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of alien parents, during their temporary sojourn in that city, returned with them the same year to their native country, and always resided there afterward. It was held that she was a citizen of the United States.
After an exhaustive examination of the law, the vice-chancellor said that he entertained no doubt that every person born within the dominions and allegiance of the United States, whatever the situation of his parents, was a natural born citizen; and added, that this was the general understanding of the legal profession, and the universal impression of the public mind. In illustration of this general understanding he mentions the fact, that when at an election an inquiry is made whether the person offering to vote is a citizen or an alien, if he answers that he is a native of this country the answer is received as conclusive that he is a citizen; that no one inquires further; no one asks whether his parents were citizens or foreigners; it is enough that he was born here whatever was the status of his parents. He shows also that legislative expositions on the subject speak but one language, and he cites to that effect not only the laws of the United States, but the statutes of a great number of the States and establishes conclusively that there is on this subject a concurrence of legislative declaration with judicial opinion, and that both accord with the general understanding of the profession and of the public.
Whether it be possible for an alien, who could be naturalized under our laws, to renounce for his children, whilst under the age of majority, the right of citizenship, which by those laws he could acquire for them, it is unnecessary to consider, as no such question is presented here. Nor is the further question before us whether, if he cannot become a citizen, he can, by his act, release any right conferred upon them by the Constitution.
As to the position of the district attorney that the Restriction Act prevents the re-entry of the petitioner into the United States, even if he be a citizen, only a word is necessary. The petitioner is the son of a merchant, and not a laborer within the meaning of the act. Being a citizen, the law could not intend that he should ever look to the government of a foreign country for permission to return to the United States. And no citizen can be excluded from this country except in punishment for crime. Exclusion for any other cause is unknown to our laws and beyond the power of Congress. The petitioner must be allowed to land, and it is so ordered.
GOOD V. TOWNS.*
A legal dependency is necessary to constitute a right of action under the statute, R. L., § 3833, giving an action to one dependent on a person whose death was caused by intoxicating liquors illegally furnished; thus, if the action is brought by one claiming to be the widow of such person, it is incumbent on her to prove that her marriage was lawful; or if by a child, that he was legitimate. The statute gives the right of action to one dependent on such intoxicated person for support.
14., 5.983. Trial by jury, Sep
tember Term, 1882, Windham county, Rowell, J., presiding. Verdict ordered for the defendants. The plaintiff offered to prove that the defendant Towns
* To appear in 56 Vermont Reports.
was the proprietor of a hotel in Bellows Falls; that he kept a bar in his hotel, at which intoxicating liquor was sold, and that the defendant Sullivan tended the bar for him; that Sullivan unlawfully sold said liquor to one Peter Good, who drank such quantities of it that he died in consequence thereof. She also offered to prove that said Good was married to one Mary E. Marcy in 1854, and that she lived with him as his wife till the summer of 1867, when she left him, and at the time of his death, in 1881, she was living in Worcester, Mass., with another man as his wife, between whom the ceremony of marriage was performed in 1872; that no divorce had been granted to said Good or his wife; that the said Mary E. was not dependent on said Good for her support, and that she made no claim on his estate, and none on the defendants; that soon after said Good's wife left him he procured this plaintiff, Mary M., then about fourteen years of age, to work for him as his housekeeper; that she lived with him as his wife till the time of his death; that at that time she was the mother of seven children, and two days after his death she gave birth to an eighth child, and that said Good was the father of said children; that after the birth of the first child the ceremony of marriage was performed between the said Good and the said plaintiff, Mary M., aud that she understood that he had been divorced from his first wife; that said Good acknowledged the seven born previously to his death to be his children, and furnished a home and support for them; that said Good treated and acknowledged said plaintiff, Mary M., as his wife in the community where they lived; that he had supported her, and would have contined to do so had he lived; and that she was dependent on him for support. Mary E. Good brought her action by her next friend, Mary M. Good. In this suit the plaintiff offered to prove substantially the same facts that Mary M. did in her suit; and that she was the child, about thirteen years old, of the said Peter and Mary M. Good; that ever after her birth said Peter had acknowledged that he was her father, and treated her as his child, furnished her a home, supported her, and would have continued to do so had he lived; and that she was dependent on said Peter for her support.
