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The Central Law Journal.

SAINT LOUIS, JUNE 14, 1878.

CURRENT TOPICS.

In Brown v. Pyle, 5 W. N. 394, recently decided by the Supreme Court of Pennsylvania, a father had agreed to pay his son a specific sum for work to be done during his minority; but no note was given, nor was any Sixwritten agreement made between them. teen afterwards the father, when insolvyears ent, gave his son his judgment note, payable on demand, in payment of his son's services. To the fund arising from a sheriff's sale of the personal property of the father upon execution under this judgment, the father's creditors contested the son's claim, averring that it was a fraud upon their rights, and therefore void. The court held (reversing the decree of the court below), that the judgment was valid, and that the preference was not a fraud upon the creditors, the consideration being honest and the debt justly due. That a father may

so manumit his son as to authorize him to contract with an employer, and receive his earnings to his own use, is well established. Galbraith v. Black, 4 S. & R. 407; United States v. Mertz, 2 Watts, 406. He may do this although he be insolvent. Holdship v. Patterson, 7 id. 547. Although he be legally entitled to the wages of his minor son, he is not bound to claim them for the benefit of his creditors. McCloskey v. Cyphert, 3 Casey, 220. In this last case, it was said by Mr. Justice BLACK: "This emancipation of the son from the father's control may be as perfect when they both live together under the same roof as if they were separated. The father's renunciation of all legal right to the son's labor is not the less absolute because other family ties continue unbroken." He may so relinquish his right to the services of his minor son that he can not reassert that right, either against the son or other persons. Torrens v. Campbell, 24 P. F. S. 470. If the consideration in this case was honest, and the debt justly due, it was no fraud on the other creditors to thus prefer the son, except as against a bankrupt law. A debtor may prefer one creditor to another, and such preferVol. 6-No. 24.

ence is not fraudulent either in law or in fact. Uhler v. Maulfair, 11 Harris, 481; Hart v. Covanhovan, 9 id. 495; Hopkins v. Beebe, 2 Casey, 85. A debtor may even prefer a bona fide creditor by a confession of judgment, although the claim were not enforceable at law. Keen v. Kleckner, 6 Wright, 529.

The Supreme Court of the United States in re Jackson, have just delivered an important opinion concerning the postal laws of the United States. Section 3,894, of the Revised Statutes as amended, provides that "No letter or circular concerning lotteries, so-called gift-concerts, or other similar enterprises offering prizes, or concerning schemes devised and intended to deceive and defraud the public for the purpose of obtaining money under false pretenses, shall be carried in the mail;" and that 66 any person who shall knowingly deposit or send anything to be conveyed by mail in violation of this section, shall be punishable by a fine of not more than five hundred dollars nor less than one hundred dollars, with costs of prosecution." The petitioner was indicted under this law in the Circuit Court of the United States for the Southern District of New York, for unlawfully depositing in the United States mail, to be conveyed by it, a circular concerning a lottery prize enterprize enclosed in an envelope addressed to another person. He was convicted and sentenced to a fine of $100. He thereupon appealed to the Supreme Court for a habeas corpus on the ground of the unconstitutionality of the act under which he was convicted. This the Supreme Court refused, holding as follows: 1. The power vested in Congress to establish "post-offices and post-roads " embraces the regulation of the entire postal system of the country. Under it Congress may designate what shall be carried in the mail, and what shall be excluded. 2. In the enforcement of regulations excluding matter from the mail, a distinction is to be made between different kinds of mail matter; between what is intended to be kept free from inspection, such as letters and sealed packages subject to letter postage; and what is open to inspection, such as newspapers, magazines, pamphlets, and other printed matter, purposely left in a

condition to be examined. 3. Letters and sealed packages subject to letter postage in the mail can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in one's own household. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be 4. Regulations against the transportation in the mail of printed matter, which is open to examination, can not be enforced so as to interfere in any manner with the freedom of the press. Liberty of circulating is essential to that freedom. When, therefore, printed matter is excluded from the mail, its transportation in any other way can not be forbidden by Congress. 5. Regulations excluding matter from the mail may be enforced through the courts, upon competent evidence of their violation obtained in other ways than by the unlawful inspection of letters and sealed packages; and with respect to objectionable printed matter, open to examintion, they may in some cases also be enforced by the direct action of the officers of the postal service upon their own inspection, as where the object is exposed and shows unmistakably that it is prohibited, as in the case of an obscene picture or print.

