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inson, 3 N. Y. 312; Stone v. Carr, 3 Esp. 1; Cooper v. Martin, 4 East, 76; and see Bradford v. Bodfish, 39 Iowa, 681. It appears from the report made by the defendant in this case, that when the plaintiff was three months old he took him into his family and boarded him, furnishing him with his clothing and other necessaries, as one of his own children. Under these circumstances the relation between the parties was that of parent and child, with like obligations. Bradford v. Bodfish, supra." In the latter case, it was held that the step-father, assuming the place of the parent, was responsible for education and maintenance. And in Williams v. Hutchinson, supra, it was held that the step-child, under such circumstances, could not maintain an action for services to the step-father, although their value exceeded the expense of his education and support. The court said: "The policy of the law seems to be to encourage and protect that relation to encourage an extension of the circle and influence of the domestic fireside. And unless compelled by some rigid law, we should not by our decision establish a rule calculated to deter the husband from adopting his wife's children, by a former marriage, into his family. The marriage with the mother, it has been held, severs the relation which would otherwise exist between her and her children, as guardian of their persons. If therefore the husband voluntarily adopts them into his family, educates and supports them, and discharges his whole duty toward them as a parent and a good citizen, the law should be liberally construed in his favor." The court also observed: "So he is liable for necessaries furnished to a child standing in that relation, to the same extent that he is liable for necessaries furnished to his own." In Smith v. Rogers, to appear in 24 Kansas, it is said: "It is well settled, that in the absence of statutes, a person is not entitled to the custody and earnings of step-children, nor bound by law to maintain them. Yet if a stepfather voluntarily assumes the care and support of a step-child, he stands in loco parentis; and the presumption is, that they deal with each other as parent and child, and not as master and servant; in which case the ordinary rule of parent and child will be held to apply, and neither compensation for board is presumed on the one hand, nor for services on the other."

In Dow v. Updike, Iowa Supreme Court, January 12, 1881, N. W. Rep. 857, it was held that a stipulation in a promissory note to pay a reasonble attorney's fee for instituting a suit on the note, in addition to legal interest, is illegal and void. But this was put on statutory ground. The court said: "In the year 1873'An act to provide for the allowance and recovery of attorney's fees in certain actions,' was passed by the Legislature. This act provided 'that in all actions brought for the foreclosure of a mortgage, or upon a written instrument, for the payment of money only, there shall be allowed by [to] the plaintiff, upon a recovery of judgment by him, a sum, to be fixed by the court, in addition to

the judgment, not exceeding ten per cent of the recovery, as an attorney's fee, in all cases wherein the mortgage, or other written instrument upon which the action is brought, shall, in express terms, provide for the allowance of an attorney's fee.' This act was repealed in 1879, the law taking effect June 1st of that year." "In this State, attorney's fees were not allowed prior to the passage of the act of 1873; and the Legislature, by repealing that act, evidently intended to withdraw from the plaintiff the right to recover the same." In Miner v. Paris Exchange Bank, Texas Supreme Court, September, 1880, it was held that if a contract is lawful in other respects a conditional stipulation to pay the usual attorney's fees, in the event suit has to be instituted to enforce it, would be legal and founded upon a valuable consideration. Such fees, though not an element of damages in an ordinary suit for the collection of money, can be made such by express contract. The authorities, pro and con, on this vexed question can be found in a note, 29 Am. Rep. 406. Bullock v. Taylor, 39 Mich. 137; S. C., 33 Am. Rep. 356, is against the above Texas doctrine, but Bank of British America v. Ellis, U. S. C. Ct., Or., June 26, 1880; 21 Alb. L. J. 238, is in harmony with it.

