its charter, to abate nuisances endangering the public health and safety, may destroy property without making compensation to the owner, where the property constitutes a nuisance of that kind; and we think the decision in that case controls the present case. There the city authorities destroyed grain which had become wet and damaged by a flood while stored in the plaintiffs' warehouse. The plaintiffs sued the city for the value of the grain, and it was held by this court that, "it not being alleged in the declaration that the damaged grain condemned and destroyed by the municipal authorities was not a nuisance or was not dangerous to the public health (that being the ground on which it was condemned and destroyed), no cause of action against the municipality was set out in the declaration." Bleckley, C. J., in delivering the opin ion of the court, said: "To destroy property because it is a dangerous nuisance is not to appropriate it to a public use, but to prevent any use of it by the owner, and put an end to its existence because it could not be used consistently with the maxim 'sic utere tuo ut alienum non lædas.'" Section 2226 of the Code, though not referred to in the opinion, was cited and relied on by counsel for the plaintff in error in that case, and was not overlooked by the court in the consideration of the case. An illustration of the class of cases to which this section applies will be found in the case of Town of Dawson v. Kuttner, 48 Ga. 133, the only case we know of in which the section referred to has been construed. In that case the plaintiff was held entitled to recover from the municipal corpora. tion for property destroyed by the authorities thereof in attempting to prevent the spread of a fire, but the fire did not originate in and had not extended to the property in question at the time of its destruction. In cases of emergency the municipal authorities, if authorized by their charter to abate nuisances, are not bound, before ordering the destruction of property as a nuisance, to wait until the fact that the property is a nuisance is judicially determined. In such cases the destruction may be ordered without a preliminary condemnation. See Mayor, etc., of Americus v. Mitchell, 79 Ga. 807, 5 S. E. Rep. 201; Dunbar v. City Council of Augusta, supra, and cases cited. Unless, however, the property is first condemned as a nuisance by appropriate proceedings, its destruction will be at the peril of the municipal authorities; and, when sued for its value, the burden is upon them of showing that it was in fact a nuisance, and that its destruction was really necessary to the public health and safety. In the present case the evidence showed conclusively and beyond question that the property destroyed was in fact a nuisance endangering the public health, having been used as bedding by a person who had scarlet fever, a highly contagious disease; and the mayor and aldermen of the city, under its charter, had ample authority to abate the nuisance. Code, § 4875. Consequently the destruction of the property was lawful, and the owner was not entitled to recover its value from the city. Judgment reversed.

ELECTIONS AND VOTERS-AUSTRALIAN BALLOT SYSTEM.-The recent cases of Vallier v. Bracke and Parmley v. Healy, 64 N. W. Rep. 180 and 186, review and decide a number of practical questions arising under the Australian ballot law of that State which are of interest in other States. The official head

notes show that the following points were decided:

1. Where it is claimed that a certain person who voted at an election was not a qualified elector, he may be asked, as a witness on direct-examination, no question of personal privilege being involved, the general question, for whom he voted. The manner of marking his ballot is a subject of cross-examination. 2. Under the provisions of sections 4, 6, ch. 80, Laws, 1893, an elector may adopt either of four methods in designating the candidates for whom he desires to vote. First. He may make a cross in the circle at the head of a party tickt, and in this manner vote the entire ticket. In such case that ticket is full and complete, and constitutes his ticket. Second. He may make a cross in the circle at the head of the party ticket, and may erase on that party ticket the names of the candidates for whom he does not desire to vote, and not supply the place of the erased name or names. He then votes the party ticket, except as to the candidates whose names are erased, and as to those the ticket is not filled. Third. When the elector has made a cross in the circle at the head of the party ticket, and erased the name of one or more candidates thereon, he may fill out his ticket in whole or in part by placing a cross at the left of the name of candidates on other tickets, thus making his ticket to consist of the names not erased upon his own party ticket and the name or names of candidates on other tickets. Fourth. If the elector choses, he may omit the cross in the circle at the head of any party ticket, and make up his ticket by placing a cross to the left of the names of such candidates as he desires to vote for upon any ticket on the ballot.

