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foundations of social order. Indeed, the family and the obligations and privileges pertaining to it reach back of all State regulations. The family develops the State, and is coincident with the birth of man. It is evident that the direct injury resulting from inducing a man to falsely assume the status of husband is one absolutely unique, and far-reaching in resulting damage. It may involve establishing a family that is no family, but the home of shame; the raising children, not to be heirs, but bastards; the surrender of the devotion of a wife for the services of a harlot; the loss, for a longer or shorter time, perhaps the total loss, of all the privileges, happiness, respect, and honor that follow the maintenance of a lawful home. Such an injury is not analogous to any other injury known to the law. This supreme injury the plaintiff claims to have suffered, and, because he has suffered it, claims the right to bring an action, not to recover the direct resulting damage, but to recover the value of food and lodging he has given the woman who inflicted the injury. In other words, the claim is that, by reason of the primary wrong, the plaintiff, for a year or more, exchanged presents with the woman; that this exchange was not, on the whole, a remunerative transaction, although it might have resulted to his benefit; and, therefore, the alleged loss can be treated, not merely as an incident possible to be considered in aggravation of damages for the wrong, but as a substantive injury, directly resulting from the primary wrong, so as to constitute an independent and separate cause of action. The question might be refined by claiming that each mouthful of food or each night's shelter furnished was obtained by means of the woman's false statement as to her legal status; but this is a mere quibble, and is palpably untrue. Plainly, the actual condition is this: A man and woman live together on the distinct mutual understanding that the man shall furnish materials, and the woman shall furnish services. The relative value of one to the other is not considered. The balance of gain may be on either side. In fact, it proves to be on the woman's side. He is the loser, and she is the gainer, to the extent of such balance. The man says the woman made a false statement, which he believed, and by which he was induced to live with her. To be sure, this false statement had no relation to the relative value of the materials and services exchanged. It did not deceive him as to how the balance of benefit might turn out, and so, as affecting that balance, did not injure him, but did injure him in other ways. The damage resulting from that injury he can recover. But even if such damage can be enhanced by proof that the pecuniary value of the gifts he made the woman while the relation of husband and wife in fact existed exceeded the value of the gifts she made him, nevertheless the fact remains true that such gifts were made in pursuance of a mutual understanding that no payment for them should be made by

either, and therefore no implied contract of payment can be predicated of such gifts.

In this case the deception which caused the actionable injury relates to the legal status of the woman. Suppose it related to her birth. She represents herself of pure white blood, when, in fact, she is partly of Indian or negro blood. The man claims that he would not have lived with her unless he had believed this false statement, and that his association with a half-breed has been an injury to him in many ways. Or suppose she falsely represents herself as not related to him, when she is in fact his sister; does the fact that she has deceived him into unconscious participation in the crime of incest give him an independent cause of action for alleged loss on the exchange of materials and services which he would not have entered into had he not been so deceived? Or test the principle claimed by an application to conditions free from all complication with the marriage relation. A banker is deceived by an adventurer into believing him to be the officer and agent of a foreign bank. Influenced by this deception, he accepts the position of agent for the bank, holds himself out as such agent, makes contracts in the name of the bank, and, when the deception is discovered, has suffered a grievous loss in money and reputation. During the continuance of the relations between him and the adventurer, the supposed officer of the foreign bank, and in pursuance of a custom prevailing when such relations exist, he has made an exchange of presents with the adventurer. He finds the value of the presents sent exceeds the value of the presents received. Does the original deception as to the legal position of the adventurer, by which he was drawn into assuming a false position so disastrous to him, furnish an independent cause of action for the recovery of an alleged loss on the exchange of presents?

The analogies are not complete, and herein lies the difficulty of demonstrating the principle which should control when a man, deceived into a false presumption of the status of husband, and into unconscious participation in the crimes of adultery and bigamy, and suffering the irreparable injuries involved in such deception, alleges this deception or this injury as ground for recovering an alleged balance on the exchange of gifts while living with the woman who inflicted the injury. There is no analogy to such a case. And, so far as we know, such a case has never been presented to a court. The question has been discussed in a few cases where a woman who has been thus injured, shut out from all redress for the injury by the death of the man, has sought to make his estate liable for the value of her services. We believe this is the first instance where such a claim has been made by a man, and have no knowledge that such action, by either man or woman, was ever brought during the life of the wrong-doer. A court might be excused, when the perpetrator of such an injury has escaped punishment in life, for being acute in seek

ing reasons for making the estate liable for some small fraction for the resulting damages, -especially when the claim is presented by a woman, whose sufferings from such an injury are liable to be so much more severe, -but cannot be excused for pushing such acuteness into the region of fallacy.

