Co., 47 Id., 274. But if a servant goes outside of his employment and without regard to his service, acting maliciously, or in order to effect some purpose of his own, wantonly commits a trespass or causes damage to another, the master is not responsible; so that the inquiry is whether the wrongful act is in the course of the employment or outside of it and to accomplish a purpose foreign to it. In the latter case the relation of master and servant does not exist so as to hold the master for the act. Croft v. Allison, 4 B. & Ald., 590; Wright v. Wilcox, supra; Vanderbilt v. Richmond Turnpike Co., 2 Comst., 479; Male v. Lord, 39 N. Y., 481; Fraser v. Freeman, 43 Id., 566; Higgins v. Watervliet T. Co., 46 N. Y., 23; Rounds v. D. L. & W. R. R. Co., 64 N. Y., 329; Isaacs v. Third Avenue R. R. Co., 47 Id., 122. When the defense is that the wrongful act was not within the general scope of the servant's employment, and so not within the express or implied authorization of the master, it is for the court to pass upon the competency of the evidence, and for the jury to give effect to it. Seymour v. Greenwood, supra; Courtney v. Baker, 60 N. Y., 1; Jackson v. Second Avenue R. R. Co., supra; Rounds v. D. L. & W. R. R. Co., supra.

CONDITIONS IN RESTRAINT OF MARRIAGE.

There is some conflict of authority as to the law relating to the clause of a will containing conditions in restraint of marriage. In Stockpole v. Baumonti, 3 Vesey, 89, Lord Loughborough said that, "the authorities stand so well ranged on either side that the court would not appear to act too boldly whatever side of the proposition they should adopt." It is to be regretted that the learned Chancellor did not endeavor to make his own opinion more a source of light upon a dark subject, than a stricture upon his predecessors. As for this decision, it leaves us to accept as the law the unequivocal utterance of Lord Mansfield in Long v. Dennis, 4 Burr. 2050, where it is said: "Conditions in restriction of marriage are odious, and therefore held to the utmost rigor and strictness. They are contrary to sound policy. By the Roman law they are all void. In cases of conditions subsequent it has been established by precedent, that when the estate

is not given over, they shall be considered as only in terrorem." In Jarman on Wills, Vol. 1, p. 711, occurs the following text: "In regard to devises of real estate, it seems to be generally admitted (though the point rests rather on principle than decision) that unqualified restrictions on marriage are void on grounds of public policy." We think the text writers and courts of this country more generally accept than reject the foregoing as the law: Story, 1st Equity Jur. 291, says: "It has been attempted in some American states to maintain even that such conditions do not apply to real estate at common law, and sometimes even that conditions in restraint of marriage are valid at common law. But no such principle is fairly maintainable." Mr. Redfield, the author of the later revisions of Story's Equity Jur., adopts this view in his work on Wills, Vol. 2, p. 294, and, from the citations, we have a right to infer that neither of these writers accept as the law, Phillips v. Medbury, 7 Conn. 568, and Commonwealth v. Stauffer, 10 Penn. St. 350. In Willard's Eq. Jur., 526, the text is in accord with Story and Redfield. In Parsons v. Winslow, 1 Mass. 169, Sedgwick, J., held a devise during "life and widowhood” void. This case is criticised by Leonard, J., in Dumey v. Schaffler, 24 Mo. 170, wherein he combats the doctrine laid down by the text writers hereinbefore quoted, and accepts as the law the doctrine laid down in Phillips v. Medbury, and Commonwealth v. Stauffer, supra.

In

In these three cases wherein it is supposed the general doctrine laid down by the text writers is antagonized, we do not regard the decision as resting so much upon a distinctly defined principle as upon the circumstances of each of the particular cases. each case the condition in restraint of marriage was held to be a reasonable condition, based on the hypothesis that a father's desire to preserve to his widow and children, the estate he had left them should be respected and held up as a barrier between some probable improvident future husband and stepfather. The interests of the children seem more to have been considered than the freedom of the widow to act as she chose.