In Einstein v. Jamison, Pennsylvania Supreme Court, Nov. 8, 1880, it was held that a mechanics' lien will attach to the separate property of a married woman, without express promise to pay, if the materials were furnished and used in the improvement of her property by her direction, or with her knowledge and assent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor. The testimony showed that the woman superintended and ordered changes, and ordered some materials and afterward promised to pay for those. The judge charged that "she must not only have ordered them, but promised to pay for them, and they must have been necessary." The court on review observed: "In saying she must have 'promised to pay for them' we think the learned judge erred. The other necessary ingredients being proved, the law will imply a promise to pay. While courts could carefully protect married women in the enjoyment of their separate property, and not permit it to be unjustly charged with an incumbrance, yet they should not be permitted to enhance the value of their property at the expense of an innocent and confiding creditor. If the materials were furnished and used in the improvement of her property by her direction, or with her knowledge and assent, and were reasonably necessary, and there was no agreement that her property should not be liable therefor, the law will give a lien thereon for the value of the materials." In Husted v. Mather, 77 N. Y. 388, the wife knew and did not object, and this alone, without express consent, was held sufficient to maintain the lien. The court said: "It is, however, contended by the learned counsel for the appellant that, inasmuch as the owner of the land in this case was a married woman, it cannot be bound, inasmuch as she has neither consented in

writing to charge her separate estate nor made any contract for its benefit. But the statute prescribes the conditions on which the lien is to attach and they are found in this case. It was not necessary that the owner should have contracted for the materials and, however manifested, the 'consent of the owner' to the erection of the house is sufficient. The case is not one of contract. The woman creates no debts; but consenting to the improvement of her land, it is by statute subjected to a lien. As to that land she is to be regarded as though unmarried, and her consent may be implied from her knowledge; in the absence of any objection her silence may, as in other cases, be deemed sufficient evidence of assent. Anderson v. Mather, 44 N. Y. 262." But where the contract was with the husband, not as the wife's agent, her land will not be bound, although she sees the improvement going Jones v. Walker, 63 N. Y. 612; 22 Alb. L. J.

on. 463.

Two recent unreported cases, concerning obstruction of sidewalks, deserve notice. In State v. Burdetta, Indiana Supreme Court, the State asked the court to charge that if the defendant permanently maintained a fruit-stand on the sidewalk of a street, the jury should find him guilty, such an obstruction being a nuisance within itself. The court modified the instruction as follows: "And that the obstruction essentially interfered with the comfortable enjoyment of said sidewalk." Held, that the instruction asked should have been given. The common-law doctrine was, that a public highway was a way common and free to all the king's subjects to pass and repass at liberty, and that an unauthorized obstruction was indictable and punishable as a nuisance. Nor was it necessary to show any thing more than that there was a permanent obstruction | of the public way. People v. Vanderbilt, 28 N. Y. 396. While we have no common-law offenses, it has been held that there is such an offense as a public nuisance. Burk v. State, 27 Ind. 430. Followed to its logical consequences, that case would require us to hold that what was at common law a public nuisance is such under our statute, and that permanently obstructing a highway is, per se, a public nuisance, because it was always such at common law. We are inclined to hold this to be the correct ruling. The question is not whether travel was interfered with, but whether there was an unlawful incroachment upon a public street by the erection of a permanent obstruction. Angell on Highways, § 226.

lic nuisance, which injuriously affects him specially. The awning is so far as we can see no more of a nuisance than it would have been if made of any other material, and it was not as shown from the evidence such a structure as any court would regard as a public injury or grievance. It was such as was used habitually in other parts of Ypsilanti as well as elsewhere, and was recognized by the city ordinances as not objectionable. It was therefore no more than a lawful use of defendant's own property. The special grievance complained of is simply that it obstructs the view of the sidewalk and a portion of the street. The testimony does not indicate that there was any very well-founded objection in fact to the awning, and there is no legal objection to it." See, in this connection, 20 Alb. L. J. 183; 22 id. 2; Cushing v. Boston, 128 Mass. 330.

ONE HUNDRED AND TWENTY-EIGHTH
MASSACHUSETTS REPORTS.

