Central Law Journal.

ST. LOUIS, MO., OCTOBER, 26, 1900.

In a recent Virginia case-Sanders v. Coleman-the supreme court of appeals of that State applied to a marriage contract the elementary doctrine excusing non-performance which is occasioned by the act of God. In the law of contracts, all misfortunes and accidents arising from inevitable necessity which human prudence could not foresee or prevent, including "illness," are comprehended under the expression "act of God;" and if the performance of any contract is rendered impossible by the act of God alone, such fact furnishes a valid excuse for its non-performance, and such provision inheres in every contract. In applying these principles to an action for breach of promise of marriage, the Virginia court held that a contract to marry is coupled with the implied condition that both parties remain in the enjoyment of life and health, and if the condition of the parties has so changed that the marriage state would endanger the life or health of either, a breach of the contract is excusable. In the case at bar the evidence tended to show that the defendant was suffering from a disease affecting the urinary crgans which had developed subsequent to his engagement to the plaintiff, and in consequence of which he had sought release from the engagement. The court holds that he acted in good faith, and that his physical condition justified the alleged · breach of contract to marry the plaintiff; and therefore reverses the judgment in her favor. In a note to the decision the Virginia Law Register says that it is in accord with a preponderance of the little authority on the subject. The court cites the case of Allen v. Baker, 36 N. Car. 91, and Shackelford v. Hamilton, 93 Ky. 80, which appear to be the only American authorities on the subject. A contrary decision, by a divided court, was made in the case of Hall v. Wright, 96 E. C. L. 745. In that case, of eleven judges passing upon the question and delivering opinions seriatim, six were against the plea and five were sustaining it. Our contemporary also notes an interesting sequel to the case at bar, not shown on the record, in that the afflicted

defendant married another woman within a few days after the opinion was handed down;` and suggests the query, whether the plaintiff may not, now that the defendant's physical condition is such that he may enter the married state without danger to his life-as shown by his actual marriage to another— institute and successfully prosecute a second action against him.

In Smith v. State, before the Court of Criminal Appeals of Texas, it appeared that evidence was introduced in the lower court, on a motion to quash an indictment showing that, in selecting the grand jury which found the indictment, the jury commissioners excluded all negroes on account of their race (the defendant being a negro); that the district judge selected no one but whites as jury commissioners; that for many years the negro race had been excluded from serving as jury commissioners and petit jurors; that there were many negroes in the county competent to serve on juries and as jury commissioners; and that there was a strong prejudice against negroes in the county, on account of their race. It was held, that such action was a denial of the equal protection of the laws, contrary to the fourteenth amendment to the federal constitution. In Carter v. State, 69 Tex. Cr. Rep. 345, the same question was passed upon and it was held that the lower court did not err in overruling such a motion. A writ of error was sued out to the Supreme Court of the United States, and the decision in that case was there reversed. Carter v. Texas, 20 Sup. Ct. Rep. 687. After stating the question involved, Mr. Justice Gray delivering the opinion of the court uses this language: "Whenever by any action of a State, whether through its legislature, through its courts, or through its executive or administrative. officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the fourteenth amendment of the constitution of the United States. Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664; Neal v. Delaware, 103 U. S. 370, 397, 26 L. Ed. 567; Gibson v. Mississippi, 162 U. S. 565, 16

Sup. Ct. Rep. 904, 40 L. Ed. 1075." The Texas court, in the present case says that "we have had no occasion to change our views therein expressed, and, were it an original proposition, would still adhere to our original opinion. But, as indicated, this matter has been passed upon by the Supreme Court of the United States, which in matters of this sort controls our action."

NOTES OF IMPORTANT DECISIONS.

NOTE-ACTION BY PAYEE-TITLE.-In Bowan v. Equitable Mortgage Co., 36 S. E. Rep. 601, decided by the Supreme Court of Georgia, it was held that the payee of a promissory note, in possession of the same, is presumed to own it, although his indorsement thereon, in full or in blank, may stand uncanceled; that he may sue upon such note, and his title to the same cannot be inquired into, unless it be necessary for the protection of the defendant, or to let in the defense which he seeks to make. The court said in part:

