boats, including their smoke-stacks, declaring by the certificate that they are of the kind approved and considered proper, and that it is not within the power of the state of Illinois to delegate authority to the corporation of Chicago to declare such smoke-stacks a breeder of nuisances. As noticed before "a work authorized by the sovereign power of the government cannot be adjudged a public nuisance if executed in an authorized manner, in an authorized place." That the tugs, boilers and smokestacks are constructed in an authorized manner in accordance with the requirements of the government, is shown by their certificates of inspection; that they are operating in an authorized place is shown by their licenses; that the city authorized their navigation of the river in their then condition is proved by the city license. That the United States laws govern navigation solely and that a state may not exact additional requirements is held in Sinnot v. Davenport22 and in The Swan v. Davenport.23 In the latter case, the status of the tugs is fully set forth.

If it be said that the city of Chicago passed this ordinance by virtue of its inherent police power, a power which

the state did not surrender to the federal government when they ceded to it by express grant the power to regulate commerce, it may be answered that the state cannot grant to the municipality that which it did not itself possess, the power to make laws in conflict with the laws of the federal government, and it was Chief Justice Marshall's opinion, expressed in Gibbons v. Ogden, that whether state laws are passed in virtue of a concurrent power to regulate commerce with foreign nations and among the several states, or in virtue of a power to regulate their domestic trade and police, if they come into conflict with an act of congress, they must yield to it. Instances of the happening of the latter contingency are found in Sinnot v. Davenport, above cited, R. R. Co. v. Husen, the well-known case where the Missouri legislature passed an act prohibiting driving or conveying Texas, Mexican or Indian cattle into the state between certain months of the year and making transporta

24

22 22 How. 227. 23 22 How. 244. 24 95 U. S. 465.

tion companies responsible for damages resulting from Texas fever along the line of transportation. The point was made that under cover of exerting its police powers a state may substantially prohibit or burden either foreign or interstate commerce.

Burdensome Restrictions are Regulation. -That placing obstacles upon transportation or imposing burdensome and almost impossible conditions upon it is "regulation," within the meaning of the federal constitution, and that it cannot be done by a state is held also in a number of cases.25 Welton v. State and Chy Lung v. Freeman, refer to obstructions against the admission of persons into a state, but the principles asserted are equally applicable to all subjects of commerce. Is there a neutral ground in that occupied by regulations of commerce which may be occupied by the state and its legislation be valid? If so, what are its limits and do they embrace the power to make the ordinance under consideration? The existence of such a ground has been affirmed in some cases, and as vigorously denied in others, notably in Henderson v. Mayor of New York.26 It was said in Harmon v. City of Chicago that the smoke ordinance did not impose any restraint on the use of tugs, at most, only purporting to regulate their use so as not to produce effects detrimental to property and business, but if subjected to continual fines for violating an ordinance which cannot be complied with, as smoke consumers do not consume and the price of anthracite is prohibitory, the ultimate effect of the ordinance, if rigidly enforced, would be, in the course of time, to suspend their navigation through financial ruin, and thereby obstruct commerce with foreign nations and among the several states by way of the great lakes, as effectually as though the ordinance had, in express terms, forbidden them to use the river.

FLORA V. WOODWARD TIBBITS.

Chicago, Ill.

25 Ward v. Maryland, 12 Wall. 418; Freight State Tax Cases, 15 Wall. 232; Welton v. State, 91 U. S. 275; Chy Lung v. Freeman, 92 U. S. 275.

26 92 N. Y. 272.

27 110 Ill. 407.

FRAUDULENT CONVEYANCE-PROMISE IN CONSIDERATION OF MARRIAGE.

BRINKLEY v. BRINKLEY.

Supreme Court of North Carolina, June 5, 1901. Where defendant agreed to deed land to plaintiff if she would marry him, and after her promise to do so, but before marriage, conveyed the land, without consideration, to his children by a former wife, such conveyance, though recorded before the marriage, was fraudulent and void as against a deed to plaint iff, made 16 years subsequently.

COOK J. Upon the trial in the superior court, judgment as in case of nonsuit was rendered against the plaintiff upon motion of defendants, under chapter 109, Acts 1897, as amended by chapter 131, Acts 1899, and plaintiff excepted and appealed.