THIS

THIS volume contains a great number of cases, decided between November, 1879, and June, 1880. We note the following:

Commonwealth v. Allen, p. 46.-On the question of the genuineness of a writing alleged to be in the defendant's hand, the court may exclude another writing made by him during the trial, and offered by him for the purpose of comparison.

Commonwealth v. Wardell, p. 52.-The indecent exposure of his person by a man in a house to a girl eleven years old is " open and gross lewdness and

lascivious behavior."

New Haven & Northampton Co. v. Campbell, p. 104.- A common carrier, who has delivered part of goods carried without collecting his freight, does not thereby, as matter of law, lose his lien for that freight as against the part undelivered.

Small v. Howard, p. 131.- A country surgeon is not bound to the exercise of that high degree of art and skill possessed by eminent surgeons living in large cities and making a specialty of the practice of surgery, but only to that reasonable degree of learning, art, and skill, ordinarily possessed by others of his profession, having regard to the advanced state of the science.

Gerrish v. New Bedford Institution for Savings, p. 159.-D. deposited in a savings bank in his own name all he was permitted under the rules, and then made three other deposits as trustee, one for his only son, the others for his grandchildren, taking separate bank books, which he never delivered, but There is a distinction between the tempo- which were found among his effects on his death. rary occupancy of public streets for commercial or He received the dividends during his life. The building purposes, and their permanent obstruction. rules provided that he must produce the books to Wood v. Mears, 12 Ind. 515. But even such tempo- receive dividends, in order that they might be enrary use may go to the extent of becoming a public tered, and that any depositor might designate the nuisance." The other case is Hawkins v. Sanders, person for whose benefit he made deposit, which Michigan Supreme Court, Jan. 28, 1881. The court should bind his legal representatives. The son and said: "Hawkins, who owns a hotel building in grandchildren offered to prove that he had told each Ypsilanti filed his bill to restrain defendant, who of them that he had made and intended the deposits owns a neighboring store building, from maintain- for them after his death, but he wanted to draw the ing a wooden awning in front of his premises. The interest during his life. Held, competent, and to complainant's theory seems to be that this is a pub- I justify a finding of a complete and effectual trust.

Green v. Boston & Lowell Railroad Company, p. 221. A family portrait is not an article of "great and intrinsic value," when coupled in an exemption clause in a carrier's receipt, with "specie, drafts, and bank bills;" but the measure of damages for its loss is the value to the owner and not the market value, and so evidence that it was the only one extant would be competent.

Fay v. Harlan, p. 244.--In an action of assault and battery, the attending physician of the plaintiff may testify as to the plaintiff's complaints and statement of symptoms made to him for the purpose of medical treatment and advice, and also as to his own observation of his indications of suffering.

McNeil v. Kendall, p. 245.- Where a lessee leases a part of the premises to another, for the remainder of his term, with easements in the other part, this is an under-lease, and not an assignment.

George v. Gobey, p. 289. — A master is civilly responsible for an illegal sale of intoxicating liquor made by his servant, without his knowledge or consent, and against his instruction.

Dollicer v. St. Joseph F. and M. Ins. Co., p. 315. - A fire policy was conditioned to be void upon a decree of foreclosure, or in case the interest of the insured was not truly stated, or was any other than the entire, unconditional and sole ownership of the property. The property was subject to an existing and undisclosed mortgage and a lease for years. Held, no breach.

Boardman v. Cutter, p. 388.-A contract for the sale of shares of corporate stock is for the sale of "goods, wares, and merchandise," within the statute of frauds.

to a person who is injured by falling into a trench near a town building, but outside the highway, on the occasion of attending an entertainment given in the building by a society, which has received the use of the building for such entertainment free.

Clark v. Waltham, p. 567.-A town is not liable for an injury received by a traveller by reason of a defect in a public common, although the town has constructed public footpaths across it, the place where the injury occurred not being connected with any building for the use of which the town received any pecuniary benefit.