The cases of Hughes v. Boyd, 2 Sneed, 512, and Hawkins v. Skaggs, 10 Humph. 10, cited by the American editor of Jarman as main

taining a doctrine contrary to that laid down in the text certainly do no such thing. In the former case the court said: "It is, however, everywhere agreed that conditions in restraint of marriage are void, and others which are apparently so are not." It that case it seemed to be a question whether the clause in the will under consideration contained a condition in restraint of marriage, and it was held that it did not. To the same effect was the case of Hawkins v. Skaggs, supra.

There is a well defined distinction between an estate devised to a wife during her widowhood, and an estate devised to her for life, conditioned that she shall not marry. The former is a limitation which the courts uniformly uphold. The distinction between cases wherein the clause in the will was a limitation, and wherein it was a condition in restraint of marriage, should be regarded, although it has not been. As supporting the doctrine laid down in Dumey v. Shaffler, supra, by Leonard, J, the cases of Vance v. Campbell, 1 Dana. 230, and Pringle v. Dunkley, 14 S. & M. (Miss.) 11, are cited; but in the former case the court said the clause in the will under consideration was not a condition in restraint of marriage, but only an allowable limitation, and in the latter case where the devise was to the wife so long as she remained a widow." the court said this was a limitation and not a condition in restraint of marriage; and so held the court in Harmon v. Brown, in Indiana, in a recent case not yet reported. The case of Dillard v. Connowy, 3 Cush. 230, is certainly not a well considered case. The sole inquiry of the court seems to have been to ascertain the intention of the testator, and carry it out without reference to the rule laid down by all writers that the intention of the testator shall be carried out where it can be done consistently with the rules of law.

66

In some of the states this question is relieved of much of its embarrassment by statutory enactment. In Indiana (2 G. & H. 552) the statute provides that a "devise or bequest to a wife, with a condition in restraint of marriage, shall stand, but the condition shall be void.' A limitation of a devise during widowhood was held not within this statute. Harmon v. Brown, supra. The conflicting decisions in those states where there is no enactment on the subject, have served to surround the subject of this discussion with difficulties;

but we think it safe to conclude that the weight of authority in this country favors the doctrine laid down by Lord Mansfield in Long v. Dennis, and by Sedgwick, J., in Parsons v. Winslow. And that the courts of this country will only consent to uphold conditions of a will in restraint of marriage, when from the circumstances of the particular case the condition is deemed reasonable, and that in no instance do they wish to be considered as not in harmony with the text-writers on this subject. W**

This was an application for the issuance of an execution upon a judgment theretofore obtained by plaintiff against the defendant, presented to Erwin, probate judge of Mecklenburg county, upon the following facts agreed: The judgment was rendered in 1871, in Mecklenburg Superior Court, and immediately thereafter duly docketed in the county of Iredell, whereby it, proprio vigore, became a lien upon the real estate of the defendant in that county. The defendant, at the time of such docketing, owned real estate situate in said county of Iredell, and had owned the same continuously from the year 1859. The debt upon which the judgment was predicated was created before the late war. Under an execution issued on that judgment, the said real estate was allotted to the defendant as a homestead, pursuant to the law of North Carolina, as then expounded by her highest court, giving to the homestead a retroactive effect. In 1872 the defendant went into bankruptcy; the plaintiff, though notified, failed to prove his debt, and in 1873 the defendant was duly discharged as a bankrupt, and set up that discharge as a bar to the application. The plaintiff having failed to keep his execution alive was compelled, under the laws of North Carolina, to make this application to revive.

Judge Erwin, after taking an advisari, refused the application and dismissed the proceedings. From this ruling an appeal was taken to the judge then presiding in the Superior Court of Mecklenburg (Hon. W. R. Cox), who reversed the ruling of Judge Erwin and ordered execution to issue. From this ruling the defendant appealed to the supreme

court.

Jones & Johnston, for plaintiff, cited Eyster v. Gaff, 91 U. S. 521, 3 Cent. L. J. 250, and McHenry v. La Societe Française, 95 U. S. 58; Shipp & Bailey, for defendant. while conceding that specific liens were preserved in bankruptcy contended that the lien by judgment was a general lien destroyed by the destruction of its principal, or if otherwise that the creditor should have proeeeded under leave or direction from the bankruptcy court, and pending the case therein. Blum v. Ellis, 73 N. C. 293; s. c. 13 B. R. 345.