Bridgman & Weston and C. B. Eddy, for plaintiffs. James Barrett and L. M. Reed, for defendants.
ROWELL, J. The first point made by the defendant is that the statute* gives a right of action, not to one dependent for support on the intoxicated person who dies or is disabled, but to one thus dependent on the person whom the intoxicated person kills or disables; and such is the construction given to a similar statute in New Hampshire. Hollis v. Davis, 56 N. H.74. But in Richards v. Moore, heard at the January Term, 1882, in Franklin county, this court held that the statute gave a right of action to one dependent on the intoxicated person, and we are not disposed to overrule that decision.
The next question is, what is the character of the dependency that gives this right of action? Plaintiffs
*"When a person, by reason of intoxication, commits or causes an injury upon the person or property of another, a person who by himself, cierk or servant, unlawfully sold or furnished any part of the liquor causing such intoxication, shall be liable to the party injured for the damage occasioned by the injury so done,” etc. “In case of the death or disability of a person, either from such injury or in consequence of intoxication from the use of liquors so unlawfully fur nished, a person who is in any manner dependent on such injured person for means of support, or a person on whom such injured person is dependent, may recover from the person unlawfully selling or furnishing any such liquor the damage or loss sustained in consequence of such injury." R. L., § 3833.
contend that a dependency in fact is sufficient, though it may not be a legal dependency, and that here was a legal dependency in the case of the child at all events. Defendants, on the other haud, contend that nothing short of a dependency that the party depended upon is legally bound to respond to is sufficient, and that here was no such dependency as to either plaintiff.
As to the plaintiff Mary M. Good, it needs no argument to show that Peter Good was under no legal obligation to her to support her. His marriage to her was void; and as between the parties thereto it imposed none of the legal obligations of lawful matrimony. But as to third persons, a man who marries a woman, and holds her out to the world as his wife, cannot discharge himself from liability for necessaries supplied her by proving a previous lawful marriage to another woman still living. Watson v. Threlkeld, 2 Esp. 637; Robinson v. Nahon, 1 Camp. 245. But he is not liable for necessaries furnished her after separation, and ceasing to hold her out as his wife. Munro v. De Chemant, 4 Camp. 215. So in Norwood v. Stevenson and Wife, cited in a note to Munro v. De Chemant from Andrews, 227, it was held that a plea by the husband that "they were never joined in lawful matrimony" was no bar to an action against him and his wife for her debt contracted when sole, for that a marriage de facto made him liable.
As to the plaintiff Mary E. Good, she is an illegitimate child of the deceased; and as to such a child it is clear that the common law imposes no liability on the father as such to support it. But he is liable on his express promise for its support. He is also liable on his implied promise, without an order of affiliation, provided he has adopted the child as his own and acquiesced in any particular disposition of it. But he may renounce the adoption and terminate the implied assumpsit. This is the result of the cases, English and American: Hesketh v. Gowing, 5 Esp. 131; Cameron v. Baker, 1 C. & P. 268; Nichole v. Allen, 3 id. 36; Furillio v. Crowther, 7 D. & R. 612; Moncrief v. Ely, 19 Wend. 405. Otherwise than this the father is not liable except he be made so by an order of affiliation; and then his liability is not to the child, but is imposed by way of helping the mother or indemnifying the town.