Steele v. Boston, p. 583. — A city is not liable for an injury caused to a person on a public common by collision with a coasting sled, on a path therein, although the city has not only permitted the coasting, but specially fitted the path for the purpose, by bridging and freezing it.

Davis v. Somerville, p. 594.- One who is injured by a defect in a highway, on his return from a funeral, on Sunday, having diverged from his ordinary route to make a social call, is remediless.

White v. Lang, p. 598.-One whose property is injured by the assault of a dog is not defeated in his action of damages against the owner by the fact that he was unlawfully travelling on Sunday at the time.

The opinions are nearly all very short, and only one or two dissents are noted.

CAPACITY OF LEGITIMATED BASTARD TO
TAKE REAL ESTATE IN ANOTHER
STATE BY COMITY.

Murphy v. Lowell, p. 396.- A city, authorized to DOES legitimation by subsequent marriage under the

build sewers in its streets, is not liable for damage done by necessary blasting of rocks in the work, unless negligently done by its agents.

Commonwealth v. Hall, p. 410.-The statute punishing any one who in Massachusetts takes or kills woodcock, etc., between specified days, or buys, sells, offers for sale, or has them in possession within the same time, does not apply to such birds lawfully taken or killed in another State.

Commonwealth v. Hartwell, p. 415.- On an indictment against a railway conductor for manslaughter, caused by his criminal negligence in misplacing a switch and omitting to notify it to an approaching train, and alleging that he knew the approach of the other train, the fact of his knowledge must be proved as laid.

Connell v. Reed, p. 477.- If there is any right of trade-mark in the words "East Indian" in connection with "remedy," on bottles of medicine, the false adoption of those words to indicate that the medicine is used in the East Indies will defeat an action for infringement.

Kelly v. Johnson, p. 530.— Where a servant engaged in a temporary work for another, on the false representation that his master had directed it, he does not become the servant of that other, so as to be remediless for an injury by the negligence of the latter's servant.

Larabee v. Peabody, p. 561. — A town is not liable

law of a foreign or a sister State create an heir who can inherit real estate under the laws of intestate succession of the State of New York, where illegitimate persons cannot inherit and where a bastard cannot be legitimated by subsequent marriage?

Throughout Christendom the status of legitimacy arises from marriage which has its foundation in naand the legal sanction of positive law. ture, and is guarded by the moral sanction of society

It is therefore upon the family created by lawful marriage and the boud of consanguinity that Christendom bases the legitimacy of heirs and the laws which regulate intestate succession. This principle, like many others of modern jurisprudence, has been adopted from the Roman and Canon laws, and a glance at its historic features may be important in

this connection.

In Roman as in modern jurisprudence the family was the basis of the law of legitimacy and of intestate succession. The Roman family, however, had no foundation in nature, but was an artificial creation of the civil law known as the aggregation of the agnates; and while lawful marriage was essential to its formation, its purely artificial character in respect to intestate succession did not depend on marriage and was not an attribute of consanguinity.

A near relative or a child even was not a lawful heir unless united to the family of the intestate by the bond of the Paternal Power; whoever was released from that bond by emancipation, and retained only the natural relationship, forfeited the rights of succession, and whoever was placed under that bond by adoption, although having no consanguineous relationship to the intestate, was endowed with the rights of succession.

The Paternal Power, however, did not spring from natural filiation, but was a prerogative granted by the primitive Roman law to him who had become a father in consequence of lawful marriage, justas nuptias, and whose children were legitimate because they were begotten in lawful wedlock, and because between the man and woman, their parents, there had existed the Connubium at the time of marriage. Gaius, 1, 55; Inst. Just. I, 9; Code Just. VIII, 31, 47; Law 27, Digest ad mancip. and Law 12, § 1, Digest ad leg. Jul. de adult, Gaius, I, 87.

