miscarriage or default. It seems to me, both on principle and authority, we properly ruled on the trial of this case that the note sued on was negotiable. If the note was negotiable the plaintiffs, who are innocent holders, may enforce the stipulation for attorneys fees against the maker. Hubbard v. Harrison, 38 Ind. 323; British Bank v. Ellis, 6 Sawy. 97; Dan. Neg. Inst., § 62; and see Miner v. Bank, 53 Tex. 559." See ante, 447; Johnston v. Speer, 92 Penn. St. 227; S. C., 37 Am. Rep. 675, and note, 677.

INDEPENDENCE OF MARRIED WOMEN.

THEE

HERE have been two refreshing recent decisions relating to the rights of married women. One of them has already been reported in this journal, ante, 403, to the effect that a woman may devise to her husband on condition that he shall not marry again. This is one of the most righteous decisions ever made, and is a striking effectuation of the homely old proverb that "what is sauce for the goose is sauce for the gander." Every right-minded lawyer has probably prevented one or more of his narrow-minded clients from imposing such a condition on his wife and contingent widow, and it will gratify all such lawyers to know that affluent wives hold a similar rod over their husbands.

The other case, Moore v. Settle, Kentucky Court of Appeals, May 2, 1883, 4 Ky. L. Rep. and Jour. 972, arose under the statute providing that the loser of money at cards, or any creditor, may recover it by action within a certain time, and after that time "any other person" may recover treble the amount, and held that the loser's wife is such an "other person," and may so recover. The court said: "It is frequently stated that in law the husband and wife are one person, the legal existence of the woman being incorporated and merged into that of her husband, under whose protection or cover she is supposed to perform everything. She is therefore called a feme covert, and is said to be covert baron, or under the protection and influence of her husband; and her condition during her marriage is called her coverture. But the theory of their unified existence has never been rigidly adhered to in any period of the law. The wife has always been separately liable to indictment and punishment for certain criminal offenses. And early in the history of the law it was held that either one could have the other, under proper circumstances, bound over to keep the peace, and that the wife could prosecute and defend suits in her own name where she was a sole trader by the custom of London; or where the husband was civiliter mortuus; or where the husband was an alien enemy; or where the husband was an alien and had never been in the realm. And the tendency of all modern legislation and adjudication has been to enlarge the rights of married women, and to increase their facilities for the protection of those rights. While in some instances the law-making powers may have gone in

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this directien beyond what the welfare of society and the sacredness of the marriage relation demanded, still there are statutes of this kind that must meet the approval of all considerate people. And in Kentucky we have so many acts recognizing the separate rights and remedies of married women, that it can no longer be said her legal existence is so merged in that of her husband as to make them but one person in law. Many of those acts, like the one under consideration, relate to her remedies. For instance, a married woman, who comes to this Commonwealth without her husband, he residing elsewhere, may acquire property, make contracts and bring and defend actions as if unmarried; the wife of a known inebriate can maintain an action in her own name, and for her benefit, to recover a penalty of twenty dollars from any person who procures or furnishes a drink of liquor to her husband; and any married woman may sue or be sued alone in actions between herself and husband, in actions concerning her separate property, and in actions concerning her general property in which the husband refuses to unite. So we find that the Legislature has intended to give the wife, in all proper cases, the power to sue and defend separately from her husband. But even where the two must be joined as plaintiffs or defendants they are not treated as the same person. Process must issue in favor of or against the wife as well as the husband; the proceedings may be valid for or against the one and not the other. * It is provided that if any person' shall cause the arrest and secure the conviction of a party guilty of stealing a horse or mule he shall be entitled to a reward of $50, which is to be obtained by proceedings in the court where the conviction was had, in which proceedings testimony is to be introduced and a trial had of the question, whether the 'person' applying is entitled to the reward; and if the court finds that such person is so entitled, a judgment shall be entered to that effect; and the person so allowed such reward' is to be paid out of the treasury by the production of a certified copy of the judgment to the auditor. Is not a married woman a 'person' within the provision of this statute? So our statutes direct the keeper of the penitentiary to pay a reward of $100 to 'the person capturing and conveying back to the penitentiary' any escaped convict. Is not a married woman a person within the meaning of that act? Could she not sue under the statute, providing a forfeiture of $200 to be recovered of a party who sells a package of fertilizer without getting the required certificate from the Commissioner of Agriculture? * * * Nor can we escape the conclusion that by the phrase, 'any other person,' in the statute under consideration, the Legislature has included the wife of the loser among those in whom the right of action is to be vested. To take a different view would necessitate our holding that the husband and wife were but one person- a position in conflict with all modern legislation, jurisprudence and experience."