The act of Congress, of July 17, 1872, § 2, (12 Stat. 592; Rev. Stat. 711, § 3583) declares that "no no private corporation, banking association, firm or individual shall make, issue, circulate, or pay out any note, check, memorandum, token or other obligation, for a less sum than one dollar, intended to circulate as money, or to be received or used in lieu of the lawful money of the United States," under a penalty of fine or imprisonment, or both. In United States v. Van Auken, decided by the Supreme Court of the United States during its present term, the defendant was indicted under this act for circulating an instrument in the following words: "The Bangor Furnace Company will pay the bearer on demand fifty cents in goods at their store in Bangor, Mich." The court held that the instrument not being payable in legal money, was not within the statute.

"The

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solution of the question," said the court, 'depends on the construction of the words 'for a less sum than one dollar.' The object of the provision was obviously to secure as far as possible the field for the circulation of stamps, as provided in the preceding section, without competition from any quarter. This currency was superseded by the fractional notes authorized to be issued by the act of March 3, 1863, § 4, 12 Stat. 711. Small notes payable in any specific articles, if issued, could have only a neighborhood circulation, and but a limited one there. It could be but little in the way of the stamps or small notes issued for the purposes of circulating change by the United States. Congress could, therefore, have had little or no motive to interfere with respect to the former. This must be borne in mind in the examination of the question in hand. A dollar is the unit of our currency. It always means money, or what is regarded as money. In this case the statute makes it the standard of measure with reference to the forbidden notes and obligations. If one of them be for a larger 6 sum than one dollar,' it is not within the prohibition and is not affected by the law. It is a fair, if not a necessary inference, that the standard of measurement named was intended to be applied only to things ejusdem generis, in other words, to notes for money and to nothing else. It is certainly inapplicable to any thing not measurable by the pecuniary standard. It could not be applied where the measurement was to be ex gratia, by the pound, the gallon, the yard, or any other standard than money. This view is supported by the statutory requirement that the forbidden thing must be intended to circulate as money, or to be received or used in lieu of the lawful money of the United States.' One of the lexical definitions of the word 'sum,' and the sense in which it is most commonly used, is money.' 'Sum. (2) A quantity of money or currency; any amount indefinitely, as a sum of money, a small sum, or a large sum.'-Webster's Dic. 'For a less sum than one dollar,' means exactly the same thing as, for a less sum of money than one dollar. In the former case there is an ellipsis. In the latter it is supplied. The implication where the omission occurs is as clear and effectual as the expression where the latter is added. The grammatical

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construction and the obvious meaning are the same. The statute makes the offense to consist of two ingredients: (1) The token or obligation must be for a less sum than a dollar. (2) It must be intended to circulate money, or in lieu of the money of the United States. Here the note is for goods,' to be paid at the store of the Furnace Company. It is not payable in money, but in goods, and in goods only. No money could be demanded upon it. It is not solvable in that medium. Watson v. McNairy, 1 Bibb, 356. The sum of 'fifty cents' is named, but merely as the limit of the value in goods demandable and to be paid upon the presentment of the note. Its mention was for no other purpose and has no other effect. In the view of the law the note is as if it called for so many pounds, yards, or quarts of a specific article. The limit of value, there being none other, gave the holder a range of choice as to the articles to be received in payment-limited only by the contents of the store."

CONSECUTIVE TRIALS FOR THE SAME OFFENSE.-II.