3. When the elector makes a cross in the circle at the head of a party ticket, and erases no name thereon, the law declares it shall be counted for the party ticket, "throughont," and no cross or mark opposite the name of any candidate on any other ticket can be resorted to to defeat the declared effect of such a cross at the heal of a ticket.

4. The law has prescribed the manner in which an elector may mark his ballot, and what act he may do to designate the candidates for whom he desires to vote, and in marking his ballot he must substantially conform to the requirements of the law.

5. A cross at the head of the party ticket, but not within the circle, is a nullity.

6. A cross at the right of a candidate's name is not an informality in the form of marking, but is unauthorized and of no effect.

7. The erasure of a name upon a ticket marked with a cross in the circle at the head thereof, and the writing thereunder of the name of the candidate for the same office on another ticket, is unauthorized, and cannot be counted for the latter candidate.

8. If the act of erasing a candidate's name on a party ticket properly marked by a cross in the circle at the head thereof, is such that it can clearly be seen that the voter has made an effort to erase the name, and intended in fact so to do, any informality merely in the manner of doing it should be disregarded.

9. A straight diagonal line at the left of the name of a candidate does not constitute a cross, and should be disregarded.

10. One or more circles within the circle at the head of a party ticket do not constitute a cross within the circle, and should be disregarded.

11. When the intention of the elector to make a cross is clearly apparent, and the cross is made

whether with stamp or otherwise, any informality merely in making it should be disregarded.

12. The law makes no provision for a cross in the circle at the head of more than one party ticket, and a cross in the circle at the head of two or more party tickets neutralizes each other, and such cross, as to all the party tickets so marked, should be disregarded, and the ballot treated as though no cross were made at the head of any party ticket.

13. When an elector does not make a cross in the circle at the head of any party ticket, he may indicate the candidates for whom he desires to vote by placing a cross at the left of the candidate's name on any ticket, and he need not erase any name on the ballot.

14. When the elector writes his own name on his ballot, such ballot is marked so that it can be identi fied, and is void, and should not be counted.

THE NEXT FRIEND-EXTENT OF AUTHORITY TO COMPROMISE SUIT.

In a number of cases, some of them of recent date, consideration of the extent of a next friend's authority to compromise, settle or arbitrate the suit in which he appears, has arisen. The subject assumes importance at the present time on account of the large number of suits brought on behalf of minors to recover damages for personal injuries. To a proper presentation of this and allied provinces of the next friend a general review of the powers, duties and liabilities of one holding the office or position is essential. The next friend, or prochein ami, is the representative of one not sui juris for the special office of commencing or carrying on a suit in court.1 He is a species of attorney, an officer of the court, and his acts are under the control and direction of the court.2 He is not a party to the suit, has no interest therein, and his authority ends with the rendition of final judgment. His appointment seems to be an exercise of the governmental function to pro

1 For definition of "next friend" with general discussion of provinces thereof see the following, the list of citations being especially extensive in the two first mentioned: 1 Daniel's Ch. Pr. 69; Schouler's Dom. Relations, § 449; Ewell's Leading Cases (Inf.), 227; Tyler on Infancy, 197; Macpherson's Inf. 352; 3 Robinson Pract. 229; Tidd's Pract. 100n; Chambers on Prop. of Inf. 757; 1 Bl. Com. 464; Reeve's Dom. Rel. 264; Edwards on Parties, 195; Bingham on Inf., p. 117, Black on Judgments, § 198.

2 Deford v. State, 30 Md. 199; Leopold v. Meyer, 10 Abb. Pr. (0. S.) 40: Citing, Knickerbocker v. De Treeat, 2 Paige, 304, and others.

3 Crittenden v. Canfield, Mich. 49 N. W. Rep. 554; Allen v. Roundtree, 1 Spears (S. C.), 80; Genet v. Talmadge, 1 John, C. R. 3; Sinclair v. Sinclair, 13 M. & W. 640; Brown v. Hull, 16 Vt. 674; Rees v. Maxim (Mich.), 58 N. W. Rep. 493.