The court cited Read v. Stewart, 129 Mass. 407, arising under an almost precisely similar statute, and

holding exactly the same doctrine. The court there said: "It is scarcely necessary to say that within the last fifty years very great changes have been made respecting the rights and the disabilities of married women. If, in the early stages of such legislation, it could be said that the enlargement of a right or the removal of a disability was to be construed strictly, because in derogation of the common law, such a proposition could scarcely be maintained at the present time. Even if it cannot now be said that the policy of the Commonwealth is in this respect entirely changed, so that the rights which a married women shall possess are to be construed liberally, upon the presumption that she has all the rights of a feme sole, except such as are withheld from her by special provision, we certainly are not prepared to say that the same rules of construction should be acted upon now which were properly regarded when the common-law disabilities of married women began to be removed; and we are at least authorized to regard the language used by the Legislature when applied to married women, as we would regard it when applied to other persons."

On the other hand, in State v. Nugent, a recent case in an inferior court in New Jersey, it was held that the wife is not an "other person" than her husband within the meaning of a statute forbidding malicious damage of the property of "any other person." And so the husband was held not liable for maliciously breaking his wife's sewing-machine. Here however the question was as to the penal effect of the statute upon the husband himself, and the statute was strictly construed.

A statute of Rhode Island provides thus: "Whenever dower has been set out, or when said widow shall be entitled by decree of court to her perception of rents and profits, said court may, in lieu thereof, on application of the owner of said estate in fee, and after notice to said widow, authorize said owner to give security, satisfactory to said court, to said widow for the payment of the annual value of the dower so set off, and upon depositing said security with the clerk of said court, said owner shall be forthwith entitled to the full possession of said estate, relieved of any charge or lien on account of said dower right, except such as may be [made by nature of said security, as against said widow and all persons claiming to hold the same by, through, or under

her."

statutes, of dower aud of jointure.'" The application shows that the applicants are the sole heirs at law of the late George W. Talbot, and the owners in fee of certain land, lying in the city of Providence, described in the application, which they inherited from him: that the respondent is the widow of of the said George, and that at the March Term of this court, A. D. 1881, she recovered judgment for dower against the applicants, by which it was considered that she should recover her seisin of a third part of the rents, issues, and profits" of said land, "to hold to her in severalty, to the amount or value of one hundred dollars per annum," dower being assignable in that form under the statute, Gen. Stat. R. I., ch. 218, §§ 2, 11, and by which also execution was awarded to her to put her "in perception of said one-third part of said rents, issues, and profits, to the amount or value aforesaid." See Talbot v. Talbot, 13 R. I. 336. The fourth section of said chapter 315 provides, "Whenever dower has been set out

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or when said widow shall be entitled by decree of court to her perception of rents and profits, said court (i. e. the Supreme Court), may in lieu thereof, on application of the owner of said estate in fee, and after notice to said widow, authorize said owner to give security satisfactory to said court, to said widow, for the payment of the annual value of the dower so set off * ** and upon depositing said security with the clerk of said court, said owner shall be forthwith entitled to the full possession of said estate, relieved of any charge or lien on account of said dower right, except such as made by nature of said security, as against said widow and all persons claiming to hold the same by, through, or under her."* ** *The application here is for leave to give security, under this provision, for the annual value of the dower assigned by the respondent as aforesaid, in relief of the estate out of the rents, issues and profits of which it was assigned. The respondent resists the application, and contends that the provision applies only to dower hereafter to be assigned, or if it be held to apply to dower heretofore assigned, that it is so far unconstitutional and void. We are not persuaded that the provision was not intended to apply to dower assigned before its enactment; but we are clear, if it was intended so to apply, that therein, so far as it was intended so to apply, it is unconstitutional and void. Under the judgment before mentioned the widow took a freehold or life estate, to the extent of one hundred dollars per annum, in the rents, issues, and profits of the land aforesaid. Under the judgment the estate became vested instantly, though it did not immediately begin in enjoyment. The estate though created under the statute by the judgment, is in substance and effect, a rent charge, and must be governed by the analogies of a rent charge. A rent charge seldom exists in this country other than for years, but at common law it is regarded as an incorporeal hereditament, the owner of which may have it for years, for life, in fee-tail or fee simple. Estates of this kind have many of the incidents of corporeal estates. If held in fee, or fee-tail, they are subject to dower or curtesy, and are alienable or transmissible by will or descent. 2 Greenleaf's Cruise, Tit. XXVIII, ch. 2; Williams on Real Property, 334-340. The dower here assigned to the widow is therefore as much real property, and as much a vested estate or right, as if it had been assigned in the land itself, and the question is whether it is in the power of the general assembly to take it from her, in invitam, and transfer it to the owners of the fee on their simply giving to her security for the payment of its annual value to her. Clearly not. It has been repeatedly decided that a Legislature has no power to take A.'s vested estate, or any part of it, away from him and transfer