"The note was in the possession of the payee, and the presumption was that it was the owner, notwithstanding its indorsement upon the note stood uncanceled, and it had a right to sue thereon in its own name. In Dugan v. United States, 3 Wheat. 172, 4 L. Ed. 362, it was held that if any person who indorses a bill of exchange to another, whether for value or for the purpose of collection, shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as the bona fide holder and proprietor of such bill, and shall be entitled to recover, notwithstanding there may be on it one or more indorsements in full, subsequent to the one to him, without producing any receipt or indorsement back from either of such indorsees, whose names he may strike from the bill, or not, as he may think proper.' In Daniel, Neg. Inst., sec. 1198, the rule is stated to be that, where there appears on the paper the plaintiff's own indorsement, it will be presumed either that he had not perfected his indorsement by delivery, or that the paper has been returned to him as his own property, and in either case he has the right to sue upon it.' In 2 Rand., Com. Paper, sec. 717, the author says: "The payee's possession of a bill or note is prima facie evidence of title in him, notwithstanding his own indorsement is erased, and even, it has been held, notwithstanding his own special indorsement, or indorsement in blank, uncanceled.' To the same effect, see 3 Rand., Com. Paper, sec. 1645, and 4 Am. & Eng. Enc. Law, 280. There are numerous adjudicated cases to this effect cited by the authorities above referred to, and there can be no question but that the great weight of judicial opinion sustains the doctrine. It is true that this court held in Southern Bank

of Georgia v. Mechanics' Savings Bank, 27 Ga. 252, that, where a bill of exchange or draft is indorsed in full by the payee, suit cannot be maintained in the name of the payee while the indorsement stands.' The decision, however, was rendered by only two judges, and we are therefore not compelled to follow it. In Leitner v. Miller, 49 Ga. 486, it appeared that Miller sued C. B. Leitner, as principal, and S. A. Leitner, as indorser, on a note made by C. B, Leitner, payable to S. A. Leitner or bearer, and indorsed as follows: 'S. A. Leitner, J. V. H. Allen, Treasurer, L. H. Miller. Pay I. C. Plant, or order, for collection.' The plaintiff introduced the note and closed, when the defendant moved for a nonsuit, on the ground that plaintiff had shown title out of himself by his indorsement on the note sued on. The motion was overruled, and the defendant excepted. This court held that, although plaintiff's name may be on the back of the note sued on, he may recover against the maker, as the law will presume, in the absence of proof to the contrary, that an indorsement by him was never completed by delivery, or, if he had delivered it so indorsed, that he had taken it up, and was again the legal holder or indorsee.""

NEGLIGENCE

PERSONAL INJURIES-MASTER AND SERVANT.-In Stewart v. California Improvement Co., decided by the Supreme Court of California, it appeared that a city hired from an improvement company the use of a steam roller and engineer. The city had full control over the movements of the steam roller, and directed its engineer where to operate it. The company paid the salary of the engineer, and had the power to discharge him. The roller, being directed to operate where the ground was too soft to hold it up, sank in the mud, and the engineer, in a proper exercise of his duties, put on full steam, and extricated the roller from the mud. The steam then escaped with a loud noise, and frightened the horse of a traveler, who was permitted by the city's superintendent to approach without warning, injuring him. It was held that the city was liable therefor, and not the company. The following is from the opinion of the court:

"The accident resulted from the necessity of increasing the steam in the boiler, and this became necessary because the roller had been directed to work where the ground was too soft to hold it up. There is no pretense that the engineer was unskillful in managing the engine in the effort to extricate it. The roller and engineer had been working for the city for five days previously without complaint as to the fitness of the roller or skillfulness of the engineer, and the complaint now made is not as to the facts just mentioned, but that the engineer was at fault in not warning plaintiff that a high pressure was on the boiler, and the safety valve was liable to let the steam escape. It seems manifest to us that the accident resulted while the engineer and the roller were under the direction and control of the