7

vide for the well being of those laboring under a disability. He may be appointed to prosecute a suit after its commencement.5 While minors ought to sue by next friend, still if the next friend sues in behalf of the minors, the defect is amendable. At common law infants both sued and defended by guardian. By statute Westm. 3 E. I, ch. 49, they were authorized to prosecute by prochein ami when eloined, and later by Westm. B. E. I. ch. 15, to sue in all actions, either by guardian or prochein ami.8 In the United States the statutes of most of the States provide substantially that in all cases where persons who are within age may sue, their next friends shall be admitted to sue for them. (Not in partition suits in Missouri.)10 Ordinarily the right to sue by next friend is really considered as though it were a part of the common law. Generally the infant may sue either by next friend or guardian if the latter has been appointed."1 In common practice beyond the count no especial appointment of the next friend is necessary, although in theory he is selected by the court;12 the consent of the infant is not essential to the appointment, and in fact the infant may be ignorant thereof or object thereto;13 the next friend is generally liable for costs (not in Massachusetts);14 the infant may prosecute as a poor person; in some States even, it is said without a next friend.15 The next friend acts under the direction of the court for the benefit of the infant and is

4 County of McLean v. Humphreys, 104 Ill. 378.

5 McDonald v. Weir (Mich.), 42 N. W. Rep. 1114; I. C. R. R. Co. v. Latimer, 128 Ill. 163.

6 Van Pelt v. C. R. & C. R. R. Co., 89 Ga. 706; Wilson v. Me-Ne-Chas, 40 Kan. 649.

7 Co. Lit. 135b.

8 See authorities cited inln. 1; also. Walsh v. Walsh, 116 Mass. 377; Hooks v. Smith, 18 Ala. 340; Sliver v. Shelback, 1 Dallas, 165.

9 e. g., R. S. Ill. Chap. 64, § 16; Clay's Dig. (Ala.) 336, p. 130.

10 Colvin v. Hanenstein, 110 Mo. 575.

11 Robson v. Osborn, 13 Tex. 305; Thomas v. Dike, 11 Vt. 273.

12 Chudleigh v. C. R. I. & P. Ry. Co., 51 Ill. App. 491; Miles v. Boyden, 3 Pick, 213; Judson v. Blanchard, 3 Conn. 579; Klaus v. State, 54 Miss. 644.

13 Pyne v. Wood, 145 Mass. 558; Morgan v. Thorne, 7 M. & W. 400; Barwick v. Ruckley, 45 Ala. 215; G. C. & S. F. R. Co. v. Styron, 66 Tex. 421.

14 B. & O. R. Co. v. Fitzpatrick, 36 Md. 619; Melling v. Melling, 4 Maddox, 139; Crandall v. Slaid, 11 Met. 288; Smith v. Smith (N. C.), 13 S. E. Rep. 113.

15 Wright, Admr. v. McLarinan, 92 Ind. 103; C. & I. R. Co. v. Lane, 130 Ill. 116.

powerless to yield any of the latter's rights.16 If the infant's rights are not being subserved the bill will be dismissed;17 the next friend will be changed, 18 or other proper orders made.19 It has been held that the only reason for the next friend's appointment is that there may be a responsible person before the court accountable for the costs, and that the ancient custom of appointing officers of the court to the position was discontinued simply because they became liable for costs.20 This view restricts the powers and province of the next friend to an extreme limit. In theory at least, and in practice at times, he has far greater duties and powers in connection with the carrying on of the suit under his supervision. It has been held, also, that the next friend does not have to be responsible, financially for the costs, but simply one who will be concluded by judgment therefor, and this is certainly as great a privilege as defendants have in suits brought by those who have reached majority.21 When the infant is regularly in court by next friend, he is bound by the judgment or decree to the same extent as a party sui juris, and will be permitted to question the finding only for fraud, collusion or error.22 Were this not the case, litigation with an infant would not be terminated of a certainty during his minority. There is a conflict in reported opinions as to whether or not the next friend can receive the amount of the judgment and give legal and full satisfaction. For instance, in B. & O. R. R. Co. v. Fitzpatrick, already cited, it was held that the next friend has such power in full, and that his attorney likewise has the same power in this regard, but even in this case the statement is made, that where there is a guardian under bond, the payment must be made to him and not to the next friend. Another line of decisions takes the position 16 R. R. v. Kennedy, 70 Ill. 350; Wright v. Gay, 101 Ill. 233; Barwick v. Ruckley, supra.