it to B., for private use, on B.'s paying or securing to him its value; and yet that is exactly what is attempted to be done, with some little circuity of proceeding, by the provision above recited. Cooley Const. Lim. *357, *531; Taylor v. Porter, 4 Hill, N. Y. 140; Osborn v. Hart, 24 Wis. 89; Sadler v. Langham, 34 Ala. 311; White v. White, 5 Barb., S. C. 474; Bankhead v. Brown, 25 Iowa, 540; Nesbitt v. Trumbo, 39 III. 110; Wilkinson v. Leland, 2 Pet. 627, 653; 2 Kent Com. *340.

The counsel for the applicants contends that the provision does not affect the estate or right of the widow, but merely modifies her remedy. We cannot assent to that view. If the provision be carried into effect, the widow loses her incorporeal freehold estate in the rents, issues, and profits altogether, and gets in exchange for it merely a bond or some other security for its yearly value, which is quite a different thing.

Petition dismissed.

ACTION BY PARENT FOR SEDUCTION.

NEW JERSEY SUPREME COURT, NOVEMBER TERM, 1882.

OGBORN V. FRANCIS.*

In an action by a father for the seduction of his daughter, the gist of the action is the loss of the service of the child, and in absence of proof of such loss, there can be no recovery.

The facts of the parental relation, that the child was a minor, and the seduction, will not alone justify an action.

ACTION brought by Archibald R. Ogborn against

Isaac P. Francis, for the seduction of his daughter, Elizabeth Ogborn, a minor. There was a verdict of guilty rendered, and the damages assessed at $3,000. On rule to show cause why the verdict should not be set aside.

Chilion Robbins, for plaintiff.

Jos. D. Bedle, for defendant.

BEASLEY, C. J. The legal question to be solved in this case is whether given the minority of the daughter, the father can sue, under all possible circumstances, for her seduction, he not having connived at her offense. The case incontestably shows that this plaintiff had lost his wife two or three years before the alleged

incontinence of his child, and at that time, she being

about sixteen years of age, he had gone to the State of Iowa, leaving the child to shift for herself. From then to the alleged seduction which occurred, if at all, nearly three years after this abandonment, the daughter was compelled to provide for herself, without paternal guidance or control, for the father took no heed of the whereabouts of his child or of her doings, During this period she put herself to service in various households, changing her place of residence frequently, and living in this State or out of it at will. At the time of her alleged betrayal she was the hired servant, by the month, of the father of the defendant. It is plain therefore that if this suit will lie, its legal constituents are the relationship of parent and child, the minority of the child, and the fact of her seduction.

By the established rules of the common law, an action of this class did not rest at all on the parental relationship. If such had been the foundation of the remedy it would, upon principal, have extended to cases arising after the majority and emancipation of the child, for the injury to parental affection does not take its measure from the age or dependence of the child. If the feelings of nature be alone regarded, the Appearing in 15 Vroom's (44 N. J. Law) Reports.

blow to the father is quite as great if a child, after emancipation, be seduced as it is if the same child lapses from virtue during her minority. It is therefore the recognized doctrine that the parental relationship is no part of the basis of suits of this character; such suits, as their legal ground, rest exclusively on the relationship of master and servant. I shall not pause to inquire, as is done in some of the decisions in this country, whether this doctrine originated in a barbarous age, and is incompatible with the educated intelligence of our own times, for I cannot forget that the body of the common law had the same origin and much of it has been subject to the same criticisms, and that a court seeks to know what the law is and not what it should be. Consequently the only question to be now considered is, whether the circumstance existing in the present case, that the plaintiff's daughter was a minor, constitutes her, de jure, his servant. This is the only possible contention in favor of this action, and I think it is opposed by the entire series of English decisions, as well as by the tendency of judgments, judicial dicta and practice in this State.