It is true, as contended, that the language of the statute is broad, "in any manner dependent;" but after all, we think it should be construed to mean a legal dependency only, the same as though it read "in any manner legally dependent." If it is given greater scope than this there would be great difficulty in administering it. There would seem to be no stopping place short of including all possible cases of actual dependency, whatever the relation of the parties, and notwithstanding the absence of even a moral obligation to support; and yet no one, we presume, would contend for so latitudinarian a construction of the statute. Shall we then stop at the utmost limit of moral obligations? But the law cannot determine what a moral obligation is, and takes no cognizance of them. Again by what rule shall damages be assessed in cases where, as here, no legal right has been lost?
This is not a question on which much authority can be adduced, but the case of Dickinson v. North-Eastern R. Co., 2 H. & C. 735, is worth referring to. That was an action under the Civil Damage Act of 9 and 10 Vict., ch. 93, which provides that the action shall be for the benefit of the wife, husband, parent and child of the person killed. Price contended that "child," as used in the statute, included an illegitimate child; that the Legislature intended the right of action to be coextensive with the moral obligation to support; and that the legal right to support could not be the test of
what class of persons could maintain the action. But Pollock, C. B., said it was beyond all doubt that in the construction of that act the word "child" meant legitimate child only; and a rule for a new trial was refused.
The result is in both cases,
NEW YORK COURT OF APPEALS ABSTRACT.
WILL--POWER OF SALE-DISCRETION OF EXECUTORS -WHEN COURT WILL NOT CONTROL.-The will of C. directed and empowered her executors to sell her real estate "for the best price that can be obtained for the same, and at such time or times as shall in their judgment be for the best interest of all concerned," and the proceeds were given them in trust for the benefit of certain beneficiaries. In an action brought about five years after the death of the testatrix, the removal of the only executor who qualified, because of alleged neglect of duty in omitting to comply with his provision, the referee found that there had been no demand for the property, and its depreciation in value after the death of the testatrix was due to the state of the real estate market in the place where the property was situated; that he had made all reasonable efforts to sell, without success, and that prior to the trial no offer had been made by any person to purchase. Held, that the relief sought was properly denied; that while the direction to sell was imperative, the time of sale was in the discretion of the executor, and his judgment, exercised in good faith, was conclusive. The learned counsel for the appellants calls our attention to Dimes v. Scott, 4 Russell, 195, as decisive of this question. It lacks however an essential element found in the case before us. In the case cited the executors were directed by the testator to convert the personal estate into money and invest the proceeds in a way stated. The language of the will was imperative. In this the testatrix, as we have seen, directs her executors to sell the real estate of which she shall die seized, but leaves the time of sale to be determined by their discretion. This clause cannot be disregarded. In both cases the intent to have the land sold is absolute, but in the latter the testatrix relies upon the judgment of her executor as to the time of sale, and whatever the court might think as to the expediency of an immediate sale, or a sale at some fixed time, its opinion cannot control the discretion of the executor in that respect. His judgment upon the question is conclusive if exercised in good faith. 1 Story's Eq. Jur. (10th ed.), §§ 169-170 a; Bunner v. Storms, 1 Sandf. Ch. 357; Hancox v. Meeker, 95 N. Y. 528. In view probably of this rule the complaint charges such acts and omissions on the part of the acting executor, as would, if true, subject him to the interference of a court of equity. But the allegations were put in issue, and the trial court has found not only that they were not proven, but on the contrary that the executor has at all times been ready and willing to sell the property in question at a fair price, and has taken the usual means, by advertising and otherwise, to make that disposition known. Haight v. Brisbin. Opinion by Danforth, J. [Decided May 9, 1884.]
note, executed and indorsed by D. for the same amount, which contained the statement, "U. S. bond $500 collateral security," and upon payment of the interest cancelled the first note and surrendered it to D. Before maturity of the second note D. absconded; it not having been paid when due, defendant, without notice to B. or plaintiff, sold the bond in open market, appropriating sufficient of the proceeds to pay the note. In an action for the conversion of the bond, held, that defendant was liable; that before retaining the bond upon a new coutract it should have required the consent of B. (2) Much of the argument of the learned counsel for appellant is founded upon the evidence in relation to facts not found by the referee, and as to which no finding was requested. In such a case they cannot be considered for the purpose of reversing the judgment. Thompson v. Bank of British North America, 82 N. Y. 1. With the facts before us found upon sufficient evidence (Potter v. Carpenter, 71 N. Y. 75; Stilwell v. Mutual Life Ins. Co., 72 id. 385) there is no error of law in the judgment appealed from. Burnap v. National Bank of Potsdam. Opinion by Danforth, J. [Decided May 9, 1884.]
