages, he must allege and prove that the injury was the result of the defendant's negligence. If the ox escaped from his inclosures without the knowledge and without any fault of the defendant, we are of opinion he would not be liable in this action for consequential damages.

There can be no reason for extending the rigorous rule of the common law, which holds the owner liable in an action of trespass, whether his cattle escape through negligence or not, to an action on the case by a railroad company seeking to recover consequential damages. It is the privilege of such companies to invade every one's property, and build and construct their road wherever they may see fit, and to do so in this State, without being obliged to erect and maintain fences along the line. Even with the best care cattle will sometimes escape from inclosures, and to hold the owner liable for consequential damages, where the escape is without his fault or negligence, would be to subject every one along the line of a railroad to the peril of being ruined, and ruined too, without any fault on his part.

For these reasons the demurrer to the first count ought to have been sustained, and overruled as to the second and third counts in the declaration.

Judgment reversed, and new trial awarded.

THIS

THIS was a demurrer on the part of the defendant to the plaintiff's statement of claim.

The action was brought by Francis Albert Webb against George Beaven to recover damages for slander, and the second paragraph of the plaintiff's statement of claim was as follows:

"On the 1st of March, 1883, the defendant falsely and maliciously spoke and published of the plaintiff the words following, that is to say, "I will lock you (meaning the plaintiff) up in Gloucester gaol next week. I know enough to put you (meaning the plaintiff) there," meaning thereby that the plaintiff had been and was guilty of having committed some criminal offense or offenses."

The defendant demurred on the ground that the statement of claim did not allege circumstances showing that the defendant had spoken or published of the plaintiff any actionable language, and that no cause of action was disclosed.

POLLOCK, B. On referring to the cases of Hassell v. Capcott and Salter v. Brown, 1 Roll. Abr. 36, 37; see Bac. Abr.,tit. Slander B. 6, I am of opinion that words which import an accusation of a crime for which a person may be brought into danger of suffering corporal punishment are in themselves actionable. The rule that words to be slanderous must impute an in. dictable offense was adopted at a time when indictment was the usual mode of procedure. The rule was then a sufficiently correct statement of the law; but in consequence of changes in our method of procedure, it has now become obsolete and incorrect, and we

should be unduly limiting the scope of actions for slander if we were to hold that no action would lie unless the words imputed an indictable offense. I think that these words are slanderous, and that the innuendo is sufficient.

LOPES, J. I also think that this demurrer ought to be overruled. In my opinion the imputation of a criminal offense is sufficient to support this action. A certain class of cases, which formerly had to be dealt with by indictment are now dealt with summarily before justices, and if we hold that slander will not lie for words imputing these offenses, the effect of our decision will be to materially reduce the scope of an action for slander. Demurrer overruled.

LEGITIMACY DEPENDENT UPON LAW OF DOMICILE OF PARENT.

ENGLISH HIGH COURT OF JUSTICE, CHANCERY DIVISION, JULY 23, 1883.

CA

MATTER OF ANDROS, 49 L. T. Rep. (N. S.) 163.

A person legitimate according to the law of the domicile of his father at the time of his birth is legitimate everywhere, for the purpose of succeeding to personal property. ASE stated for the construction of a will. William Andros bequeathed his residuary personal estate to trustees in trust for his great-nephews, the sons of his deceased nephew Thomas Godfry Andros in equal shares. Thomas Godfrey Andros was a native of Guernsey. The plaintiff was a son of Thomas Godfrey Andros, born before the marriage of his parents, who were domiciled in Guernsey, both at the time of the plaintiff's birth and of their subsequent marriage. By the law of Guernsey, children born out of wedlock become legitimated by the subsequent marriage of their parents.

Other children were born after marriage, and the plaintiff claimed to share with them in the property bequeathed by the will, and after attaining the age of twenty-one years he applied to the trustees to pay the same to him. The trustees were however advised that they could not safely do so until the court expressed its opinion that the plaintiff ought to be deemed a legitimate great-nephew of the testator.