city superintendent, and that for the time being the company had no control whatever in the matter, and for that particular work was not the engineer's master. Respondent suggests that there is no evidence tending to show that the engineer was released from the service of the company. The evidence on this point showed only that the engineer was paid for his services by the company, and this is entirely consistent with the right of the city authorities to direct where and how the work was to be done after it had taken him and the roller into its employ. A city had leased from a railroad company an engine and train of cars to carry gravel to its waterworks, and the company agreed to furnish a conductor, engineer, fireman and brakeman to manage the train, all of whom it paid, and also furnished necessary fuel for the engine. The conductor had general charge of running the train, but received his instructions as to the performance of his work from the city employees. The plaintiff was injured by the negligence of the engineer in running at an unlawful speed. It was held that the city was liable. The court said: 'It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.' Coughlan v. City of Cambridge, 166 Mass. 268, 44 N. E. Rep. 218. An agreement was made by a railroad company with H & Co., by which the latter were to construct a branch road, the railroad company 'to furnish all motive power and cars, and operate the construction trains.' H & Co. had control over the laying of the track. It was sought to hold the railroad company for the negligent conduct of the engineer in running the train over the unfinished track at a dangerous rate of speed without keeping a lookout ahead. It appeared that H & Co. had the right to direct where to place the train, to unload, stop or start it, and it was held that the fact that the crew were retained on the railroad company's pay rolls did not tend to show that the railroad company retained any control of the movements of the train. The railroad company was held not liable. Miller v. Ry. Co., 76 Iowa, 655, 39 N. W. Rep. 188. Much to the same effect are the following cases: Byrne v. R. R. Co., 9 C. C. A. 666, 61 Fed. Rep. 605; Powell v. Construction Co., 88 Tenn. 692, 13 S. W. Rep. 691. Respondent recites in reply: Coyle v. Pierrepont, 37 Hun, 379; Huff v. Ford, 126 Mass. 24; Ames v. Jordan, 71 Me. 540; Gerlach v. Edelmeyer, 88 N. Y. 645, and DuPratt v. Lick, 38 Cal. 691. In the case reported in Hun a stevedore was employed by the owners of a vessel to unload it at docks owned by defendants. Defendants hired to the stevedore a portable engine, with an engineer to run it, to furnish power to hoist the

cargo from the vessel and lower it on the wharf. By the negligence of the engineer an employee of the stevedore was injured. It was held that defendants, as masters, were responsible for the engineer's negligence. It does not appear from the report of the case that the stevedore exercised any control over the engineer. The defendants agreed to furnish power; and we cannot discover that any directions were given by the stevedore to the engineer. We do not think the case necessarily conflicts with the principles upon which the present case must rest, and, if it does, we cannot follow it. Appellant cites, contra, Donovan v. Syndicate (1893), 1Q. B. 629, where in a similar case the lessee gave directions as to the working of the crane used in unloading the vessel. The lord chief justice said: "The key to the whole case is that Jones & Co. were loading the ship, and not the defendants. The crane was being used for Jones & Co.'s purposes, and not for those of the defendants, and the former must, for that particular job, be considered as Wang's masters.' Huff v. Ford was the case of a horse, wagon and driver hired to the city, and the injury was to plaintiff's window. The driver struck the horse a violent blow, causing it to kick a loose shoe through the window. The case seemed to turn upon defendant's duty to see that his horse was properly shod. The case would be analogous if the injury in the present case had resulted from defects in the engine, which is not claimed to have been the case. We do not find that any of the cases cited by plaintiff necessarily conflict with the views we have expressed."

PROOF OF MARRIAGE IN CRIMINAL CASES.

General Presumption in Favor of Marriage.-Generally every intendment is in favor of marriage, because it is for the highest good of the parties, of the children and of the community that all intercourse between the sexes in its nature matrimonial should be so in fact. In criminal cases, bigamy, adultery and the like, a different rule obtains, because of the presumption of innocence in general keeping with the fundamental rules of criminal trials. This is eminently properbecause the general presumption of innocence which would operate to legitimize children and preserve the sanctity of man in his relation with woman in one case, tends in the other instance to make him guiltless of gross offenses against the marriage contract. It will be found that in every instance, where,

1 Bishop on Mar. & Div. ch. 24, sec. 457; Bishop on Statutory Crimes, secs. 608, 610.

2 Wharton on Evidence, secs. 85, 87.

to sustain the charge against the accused, it is sought to prove a prior subsisting marriage as an element of the offense, as in indictments for adultery, incest, polygamy and lascivious cohabitation, that this prior marriage becomes, more than any other assumed fact in the case, the corpus delicti, to be established by something like direct evidence.3

Rule that Marriage in Fact Must be Proved by Direct Evidence-Conflict of Authority.The question is simply, what is competent evidence to prove a "marriage in fact," which expression, as used in the books, has acquired a technical meaning in the law, and signifies the fact proved by direct testimony or by any other evidence, the effect of which is not derived from mere presumption arising out of cohabitation. Regarding this ques

tion the courts are at great variance.