By the side of the civil marriage there arose, however, a natural union called the concubinate, which before the time of Augustus is believed to have been confounded with illicit and unacknowledged intercourse. Under that prince, however, it became an agreement legally recognized by the natural law. Paul. Law, 144, Digest verborum signif. Troplong, the illustrious French jurisconsult, attributes the existence of the concubinate to a compromise between the license of morals at the end of the republic and the laws of Augustus against adultery and concubinage, and between the aversion of the Roman of that period for marriage and the laws Julia et Papia-Poppaa to render marriages more frequent. Inst. Just. IV, 18; Digest, XLVIII, pr. and 1; Troplong, De l'influence du Christianisme sur le droit civil des Romains, chap. VIII. The obvious intention of Augustus was to increase the population of the empire, which had become greatly depopulated by civil war, and to harmonize certain weaknesses with the necessity of endowing the republic with citizens who would not have occasion to blush at their birth. Accordingly, that prince authorized with women a certain lawful commerce, which, although it was not lawful marriage, was still an imitation of that institution. Digest law, 3, § 1, de concub. Heinnec, lib. II, ch. IV, n. 1, 2, 3.

The having of several concubines was prohibited (Novel XVIII, ch. 5), and he who had a wife by lawful marriage and took a concubine, was guilty both of adultery and of bigamy. Law 1, Code Just., de concubinis.

The children of the concubinate were not bastards, and being begotten out of lawful wedlock were not legitimate; in other words, they were not members of their father's family, could not succeed to his estate nor bear his name, nor claim any of the privileges given to children of the family by the civil law; they were regarded simply as the offspring of a natural union, and were therefore called natural children: With regard to their mother, however, they were legitimate, and all their rights were as perfect as were those of children begotten and born in lawful wedlock. The concubinate was therefore a natural imitation of the lawful marriage of the primitive Roman law, and was regulated by the principles of the natural law.

When Constantine became emperor, the concubinate was repulsive to his Christian ideas of marriage, and he endeavored to convert it into lawful marriage by a promise of legitimacy to all children already born whose parents would renounce it for lawful marriage. He also ordained that at the moment of conception the parents must have been capable of lawful marriage and that the children should ratify the legitimation; for no one was to be made unwillingly legitimate. Law 5, Code Just., de natural. lib.

Legitimation by subsequent marriage is therefore a principle introduced into the later Roman law through the influence of Christianity; it was, however, strictly confined by Constantine to children of the concubinate, and did not apply to children illegitimated by the principles of the primitive Roman law, under which those illegitimately begotten took their status from the moment of their birth, while those legitimately conceived took their status from the time of conception. Gaius, I, 89. Constantine also instituted severe meas

ures against natural children and forbade their fathers to confer any thing on such children by donation and testament. Law 1, Code Theod. de natur. filiis.

The difficulty experienced in securing the acceptance of these reforms by the polytheistic nations of the empire, led Valentinian I, Emperor of the West, to publish in 371 a constitution whereby natural children and their mothers were given greater capacities for inheriting by testament from the father. Valens, who was then Emperor of the West, was at first unwilling to ratify the constitution of Valentinian I, his colleague, but finally did so at the earnest entreaty of Libanius, the sophist, a pagan who desired to make a will in favor of a son whom he had had by a concubine after his divorce from his wife. Godefroy on Law, 1, Code Theod. de natur. filiis.

Valentinian III, Emperor of the West under the tutelage of Placidia, attempted to repeal the law of Valentinian I and to restore that of Constantine, but failed because Theodosius the Younger was unwilling to deprive natural children and their mothers of the concessions granted them by Valentinian I.

The result of these conflicts between the old and new civilizations was that the children and mothers of the concubinate could not be completely deprived of the legacies and gifts left them by the father, and legitimation by subsequent marriage, which Constantine had authorized only as a transient remedy for natural children already born, was adopted by Justinian and converted by him into a permanent measure applicable to all future concubinages. Law 7, Code Just. de natur. liber; Hunter's Roman Law, p. 622.