The plaintiff contends that, by reason of the promise of Joseph H. Brinkley to convey to her the interest in the land as stated, she became a creditor of his, and that the voluntary deed executed by Joseph H. Brinkley to his minor children (all of whom are now defendants, except one) after a contract of marriage had been entered into between herself and said Joseph H. Brinkley, and without her knowledge and consent, was a fraud upon her marital and contract rights, and void as to her; and that she is entitled to recover the interest in the land conveyed to her by reason of the deed executed to her in April, 1900, pursuant to the promise made her by said Joseph when she consented to marry him in June, 1884. The defendants (other than Joseph H. Brinkley) claim title under the voluntary deed executed to them in July, 1884, and, while denying the parol promise alleged by the plaintiff, contend that it was void under the statute of frauds; that the deed executed to the plaintiff in April, 1900, conveyed no interest to her, was voluntary, and without valuable consideration; that she had actual knowledge at the time and long before its execution, and insist that she has no title to the land, and is not entitled to recover. It appears from the case on appeal that defendants introduced evidence contradicting the plaintiff's, but none appears in the record; and, the motion of defendants having been made "upon the whole of the testimony," the case must be considered by this court only upon that which appears in the record, which, for the sake of the motion, must be accepted as true.

While the contention of the plaintiff as to being a creditor of Joseph H. Brinkley by reason of the parol promise to convey the land is without merit, yet her contention that the voluntary conveyance of the land to his children was a fraud upon her marital rights presents a very serious question. The contract of marriage entered into between the plaintiff and Joseph H. Brinkley in June, 1884, was based upon a valu able consideration. She had not only a right to expeet the benefits to be derived from the marriage in her suitor's property to be cast upon her

by operation of the law, but also had his express verbal promise to convey to her one-half undivided interest in his tract of land (which was substantially all the property that he then owned) immediately after their marriage. Relying upon these rights and his promise, and after many years sharing with him the toils of life, nurturing, caring for, and raising his minor children by, his former wife, bearing children to him, and being a true and faithful wife, she suddenly finds herself, her husband, and several children of tender age ousted of her home, to which she was carried when a bride, and then informed that her marital rights and contracts had been supplanted by a voluntary deed, executed by a man whom she had consented to and had married; and that his promise, not being in writing, was void, and of no effect. But his parol promise to convey land was not void, only voidable; and between the parties could have enforced, unless the statute of frauds were pleaded (Hemmings v. Doss, 125 N. Car. 400. 34 S. E. Rep. 511; Williams v. Lumber Co., 118 N. Car. 928, 24 S. E. Rep. 800; Loughran v. Giles, 110 N. Car. 423, 14 S. E. Rep. 966), which cannot be material in this action, since the deed was, before the institution of this action, duly executed, with full recitals of the original promise; that statute applying to executory, and not to executed, contracts (Hall v. Fisher, 126 N. Car. 205, 35 S. E. Rep. 425; McManus v. Tarleton, 126 N. Car. 790, 36 S. E. Rep. 338; Choate v. Wright, 13 N. Car. 289) ; and, while it has the effect of a postnuptial settlement, yet it is valid, except as to creditors and purchasers for value, and without notice. Rodg. Dom. Rel. § 255, p. 217. The defendants (other than Joseph) claim title by reason of this voluntary deed, executed to them by their father after he had induced the plaintiff to consent to become his wife, and without her knowledge or consent. For what purpose was this deed then executed? If for the love and affection he had for his children, why did he wait until after the courtshi and engagement? Why did he hold it as a b sis of credit, and, after securing a promise for his prize, place it, as he thought, beyond the reach of the woman whose consent he had obtained to share with him the vicissitudes of life for weal or for woe? If he had changed his mind, and concluded not to convey to her the interest in the land, as he had promised her to do, then why did he not so inform her, to the end that she might exercise the privilege of changing her mind as to the marriage? He admits in his answer (which was put in evidence) the agreement as stated in the complaint to be true. It is admitted for the sake of the motion, by defendants, that the plaintiff did not know of the voluntary deed until many years after the marriage; that it was executed without her knowledge or consent. While it is true that a man or woman, before marriage, is at liberty to dispose of his or her property at will and pleasure, yet it must not be done with an improper motive. If it be done to deceive the person who