Some courts hold that a marriage in fact must be proved by direct evidence not derived from presumption in any degree whatever. This rule in many of the cases may be attributed to a misconception of certain early English cases, which are relied upon as authority, and which are held by the courts to establish an inflexible rule of evidence to which they are bound to adhere. The earliest case of which record has been kept in the English reports, and the one most referred to, is that of Morris v. Miller," which, singularly enough, is not a criminal proceeding at all, but an action for criminal conversation. This case was followed twelve years later by another of the same natureBirt v. Barlow. In these cases the plaintiffs attempted to establish their marriages by giving in evidence their own declarations, and proving their recognition of, and cohabitation with, the women alleged to be their wives. The opinion of the court in the former case, delivered by Lord Mansfield, is only to the effect that "in this kind of action (criminal conversation) there must be evidence of marriage in fact. Acknowledgment, cohabitation and reputation are not sufficient." And in the same breath the court says: "But we do not, at present, define what may or what may not be evidence of a marriage in fact." Neither of these cases determine 3 Bishop on Statutory Crimes, sec. 608; 2 Greenleaf on Evidence, sec. 461.

4 State v. Sherwood, 68 Vt. 414, 35 Atl. Rep. 353. 5 4 Burr. 2056, 1 W. Bl. 632.

6 Doug. 171.

what is sufficient evidence of a marriage in fact, and ought not to be regarded in criminal cases. The following criminal cases adhere to this rule in all its original strictness, and in some instances even give increased stringency because of a partial view of the points decided in later cases supposed to establish the rule. In other States the rule has been very considerably relaxed, and this fact of marriage may be established by any evidence, even circumstantial, which, not resting on presumption, is admissible and competent to sustain a conviction; provided, of course, that it is sufficient to satisfy the jury after overcoming the adverse presumptions. It should be noticed that there is a distinction between presuming a marriage from slight evidence, as cohabitation and repute, which is generally done in civil cases, and proving a marriage by circumstantial evidence. Accordingly, in some of the States where the strict English rule has been relaxed, the courts, keeping in mind this distinction, have declared that a marriage in fact is always provable by circumstantial evidence as well as by direct evidence, saying that direct evidence is not primary and circumstantial evidence secondary, but both are of the same degree, though one may, in a given case, be more satisfactory. Whatever is admissible on general principles, or by the statutes which have been passed in many States, which satisfies the trior of the fact to the requisite degree of certainty, proves a fact of marriage valid and formal under the law. Such circumstantial evidence incompetent standing alone (because not sufficient of itself in a particular case to establish such a marriage), and which has withdrawn from it the consequence of affording a basis of a presumption of law, may, nevertheless, be relevant to the issue of a marriage in fact, and receivable among the proofs of such a marriage, by reason of its explaining and giving character to the more effective testimony. The conflict of authority is most

7 State v. Roswell, 6 Conn. 446; People v. Humphrey, 7 Johns. 314; State v. Armstrong, 4 Minn. 335; State v. Johnson, 12 Minn. 476, 93 Am. Dec. 241; Com. v. Norcross, 9 Mass. 492; Com. v. Littlejohn, 15 Mass. 163.

8 Bishop on Statutory Crimes, sec. 609; State v. Sherwood, 68 Vt. 414, 35 Atl. Rep. 352; West v. State, 11 Wis. 209; Cook v. State, 11 Ga. 53, 56 Am. Dec. 415; Williams v. State, 54 Ala. 131, 25 Am. Rep. 665; State

frequent concerning the competency and sufficiency of evidence offered to prove the fact of marriage. Therefore, it is preferable to examine the authorities with reference to the kinds of testimony offered to prove the marriage in fact to gain an intelligent idea of the various modifications of the English rule that have been declared by the courts of the different States.