That the loss of service forms the gravemen of an action by a parent for an injury to his child, is fully and variously illustrated in the English decisions. The principle was exhibited in a striking form in the case of Hall v. Hollander, reported in 4 B. &. C. 660. The action was in trespass for driving carelessly a carriage against the plaintiff's son and servant, as the declaration alleged, whereby the father was deprived of the services of his child and put to expense in the care of his hurts; but it being shown on the trial that the child was only two years old, and therefore incapable of occupying the status of a servant, the plaintiff took nothing by his action. Of course the decision would have been the opposite, if as is claimed in the present case, the elements of a legal claim were to be constituted out of the relation of parent and child, the minority of the child and an injury to the latter.

In Grinnell v. Wells, 7 Man. & G. 1033, with respect to the facts involved is to be found a counterpart of those now before the court. The plaintiff in that case was a poor person, whose daughter, being a minor and unmarried, lived at service and supported herself, and was debauched by her employer, and on the proof of suited the plaintiff, and on a motion at bar for a new these facts, Chief Justice Tindall, at the trial, non

trial, said he remained of the same mind, for it had

always been held that the loss of service must be alleged in the declaration, and that the loss of service must be proved at the trial, or the plaintiff must fail.

To the same effect are the declarations of all the judges, upon a substantially similar state of facts, in the case of Davies v. Williams, 10 Ad. & E. (N. S.) 725. But as in the decisions of the courts at Westminster, there is a complete concurrence on this topic, I shall content myself with a reference to the following cases, without a statement of the circumstances giving rise to the respective judgments: Bennett v. Allcott, 2 T. R. 166; Harper v. Luffkin, 7 B. & C. 387; Dean v. Peel, 5 East, 45; Terry v. Hutchinson, L. R., 3 Q. B. 598; Hedges v. Tagg, L. R., 7 Exch. 283; Harris v. Butler, 2 M. & W. 539; Blaymire v. Haley, 6 id. 55.

In the decisions on this subject in this State, a similar doctrine has been uniformly propounded and enforced. Thus as early as the year 1796, in the case of Van Horn v. Freeman, 1 Halst. 322, Chief Justice Kinsey thus marks out the only foundation which will support a suit of this nature. His language is: "In actions of this kind it must also be proved that the daughter stands, in some degree, in the relation of servant to her father. This is, technically speaking, the gist of the action; but the slightest evidence has

been held sufficient to support this part of the case." And in conclusion, he says: "For my own part, I think that whilst the daughter is under age, and is maintained by the parent, he always has sufficient interest in her labor and services to afford a foundation for this action." And this is the doctrine, so far as my knowledge extends, which has been uniformly enforced at trials by the courts in this State from that time to the present. There is no case, so far as is known, which has gone, in the least degree, further than the one just cited in upholding any one of these suits. The general rule is also recognized in Coon v. Moffitt, 2 Penn. 583; Sutton v. Huffman, 3 Vroom, 58. In the case before the court there is no reasonable ground on which either an actual or constructive service of this child to her parent is to be predicated. At the time of her incontinence she, with the implied assent of the plaintiff, was in the service of another person by force of a contract for a definite period, and her father neither maintained nor controlled her; and consequently, as she was in no sense his servant, it is out of the question to permit a jury to say that he was deprived of her services by the act of the defendant. The plaintiff should have been nou-suited on the admitted facts of the case.

Let the rule be made absolute.

DISTURBANCE OF WORSHIP BY RAILWAY

COMPANY.

SUPREME COURT OF THE UNITED STATES. APRIL 23, 1883.

BELLEMONT & OнIо Co. v. FIFTH BAPTIST CHURCH. An authority to a railroad company to construct such works in a city as might "be necessary and expedient" in order to the proper completion and maintenance of its road, held not to exempt it from liability to a church corporation for a disturbance of the worship of the church congregation, by the noise of its engines and machinery, and the smoke from its chimneys where it constructed its machine shop near to the church building.

