NOTES OF CASES.

in England, reliance being placed on Lolley's case (Russ. & Ryan, 237), in which it was said 'that no

I nie laite nel corp, of v. Price, ante, p. 69,

that it is strictly a case of definition rather than of principle, that it simply decides that a government mail agent is not a railway "passenger," within the meaning of a statute, and not that a railway company, in the absence of statutory provision to the contrary, is not bound safely to carry such a mail agent. The decision below, 22 Alb. L. J. 391, was grounded on the consideration of this principle rather than on the strict definition. A railway company is bound safely to carry a government mail agent, who pays no fare; Hammond v. North-east R. Co., & S. C. 130; S. C., 24 Am. Rep. 467; an express messenger, Blair v. Erie Ry. Co., 66 N. Y. 313; S. C., 23 Am. Rep. 55; Nolton v. West. Ry. Co., 15 N. Y. 444; Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71; Colwell v. Ry. Co., 16 Q. B. 984; one who for a gross compensation and his agreement to water the passengers is allowed to sell popcorn on the trains, Com. v. Vt. & Mass. R. Co., 108 Mass. 7; S. C., 11 Am. Rep. 301; but not one whom an express messenger invites, Union Pac. Ry. Co. v. Nichols, 8 Kans. 505; S. C., 12 Am. Rep. 475; nor one who rides in a caboose," or on a freight train, against the rules and without paying fare, Eaton v. Delaware, etc., R. Co., 57 N. Y. 382; S. C., 15 Am. Rep. 513; Creed v. Penn. R. Co., 86 Penn. St. 139; S. C., 27 Am. Rep. 693; Houston & Tex. Cent. Ry. Co. v. Moore, 49 Tex. 31; S. C., 30 Am. Rep. 98; nor one who is ordered off, but not ejected, for not paying fare, Higley v. Gilmer, 3 Mont. 90. The doctrine of drovers' passes, so much mooted, involves the question of contract.

In connection with Mr. Weightman's article in another column on the Law of Domicile as Affecting Marriage and Divorce, we give the following synopsis, from the Solicitors' Journal, of the case of Harvey v. Farnie, to which he refers: "In Harvey v. Farnie a marriage was, in 1861, solemnized in England between a domiciled Scotchman and an Engglishwoman who at that time was domiciled in England. Immediately after the marriage, the wife went with the husband to Scotland, where they lived together until the year 1863, when the wife obtained in a Scotch court a decree for a divorce a vinculo matrimonii, on the ground of the husband's simple adultery - a ground upon which a divorce could not have been obtained in England. In the year 1865, the husband was married in England a second time to another English lady. The petition was presented by the second wife, claiming a declaration of nullity of marriage, on the ground that the Scotch divorce was inoperative in England, and that consequently the husband had a wife living at the time when the second marriage was solemnized.

It was contended on behalf of the petitioner that because the marriage was celebrated in England it was indissoluble in Scotland, or indisscluble except for some cause for which it could be dissolved

an English marriage a vinculo matrimonii for grounds on which it was not liable to be dissolved a vinculo

matrimonii in England.' In that case, however, the marriage which was in question had been contracted between two persons domiciled in England, and had been solemnized in England, and a divorce on the ground of the husband's adultery was decreed by a Scotch court on the application of the wife during a temporary residence in Scotland, where the parties were not domiciled. Sir James Hannen held (L. R., 5 P. D. 153) that Lolley's case was distinguishable from, and did not govern, the present case, and that the decree of divorce by the Scotch court was valid in England as well as in Scotland, and consequently that the second marriage was valid. The decision was affirmed by the Court of Appeal (James, Cotton, and Lush, L. JJ.). James, L. J., said that the judgment in Lolley's case must be construed with reference to the particular facts which were then before the court for its determination — viz., a case in which the parties were domiciled in England at the time when the status of husband and wife was