The following questions were accordingly submitted for the opinion of the court:

Whether the plaintiff ought, under the circumstances, to be deemed a legitimate son of the testator's nephew, Thomas Godfrey Andros, for the purposes of the testator's will, and as such entitled to a share of the testator's residuary personal estate; and whether the trustees were at liberty to pay to the plaintiff his proper share.

KAY, J. The special case states the will of an English testator bequeathing personal property to the testator's great-nephews, the sons of his deceased nephew, Thomas Godfrey Andros. The plaintiff is a son of T. G. Andros, who intermarried with the plaintiff's mother after his birth, and by the law of Guernsey, of which island the father was a native, and where he and the mother were domiciled both at the time of the plaintiff's birth and their subsequent marriage, the plaintiff became legitimate when the marriage took place. Other children were born after the marriage. The will being an English will, must of course be construed according to English law. That law requires that all who take under a gift to sons of a named father should be legitimate offspring. It must now be treated as settled that any person, legitimate according to the law of the domicile of his father at his birth, is legitimate everywhere within

relations and their children, or of his own children, there being children legitimate and legitimated, what would have been said of such a presumption and such a construction?" The decision of the Court of Appeal in Re Goodman's Trusts, ubi sup., overruled the late Master of the Rolls and was dissented from by Lush, L. J. This conflict of authority leaves me free to decide this case according to my own opinion, which is in favor of the plaintiff's claim. I observe that the testator describes the objects of his bounty, not merely as the sons of his deceased nephew, Thomas Godfrey Andros, but also as his own great-nephews; but that in my opinion makes no difference. The law of this country, by the comity of nations, recognizes the plaintiff as legitimate; and therefore he is as much the lawful nephew of the testator as he is the lawful son of T. G. Andros. The law as I understand it is that a bequest of personalty in an English will to the children of a foreigner means to his legitimate children, and that by international law, as recognized in this country, those children are legitimate whose legitimacy is fixed by the law of the father's domicile. Thus, ante nati, whose father was domiciled in Guernsey at their birth, and subsequently married the mother, so as to make ante nati legitimate by the law of Guernsey, are recognized as legitimate by the law of this country, and can take under such a gift.

TRESPASS BY LANDLORD IN REMOVING TENANTS GOODS.

UNITED STATES CIRCUIT COURT, MASSACHUSETTS, OCTOBER 31, 1883.

BURGESS V. GRAFFAM.

To an action of trespass for carrying away the plaintiff's furniture from a house occupied by her,a plea that the defendant was owner of the premises in quo, and entitled to the possession thereof, and that he removed the furniture carefully and stored it in a proper place, does not set up a good justification, where it appears that the plaintiff had not been previously notified by the defendant to remove her property.

ACTION of trespass. The opinion states the case.

LOWELL, J. In June, 1880, the defendant Graffam having, as judgment creditor, sold the land and house of the plaintiff for a small debt, and having permitted the year of redemption to expire without actual notice to her, entered upon the house, which was vacant, and caused the plaintiff's furniture to be removed by the defendants Freeman, Eliot and Hallahan, to the storehouse of the defendant Eastman. In a suit in equity between these parties, I held that no remedy could be had against these defendants and others for a conspiracy, because the conduct of Graffam, though harsh and immoral, was not illegal; but that the plaintiff might redeem her house from Graffam, and I intimated that if there were any remedy against the defendants for removing the furniture, it must be sought in an action of trespass or trover, Burgess v. Graffam, 11 Fed. Rep. 216.

This action contains counts in trespass and trover, for removing and storing the plaintiff's furniture without notice to her. The answer of each defendant contains a general denial which is not objected to. In addition, the answer of Graffam alleges that he had

both the right of property and the right of possession in the house, that he entered according to his right, and caused the furniture to be removed in a suitable and proper manner; and that the goods of the plaintiff were removed to a suitable and proper place subject to the order of the plaintiff of all which she was [after

ward] notified. The defendants Freeman, Eliot and Hallahan, answer that they were employed by Graffam to remove the furniture, which they did, iu a prudent and proper manner, and stored it in a suitable and proper place with the defendant Eastman. Eastman answers that he stored the goods in a suitable and proper manner, at the request of Graffam, and has always been ready to deliver them to the plaintiff.