is then in treaty of marriage, it is a fraud. Then courts have uniformly held that a voluntary deed, made by a woman in contemplation of marriage, afterwards consummated, and without the existence of the deed being made known to the intended husband, is in law a fraud upon him. Strong v. Menzies, 41 N. Car. 544; Baker v. Jordan, 73 N. Car. 145; 1 Rop. Husb. & Wife, pp. 163, 164; Poston v. Gillespie, 58 N. Car. 258, 75 Am. Dec. 427. Then why should not the same rule apply to the intended husband, who gave to his children his property without the knowledge or consent of his fiancee? She, under our laws, acquires valuable interest and rights in his property. While, on the one hand, the husband, in addition to the personal services and earnings of the wife, acquires the right of a curtesy estate, absolutely owns all of the personalty in case of intestacy, etc., on the other hand the wife obtains a security in respect to her future support, and has the rights of dower, homestead, year's support at the death of the husband (which cannot be defeated by his will or creditors), a distributive share of his personalty, etc. Schouler, Dom. Rel. (3d Ed.) § 181. Nor can the constructive notice of registration avail the defendants. In the case of Spencer v. Spencer, 56 N. Car. 404, in which case the intended wife, had, previously to marriage and after engagement, made a voluntary deed to her property, it is held: "But if, after the courtship begins, the court of equity recognizes an inchoate right in the intended husband at all, it follows that it cannot be disposed of by the intended wife without his direct knowledge and acquiescence. In a case like the present there is no place for a constructive notice. That is always resorted to for the purpose of preventing the person who has it from doing an act to the injury of another. Here the husband can injure no other person. He has rights which the rule protects by preventing another person from injuring him." In Taylor v. Rickman, 45 N. Car. 278, the husband actually signed the contract, but it was avoided upon the ground of surprise, because the paper was presented to him after the parties had met together for the purpose of being married. And in Poston v. Gillespie, supra, it was held that, after the contract of marriage is made, neither can give away his or her property without the consent of the other, and notice before the marriage of such a gift does not hinder the party injured from insisting upon its invalidity. True it is, from the testimony in the case, that the defendants were minors, and innocent; but that cannot avail them now. "Though not a party to any imposition, whoever receives anything by means of it must take it tainted with the imposition. Let the hand receiving it be ever so chaste, yet it comes through a polluted channel, the obligation of restitution will follow it." Tisdale v. Bailey, 41 N. Car. 358. Upon all the evidence submitted, it is clear to the court that the execution of the deed under which the defendants (other than Joseph) claim was fraud

* * *

ulent and void as to the plaintiff's marital rights, and there is error.

FURCHES, C. J. (concurring in the opinion of Justice Cook): I state the following reasons for my concurrence:

If the plaintiff is entitled to recover, it is by reason of the fraud committed upon her marital rights. The statute of frauds has nothing to do with the case, for the reason that the deed had been executed, and the statute of frauds does not apply to executed contracts. Hall v. Fisber, and other cases cited in the opinion. Nor does the statute of frauds prevent a party from carrying out his contract, unless it affects creditors or purchasers for a full price, and without notice. Triplett v. Witherspoon, 70 N. Car. 589. In this case there are no creditors of the grantor, unless the plaintiff be treated as such; and the defendant children are not purchasers for a full price. Indeed, it appears that they paid nothing for their deed. If the plaintiff was not strictly a creditor, her claim was in the nature of that of a creditor. After her contract with the grantor (J. H. Brinkley) in June, 1884, it was a fraud upon her marital rights for her intended busband to give away his property; and in this case it seems to have been all the property he had. In Poston v. Gillespie, 58 N. Car. 258, 75 Am. Dec. 427, it is said: "After the courtship or negotiations about and concerning the marriage are concluded, and the parties bind themselves by a contract to marry, neither can give away his or her property without the consent of the other; and the matter does not then rest upon a mere question of deceit, which may be repelled by proof of notice, but involves a question of fraud on a right vested by force of a contract, for a breach of which an action will lie at law." So, if this case states the law, the action is given to either party. It rests on contract and vested rights, and is not to be defeated by notice. If this be the law, it is claimed that plaintiff's right of action was not defeated by the registration of defendant's deed, and that contention of defendant's must fail. But defendant's claim that since the constitution of 1868 the wife has no marital rights except the inchoate right of dower, which is not due until his death; and that the husband has no marital rights in the wife's estate. If these contentions are true, there ceases to be such a thing as fraud on marital rights in North Carolina. While the husband may not have the same rights over the estate of the wife that he had before the constitution of 1868, I do not admit that the wife has not now the same rights in her husband's estate that she had before the constitution of 1868, and the same she had in 1859, when the case of Poston v. Gillespie was decided by this court, in which case it held "that, after the engagement to marry, neither party has the right to give away his or her property." But this very question,-fraud on marital rights,-since the constitution of 1868, has been before the court, and it was held that the constitution of