BYNUM, J., delivered the opinion of the court:

It was admitted by the counsel for plaintiff that the case of Blum v. Ellis, 73 N. C, 293, was a decisive authority against him; but he seeks, in a well-prepared and considered argument, to induce the court to reconsider and reverse that decision. Blum v. Ellis was a well-considered case, upon a review of the conflicting decisions of other courts up to that time. The importance of adhering to decisions once solemnly made, and thus preserving a uniformity in the law, can not be overestimated, and nothing less than a clear conviction that the decisions are erroneous, and ought to be overruled, will justify a departure from them.

Such a conviction has not been produced upon our minds by the able argument and the authorities of the plaintiff's counsel. Nor can the court, other things being equal, lose sight of a train of evils which must follow a reversal of that decision; evils which could not well be foreseen by debtors or creditors who alike supposed, and had the right to suppose, that a discharge in the court of bankruptcy was a final discharge from all preceding debts then provable.

There is error. Judgment reversed, and proceedings dismissed.

DEADERICK, C. J., delivered the opinion of the

court:

Rice, Stix & Co. recovered a judgment in the Circuit Court of Crockett County against W. B. & H. H. Richardson, from which they have appealed to this court. The suit originated before a justice of the peace, upon a note executed by plaintiffs in error to defendants in error, and was payable at the office of Dickinson, Williams & Co., and seems to have been endorsed by Rice, Stix & Co., and delivered to Dickinson, Williams & Co., and by them transferred by delivery to the Merchants' National Bank at Memphis as collateral security for subsisting indebtedness of it, and future advances to be made to Dickinson, Williams & Co., and was finally transferred to the Metropolitan National Bank, New York, for whose use this suit is now prosecuted. The defence is, that the note was paid while held by Dickinson, Williams & Co., to them and before its maturity.

Upon the trial, the defendants, among other things, requested the court to charge the jury, that if the defendants paid the note to Dickinson, Williams & Co., before it fell due and while they were holders of it, and before its transfer to the Merchants' National Bank as collateral security, they should find for the defendants. This, as well as all the other requests to charge several other propositions submitted by defendants, the court refused, saying to the jury that he charged the reverse of said several propositions. After the jury had retired they returned into court and asked: "If the note was paid by defendants before due to Dickinson, Williams & Co., while they were the holders of it, how should they find?" The court instructed them that such a payment would not exonerate defendants; that unless they made the payment after the note fell due, and before it was transferred by Dickinson, Williams & Co. to the Merchants' National Bank, the judgment would be no protection to them.

In the case of Gosling v. Griffin, decided at this place, November, 1875, (Jackson), a special judge delivering the opinion of the court, it was held that the maker of negotiable paper is not discharged if, before its maturity, and after its transfer, even as collateral security, he makes payment to any other than the real holder. The case of Valterlien v. Howell 5 Sneed, 441, in which it was held that in such case, unless the holder gave notice to the maker of the transfer, such payment would be valid, was reviewed and overruled; and it was held that "negotiable paper taken as collateral security for preexisting indebtedness, before maturity and before any equities exist against it, must stand upon the same footing as the transfer of overdue paper." The holder in neither case is considered a holder for value in due course of trade under the law merchant, and both are subject to all equities existing at the time of the transfer, but neither is subject to defences arising after such transfer. Following the authority of the case cited, we hold that it was error to refuse to charge the law as requested as hereinbefore stated, and to charge the jury as was done by the court in answer to the question submitted to the court by the jury.

The judgment will be reversed and the cause remanded for a new trial, under proper instructions to the jury.

A motion was made in the circuit court and renewed here to dismiss the appeal, upon the ground that the bond for appeal was not executed within the time allowed by law. The failure to give the bond within the prescribed time for the appeal from the justices' judgment to the circuit court, was the consequence of the agreement of the adverse party to allow further time, and they thereby waived any right to take exceptions on account of such failure, and the motion to dismiss was properly overruled by the circuit court.