hold that evidence of general reputation in the community of the existence of the marriage relation and proof of cohabitation is competent at least as tending to prove such relation, if not alone sufficient to establish it. In the case of United States v. Higgerson," the court says: "The proof of the marriage is frequently required many years after and remote from the place of its occurrence, when the written evidence and the record of it may be lost or are inaccessible, when its eyewitnesses are dead or forgotten. Not only that, but in this country the laws gov erning it are so varied, some not even requir

on the ground that the facts themselves should be shown, and it is for the jury to draw the inferences. To allow the repute of guilt in the neighborhood without proof of the acts, or evidence of cohabitation, and that the former alleged wife was alive and undivorced would be manifestly improper. But in Massachusetts and Minnesota it has been enacted by statute that evidence of general repute is competent proof of marriage. Under these statutes evidence of this character is in itself alone, sufficient, whenever its strength and weight are such as would reasonably produce upon the minds of the jury that degree of conviction requisite in all criminal proceedings.10

Reputation and Cohabitation.-Whether general repute accompanied by evidence of cohabitation is sufficient, is a question upon which the courts are more at variance. There are some decisions to the effect that, in the absence of statute, such evidence is not adequate, that it is not proof of actual marriage in fact, but is only evidence of cohabitation with its attendant shadows and presumptions. Other and more numerous decisions

11

v. Hughes, 35 Kan. 626, 57 Am. Rep. 195.

9 Morgan v. State, 11 Ala. 289; Buchanan v. State, 55 Ala. 154; Wood v. State, 62 Ga. 406; People v. Miner, 58 Ill. 59; Arnold v. State, 53 Ga. 574; West v. State, 1 Wis. 209; Dumas v. State, 14 Tex. Ct. App. 464, 46 Am. Rep. 241; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195; Adkinson v. State (Tex.), 30 S. W. Rep. 357; United States v. Langford (Idaho), 21 Pac. Rep. 409.

10 Mass. Gen. St. ch. 106, sec. 22; Minn. Gen. St. ch. 73, sec. 89.

11 State v. Rood, 12 Vt. 296; Hiler v. People, 156 Ill. 519, 41 N. E. Rep. 181; Green v. State, 21 Fla. 403, 58 Am. Rep. 670; State v. Hodgkins, 19 Me. 155; State v. Libby, 44 Me. 169, 69 Am. Dec. 115; Lowery v. People (Ill.), 50 N. E. Rep. 165; Case v. Case, 17 Cal. 598;

mony, that the difficulty of direct proof, and the expediency of permitting the indirect, become evident. Under such circumstances why should not the facts that a man and woman lived in a community with the apparent relation of husband and wife, have been received in society and been known as such, have so conducted themselves publicly as to lead their neighbors to believe them such, have by their acts established in the community a general reputation that they are married, be permitted as evidence tending, at least, to show the existence of such relation? These views are sustained by sufficient authority, as well as by reason, to justify their adoption, and in criminal as well as in civil cases. It must not, however, be concluded that proof of reputation of the marriage relation is alone sufficient; it is but one of the proofs; it only tends to establish the fact which, with other proofs, may become conclusive.''13

People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49; Bird v. Com., 21 Gratt. 800; Brown v. State, 52 Ala. 338; West v. State, 1 Wis. 209.

12 46 Fed. Rep. 750.

13 United States v. Tenney (Ariz.), 11 Pac. Rep. 472; People v. Stokes (Cal.), 12 Pac. Rep. 71; State v. Hughes, 35 Kan. 626, 57 Am. Rep. 195; Lowery v. People (Ill.), 50 N. E. Rep. 165; Hiler v. People, 156 Ill. 519, 41 N. E. Rep. 181; Com. v. Thompson, 99 Mass. 444; Com. v. Johnson, 10 Allen, 196; State v. Sherwood (Vt.), 35 Atl. Rep. 352; Com. v. Jackson, 11 Bush' (Ky.), 1679, 21 Am. Rep. 225; Dumas v. State, 14 Tex. Ct. App. 464, 46 Am. Rep. 241; Hayes v. People, 25 N. Y. 390; United States v. Simpson (Utah), 7 Pac. Rep. 257; State v. Gonce, 79 Mo. 600; Halbrook v. State, 34 Ark. 511, 36 Am. Rep. 17; State v. Cooper (Mo.), 15 S. W. Rep. 327; Hayes v. People, 25 N. Y. 396; Gahagan v. People, 1 Park. Cr. (N. Y.) 383; State v. Hilton, 3 Rich. (S. Car.) 434, 45 Am. Dec. 783; State v. Nadal (Iowa), 29 N. W. Rep. 451; Cameron v. State, 14 Ala. 546; Green v. State, 59 Ala. 68; Bird v. Com.,