1868 worked no such wonders, and that the doctrine of fraud upon marital rights still exists in North Carolina. Upon these authorities I must hold that the doctrine of fraud on marital rights still exists in this state; that the defendant, J. H. Brinkley, having disposed of his land by gift to the other defendants after he and the plaintiff were engaged to be married, was a fraud upon her marital rights, and the deed must be set aside. My opinion is put upon the fraud, and not upon his promise to convey. But, when defendant's deed is set aside for fraud, there is nothing to prevent the plaintiff's deed of 1900 from becoming effective, and the plaintiff is entitled to be admitted to the possession of one undivided half of said land, as tenant in common with her husband.

We have had it impressed upon us that the first wife's father gave this land to the defendant, J. I. Brinkley, and his first wife. This may be a reason for making the deed of July, 1884, to the defendant children; but it could not constitute a legal consideration, and we are trying to dispose of the case according to the law. Under the laws of this state, upon the death of the wife the land becomes the property of the husband, and, as such, was liable to his contracts and creditors to the same extent as if he had bought the same with dollars. I must therefore concur in the opinion that there was error.

MONTGOMERY, J., concurs in the opinion of the chief justice.

NOTE.-Secret Conveyances by Wife or Husband in Contemplation of Marriage.-It must be admitted that the principal case is not a thoroughly satisfactory discussion of the interesting question involved in the subject of this annotation. The facts in this case were complicated by several irrelevant, but disagreeable circumstances which the majority of the court had the judicial insight to disregard in arriving at the kernel of the difficulty. Secret conveyances by either husband and wife in fraud of the marital rights of the other after engagement, but before marriage, are generally held voidable, at least in this country. It England this rule has been applied only to a conveyance of the wife in fraud of the right of the prospective husband, but not vice versa. That the husband acquired, by the mere engagement of marriage, such interest and prospective rights in the property then owned and possessed by the wife, as a court of equity will protect against secret convey. ances by the wife in fraud of his rights, is well es tablished by English decisions. Strathmore v. Bow. ers, 1 Ves. 22, 1 Lead. Eq. Cas. 449. But the reason of the rule, it is held, does not extend to conveyances by the husband executed in contemplation of mar riage, since the marriage does not impose upon the wife any liability for the debts of the husband, or any duty to support the family; and the reason of the rule ceasing, the rule itself has no application. What is known as the American rule, however, makes no distinction between secret conveyances by either wife or husband executed without the knowl edge of the other, and in contemplation of marriage; in either case such conveyances will be set aside in equity as a fraud upon the marital rights of the other spouse. Kelly v. McGrath, 70 Ala. 75; Dearmond v.