originally constituted, and continued domiciled there at the time when it was sought to dissolve the status." "On principle, James, L. J., said that he .could not doubt that Sir James Hannen's decision was right. If a foreigner domiciled in his own country came to this country for the purpose of taking an English wife, the moment the vinculum of marriage existed the wife acquired the domicile of the husband, and all the rights and consequences arising out of the status would have to be determined by the law of that domicile which became the domicile of both husband and wife - assuming, of course, that the domicile was a real bona fide domicile, and not a fictitious one, resorted to for the sole purpose of altering the status. When the domicile was the natural bona fide domicile of husband and | wife, the forum of the domicile must determine whether the status was originally properly constituted, and whether any ground had since arisen for dissolving it. Cotton, L. J., said that a great deal of the difficulty had arisen from the use of the word 'marriage' in two senses, as meaning the solemnity, and also the status. The validity of the solemnity must depend on the law of the place where the marriage was celebrated. The country of domicile always (i. e., in the case of Christian countries) recognized the parties as married if they had followed the forms prescribed by the law of the country in which the marriage was solemnized. But the status must be determined by the law of the actual domicile, and the domicile of a wife was always that of her husband. Divorce was not an incident of the marriage contract, in the sense that the lex loci contractus governed it; it was an incident of the status, and was to be determined by the law of the domicile. In the present case there was throughout a real domicile in Scotland, and the Scotch court had jurisdiction to determine the status of the parties, not only in Scotland, but in every other country.

The decision of the Court of Appeal in Niboyet v. Niboyet, L. R., 4 P. D. 1, did not conflict with this view, for it turned entirely on the construction of the English Divorce Act. Lush, L. J., said that in Lolley's case the marriage in question was called an 'English marriage.' But that term might. refer, either to the place where the marriage was solemnized, or to a marriage between persons who were domiciled in England. In that case the marriage was an English one in both senses; in the present case it was English only in the sense of having been solemnized in England. The decision under the circumstances of the present case, that the divorce by the Scotch court was valid in England, seemed to be a logical sequence of the decision of the House of Lords in Warrender v. Warrender, 2 C. & F. 488. There a domiciled Scotchman was married in England to an English lady, and his Scotch domicile continued, and it was held by the House of Lords that a Scotch court could dissolve the marriage in Scotland. To hold that the dissolution extended to Scotland only, and that the divorced husband could, if he married again, be indicted in England for bigamy, would be a shocking thing. No doubt that consequence followed in Lolley's case. But that decision ought not to be extended. were anomalies enough already in the law of marriage, and the court ought not to create another. The observations of Lord Brougham in McCarthy v. De Caix, 2 R. & M. 617, had been shown to be obiter dicta, and the decision of Lord Chancellor Black

There

burne, in Maghee v. McAllister, 3 Ir. Ch. Rep. 604, commended itself to one's sense of what was right and just."

In Godeau v. Blood, to appear in 52 Vt. 251, it was held that in an action for the bite of a dog it need not be proved that the dog had previously bitten mankind, but it is sufficient to prove that the dog was of a ferocious nature, had bitten dogs and horses, and that its keeper had been told by his neighbors that it was unsafe to allow it to run at large, and had kept it confined a part of the time, and muzzled a part of the time when he had allowed it to run at large. Also, held, in regard to the measure of damages, that solicitude and fear of hydrophobia was proper matter for consideration, although there was no proof that the dog was rabid. The court said: "The duty which the law casts upon the keeper of a malicious and dangerous domestic animal, is but the enforcement of a common moral duty, binding upon all men, that a man should so keep and use his own property as not to wrong and injure others. The formula used in text-books and in forms given for pleadings in such cases, accustomed to bite,' does not mean that the keeper of a ferocious dog is exempt from all duty of restraint until the dog has effectually mangled or killed at least one person. But as he is held to be a man of common vigilance and care, if he had good reason to believe, from his knowledge of the ferocious nature and propensity of the dog, that there was ground to apprehend that he would, under some circumstances, bite a person, then the duty

of restraint attached; and to omit it was negligence. Shearm. & Redf. on Neg. 231, 234; Buckley v. Leonard, 4 Den. 500. In a populous place like Burlington, where the streets are full of all kinds of people – children sent on errands, going and returning from school or church, or playing by the wayside - it is not a light thing that they are in danger of being torn to pieces, as was this plaintiff. Dogs have their rights; but if the jury found this dog to be, as described by one witness, 'the most wickedest kind of a dog,' as we think is most probable, from the perusal of the evidence, then his right was accurately defined by Chief Justice Lee, in Smith v. Pelah, 2 Str. 1246: 'Such a dog should have been hanged on the first notice; the safety of the king's subjects ought not afterward to be endangered.' See, to same effect, Muller v. McKesson, 73 N. Y. 195; S. C., 29 Am. Rep. 123. Speaking of dogs, Judge Beckley says, in Cranston v. Mayor, 61 Ga. 578, they "have not had their exact legal relations adjusted in this State, and they and their owners are destined, perhaps, to a career of trouble for some years to come."