Justinian says, A. D. 529-30: Per sequens matrimonium filii nati ex concubina legitimatur, etiamsi ex eo matrimonio nullis postea nascetur; vel natus vivens non reperiatur temporis mortis patris. Code Just. V, 26, 10, de legit per sub. matrimonio, and V, 27, 5.

The principles of this constitution of Justinian and of that of Constantine became a part of the Corpus Juris Canonici by a constitution published by Pope Alexander III, A. D. 1160, which reads as follows: Tanta est vis matrimonium ut qui antea sunt geniti post contractum matrimonium legitimi habeantur. Si autem vir vivente uxore sua aliam cognoverit et ex ea prolem susceperit, licet post mortem uxoris eandem duxerit nihilominus spurius exit filius; et ab hæreditate repellandus præsentim si in mortem uxoris prioris aleruntur eorum aliquid fuerit machinatus. Decret. Greg. Lib. IV, tit. XVII, chap. VI.

The leading principles of this constitution of the Canon Law have passed into the jurisprudence of most if not all the States and nations of Continental Europe; they have also been adopted by some of the States of this republic and may be regarded as the common law of Christendom. An attempt made during the reign of Henry III to introduce them into the law of England was met by the famous statute of Merton, 20 Henry III, in which the English barons declared that nolunt leges Angliæ mutare quæ hæc usque usitate sunt et approbata. Accordingly, legitimation by subsequent marriage has never been recognized by the laws of England, at least not since the time of Henry III, and the State of New York has uniformly adhered to the English law which considers a child legitimate which is born in the family, or which in other words is born of parents married before the time of its birth, although they were not married when the child was begotten. Stephen's Com., Vol. II, p. 289.

The principle on which legitimation by subsequent marriage rests is that of the creation of the natural family by lawful marriage and the bond of consanguinity, thereby perfecting all the essentials of legitimacy and intestate succession.

Whatever promotes the creation of the natural family on the basis of a lawful marriage contract should be encouraged as a matter of public policy, and

when that contract and the bond of consanguinity have once created a family, the common law of christendom demands that all the rights conferred by the marriage relation shall attach irrevocably and immediately to the bastard children of the parties to the contract, provided that those children were not born of adulterous or incestuous commerce. The leading principles on this important subject, as expressed in the Canon Law, already cited, have been clearly embodied in the law of France, in the following terms: Les enfans nés hors mariage autres que ceux nés d'un commerce incestueux ou adulterin pourront être légitimes par le mariage subsequent de leurs pères et mères, lorsque ceux-ci les auront légalement reconnais avant leur mariage ou q'ils les reconnaitront dans acte même de célébration. La légitimation peut avoir lieu même en faveur des enfans decedés qui ont laissé des descendens; et dans ce cas elle profite a ces descendens. Les enfans légitimes par le mariage subsequent auront les mêmes droits que s'ils étaient nés de ce mariage. Code Civil, 331, 332, 333. The principle of legitimation by subsequent marriage is recognized by the laws of Wurtemburg and Pennsylvania, where we will suppose a family to have been thus created by a lawful marriage, and where the rights of legitimacy and of intestate succession were thereby conferred upon a child born before such marriage. The status of legitimacy having been thus repeatedly established under the lex loci contractus, is still called in question here, because no illegitimate person can inherit under the laws of intestate succession of this State,. where the principle of legitimation by subsequent marriage is not recognized by law, and where the property in question is situated. Now the marriage contract is not only juris naturalis but juris positivi, and the status of legitimacy must be determined by the lex loci, under the principle that the law of the place governs the form, obligation, interpretation and effect of a contract, in so far as such law does not prejudice the rights, interests and authority of other States and the citizens thereof. Wheaton's Int. L., § 91; Huberus' Confl. of L., tom. II, Lib. I, tit. 3, §§ 2 and 3.

The question then arises, in what respect, if in any, does the law of the place, when applied to the marriage contract, which was entered into by the parents in the foreign and sister State, prejudice the rights and authority of this State and the citizens thereof, if under such law the child be adjudged a legitimate heir under the laws of intestate succession of this State?