To so much of the answers as contains the confession and avoidance the plaintiff demurs.

The pleadings of the case of Burgess v. Graffam, 11 Fed. Rep. 216, to which both parties have referred in argument, show that these facts must be taken as true for the purposes of this demurrer. Graffam had the legal right to enter and possess the house; he made his entry without notice to the plaintiff, and gave her no notice of his intention to remove her furniture; but he did remove and store it in a safe place, without actual damage to the goods themselves, and then notified the plaintiff of what he had done.

The circumstances are unusual, and no cases very much in point have been cited in the able brief of the plaintiff. His analogy of the entry of a landlord upon a tenant at sufferance is however pretty close. I am of opinion that the counts in trover cannot be sustained, because there has been no conversion. Spooner v. Manchester, 133 Mass. 270, and cases cited in the opinion.

Trespass on the other hand will lie for nominal damages, at least. When the defendant Graffam, in exercise of a legal right, of which he knew that the plaintiff would not have actual notice, entered upon the vacant house which had lately been hers, it was in my opinion his duty to notify the plaintiff before he removed and stored her furniture. She had the right to say where it would be put, and with whom. The title to the house having been changed without her actual knowledge, she did not become a trespasser by leaving her furniture in the house until she had received such notice. Supposing that she is bound to some sort of constructive notice of the change of title, by the sale upon the execution, and the expiration of the year of redemption, yet she was not bound by any such constructive notice to know when, if ever, the plaintiff would take possession of his newly acquired premises He might have brought a writ of entry against her for the possession.

Graffam therefore had no right to put her furniture into the street, and no more right to store it with Eastman, though the damages for the one act may be very different from those which might have followed the other.

The answer is adjudged good to the counts in trover, but not to those in trespass.

In the case stated by the parties the following facts were agreed: On the 28th of November, 1877, Gill, upon petition of his creditors, was adjudged a bankrupt by the District Court of the United States for the Western District of Pennsylvania, and the plaintiff was afterward appointed assignee of his estate, which included two lots of land in Pittsburgh. On the 27th of May, 1878, the assignee, pursuant to an order of the District Court, and for the purpose of raising money to pay the bankrupt's debts, sold these lots by public auction to the defendant for the sum of $465, subject to the lien of a certain mortgage for $2,550; but the order of the court directed, and the advertisement thereof stated, that all other liens and incumbrances should be discharged by the sale. At the time of the commencement of the proceedings in bankruptcy, the bankrupt had a wife, who is still living, and who claims a right of dower in the land. The sale having been confirmed absolutely by the District Court, the assignee thereupon executed and tendered a deed of the land to the defendant, and demanded payment of the purchase-money, which was refused, by reason of the incumbrance of the right of dower. It was agreed that if the court should be of opinion that the right of dower of the bankrupt's wife was divested by the bankruptcy proceedings and sale, judgment should be entered for the plaintiff for the sum of $465, with interest and costs; otherwise judgment for the defendant.

Upon the case stated the Supreme Court of Pennsylvania gave judgment for the defendant, and the plaintiff sued out this writ of error.

The single question is, whether a wife's right of dower is barred by an assignment in bankruptcy and a sale by the assignee in bankruptcy under order of the court. By the law of England, which is our law in this respect, except so far as it has been changed by statute, the wife's right of dower is no part of the estate of the husband, and is not affected by proceedings in bankruptcy against him. Squire v. Compton, Vin. Ab. Dower, G. pl. 60; Smith v. Smith, 5 Ves. 189. If it is barred in this case, it must be either by force of the provisions of the recent Bankrupt Act, or by reason of the nature of the right of dower under the local law of Pennsylvania.

But under the provisions of the Bankrupt Act all that passes to the assignee by the assignment in bankruptcy, or that can be sold by direction of the court, is property or rights of the bankrupt, or property conveyed by the bankrupt in fraud of creditors, unless indeed a person holding a mortgage or pledge of or lien upon property of the bankrupt elects to release the same. Rev. Stat., $$ 5044-5046, 5061-5066, 5075; Stat. 22d June, 1874, ch. 390, § 4; Donaldson v. Farwell, 93 U. S. 631.