Dearmond, 10 Ind. 191; Murray v. Murray, 90 Ky. 1; Gainor v. Gainor, 26 Iowa, 337; Petty v. Petty, 4 B. Mon. (Ky.) 217, 39 Am. Dec. 501; Youngs v. Carter, 56 How. Pr. (N. Y.) 410; Smith v. Smith, 6 N. J. Eq. 515; Beere v. Beere, 79 Iowa, 555. In Kelly v. Mc. Grath, supra, the distinction between the American and English cases is stated, and the reasons underlying the rule announced by the former are also thoroughly discussed. The court says: "The doctrine of the English court of chancery seems to be that an alienation by the intended husband, although made on the eve of marriage, excluding the intended wife from dower, cannot, after marriage, be impeached as a fraud upon her rights. The reasons for distinguishing such a conveyance from a similar conveyance by the intended wife are, that she by marriage does not acquire such rights to the property of the husband as he acquires to hers; and because in England, on marriage, estates are usually so settled or conveyed as to prevent dower attaching; and it is not therefore presumed that the woman was induced into the contract in the expecta tion of acquiring the right of dower. This latter reason can have no application in this country where dower is a right, which every man must presume the woman expects and intends shall follow the mar riage, as certainly as its other incidents. . . That a husband, in contemplation of marriage, may commit frauds upon the rights which, on the marriage, would accrue to the intended wife, from which, after marriage, a court of equity will relieve her, as it relieves the husband from the antenuptial frauds of the wife, is recognized by a large number of adjudica tions in this country. We confess an inability to distinguish the antenuptial frauds of the husband, from the antenuptial frauds of the wife, or to perceive any sound reason for repudiating and avoiding the one, while permitting the other to work out its injury and injustice. The fraud of the woman defeats and disappoints the just expectations of the intended husband; and his fraud defeats and disappoints equally her just expectations. There can be no presumption that she is, less than he, influenced by prudential considerations, or is unmindful on entering into the contract of marriage, of acquiring a home in the event of her widowhood, and the means of sustenance for herself, and of nurture and education of her children."

We review the cases as follows: A voluntary conveyance of property by a husband or wife prior to marriage, will be held fraudulent as to the marital rights of the other only when made in contemplation of the marriage, and pending a treaty therefore be tween the parties. Gainor v. Gainor, 26 Iowa, 337. In this case the conveyance was made four months be for the negotiations for the marriage began at a time when neither of the parties thought about uniting in wedlock. In Kelly v. McGrath, 70 Ala. 75, it was held that a mortgage of his lands by the hus band, executed in contemplation of marriage, and without the knowledge of his intended wife, for the purpose of preventing her right of dower and homestead from attaching to the lands, is a fraud on the rights acquired by the wife on marriage; and though the debt secured by it was a present loan of money, it will be regarded as a voluntary conveyance, where it appears that the mortgagee had knowledge of the intended fraudulent purpose of the husband, and actively participated in carrying it into effect. The case of Beere v. Beere, 79 Iowa, 555, was a case in which a son conveyed all his property to his mother

because he feared he would be compelled to marry a girl he had betrayed in order to avoid an action for seduction. His fears were well grounded and he married the girl and the next day abandoned her and absconded. The conveyance to the mother was held in fraud of the rights of the son's wife and the gran tee was adjudged to hold the property in trust for the plaintiff,-the son's wife. In the case of Petty v. Petty, 4 B. Mon. (Ky.) 215, 39 Am. Dec. 501, it was held that a deed of gift by a man on the eve of his marriage, of all his property, to his children, executed after the agreement to marry, and kept secret from the intended wife until after the mar. riage, is fraudulent and void, so far as it deprives her of dower in the real estate coveyed by such deed; and a court of equity will declare the deed void to that extent, even in the lifetime of the husband. It was also held in that case, however, that a husband may, without the wife's consent, dispose of his personal property as he pleases, and a gift of such property made by him will not be set aside as in fraud of the right of the wife. See also as sustaining this latter point. Dunnock v. Dunnock, 3 Md. Ch. 140; Cranson v. Cranson, 3 Mich. 230; Holmes v. Holmes, 3 Paige, 363. However, if the conveyance of personalty be a mere device by the husband to deprive his widow of her share of his personalty, as for instance, where he does not part with absolute dominion over the property, such conveyance will be ineffectual against the wife. Dunnock v. Dunnock, 3 Md. Ch. 140; Davis v. Davis, 5 Mo. 183; Tucker v. Tucker, 29 Mo. 350; McGee v. McGee, 4 Ired. L. 105. But see contra, Cameron v. Cameron, 10 Smed. & M. 394. In Leach v. Duvall, 8 Bush. (Ky.) 201, the facts were as fol lows: Ten days before the marriage, without knowl edge of the intended wife, and after the agreement to marry had been entered into, the intended husband conveyed land to his children by a former marriage in consideration of love and affection. The court held that such a voluntary conveyance was binding on the husband, but that it was a fraud upon the marital rights of the wife, and inoperative and void so far as it might operate to deprive her of her potential right of dower in the land so conveyed; that the grantees are entitled to the land subject to her prospective rights aforesaid. In a very late case from Kentucky, (Murray v. Murray, 90 Ky. 1,) the court extended the rule to personal property.