The cases we have just been considering hinge upon the identity of offenses so far as concerns their subjective scope. We now approach an interesting line of cases where the dispute is, not as to the nature of the offense, considered by itself, but as to whether the variation of the object, or the grouping of two objects together, constitutes divisibility in the offense. If A, for instance, in shooting at B, kills both B and C, is his conviction under an indictment for killing B a bar to a prosecution against him for killing C? In answering this question let us remember that to join the killing of B and C in the same count would be a duplicity that would not be tolerated; and that if joined in the same indictment in separate counts, the court would compel an election between the offenses. It would be necessary, therefore, to prosecute the cases separately; and if so, it is hard to see how a conviction or acquittal of the one could bar a prosecution of the other. To the indictment for killing B, for instance, A, might set up self-defense and be acquitted; but this might be plausibly argued to be an issue different from that which would be presented on his trial for killing C, should it appear that the killing of C was an unprovoked or negli

gent act. An acquittal or conviction, therefore, of killing B, ought not, on principle, to bar a subsequent indictment for killing C, though the killings were by the same blow.23

A similar question arises in larceny. Thus when several articles belonging to the same owner are stolen by the same person simultaneously, they may be grouped in the same count, and a conviction or acquittal on such count, or on any divisible allegation thereof, bars a future indictment for the stealing of the articles enumerated in the count.24

But as the better opinion is that there can be no joinder of larcenies of distinct articles belonging to different owners, 25 it follows that a conviction or an acquittal for stealing or feloniously receiving the goods of B, does not bar a prosecution for stealing or receiving the goods of C, though the acts were simultaneous. Indeed, though the offenses were nominally the same, they may be substantially different, since one article may be taken under a claim of right, and the other with felonious intent, the only point in common being concurrence in time in the taking.26

Another reason for the conclusion just given is that if, in those jurisdictions which hold the joinder of articles belonging to different owners to be duplicity, we should refuse a subsequent indictment for goods stolen from an owner different from the owner named in the first indictment, we would deprive the

(23) See R. v. Champneys, 2 M.& R. 26; R. v. Jennings, R. & R. 368; State v. Damon, 2 Tyler, 390; State v. R. 338; State v. Fife, 1 Bailey, 1; State v. Fayetteville, Benham, 7 Conn. 414; People v. Warren, 1 Parker C. 2 Murphy, 371; State v. Standifer, 5 Port. 523; Vaughan v. Com. 2 Va. Cas. 273; Smith v. Com. 7 Grat. 593; See, however, State v. Womack, 7 Cold. 508. And as disputing the text, see Clem v. State, 42 Ind. 420. See, also, Whart. on Hom. §§ 28-48. for a discussion of whether grade in all cases of double killing is identical.

(24) R. v. Caison, R. & R. 303; Furneaux's case, R. & R. 335; State v. Cameron, 40 Vt. 555; Com. v. Williams, 2 Cush. 583; Com. v. O'Connell, 12 Allen, 451; Com. v. Eastman, 2 Gray, 76; Jackson v. State, 14 Ind. 327; State v. Williams, 10 Humph. 101; Torton v. State, 7 Mo. 55; People v. Wiley. 3 Hill (N. Y.) 194; though see 1 Hale, 241; R. v. Brettiel, C. & M. 609; Com. v. Sutherland, 109 Mass. 342; State v. Thurston, 2 McMul. 382.

(25) State v. Newton, 42 Vt. 537; Com. v. Andrews, 2 Mass. 409; State v. Thurston, 2 McMullen, 382; though see Com. v. Williams, Thatcher's C. C. 722; State v. Nelson, 29 Me. 329; Ben v. State, 22 Ala. 9; Com v. Dobbin, 2 Pars. 380; Lorton v. State, 7 Mo. 55.

(26) R. v. Knight, L. & C. 378; 9 Cox C. C. 439; Com. v. Andrews, 2 Mass. 409; State v. Thurston, 2 McMul. 382; People v. Warren, 1 Parker, C. R. 338.

owner in the second case of his right to a restoration of the goods by sentence of court, when it might be that he had no notice of the first prosecution.