The law of Pennsylvania as to the liability of the right of dower to be taken for the debts of the husband is certainly in some respects peculiar.

An act passed in 1705, "for taking lands in execution for payment of debts," provided that all lands of a debtor, having no sufficient personal estate, should be liable to be seized and sold upon judgment and execution obtained against him; and that in case of default in payment of any debt secured by mortgage of real estate, the mortgagee might by writ of scire facias obtain execution to be levied by sale of the mortgaged premises. 1 Dall. Laws of Penn. 67-71. Another act passed in the same year, "for the better settling of intestates' estates," while recognizing a right of dower in the widow," which dower she shall hold as tenants in dower do in England," authorized the administrator, in case of insufficiency of the personal estate, to sell and convey the lands of the deceased, including the rights of the widow therein, for the payment of

his debt's. 1 Dall. Laws of Penn. 67-71, Appendix, 43-45.

It was established by judicial decisions in Pennsylvania, upon the construction and effect of these statutes, before the beginning of the publication of reports, that the wife's right of dower could be taken and sold on execution upon a judgment recovered against the husband, or upon scire facias on a mortgage executed for valuable consideration by him alone, or under a devise by him for the payment of his debts. Howell v. Laycock, cited in 2 Dall. 128, and 4 id. 301, note; Graff v. Smith, 1 id. 481, 484; Scott v. Crosdale, 2 id. 127; S. C., 1 Yeates, 75; Mitchell v. Mitchell, 8 Penn. St. 126; Blair County Directors v. Royer, 43 id. 146.

The grounds of those decisions have been explained by two of the most eminent judges of Pennsylvania. In Kirk v. Dean, 2 Binn. 341, 347, Chief Justice Tilg. man said: "It may be proper to take notice of deeds of mortgage of the husband's property. It is understood that by such deeds the wife may be barred of dower, though she was no party to the conveyance. But this depends on another principle, in which the law of Pennsylvania differs from the common law. The right of creditors prevails against the right of dower. A purchaser under an execution against the husband takes the land discharged of dower; and the only mode of proceeding on a mortgage, with us, is to sell the land by an execution. We have no court in which the equity of redemption can be foreclosed."

In Helfrich v. Obermyer, 15 Penn. St. 113, 115, Chief Justice Gibson said: "Land is a chattel for payment of debts, only when the law has made it a fund for that purpose. It then has undergone a species of conversion, so far as may be necessary to the purpose of satisfaction, which extinguishes every derivative interest in it which cannot consist with the qualities it has been made to assume. Thus a judgment or a mortgage binds it and converts it; and it is seized as personal property on a fieri facias, which commands the sheriff to levy the debt off the defendant's goods and chattels. We readily comprehend how a sale on a judgment, a mortgage, or an order of the Orphans' Court, passes the land freed from dower; but the reason is not so obvious why a sale under a testamentary power, created in good faith, for the benefit of credi tors, should do so. It is because the law makes a decedent's land a fund for payment of his debts, by giv ing the creditors a lien on it, which might be enforced by judicial process, and would extinguish the widow's dower in it. It would come to the same thing in the end and she is consequently not injured by a process substituted by the husband to produce exactly the same result.'

It thus appears that the right of dower in Pennsyl vania does not differ, in nature or extent, from the right of dower at common law, except so far as the local law has made it a chattel for the payment of debts of the husband, either by converting it into personalty, in his life-time, by virtue of the effect attributed by that law to a judgment recovered against him or a mortgage executed by him, either of which could only be enforced in that State by a levy of execution in common form; or by giving his creditors, after his death, a lien upon the whole title in the land.

The State court has accordingly constantly held, that with these exceptions, the right of dower is as much favored in Pennsylvania as elsewhere, that the old decisions are not to be extended, and that neither an absolute conveyance by the husband, nor an assignment by him for the benefit of creditors, whether executed voluntarily or under a requirement of the insolvent law of the State, impairs the wife's right of dower. Kennedy v. Nedrow, 1 Dall. 415, 417: Graff v. Smith, and Kirk v. Dean, above cited; Killinger v.