WILL-REPUGNANT CLAUSES-LIMITATION OVERDEVISE OF ABSOLUTE ESTATE.-The will of W. gave to his wife the use of $4,000, which was about one-third of his estate, during life, with privilege in case the income therefrom should not be sufficient to support her to use sufficient of the principal for that purpose. To his daughter S. was given the residue of his estate. What remained of the $4,000 at the wife's death, the will, in case of the death of the daugther before the death of the wife thus provided: "All the property, both real and personal, that shall be left by my daughter at her death, which shall belong to me at my death, I give, together with what shall remain from the above mentioned $4,000, devise and bequeath to my beloved wife, to her use, her heirs and assigns forever." The testator's daughter S., which was his only child, died before him. In an action brought by collateral relatives, the heirs and next of kin of the deceased for a construction of the will, held, that it was the manifest intent of the testator to give to the survivor of the two legatees named his entire estate remaining undisposed of upon the death of the other, whenever that event should occur; that the gift to the wife, in case of her surviving the daughter, was not dependent upon the taking effect of the primary gift to the daughter, and while the language employed in making the latter gift would generally import an absolute estate, yet as such a construction would ren der inoperative the limitation over, and would defeat the manifest intent as above stated, it was the duty of the court to limit so as to render the whole will operative and to effectuate the intent, and that therefore the widow was entitled to the whole estate. It was said by Andrews, J., in Taggart v. Murray, 53 N. Y. 236, "if upon a comparison of the different provisions of a will it is found to contain dispositions which are repugnant to each other, then it is the office of judicial interpretation to preserve, if consistent with the rules of law, the paramount intention of the testator, as disclosed by the instrument, although in so doing it may defeat his purpose in some subordinate and less essential particular." In accordance with this principle it was held in Terry v. Wiggins, 47 N. Y. 512, where a will devised to the testator's wife all other real and personal estate and effects that I may die possessed of, for her own personal and independent use and maintenance, with full power to sell or otherwise dispose of the same," with a devise of the residue after his wife's death, to trustees for purposes named, that the wife took a life estate only with power of disposition, and that the last clause created a valid remainder. We
do not think the case of Campbell v. Beaumont 91 N. Y. 464, properly considered, at all conflicts with our view of the question now presented. In that case, as in this, the intention of the testator was sought after by an examination of the scope and meaning of all the provisions of the will, and the first devise was there in terms given for the "sole use benefit" of the primary devisee. In view of that fact, and from the indefinite and inconclusive character of the language used in framing the provision, which was claimed to have created a remainder, it was held that it was not the intention of the testator to limit the absolute character of the primary devise. See also McLean v. Freeman, 70 N. Y. 81; Downing v. Marshall, 23 id. 366. The following additional cases may be cited as supporting the general principle by which we have been controlled. Norris v. Beyea, 13 N. Y. 273; Smith v. Van Ostrand, 64 id. 278; Smith v. Bell, 6 Pet. 68, distinguished. Wager v. Wager. Opinion by Ruger, C. J. [Decided Jane 3, 1884.]