1. THE RULE THAT FOREIGN CORPORATIONS can not purchase and hold real estate in this state does not apply to corporations created for the purpose of loaning money on real estate securities.

2. WHERE THERE IS NO CONSTITUTIONAL INHIBITION, the legislature has a right to pass statutes which reach back to and change or modify the effect of prior transactions.

3. THE CASE OF Carroll v. East St. Louis, 67 Ill. 568, explained.

BREESE, J., delivered the opinion of the court: This was a suit in equity to establish a first lien upon certain premises mortgaged to complainant, and for the further purpose of having declared void a certain mortgage on the same property in favor of "The United States Mortgage Co.," a corporation created by the laws of the State of New York, and whose place of business was in the city of New York, on the ground that this company is, and was at the time the mortgage was executed, a foreign corporation organized under the laws of the State of New York, and having no legal existence in this state. There are other points in the case, the facts of which are voluminous, but they are of minor importance.

In the argument of these cross-errors it seems to be insisted that the same principles found in the case of Carroll v. East St. Louis, 67 Ill. 568, are in this case and it must be decided in the same way. That would certainly be the result if the cases were analogous. We perceive no resemblance in the cases. In the case cited a foreign corporation was created for the express purpose of purchasing and selling real estate that was the main, if not the

whole object of the incorporation. This court held such a corporation had no such power to be exercised in this state, such exercise being against the general policy of our legislation in respect to incorporations created by the authority of this state, and tended to create perpetuities, and this policy must be determined by reference to its general legislation either by prohibitory or creating acts, or by its general course of legislation on the given subject. The point of the decision is, such purchasing and holding tended to create perpetuities which were considered abhorrent to our institutions and policy.

We do not perceive any element of that nature in this transaction. Here is a corporation created by the laws of the State of New York, we will concede for the purpose of loaning money on mortgage. By no possibility could a perpetuity result from the transactions of such an incorporation, whether we regard the mortgages taken as conveying the title or as a mere incident to the debt it is assigned to secure. But it is urged that such a corporation, for the purpose of loaning money on real estate security, could not at the time of this transaction be created by the laws of this state, and reference is made to the general incorporation act of 1872 as found in the revised statutes of 1874, chap. 32, title "Corporations." Section 1 of this act declares that corporations may be formed in the manner provided by this act for any lawful purpose, except banking, insurance, real estate brokerage, the operation of railroads and the business of loaning money. Section 26 is also cited, which subjects foreign corporations and its affairs and agents doing business in this state to all the liabilities, restrictions and duties imposed upon domestic corporations of like character organized under the laws of this state, and shall have no greater powers, and no foreign or domestic corporation established for the pecuniary profit of its stockholders or members shall purchase or hold real estate in this state, except as provided for in this act. p. 290.

We

This last section quoted is aimed at the evil in Carroll v. East St. Louis, supra, deprecated, as such purchasing and holding would tend to create perpetuities, but we do not think it was designed to apply to securities taken by way of mortgage; for the act seems to contemplate such securities will be taken, and provides for offering the real estate thus acquired for sale at stated periods. But we must yield to the suggestion that by section one no corporation, domestic or foreign, could be organized, the loaning of money being its chief business. cannot say, in view of the legislation, that state courts should acknowledge such an organization by a foreign state, and hold its acts valid in this state. But it is urged by appellant, if this be so, the general assembly, by an act passed in 1875, obviated this objection and removed the difficuly. That act provides that any corporation formed under the laws of any other state or country, and authorized by its charter to invest or loan money, may invest or loan money in this state; and any such corporation that may have invested in or lent money as aforesaid, may have the same rights and powers

for the money thereof, subject to the same penalties for usury as private persons, citizens of this state; and when a sale is made under any judgment, decree or power in a mortgage or deed, such corporation may purchase, in its corporate name, the property offered for sale, and become vested with the title, wherever a natural person might do so in like cases. Laws 1875, p. 65.