17 Fox v. Suwerkrop, 1 Beav. 583; Sale v. Sale, 1 Beav. 586; Nalder v. Hawkins, 2 M. & K. 243.

18 Ward v. Ward, 3 Merivale, 706; Peyton v. Bond, 1 Simons, 391.

19 Gage v. Stafford, 1 Ves. Sr. 545; Walker v. Else, 7 Simons, 234; Fulton v. Rose felt, 1 Paige's Rep. 170. 20 People v. N. Y. Com. Pl., 11 Wend. 166; Leopold y. Meyer, supra.

21 Budd v. Rutherford, 4 Ind. App. 386.

22 Ralston v. Lahee, 8 Iowa, 17; Joyce v. McAvoy, 31 Cal. 273; Brooke v. Mostyn, 33 Beav. 457; Wall v. Bushby, 1 Bro. Ch. 494; Chudleigh v. C. R. I. & P Ry. Co., 51 Ill. App. 491; Kingsbury v. Buckner, 134 U. S. 650.

24

that the next friend cannot, legally, satisfy the judgment or decree;23 that the payment to him is a nullity. The proper way, certainly the safe way, for judgment debtors in suits brought by infants, is to make payment to a guardian under bond, or if one has not been appointed to pay into court awaiting such appointment.

It follows logically from the foregoing determinations relative to the official powers, duties and liabilities of the next friend that whatever one in that position does in the way of compromising, settling or arbitrating a suit, to be final or valid must be done under the direction and with the approval of the court, unless it be a mere matter of course or form in connection with the carrying on of the suit. Such is the weight of judicial authority. When the question came before the court of final resort in Tennessee, in 1873, the judges were divided, and Sneed, J., dissenting, insisted that the next friend was of such authority and position that he had a right to select his tribunal and so could submit the case to the arbitration of private persons, but the opinion adopted held that the next friend could not compromise or arbitrate except under direction of court. The question as to whether a next friend can compromise or discharge a cause of action was not finally passed upon by the Massachusetts Supreme Court until 1891. In a carefully considered opinion, it is determined that while the next friend has the power to entertain negotiations for settlement, he cannot legally discharge a cause of action out of court, and unless the settlement made is affirmed when brought to the attention of the court it is invalid. In a Pennsylvania case of 1892, a trespass case, the infant plaintiff was given a verdict of $950, and the father, the next friend, against the advice of counsel, settled for $750, and his removal as next friend was made absolute. So in Illinois a father as next friend settled his son's suit for $250 and an order of court was made in regular form sanctioning the settlement by rendering judgment, but

27

23 Allen v. Roundtree, supra; Galveston Oil Co. v. Thompson, 76 Tex. 235; Smith v. Redus, 9 Ala. 99; Texas Cent. Ry. Co. v. Stuart, 1 Tex. Civ. App. 642. 24 Miles v. Kaigler, 10 Yerger, 10.