CONSTITUTIONAL LAW-"DUE PROCESS OF LAW"LEGISLATURE MAY CHANGE REMEDY.-Sections 1421-5 of the Code of Civil Procedure, providing for the substitution of the sureties to an undertaking indemnify. ing a sheriff against a levy made by him as defendant in an action against him because of such levy, are not violative of the constitutional provision, prohibiting the taking away of the private property of a citizen without "due process of law." Amendment to U. S. Const., art. 4; State Const., art. 1, § 6. They simply change the form of the remedy of the owner of the property, which is nevertheless left substantial and effectual. The power belonging to the State Legislature to regulate the civil procedure for the enforcement of rights authorizes it to say when an officer, acting under the requirements of that procedure may, and when he may not, be sued, provided only the citizen is not deprived of adequate remedy for any trespass or wrong. The doctrine of the Federal courts has gone so far as to hold that a tax may be assessed without notice to the property-owner, and collected, although illegal, and his possible remedy by an action in equity to restrain the collection of the tax was sufficient to save the enactment complained of from the condemnation of the fundamental law. McMillen v. Anderson, 95 U. S. 37. Here a wider and more abundant remedy exists, and we do not feel safe or justified in saying that the right to sue a specific individual is a constitutional right which cannot be taken away, although adequate and complete protection to the right of property is left. Foule v. Mann, 53 Iowa, 42; Craig v.Fowler, 59 id. 200; Sunberg v. Babcock, 16 N. W. Rep. 716, distinguished. Hein v. Davidson. Opinion by Finch, J.
[Decided June 3, 1884.]
UNITED STATES SUPREME COURT ABSTRACT.
RAILROAD-RECEIVER-CURRENT EXPENSES-MORTGAGE CREDITORS.-When a court of chancery, in enforcing the rights of mortgage creditors, takes possession of a mortgaged railroad, and thus deprives the company of the power to receive future earnings, the current earnings being used for the benefit of mortgage creditors before current expenses are paid, the mortgage security is chargeable in equity with the restoration of the fund thus improperly diverted and applied to the use of the mortgage creditors. Fosdick v. Schall, 99 U. S. 252. We do not now hold any more than we did in Fosdick v. Schall, or Huidekoper v. Locomotive Works, 99 U. S. 260, that the income of a railroad in the hands of a receiver, for the benefit of
mortgage creditors who have a lien upon it under their mortgage, can be taken away from them and used to pay the general creditors of the road. All we then decided, and all we now decide is, that if current earnings are used for the benefit of mortgage creditors before current expenses are paid, the mortgage security is chargeable in equity with the restoration of the fund which has been thus improperly applied to their use. Burnham v. Bowen. Opinion by Waite, C. J. [Decided May 5, 1884.]
MARRIAGE DOWER-LEX REI SITEOREGON CODE, §§ 495, 497.-A divorce from the bond of matrimony bars the wife's right of dower, unless preserved by the lex rei sitæ. Barber v. Root, 10 Mass. 260; Hood v. Hood, 110 id. 463; Rice v. Lumley, 10 Ohio St. 596; Lamkin v. Knapp, 20 id. 454; Gould v. Crow, 57 Mo. 200; 4 Kent Com. 54; 2 Bish. Mar. & Div. (6th ed.), §§ 706, 712, and cases cited. In each of the Massachusetts cases just referred to, the divorce was obtained in another State. The ground of the de. cision of the Court of Appeals of New York in Wait v. Wait, 4 N. Y. 95, by which a wife was held not to be deprived of her right of dower in her husband's real estate by a divorce from the bond of matrimony for nis fault was, that the Legislature of New York, by expressly enacting that "in case of divorce dissolving the marriage contract for the misconduct of the wife, she shall not be endowed," had manifested an intention that she should retain her right of dower in case of a divorce for the misconduct of the husband. See also Reynolds v. Reynolds, 24 Wend. 193. The decisions of the