The case of Higgins v. Breen, 9 Mo. 497, sustains the theory that a woman may recover the value of her services against the estate of the man who has deceived her into a false marriage, if, on the whole, they were valuable. The Supreme Court of Massachusetts, in an opinion which suggests the views we have indicated, upholds the opposite theory. Cooper v. Cooper, 147 Mass. 370, 17 N. E. Rep. 892; Grimm v. Carr, 31 Pa. St. 533; Price v. Price, 75 N. Y. 244. But all courts agree that such action cannot be brought against the estate of the wrong-doer, if the cause of action is, in substance, for the recovery of damages from a tortious injury to the person, and cannot be brought unless the same cause of action existed against the wrong-doer while in life. The question has never been decided in this State, and may, therefore, be determined wholly on principle. For the reasons stated, we think the true application of the legal principles under which rights are defined, and causes of action are classified, to the confusing complication of ordinary rights with the peculiar legal status of husband and wife involved in this question, justify the following conclusions: The deception by which a married woman induces a man to falsely assume and maintain the status of her husband is an injury to the person, complete with the consummation of the void marriage. Such injury gives to the man a right of action against the woman for damages resulting from such false assumption of the status of husband. A pecuniary loss sustained by having in fact lived with a woman in the relation of husband and wife may be considered in estimating the damages caused by this injury. But such loss, if it can be recovered at all, separate from all other damage, can only be so recovered in an action based on the original wrong, in which the plaintiff abandons all claim to any resulting damage except this incidental loss, and, therefore, the substantial cause of the only action in which such loss can be separately recovered is the deception by which the plaintiff was induced to falsely assume the legal status of a husband. Such cause of action is founded wholly on a private wrong, and, under existing law, cannot survive against the legal representatives of the perpetrator. It follows from these conclusions that Ferguson had no cause of action against Lizzie Seymour during her life for the claim he now presents against her estate, unless such claim is for damages resulting from an injury to the person, and in that case the cause of action does not survive against her administrator.

The plaintiff, in support of his claim, invoked in argument the principle that, where property has been acquired by means of a tort, there may

result a duty, imposed by law on the wrong-doer, of returning the property or its proceeds, which duty may be enforced by an action based on such quasi contract. Such principle does not conflict with the substantial distinction between rights founded in tort and in contract, - a distinction, ordinarily, of easy application. Doubts arise only where a transaction lies within that field-of necessity a shadowy one-where the essential element of the right passes from the domain of tort to that of contract. The principle invoked has been somewhat obscured by distinctions, not of substance, but of form, resulting from technical rules developed in the use of an arbitrary and artificial system of forms of action, now happily obsolete, and has been most frequently appealed to when a claim, as in this case, is sought to be enforced against the estate of a deceased person, and the liability of the estate depends upon the question whether the cause of action that existed against the person deceased was in substance founded in tort or in contract. When such cases first arose, an attempt was made to make the artificial form of action usually adopted, rather than the substantial cause of action, the test of a survival of the suit. In the case of Hambly v. Trott, 1 Cowp. 374, Lord Mansfield established the sound rule that in such cases the substance, and not the form, might control, but, in the order of vindicating his position, he used language and illustrations that led others to draw conclusions the decision did not justify; and Judge Swift, in his Digest, relies on this case in support of a broad statement of the rule. 1 Swift, Dig. 448. In Phillips v. Homfray, 24 Ch. Div. 439, the language of Lord Mansfield was pressed in support of the claim that when, by means of a tort, the wrong-doer benefits himself, and saves the payment of money he might other. wise have paid, although no specific property is acquired and added to his estate, yet a right of action for the amount of such benefit survives against the executor of the wrong-doer; but the court held that Hambly v. Trott did not justify such claim.