An apparent exception to the rule before us exists in cases of assaults and batteries, in which it is conceded that if there be a battery on several persons by one blow, a conviction or acquittal for a battery on one of these persons bars a subsequent prosecution for a battery on the other. And the reason of this is plain. It is agreed on all sides that a count charging a battery on A, B and C is good. Such being the case, if the prosecution neglects to make such a joinder, it is properly precluded from further proceedings based on the same blow. It would be an undue vexation of the defendant to permit him to be thus oppressed.

To the doctrine thus stated another qualification has been proposed. Suppose the prosecution could have, if it chose, prosecuted the offenses in a single count, (e. g., assault and assault with intent to wound) but did not do so, yet on a count for assault put the aggravated offence in evidence, and obtained a conviction on the aggravated case, and a sentence accordingly. Can a second indictment be maintained for the aggravated offerse? The answer must be in the negative, since the prosecution cannot take advantage of its own negligence in the imperfect presentation of its care, and since the defendant has been tried and convicted on the basis of the aggravated offense.27

Should the defendant be acquitted on the first trial, the whole case of the second being before the jury, then as he has been acquitted of what is an essential ingredient in the second case, the second case cannot proceed. FRANCIS WHARTON.

(27) R. v. Elrington, 9 Cox C. C. 86, 1 B. & S. 689; 10 W. R. 13; citing R. v. Stanton,5 Cox C. C. 324;Thompson, in re, 9 W. R. 203; see State v. Smith, 43 Vt. 324; State v. Stanley, 4 Jones L. (N. C.) 290. The English rulings above cited, however, took place under a statute providing that after a trial by justices there shall be no further proceedings civil or criminal, "for the same cause."

WILLIAM F. ALLEN, an Associate Justice of the New York Court of Appeals, died at his home in Oswego, in that state, on the 3d inst. He was admitted to the bar in 1829, appointed United States District Attorney in 1845, elected to the Supreme Court of the state in 1848 and 1856, and to the Court ef Appeals in 1870.

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The only question in this case is whether the parties could be rightfully tried in Shelby county, the original taking being in Fayette county. The facts are that the parties were chained together, and in custody of the sheriff of Madison county, being carried from this county to the jail of Shelby county, to which they had been remanded by order of this court, for new trials granted in their cases. The prosecutor, one Curry, was in the car where the prisoners were, when the defendants got into a difficulty with him, and robbed him of his watch and chain. They carried it on to Shelby county, where it was taken from the possession of another prisoner, who was along with them in the cars. It is insisted this was not a voluntary carrying of the property into Shelby county, so as to make the parties indictable in that county, but that Fayette county is the county of the venue. In support of this view, the case of Rex v. Simmonds, Moody's Cr. Cas., vol. 1, 408, is cited. In that case the prisoner was indicted in the county of Kent, for stealing two horses. He was apprehended in Surrey, and stated he had been to

Dorking to bring the horses, and they belonged

to his brother. The police officer then proposed to go to Bromley with him, in order to ascertain the facts. After going part of the way, the defendant said he had left a parcel at some place in Kent, whereupon the police officer went to Kent with him. When they arrived at the designated place, the horses were put up and the prisoner escaped, but was afterwards arrested and tried in Kent. It was held by the judges of England, that there was no evidence of stealing in Kent, and that the prisoner was only triable in Surrey, where the horses were taken. This is all very well, but does not meet this case. Here the prisoners stole the articles while in custody of the sheriff with the purpose of carrying them to Shelby county, their certain destination. The watch and chain were so carried in pursuance of this purpose, so that the carrying into Shelby was as much their voluntary act as if they had been free from custody, and had stolen the articles in one county with

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ACTING under authority of a statute of Arkansas, a probate court of that state ordered and adjudged that the disability of non-age of G be removed, "so far as to authorize him to demand, sue for and receive all moneys belonging to him in the state of Missouri, in the hands of his curator or any other person, and to execute releases therefor in the same manner as if he was of full age." In a suit brought by G, in Missouri, against his curator: Held, that the statute of Arkansas was inoperative in Missouri, and that the infant could not sue in his own name.