JETSAM AND FLOTSAM.

JOEL PRENTISS BISHOP.

Joel Prentiss Bishop, best known as writer of books on law, although he was prominent in the antislavery agitation and was an unusually brilliant scholar, died November 4, 1901, at his residence, 51 Sacramento street, Cambridge. He was born in Vol ney, Oswego county, N. Y., March 10, 1814, in a small log house, with but one other dwelling near it. His father was Amos Bishop. His mother was the first white child born in Paris, Oneida county, N. Y. Through his grandmother on his father's side he claimed descent from King Richard I. His mother died when he was a child, and his father moved to Oneida county, his former place of residence. Joel's early youth was spent at this place assisting his father on a farm and attending a remote district school. Later he was a pupil at the Whitestone Seminary, Oneida Institute and the Stockbridge Acad emy. He was naturally a brillant scholar.

Upon the completion of his studies his health failed

and he sought an occupation which would not too severely test his strength. His interest in the antislavery question brought him in time to be the business manager, publishing agent and assistant treasurer of the New York Anti-slavery Society and assistant editor of the Friend of Man, an anti slavery publication printed in Utica, N. Y. He later resigned the editorship of the paper.

He came to Boston and in 1842 entered the law office of Henry B. Stanton and John A. Bolles. His health improved and he was admitted to the Suffolk bar in April, 1844. While attending to his larger cases, he began the work of writing a law book as a change from his work. The first edition of his "Marriage and Divorce" was the result. The success of this work induced him to give up his lucrative praetice and thereafter he devoted himself to legal literature. For years after this he devoted himself to his books and wrote many very valuable works, the worth of which is shown by the degree of doctor juris utriusque, conferred upon him by the University of Berne, Switzerland, in express recognition of the "great services" rendered by him to his country and the science of law.-Bos on Daily Globe.

[The following are the principal works of Mr. Bishop which are also among the classics of legal literature: Bishop on Contracts, 1 vol., 1887; Bishop on Non-Contract Law, 1 vol., 1889; Bishop on Marriage, Divorce and Separation, 2 vols., 1891; Bishop's New Criminal Law, 2 vols., 1892; Bishop's New Criminal Procedure, 2 vols., 1896; Bishop on Statutory Crimes, 1 vol., 1901; Bishop's Directions and Forms, 1 vol. 1901; Bishop on the Written Laws, 1 vol., 1882; Bishop's Law of Married Women, 2 vols., 1871-75; Bishop's First Book of the Law, 1 vol., 1868. All except the last three books are published by T. H. Flood & Co., of Chicago, Ill.-Ed.]

CORRESPONDENCE.

BENEFIT SOCIETIES-OBLIGATION OF EXPELLED MEM. BER TO EXHAUST REMEDIES WITHIN THE ORDER. To the Editor of the Central Law Journal: In the note to your leading case in the issue of your Journal of November 15th, the case of the People v. Order of Forresters, 162 Ill. 78, 44 N. E. Rep. 401, is cited in connection with the case of Screwmen Association v. Benson, 76 Tex. 552, 13 S. W. Rep. 379, and other cases as authority for the proposition that the member of a mutual benefit society cannot resort to the civil courts for reinstatement without first exhausting the remedies provided by the constitution and by-laws of the society, and this though the order of expulsion be void.

While the latter of the two cases cited above may announce the rule as broad as your annotator states it, yet the Illinois Supreme Court in the case cited above on page 83, after commenting on the Screwmen's case, expressly disclaim going to that extent, and on page 83 announce the doctrine that if the resolution of expulsion "is void for want of jurisdiction" that the member can resort immediately to the civil courts without taking any further step in the tribunals of the order. W. W. MELoan. Macomb, Illinois, November 16, 1901.

[Our correspondent is quite right in his correction that the court in the case above mentioned made an exception to the rule that members of benefit socie ties must exhaust their remedies within the order before appealing to the courts,-i. e., where the ex