Supreme Court of Pennsylvania in Colvin v. Reed, 55 Penn. St. 375, and in Reel v. Elder, 62 id. 308, holding that a wife was not barred of her dower in land in Pennsylvania by a divorce obtained by her husband in another State, proceeded upon the ground that in the view of that court, the court which granted the divorce had no jurisdiction over the wife. And see Cheely v. Clayton, 110 U. S. 701. Whether a statute of one State, securing or denying the right of dower in case of divorce, extends to a divorce in a court of another State, having jurisdiction of the cause and of the parties, depends very much upon the terms of the statute, and upon its interpretation by the courts of the State by the Legislature of which it is passed, and in which the land is situated. In Mansfield v. McIntyre, 10 Ohio, 27, it was held that a statute of Ohio, which provided that in case of divorce for the fault of the wife she should be barred of her dower, was inapplicable to a divorce obtained by the husband in another State; and the wife was allowed to recover dower, upon grounds hardly to be reconciled with the later cases in Ohio and elsewhere, as shown by the authorities before referred to. In Harding v. Alden, 9 Greenl. 140, a wife who had obtained a divorce in another State recovered dower in Maine under a statute, which upon divorce for adultery of the husband, directed her dower to be assigned to her in the lands of her husband in the same manner as if such husband was actually dead;" but the point was not argued, and in the case stated by the parties it was conceded that the demandant was entitled to judgment if she had been legally divorced. The statute of Missouri, which was said in Gould v. Crow, 57 Mo. 205, to extend to divorces obtained in another State, was expressed in very general terms: "If any woman be divorced from her husband for the fault or misconduct of such husband, she shall not thereby lose her dower; but if the husband be divorced from the wife, for her fault or misconduct, she shall not be endowed." Under section 495 of the Oregon Code of Civil Procedure, as amended by the statute of December 20, 1865, providing, that whenever a marriage shall be declared void or dissolved, the party at whose prayer the decree shall be made shall be entitled to an undivided third part
in fee of the real property owner by the other party at the time of the decree, in addition to a decree for maintenance under section 497, and that it shall be the duty of the court to enter a decree accordingly, a wife obtaining a decree of divorce in a court of another State, having jurisdiction of the cause and of the parties, acquires no title in the husband's land in Oregon. Bamford v. Bamford, 4 Oreg. 30; Wetmore v. Wetmore, 5 id. 469; Hall v. Hall, 9 id. 452: Weiss v. Bethel,8 id.522; Oregon Code of Civ. Pro., §§ 376,377,383. In Barrett v. Barrett, 5 Oreg. 411,the suit was not to assert a title in real estate, but to enforce, out of the land fraudulently conveyed by the husband to his daughter, payment of the alimony awarded to this appellant by the California decree of divorce, which was held in accordance with the decisions of other courts to be so far in the nature of a debt, that the wife might sue the husband for it in another State, and might contest the validity of a conveyance of property made by him with the fraudulent intent of preventing her from recovering the alimony. Barber v. Barber, 21 How. 582; Livermore v. Boutelle, 11 Gray, 217; Bouslough v. Bouslough, 68 Penn. St. 495. In De Godey v. De Godey, 39 Cal. 157, and in Whetstone v. Coffey, 48 Tex. 269, the point decided was that land acquired by the husband or the wife during the marriage, the title in which by the local law vested in neither separately, but in both in common, continued to belong to both after the divorce, and that a division thereof between them, if not made by the decree of divorce, might be obtained by a subsequent suit for partition in the State in which the divorce was granted and the land was situated. Barrett v. Failing. Opinion by Gray, J. [Decided May 5, 1884.]