ERROR to the Cooper Circuit Court:

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

court:

Suit upon the defendant's bond as curator of the estate of the relator.

The petition avers that the relator, Willie Gilbreath, is an infant under the age of twenty-one years, and is now a resident of Washington county, in the State of Arkansas, and that Bunce is the curator of his estate, acting under appointment of the Probate Court of Cooper county, Missouri, and has in his hands as curator notes and money amounting to the sum of two thousand dollars; that the General Assembly of the State of Arkansas, by an act approved February 18th, 1869, entitled, "An act to confer upon the probate and circuit courts, of the State of Arkansas, certain powers for removing legal disabilities of minors;" empowered the several probate courts of the state to authorize any person who is a resident within their jurisdiction, and who is under twenty-one years of age to transact business in general, or any particular business specified, in like manner and with like effect as if the act or thing was done by a person above that age, and that such act should have the same force and effect as if done by a person of full age; that in pursuance of said act the Probate Court of Washington county, Arkansas, at its September term, 1875, ordered and adjudged that the disability of non-age of said Willie Gilbreath be removed "so far as to authorize him to demand, sue for and receive all moneys belonging to him in the State of Missouri, in the hands of his curator or any other person, and to execute re

leases therefor in the same manner as if he was of full age;" that by virtue of said act and judgment the legal disability of non-age was removed so far as to authorize him to demand, sue for and receive all money belonging to him in the hands of his curator in the State of Missouri. The petition then sets out the bond of the defendant Bunce as curator, and for breach thereof alleges the refusal of Bunce to pay over the money upon demand and asks judgment for the amount in his hands.

The suit is prosecuted by plaintiff in his own name and he appears thereto by attorney. The defendants demurred to this petition alleging as grounds thereof that the petition showed upon its face that Willie Gilbreath was an infant under twenty-one years of age, and that he could not prosecute this suit by attorney but must do so by next friend; that it also showed that Bunce was lawfully possessed of the money and therefore stated no cause of action; that the act of the legislature and the order of the Probate Court of Arkansas was of no validity in this state, and could not affect the property under Bunce's control; and lastly because the petition stated no cause of action. The petition was held insufficient and final judgment entered for the defendant and the case comes here by writ of error.

The demurrer was well taken in that the petition showed upon its face that the party to whose use this suit is brought is an infant under the age of twenty-one years and does not appear by guardian in conformity to the statutory regulation. § 6 p. 1014, 2 W. S.; Ib. § 1 et seq., p. 1003; Higgins v. R. R. Co., 36 Mo. 419; Jones v. State, Ib. 324; Copeland v. Yoakum, 38 Mo. 349.

But the demurrer was well taken for a far weightier reason, a reason going to the very foundation of the suit. The legislature of Arkansas did not possess the power to pass a law to override and control our laws, no more could it authorize the Probate Court of Washington county to do this. Smith v. McCutchen, 38 Mo. 415; Story Confl. Laws §§ 539, 18, 103. Our own statutes (1 W. S. p. 672 § 1, and p. 681 § 48) provide when infants shall attain their majority, and they must be our guides and not the laws which emanate from a foreign jurisdiction.

Judgment affirmed. All concur.

NOTE.-Statutes regulating capacity have given rise to no little conflict of authority. The civilians generally hold that the law of the domicil determines personal capacity, but in this country and in England it has generally been held that statutes recognizing and regulating natural capacity and disability are valid whenever drawn in question; but that statutes creating artificial disability, or removing natural disabilities, have no extra-territorial force. And it may be said generally that the lex loci contructus aut actus governs capacity as to contracts relating to movables; and that the lex rei sitæ governs contracts relating to immovables.

In the noted case of Saul v. His Creditors, 17 Mart. 596, it was held that the law of the domicil or the lex loci contractus aut actus would be applied, so as to give capacity if possible. It was said: "The writers on this subject agree that the laws or statutes which regulate minority and majority, and those which fix the

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