A corporation is liable for injury to another corporation from a nuisance maintained by the former.

The church was entitled to recover for the discomfort and inconvenience to it from the nuisance maintained by the railroad company, notwithstanding the market value, for sale, of the church property was not depreciated.

IN

N error to the Supreme Court of the District of Columbia.

The Fifth Baptist Church, the plaintiff in the court below is a religious corporation, created under the general incorporation act of Congress in force in the District of Columbia. It owns a building in the city of Washington situated on D street, between Fourand-a-half and Sixth streets, which was erected and has been used by it as a church for many years. The defendant in the court below, the Baltimore & Potomac Railroad company, is a corporation created under the laws of Maryland, and is authorized by act of Congress to lay its track within the limits of the city, and to construct other works necessary and expedient to the proper completion and maintenance of its road, The plaintiff alleges that the defendant, in 1874, erected an engine-house and machine-shop on parcel of land immediately adjoining its church edifice, and has since used them in such a way as to disturb, on Sundays and other days, the congregation assembled in the church, to interfere with religious exercises therein, break up its Sunday-schools, and destroy the value of the building as a place of public worship. It therefore brought the present suit in the Supreme Court of the district for the damages it had sustained. The defendant pleaded the general issue.

a

On the trial evidence was given to show that the Fifth Baptist church has owned and used the premises described as a place of worship since 1857; that the present church building was begun in 1867, and since 1868 or 1869 has been continuously occupied by the church as its house of worship; that in 1872 the defendant erected upon a parcel of ground immediately adjoining the premises on the west, and from April, 1874, till the commencement of this suit, maintained an engine-house and machine-shop, where a large number of locomotives and steam-engines were housed and their fires made, and to and from which the engines were propelled, and in which they were coaled, watered, repaired, and otherwise used; that when the ground was first broken for the erection of these works the plaintiff advised the company, that if put there, they would prove to be a nuisance and ruinous to the plaintiff's interests, and protested against their erection; that the company, however, paid no heed to this protest, but proceeded to erect the works upon the building line of its own premises within five and a half feet from the church edifice, and constructed upon the engine-house sixteen smokestacks, lower in height than the windows of the main room of the church; that the nearest of the smokestacks was less than sixty feet from the windows, and the others were in a semi-circular curve, at gradually increasing distances; that during this period — from April, 1874, to the commencement of the present suit the plaintiff was accustomed to have on every Sabbath day Sunday-school exercises in the morning, preaching in the forenoon, and preaching in the evening; and that religious services were also held in it on Wednesday evening of every week, and on the first Tuesday and Friday evenings of every month, and at intervals protracted religious meetings were held in it every night in the week except Saturday night; that during this period these services were habitually interrupted and disturbed by the hammering noises made in the workshops of the company, the rumbling of its engines passing in and out of them, and the blowing-off of steam; that these noises were at times so great as to prevent members of the congregation, sitting in parts of the church farthest from the shops, from hearing what was said; that the act of blowing off steam occupied from five to fifteen minutes, and frequently compelled the pastor of the church to suspend his remarks; that this was of habitual occurrence during the day and night, and on Sundays as well as other days; and that in the summer time, when the windows of the church were opened for air, smoke, cinders, and dust were blown from the smokestacks through the windows of the church, settling upon the pews and furniture, and soiling the clothes of the occupants, accompanied by an offensive odor, which greatly annoyed the congregation.

Evidence was also given to show that the railroad company, which was authorized to lay its track along only Virginia avenue in the city, had constructed a side track from the avenue to its workshops, crossing a part of D street and its sidewalk at a distance of about 100 feet from the door of the church; that the locomotives were allowed to stand at the entrance of its premises with their cow-catchers protruding several feet beyond the enclosure, and sometimes to stand across the sidewalk which two-thirds of the congregation were obliged to pass in going to and from the church; that the access of the church was thereby obstructed and rendered dangerous, and on several occasions members had barely escaped being run over by the sudden starting of the locomotives without note or warning; that the congregation had been thereby diminished, and the attendance upon the Sunday-school decreased by about one-fourth; that the Sunday-school was a source of revenue to the