FRAUD JUDICIAL SALE OBTAINED BY, VOID CREDITORS.-When a scheme is entered into to circulate a fact that a large indebtedness of the succession to an estate exists in favor of the heirs, being sufficient to absorb the estate, and being secured by a mortgage; to depreciate the value of the estate so that the supposed indebtedness would cover it; to put forth claims to the estate which would complicate the title and affect the salable value of the land; and to procure judicial sale by which the title might be cleared of incumbrances, and the land divided among the heirs free from liability for the debts of the estate, and the sale is so accomplished, the property being appraised by incompetent persons at a grossly inadequate value, the sale is in fraud of creditors, and null and void. The most solemn transactions and judgments may, at the instance of the parties, be set aside or rendered inoperative for fraud. The fact of being a party does not estop a person from obtaining in a court of equity relief against fraud. It is generally parties that are the victims of fraud. The court of chancery is always open to hear complaints against it, whether committed in pais or in or by means of judicial proceedings. In such cases the court does not act as a court of review, nor does it inquire into any irregularities or errors of proceeding in another court; but it will scrutinize the conduct of the parties, and if it finds that they have been guilty of fraud in obtaining a judgment or decree, it will deprive them of the benefit of it, and of any inequitable advantage which they have derived under it. Story's Eq. Jur., §§ 1570-1573; Kerr on Fraud and Mistake, 352-353. This subject was discussed in Gaines v. Fuentes, 92 U. S. 10; and Barrow v. Hunton, 99 id. 80. In the latter case, speaking of the proceeding in the Louisiana practice to procure nullity of a judgment, we said, "if the proceeding is merely tantamount to the common-law practice of moving to set aside a judgment for irregularity, or to a writ of error, or to a bill of review on appeal, it would belong to the latter category" (that is, a supplementary proceeding, connected with the original suit),
"and the United States court could not properly entertain jurisdiction of the case. *** On the other hand, if the proceedings are tantamount to a bill in equity to set aside a decree for fraud in the obtaining thereof, then they constitute an original and independent proceeding; * * * a new case arising upon new facts, although having relation to the validity of an actual judgment or decree, etc." In Jackson v. Ludeling, 21 Wall. 616, it is said: "A sale may have been conducted legally in all its process and forms, and yet the purchaser may have been guilty of fraud, or may hold the property as a trustee. In this case the complainants rely upon no irregularity of proceeding, upon no absence of form. The forms of law were scrupulously observed. But they rely upon faithlessness to trusts and common obligations, upon combinations against the policy of the law and fraudulent, and upon confederate and successful efforts to deprive them wrongfully of property in which they had a large interest, for the benefit of persons in whom they had a right to place confidence. Johnson v. Waters. Opinion by Bradley, J. [Decided May 5, 1884.]
MINNESOTA SUPREME COURT ABSTRACT
NEGLIGENCE-CAUSING DEATH- PERSONAL REPRESENTATIVE MUST SUE.-The action is brought by a father to recover for the killing, through the alleged negligence of defendant, of his son, a child 17 mouths old, whereby the plaintiff, as he alleges, has been and will be deprived of the services of said son. The statute provides: "A cause of action arising out of an injury to the person dies with the person of either party." Gen. St. 1878, ch. 77, § 1. This is only declaratory of the rule at common law. Insurance Co. v. Brame, 95 U. S. 754, and cases cited; Carey v. Berkshire R. Co., 1 Cush. 475. The statute (Gen. St. 1878, § 2, ch. 77) creates a cause of action when death is caused by the wrongful act or omission of any party, and vests it in the personal representative, to wit, the executor or administrator. No one else can sue upon it. Nash v. Tousley, 28 Minn. 5. Scheffer v. Minneapolis, etc., R. Co. Opinion by Gilfillan, C. J.
[Decided May 31, 1884.]