This statute, on its face, manifests a design to change the policy announced in Carroll v. East St. Louis, supra, and is retroactive in its terms, and liable to none of the objections urged against it. Retrospective or retroactive statutes are not usually regarded with much favor by courts, but exigencies may arise in the life of every community rendering such laws necessary to promote justice, and avoid injury to the innocent. Some courts have held that all such laws are not obnoxious to constitutional objection, while others hold they are absolutely void. The settled opinion, we believe to be, when there is no constitutional inhibition, the legislature has a right to pass statutes which reach back to, and change or modify the effect of prior transactions. It is a general rule, and a safe one, that a statute should have a prospective operation only, unless the terms show clearly a legislative intention that it should operate retrospectively. The act of 1875, having the decision of the court in view made in 1873, declared that foreign corporations might loan money, and when they had loaned money they might collect it as natural persons. Clearly this statute, by its very words, reaches back, it being deemed necessary to remedy a supposed existing evil.

It is said by Cooley in his treatise on Constitutional Limitations, that when such acts go no farther than to bind a party by contract, which he has attempted to enter into but which was invalid by reason of some personal inability on his part to make it, or through neglect of some legal formality or in consequence of some ingredient in the contract forbidden by law, the question they suggest is one of policy and not one of constitutional power. p. 374. There are many cases to be found where the courts have so held, and legislative acts validating invalid contracts, have been sustained. This court said in Mitchell v. Deeds, 49 Ill. 416, that the legislature had the same power to ratify and confirm an illegally appointed corporate body that it had to create a new one. So, here, the legislature could originally have granted the power to foreign corporations to loan money, therefore they have the power to ratify the act when done, without the power to do it when done. We have often examined the authorities on this subject of retrospective legislation, and we think the fair conclusion is, that the legislatures of the several states have power, except when prohibited by the local constitution, to enact retrospective statutes in certain cases, and it belongs to the courts to determine whether such acts come within the spirit of the constitution of the United States, which limits the legislative power, and whether the effect of such statutes interferes with vested rights.

We perceive no clashing with any constitutional provision by this statute, nor does it interfere to

divest any vested right, but promotes justice and compels a party to perform his contract as he made it. The court therefore decided correctly in sustaining the power of appellants to the money and to take the mortgage, and that the same was a valid and first lien on the premises.

REMOVAL OF CAUSES.

RE FRASER.

United States Circuit Court, Eastern District of Michigan, August, 1878.

Before Mr. JUSTICE SWAYNE.

1. AN APPLICATION FOR REMOVAL of a cause can not be made to an appellate court. Therefore, the application in this case should have been made before the decree of the probate court was entered and the appeal taken; and not having been so made is too late. 2. THE WORD "PARTY" in the act of 1875 is collective, and means all the plaintiffs and all the defendants; all on each side must be "citizens of different states" from those on the other side.

3. A FEDERAL COURT has no jurisdiction in proceedings to establish a will.

The will of A. D. Fraser was contested in the Probate Court of Wayne county, by six of his heirs at law, four of whom were citizens of Michigan, and the remainder citizens of other states. The proponents of the will were also citizens of Michigan. The probate court, after a hearing, made a decree admitting the will to probate; whereupon the resident and non-resident citizens took their separate appeals therefrom to the circuit court for the county of Wayne. On the perfection of the appeals the usual order was made by the court in both of them, that issues of fact be found—viz., as to the sanity of Mr. Fraser and due execution of the will.

On motion of the proponents the circuit court ordered that the two appeals and issues be heard as one case, the issue in each being the same. Be fore this order, and after the case was ready for hearing, the non-resident contestants filed their petition and bond, under the act of Congress, for the purpose of removing their appeal to the Circuit Court of the United States for the Eastern District of Michigan.

The proponents thereupon made a motion in the United States court to remand the record to the state court. In the meantime, the defendants applied to the Supreme Court of Michigan for a mandamus to set aside the order of consolidation made by the state court. It was refused, upon the ground that there was but one issue, and that the several appeals constituted but one suit. See People v. Wayne, 7 Cent. L. J. 179. During the argument before Mr. Justice Swayne, at Detroit, it appearing that the record of the appeal of the citizens of Michigan was still in the circuit court (they not having joined in the petition of removal), a certiorari, under the act of Congress of 1875, was directed to be issued to the state court to send it up.