CONTRACTS FOR LOCATION OF RAILWAYS AND STATIONS.

IN

N a new country like ours, in which railways are every day being constructed, it is a very common thing for an individual to offer a company, projecting a new railway, a grant of land or a donation of money to induce a particular location of the route or of a station, and for the railway to accept the benefit subject to the condition. The public policy of such contracts has been considerably discussed in the courts. These contracts sometimes contain a condition prohibiting the company from erecting any other station within certain limits. The decisions are therefore to be ranked under two heads, first, those containing such restriction, and second, those not containing it.

In regard to the first we are not aware that there is any conflict of opinion. In Marsh v. Fairbury & North-western Ry. Co., 64 Ill. 414; S. C., 16 Am. Rep. 564, A. D. 1872, it was held that specific performance of a contract to locate a railway depot on plaintiff's land and at no other point in the town, would not be enforced. The court said: "The location of railroad depots has much to do with the accommodation of the wants of the public. And when once established, a change of affairs may require a change of location, in order to suit public convenience. We cannot admit that an individual is entitled to call for the interference of a court of equity to compel a railroad company to locate unchangeably its depot at a particular spot to subserve the private advantage of such individual. Railroad companies, in order to fulfill one of the ends of their creation-the promotion of the public welfare — should be left free to establish and re-establish their depots wheresoever the accommodation of the wants of the public may require." The plaintiff “must

be left, for whatever remedy he may have, to his suit at law for damages."

In St. Louis, Jacksonville & Chicago Railroad Co. v. Mathers, 71 Ill. 592; S. C., 22 Am. Rep. 122, A. D. 1874, the same doctrine was applied in a suit to compel the reconveyance of land granted on condition that no stations should be built within three miles of a certain place.

In St. Joseph & Denver City Railroad Co. v. Ryan, 11 Kans. 602; S. C., 15 Am. Rep. 357, A. D. 1873, the agreement was to construct and maintain a station on the granted lands, and not have any other within three miles. It was held that an action for breach of this contract would not lie. The court say, among other things: "The public have a right to say that railroad companies shall not be permitted, though private corporations, to make any contracts which would prevent them from accommodating the public in the matter of transportation and travel. * * * Railroad corporations are, as we have seen, public agencies and perform a public duty. They are agencies created by the public with certain privileges and subject to certain obligations. A contract that they will not discharge, or by which they cannot discharge those obligations, is a breach of that public duty and cannot be enforced. The number and location of the depots, so as to constitute reasonable depot facilities, vary with the changes and amount of population and business. A contract to leave a certain distance along the line of the road destitute of depots is in contravention of this duty." State v. Hartford & N. H. R. Co., 29 Conn. 538, cited in this case, is not in point, for that was a case where the road had been constructed to the terminus directed by the charter, namely, the navigable waters of New Haven harbor, and subsequently by agreement with another road its terminus had been removed from those waters and located a mile and a half distant at the station of the other road in New Haven. Mandamus issued to compel the running of trains to the original terminus.

*

*

The doctrine of the Ryan case was held, in such an action, in Williamson v. Chicago, Rock Island & Pacific Ry. Co., Iowa Supreme Court, March, 1880, 22 Alb. L. J. 29.

Second: But some courts have gone much beyond the doctrine of these cases, and have held that an agreement between an individual and a railroad company for the location of a depot at a particular place, in consideration of money or property, and without any restrictive provision, is against public policy, and void. Pacific R. Co. v. Seeley, 45 Mo. 212; Bestor v. Wathen, 60 Ill. 138; Fuller v. Dame, 18 Pick. 472.