The child comes into this State and country as a member of a family legally constituted under the common law of christendom, and the important question arises, whether the courts of this State will establish the principle that an innocent child legitimated under the solemnities of a lawful marriage in one country or State, can be subsequently illegitimated in another, where the marriage contract is adjudged valid and binding? The comity of nations demands that a marriage contract, legal under the common law of christendom, shall be given full effect wherever the parties to the marriage may reside, and that children of such a marriage shall not be legitimate in one country and illegitimate in another.

English precedent has no force in this case in establishing the right of the appellant to inherit, for it is not only illogical in principle but prejudicial to the best interests of society and contrary to public policy. Much stress has been laid on Doe v. Vardell, 5 Barn. & Cres. 266, but the principles established by that case have no force here save in establishing the appellant's legitimacy. The law of that case is that the status of legitimacy is established by subsequent lawful marriage in a foreign State, and that such marriage does create a family under the common law of christendom, but that under the artificial, agnatic, political laws of intestate succession which England maintains for

aristocratic purposes, bastards legitimated by subsequent marriage cannot be legal heirs to real estate in that country. In other words, while admitting that the status of legitimacy is created by subsequent lawful marriage under the law of a foreign State and the common law of christendom, the English courts still maintain that to allow children legitimated by a subsequent lawful foreign marriage to inherit lands in England would be prejudicial not only to the rights and authority of that country, but to the interests of her people, and therefore would not be required under the comity of nations.

It will be seen therefore that under the English law and under that of this State also, if we follow English precedent, the term "legitimacy "has two meanings; for we have the law that whoever is legitimate in England and New York can inherit; the child, according to Doe v. Vardell, is legitimate but cannot inherit; a conclusion which if true in any sense can only be so under an ambiguous use of the term "legitimate." In other words, it is one thing to be legitimate under the common law of christendom, and another under the law of England, so far as intestate succession is concerned. It is evident, therefore, that to be just and logical in this case we must depart from English precedent.

The term "legitimacy" can have but one meaning under the laws of New York, which long ago became a republic and abrogated the English laws of intestate succession, as well as the aristocratic system which those laws are designed to maintain. In place of the English law she has adopted laws of intestate succession founded on Novels CXVIII and CXXVII, of Justinian, and has thereby harmonized her jurisprudence with the principles of Christian civilization. New York cannot therefore claim any exemption from the binding force of the comity of nations under Doe v. Vardell, and it would be a violation of the comity of nations for her to adhere to English precedent in this case, for by so doing she would prejudice the rights and authority of herself and of her citizens.

New York, however, is also bound by the limitations of the Constitution of the United States to a recognition and enforcement of the rights conferred by the marriage contract which legitimated the appellant in Pennsylvania, even if the comity of nations and the marriage in Wurtemburg be entirely disregarded.

"The citizens in each State shall be entitled to all the privileges and immunities of citizens of the several States." U. S. Const., art. IV. The meaning of this article may, we think, be best derived from its incidental interpretation by the Supreme Court of the United States. There is no express prohibition of State legislation in regard to naturalization, in the Constitution. If, however, each State retained the right of naturalization, while the citizens of each State were entitled to all the privileges and immunities of citizens of the several States, any one State might impose on all the others such persons as citizens as it might think proper to admit; hence, in cases dependent on this point, the Supreme Court has declared that the power of naturalization is vested exclusively in the United States, on the ground of a direct repugnancy in the exercise of a similar power by the States. 2 Dall. 370; 5 Wheat. 49.

Now, under the Constitution of the United States, a contract is every executed agreement by which a right is vested, as well as every executory agreement by which a right of action is conferred or an obligation created which may be enforced in a court of justice. By the obligation of contracts, under the Constitution, is meant both the moral and the legal obligation which arise not from the law of civilized nations but from the law of the State where the contract is made. 12 Wheat. 213.

Accordingly, as there is no constitutional provision

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