GARNISHMENT-ASSIGNEE IS NOT SUBJECT TO-CUSTODIA LEGIS.-Under our statute, the assignee is not, by virtue of an assignment, garnishable in a suit against the assignor, unless at the date of service of the garnishee summous he has in his hands or under his control property, money, or effects belonging to the assignor, or owes the assignor some indebtedness absolutely, and without depending on any contingency. Gen. St. 1878, ch. 66., §§ 167, 170-172. After the property, money, or effects are assigned they no longer belong to the assignor, for the assignment passes the entire legal and equitable interest therein to the assignee. Donohue v. Stearus, 17 N. W. Rep. 381. That the assignment creates no such indebtedness as the statute cited speaks of, on the part of the assignee to the assignor, is apparent. To these statutory grounds for holding that the assignee is not garnishable is to be added the further insuperable objection, that under the assignment the property is in custodia legis, and therefore not to be reached by levy or garnishment. Upon the whole subject of the non-garnishability of the assignee, we refer to In re Mann, 19 N. W. Rep. 347; Legrise v. Pierse (Texas Sup. Ct.), 17 Reporter, 477; Colby v. Coates, 6 Cush. 558; Dewing v. Wentworth, 11 id. 499; Drake Attach., $50; Donohue v. Stearns, supra. Lord v. Meacham. Opinion by Berry, J. [Decided May 1, 1884.]
MUNICIPAL CORPORATION-ORDINANCES- DELEGATION OF POWER-LEGISLATIVE ACT-CERTIORARI.-The city council of Minneapolis has power to make reasonable regulations as to where, or within what parts of the city, the business of vending, dealing in, or dispos ing of spirituous, vinous, fermented, or malt liquors may be carried on. This is a legislative power, which they must exercise themselves by ordinance passed in the manner prescribed by the city charter. They cannot delegate this power to the mayor. A mere legislative act of municipal corporations cannot be reviewed on certiorari. Cases from New Jersey have been cited as going that far. The courts of that State have probably extended the application of this writ further than those of any other State; but our attention has not been called to any case, even from that State, which goes as far as counsel claim. The cases of Camden v. Mulford and Carron v. Martin, 26 N. J. Law, 49, 594, cited by petitioner, do not go to any such length. All that was decided in the first case was that an ordinance authorizing a new improvement to be made, such as opening and paving new streets, and constructing sewers, by which the property of specific individuals may be directly taxed to defray the expense, was a judicial act. In the second case it was merely held that the Supreme Court had a right to review on certiorari the proceedings of corporations that do acts affecting the rights and property of individuals, which are judicial or quasi judicial in their nature. Dill. Mun. Corp., § 926, is also cited as authority that courts will on certiorari examine the proceedings of munici pal corporations, whether legislative or judicial. But that learned author does not say so. He is simply stating the rule that certiorari will lie to review the proceedings of such corporations. But that he did not intend to convey the idea that mere legislative or ministerial acts could be thus reviewed is evident, for at least two reasons: First, not a single authority cited in support of the text sustains such a proposition. Second, the author immediately adds, by way of illustration: "Thus if no appeal or other mode of review be given, and if there be no statute to the contrary, the legality of convictions in municipal courts will be reviewed on certiorari. So under the same circumstances, and in the same way, the proceedings of municipal corporations in opening streets, in making local assessments, in levying taxes, in contested election cases, and the like will be examined and reviewed to ascertain whether they are regular and legal," all of which it will be found from an examination of the cases cited, have been held to be judicial acts. Matter of Wilson. Opinion by Mitchell, J. [Decided June 3, 1884 ]
DAMAGES-CONTRACT-ASSUMING TO ACT AS AGENT -IMPROVEMENTS MADE IN GOOD FAITH.-Defendant, wrongfully assuming to be the authorized agent of the real owner, induced the plaintiff to enter into the contract of purchase in question. In such cases the injured party has a remedy in the nature of an action on the case against the agent. 2 Kent Comm. *632; Story Ag., § 264. The pleadings are, we think, sufficient to support the action on this ground. The contract which is annexed to the complaint shows that defendant assumed to act as the duly authorized agent of the owner in making the sale, which is also alleged in the complaint and admitted in the answer; and the complaint also sufficiently shows that plaintiffs were thereby misled to their damage. It is not material that the contract fails to disclose the name of the owner. It is clear enough that defendant assumed to sell as agent, and not as owner. The plaintiffs took nothing by such unauthorized contract; and having been ejected from the premises at the suit of the owner, with the loss of improvements made in good