The leading case seems to be Fuller v. Dame, 18 Pick. 472. This was an action on a note, given in consideration of an agreement to locate a station on certain lands of the payee. The station was built accordingly, but the court held the note not enforceable because the agreement was against public policy. The court, by Shaw, C. J., said: "The work is a public work, and the public accommodation is the ultimate object. In doing this a confidence was reposed in them, acting as agents for the public

a confidence which it seems could be safely so reposed, when it is considered that the interests of the corporation as a company of passenger and freight carriers for profit was identical with the interests of those who were to be carried that is with the public interest. This confidence, however, could only be safely so reposed under the belief that all the directors and members of the company should exercise their best and their unbiased judgment upon the question of such fitness without being influenced by distinct and extraneous interests, having no connection with the accommodation of the public or the interests of the company. Any attempt, therefore, to create and bring into efficient operation such undue influence has all the injurious effects of a fraud upon the public, by causing a question which ought to be decided with a sole and single regard to the public interests to be affected and controlled by considerations having no regard to such interests. * * ** It is obvious that if one large land-holder may make a valid conditional promise to pay a large sum of money to a stockholder, or influential citizen, on condition that a work of great public improvement may be so fixed as to enhance the value of his estate, all other great land-holders may make like promises, on similar conditions, and great public works, which should be conducted with a view to the public interest, and to the just rights of those who make advances for the public benefit, would be in danger of being overlooked and sacrificed in a mercenary conflict of separate local and private interests."

In Bestor v. Wathen, 60 Ill. 138, the agreement was to build a station on some vacant lots, where there was no town, with a view to building up a town there. The court said: "Rendered into plain English, the contract in this case was a bribe on the part of Wathen and Gibson to the president and other officers of the railway company, and to the contractors who were building the road, of an undivided half of one hundred and sixty acres of land, in consideration of which the road was to be constructed on a certain line and a depot built at a certain point. Now, if this was the best line for crossing the Illinois Central, considered with reference to the interests of the stockholders and of the public, then it was the duty of the officers of the company to establish it there; and if they intended so to do because it was the proper line, but professed to be hesitating between this and another line in order to secure for themselves the contract under consideration, as is somewhat indicated by the evidence, then they were practicing a species of fraud upon the defendants and using a false pretext in order to acquire defendants' property without consideration. If, on the other hand, this line was not the best, but was adopted because of this contract, the case is still stronger against complainants. If such was the fact, they are asking the court to enforce the payment of a bribe, the promise of which induced them to sacrifice their official duty to their private gain. If, as a third contingency, the choice lay between this line and another equally good, but not better, and they were influenced by this con

sume, though her nationality does not affect the question, married an Englishman of the name of Haggard, an attaché of the British Legation at the above-named city. Within two years they separated at the husband's dictation, and, as he subsequently declared in writing, "for ever," he having accepted a diplomatic appointmeut at the court of Persia. The lady who had returned to her friends at Washington at her husband's direction, after having accompanied him to England, obtained last July a divorce absolute from the court at Washington sitting in equity, on the ground of willful deliberate desertion by her husband. As her husband's domicile was England, although he was temporarily residing officially at Washington at the time of the marriage (Attorney-General v. Kent, 31 L. J. Ex. 391; 10 W. R. 722; 6 L. T. [N. S.] 864; and AttorneyGeneral v. Pottinger, 6 H. & N. 733), the marriage was an English one though solemnized at Washington, and as by the law of England desertion is not a ground for an absolute divorce but only for a judicial separationthis divorce would not be recognized in England, and either of the parties contracting another marriage in England might be indicted for bigamy (see Lolley's case, Russ & Ryan's C. C. 237) and the subsequent offspring would be spurious; in one word, all the disabilities and privileges of the original marriage would remain in full force. The original marriage remains valid and undissolved in England, and as the law of the domicile regulates the distribution of personal property (Somerville v. Somerville, 5 Ves. 754; Gambier v. Gambier, 7 Sim. 263) as well as the lex loci rei sitæ that of real estate (Doe d. Birtwhistle v. Vardill, 5 B. & C. 438; 8 D. & R. 185; Kent's Com. L. 37, § 4) it is obvious that complications might arise, if not in this particular case, involving questions of dower, curtesy and intestate distribution. Now, as the wife's domicile as well as nationality is that of her husband (Dig. 50, I 37; Code, XII, 1, 13; and 33 and 34 Vict., ch. 14, § 10, based upon a treaty with the United States) and indeed she cannot acquire a domicile for herself notwithstanding any misconduct of his (Yelverton v. Yelverton, 1 Tw. & Tr. 585; Whitcombe v. Whitcombe, Curtis, 351; Warrender v. Warrender, 2 Cl. & Fin. 488; In re Daly, 27 L. J. Chanc. 751; Dolphin v. Robins, 29 L. J., P. M. & A. 11) although this presumption fails after a judicial separation (Williams v. Dormer, 2 Robert, 505) which in the case before us does not exist, what is the solution to the perplexity thus created? The jus gentium must be respected, even though an individual hardship should result - and the unity of nations demands a reciprocal recognition. The European and American law is agreed that a "man can have but one domicile for the purpose of succession." Kent's Com., supra. He may have many residences in different countries, but he can have but one domicile. Has the Washington court erred then in granting the divorce in this case without sufficiently reflecting that this was an English not an American marriage, and should therefore be governed by English rules?