25 Tucker v. Dabbs, 12 Heisk. (Tenn.) 18.

26 Tripp v. Gifford, 155 Mass. 108; see also, Miles v. Kaigler, supra; Isaacs v. Boyd, 5 Porter, 388.

27 O'Donnell v. Broad, 1 Pa. Dist. R. 650.

when on motion made during the same term the facts were fully set forth before the trial court, the judgment was set aside and an award of $2,500, a more adequate compensation for the infant's injuries, was rendered in his favor and both the appellate and Supreme Courts affirmed the acts of the trial court.28 Had the motion to vacate not been made during the same term the judgment would have been only voidable and the infant would have been compelled to file a bill.29 Herein lies the great urgency for extreme care and caution in cases brought for infants on the part of judges and other officers of the court to prevent, if possible, the mistakes of careless next friends and the fraudulent designs of those who would cheat infants for private gain. A court of admiralty, according to Judge Ware of the U. S. District Court, 30 will interpose to protect the rights of an infant against the misconduct of the next friend; in this case also the father who is next friend, colludes with the adverse party and gives a receipt in full on the payment of less than the amount due the infant for wages. In South Carolina it was held in 1890, that a settlement for a lunatic made by the next friend, put in the form of a decree, but not signed by the judge, is not binding on the lunatic. In Kingsbury v. Buckner, already cited, a case involving an interpretation of Illinois statutes, Justice Harlan of the U. S. Supreme Court says in substance that while the next friend may assent to arrangements to facilitate trial, referring presumably to such matters of form as appointments to take depositions, he cannot in any way surrender the substantial rights of the infant. These arrangements with which the next friend can bind the infant are of necessity matters of mere form.

Where an infant sues in equity by next friend to compel an administrator to settle accounts and such next friend employs an attorney, the latter cannot agree, in any way binding upon the infant, to waive proof of vouchers. 32

Undoubtedly a great many cases brought on behalf of infants are settled with the facts,

28 A. T. & S. F. R. Co. v. Elder, 149 Ill. 175; see also, Palmer v. Conant, 11 N. Y. S. 917.

29 Chudleigh v. C. R. I. & P. Ry. Co., supra. 30 The Etna, Ware, 474.

31 Clark v. Crout, 34 S. C. 435.

32 Crotty v. Eagle, 35 W. Va. 143.

even if formally before the court, not actually and truthfully presented to its consideration, and the settlements are final, not because justice was done but because the matters were dropped. The number of instances reported in which fathers as next friends have sold out their children's rights for paltry sums of ready money, is surprising, and this being true in how many more instances, crafty or careless persons have cheated infants it is difficult to estimate. But these results follow, not from defects in the provisions of the law with regard to next friends. These provisions as shown by prevailing and decisive opinions, while at first they may seem peculiar and antiquated, are at least so favorable to the infant's welfare that if the judges, attorneys and other officers of the courts do their duties conscientiously, the interests of the infants and other parties not sui juris will be as well protected as is possible under human laws. CYRUS J. WOOD. Chicago, Ill.

INDUCING MARRIAGE BY FALSE REPRESENTATIONS-CAUSE OF ACTION-SURVIVAL.

IN RE PAYNE'S APPEAL.

Supreme Court of Errors of Connecticut.

Where a woman induces a man to marry her by falsely representing that she is single, his cause of action is for a personal injury, and the damage to his estate, by reason of the support given to her, is but incidental to the wrong, and cannot be recovered on the theory of a quasi contract, and therefore the cause of action therefor does not survive against her estate.

HAMERSLEY, J.: Harrison Ferguson and Lizzie Seymour intermarried October 27, 1891, and cohabited as man and wife until the death of the latter, April 26, 1893. At the time of the marriage, and during its continuance, Lizzie Seymour had a lawful husband living. She induced Ferguson to marry her by falsely representing to him that she was a single woman, and thereafter, and until her death caused him to believe that he was her lawful husband. During this cohabitation, he, relying on the said representations, furnished her with board, lodging, medical attendance, and other necessaries, of the value, in the whole, of $749.51. Upon the death of Lizzie Seymour, the estate was represented by the administrator to be insolvent, and commissioners thereon were appointed. Ferguson presented to the commissioners a claim against the estate, based on the above facts. The commissioners allowed on this claim the sum of $429.77. Robert Payne, a brother, heir at law, and creditor of the intestate, appealed to the superior court from the do

ings of the commissioners in allowing the claim. In the superior court Ferguson filed a statement of claims, setting out in detail the above facts, and accompanied by a bill of particulars. To this statement of claims Payne demurred. The court sustained the demurrer, and gave judgment disallowing the claim. This is an appeal by Ferguson from that judgment, and the only reason assigned is that the court erred in sustaining the demurrer.