Strange that such a precedent, if not immediate prospect, of confusion should have originated with a member of the family of such a celebrated ecclesiastical lawyer as the author of Dr. Haggard's Ecclesiastical Reports! HUGH WEIGHTMAN.

JOURNAL under date of January 8. I have the great pleasure of agreeing with Mr. Kopelke in all respects excepting the two points of difference hereafter indicated.

The criminal jurisdiction of the United States presents shades of difference according as the offense is alleged to have been committed in a State, upon the high seas, within the territory of the United States, or without that territory. Congress cannot define and punish a crime such as the Ruloff murder, e. g. committed in a State; it has power to define and punish piracies and felonies committed upon the high seas; it may make all needful rules and regulations, so far as not prohibited by the Constitution, respecting the territory or other property belonging to the United States. The need of the United States having jurisdiction in a case like that of Mirzan was, not contemplated when the Constitution was framed, but for some time now it has been felt that it is due to Americans, when in foreign countries, and to the dignity of our government, that they should be protected there; and their best protection is, that when accused of offenses, they shall not be tried after the primitive methods of certain governments but by our own laws.

Accordingly by treaty of May 7, 1830, with Turkey, it is provided, "citizens of the United States of America guiltlessly pursuing their commerce and not being charged or convicted of any crime or offense, shall not be molested; and even when they shall have committed some offense, they shall not be arrested and put in prison by the local authorities, but shall be tried by their minister or consul and punished according to the offense, following in this respect the usage observed toward other Franks." Similar provisions are contained in treaties with many other nations. Independently of these treaties, the United States could not exercise jurisdiction in any of those countries. Its right is increased by treaty to that extent.

But

But it is said, the powers of our government emanate from the people and are defined in the Constitution, and how can a foreign nation increase them? It cannot, unless the Constitution gives the government a right to receive the offered power, in which case it will be received and exercised under the Constitution. I admit that the power of our government to receive from Turkey jurisdiction to try in that country Americans accused of having committed crimes there, is not entirely clear. If prohibited by any other clause of the Constitution, it cannot be obtained under the treaty-making power. That power "is necessarily and obviously subordinate to the fundamental laws and Constitution." Story on the Const. V, 3, § 1502. inasmuch as Turkey might cede to us all her possessions, why may not we lawfully receive that portion which consists in the territorial right of jurisdiction to try and punish in that country offenses there committed by American citizens? This being the only argument which can be offered, will, I think, in view of the apparent necessity of the case, be ultimately adopted. I answer then that the jurisdiction ceded becomes a part of the territorial property of the United States, over which we may make regulations by virtue of the same right by which we make regulations for Alaska. If this is so, the argument of Mr. Kopelke fails, for notwithstanding the Dred Scott decision, the United States can punish crimes such as murder committed either in its original or its subsequently acquired territory. Cf. Ins. Co. v. Canter, 1 Pet. 511; Dred Scott v. Sandford, 19 How. 432-444.

Having received jurisdiction, must Congress make its regulations in accordance with the Constitution, or may it make them contrary to the Constitution? We shall agree that a regulation made contrary to the Constitution is no law. But supposing the treaty itself says that the regulation when made shall be contrary to the Constitution, or that by virtue of the treaty, a