The presentation of the claim is, in effect, an action by Ferguson against the administrator of Lizzie Seymour's estate. The appellant in error represents the plaintiff, and the appellee in error the defendant. The judgment sustaining the demurrer is a judgment that the plaintiff, on the facts recited, has no cause of action against the defendant. It is claimed on behalf of the plaintiff that these facts show he had a cause of action against Lizzie Seymour during her life; that such cause of action was, essentially and in substance, for a breach of contract obligation implied by law from the facts, and therefore survived against her administrator. It is claimed on behalf of the defendant that the plaintiff, for the special redress sought in the claim, had no cause of action against Lizzie Seymour during her life; or, if such cause of action existed, it was for a private wrong or injury to the person, and therefore does not survive against the administrator.

In discussing whether the plaintiff had a cause of action against the intestate during her life for the special redress now sought, the determination of the nature of such a cause of action, i. e., whether founded substantially on a private wrong, or on some contract or quasi contract obligation, is necessarily involved. The precise question therefore presented is this: Does a man living with a woman in the relation of husband and wife have, under any circumstances, unless by virtue of some express agreement, a right of action against the woman for the value of shelter, food, and clothing given her during the continuance of that relation? The statement of the question would seem to compel an answer in the negative. The relation of husband and wife involves a mutual understanding that the man shall furnish support, and the woman shall furnish services, not for hire, but as a free gift. All consideration of the value of such support or service, whether absolute or comparative, is excluded by the fact of this relation. It is a settled principle of law that where two persons are in the habit of furnishing materials or service to each other, under the mutual understanding that such reciprocal favors are a free gift, no cause of action can exist in favor of one against the other for the value of such materials or service. Potter v. Carpenter, 76 N. Y. 157. In this case no possible doubt could arise, except for the confusion caused by the peculiar nature of the legal status of husband and wife. The relation of husband and wife, i. e., the cohabitation as man and wife, is a question of fact determined by the will of the parties. The status

of husband and wife is a question of law determined by the absolute mandate of the State. The status may exist in law without the relation in fact; and the relation may exist at the will of the parties, independently of the legal status, and is then unlawful, so far, and only so far, as illicit intercourse is involved. The existence in fact of that relation, on general principles of law, expressly negatives any cause of action in one against the other for the value of the reciprocal gifts of support and service, whether the relation as carried on is legal or illegal. It may be knowingly illegal on the part of both, or innocently illegal on the part of both, or innocently illegal on the part of one only; but, in either case, the legal effect of the reciprocal gifts of one to the other is determined by the fact of the relation, and is the same, except that, when the relation is coincident with the legal status of husband and wife, such gifts rest, not only on a mutual understanding, proved by the fact of the relation, but also on the duty involved in the existence of the legal status. Robbins v. Potter, 11 Allen, 588.

But it is said that in this case the woman has deceived the man into falsely assuming the legal status of husband, and so has done him a great injury. True. And just here comes in the confusion that has led some courts and text-writers into overlooking the distinction between a personal injury, as a cause of action, and the incidental aggravation of the damage, following that injury, as a cause of action independently of the injury. What is this wrong? The overt act is a deception, a false statement. A false statement made by one and believed by another is not per se a legal injury, and actionable. If the false statement is the direct means of obtaining the property of another, there is a legal injury to rights of property, and the owner has an action for the property, or its value, based on the fraud, and also, in some cases, on the implied contract to return property, or the proceeds of property, which legally or equitably belongs to another. But here the false statement as to the legal status of the woman was not the direct means of obtaining any property. It was the direct means of inducing the man to take part in the legal form of marriage. The form was a nullity. No property was or could be thereby secured. But the wrong was complete, the legal injury was inflicted, the moment this invalid marriage was consummated. The injury may continue, and subsequent events may aggravate the resulting damage; but they cannot change the nature of the wrong, or alter the legal injury which is the cause of action. The legal injury is not to property, but to the person, and is of a nature entirely sui generis, owing to the peculiar nature of the legal status of husband and wife, and the far-reaching and complex personal interests that depend on the maintenance and due observance of that legal status. The family is the foundation of society. The status of husband and wife is fixed and regulated by the State, by virtue of its inherent right to settle the