The principle involved is: In the case of a tort directly resulting in the wrongful acquisition of property, the law imposes on the wrong-doer the duty of returning that property to the owner. This duty may be treated as a quasi contract, and the neglect to perform it may become a breach of such contract. In such case the damage resulting from the tort is substantially the value of the property, and the damage resulting from the breach of contract is substantially measured in the same way; and so, for determining the question of survival, the substantial cause of action may properly be treated as founded in contract, although the form of action might sound in tort. But such principle cannot apply unless property is acquired. Merely deriving benefit from the tort is not sufficient, for otherwise we must hold that every tort by which the wrong-doer is benefited is also, by reason of such benefit, a quasi contract; and the field of pure tort must be restricted to such injuries as are wholly malicious, or injure another without entailing any benefit whatever to the wrong-doer. To hold this involves a complete subversion of established law, already sufficiently shaken by the efforts to strain the principles defining rights to serve the exigencies growing out of artificial forms of action. A safe test, therefore, for determining the survival of an action on the ground of the substantial cause of action being such quasi contract is, did the wrong-doer acquire specific property by which, or by the proceeds of which, the assets in the hands of his executor have been increased? And so, in Phillips v. Homfray, the court says: "In such cases the action, though arising out of a wrongful act, does not die with the person. The property, or the proceeds of value, which, in the life-time of the wrong-doer, could have been recovered from him, can be traced after his death to his assets, and recaptured by the rightful owner there." And also: "It seems to us that Lord Mansfield does no more than indicate that there is a class of cases in which assumpsit can be brought against a wrong. doer to recover the property he has taken, or its proceeds or value, and that in such cases the action will survive against the executor." Substantially the same view was stated by this court in Mitchell v. Hotchkiss, 48 Conn. 16: "All private, as well as public, wrongs and crimes are buried with the offender. The executor does not represent or stand in the place of the testator as to these, or as to any acts of malfeasance or misfeasance to the person or property of another, unless some valuable fruits of such acts have been carried into the estate." In Jenkins v. French, 58 N. H. 533, the court says: "The line of demarkation, separating those actions which survive from those which do not, is that in the first the wrong complained of affects primarily and principally property and property rights, and the injuries to the person are merely incidental, while in the latter the injury complained of is to the person, and the property and rights of property affected are incidental." There are indications in the opinion of the court, in some cases, of a theory that a tort may affect property in such manner that no actions for any breach of contract or quasi contract can be maintained against the wrong-doer during his life, and yet, after his death, the retention by his executors of the resulting benefits of the wrong may give rise to a cause of action, substantially in contract, against the executor, which did not exist against the testator. None of the authorities cited deal directly with such a theory, and such question is not raised in this case.

The principle the plaintiff invokes does not apply to his case, because, during the life of the intestate, he had no cause of action against her, except for damages resulting from a private wrong. The injury he suffered was a personal injury, and, if a consequential damage to his per

sonal estate followed the injury, it was so dependent upon, and inseparable from, the personal injury which is the primary cause of action, that there is no right to maintain a separate action in respect of such consequential damage. Drake v. Beckham, 11 Mees. & W. 316; Vittum v. Gilman, 48 N. H. 419. The real reason, and only ground, in this and similar cases, for the claim that the substantial cause of action is a breach of contract, is to be found in the mandate of the law which says that public crimes and private wrongs shall be buried with the offender. If the law were different; if the liability of an administrator were the same as that of his intestate when living, no sane man would dream of maintaining that a breach of contract, express or implied, is the substantial cause of the action by which the injured party would then recover of the administrator the damages, or any part of the damages, he suffered from the wrong committed by the intestate. This law is based on public policy. It may not be wise. It does not infrequently work hardships. But it is the law. We cannot override it. Nor can we partially escape its operation by devising distinctions which, if extended to other cases, will introduce a dangerous confusion in the principles that define the nature and extent of legal rights, and, if not so extended, will have no foundation except the determination of the court to evade the law.

The bill of exceptions contains one or two items of small amount which may raise a question of liability not met by the demurrer; but we understood such question to be withdrawn during argument, and we do not think it is properly presented by this appeal. There is no error in the judgment of the superior court. The other judges concurred.

NOTE.-Actio personalis moritur cum persona is an old rule of law. This rule applied to all actions ex delicto. Hegerich v. Keddie, 99 N. Y. 258. The effect of such ruling was that if a wrong-doer obtained the personal property of another and died, the owner had no redress if there were no contractual relations between the parties. When Lord Mansfield was on the bench the rule was modified so as to allow an action against the representatives of the wrong-doer, if he had by his action enriched himself with the property of another. Hambly v. Trott, Cowp. 371. But such action was not allowed unless the wrong-doer had acquired some property by such action, no matter how much loss the injured party had suffered thereby. Cravath v. Plympton, 13 Mass. 454; People v. Gibb, 9 Wend. 29; Vittum v. Gilman, 48 N. H. 416. These questions are now generally regulated by statute, and many of the decisions turn on the phraseology of the local law. The general rule is that a personal action does not survive the death of the party, who did the act complained of, unless some specific property, real or personal, is affected thereby. Lattimore v. Simmons, 18 Serg. & R. 183; Cummings v. Bird, 115 Mass. 346. Since the general rule is that causes of action for injuries to the person abate with death, it is held that an action for libel cannot be maintained after the death of the offender. Cummings v. Bird, 115 Mass. 346. Where the statute provided that actions for injury to the person should sur

vive, it was held that an action for libel would survive, it being considered that an injury to the person should not be restricted to physical injuries. Johnson v. Bradstreet Co., 87 Ga. 79. Where a party was induced by the fraudulent representations of A as to the pecuniary ability of B to transfer property at less than its value to B, it was held that he had no right of action against A's representatives under a statute providing for the survival of causes of action for damage done to real or personal estate, on the ground that the statute included injuries of a specific character to real or persoual estate, and not actions for damages for frauds committed by which a party was induced to part with property. Leggate v. Moulton, 115 Mass. 552. The opposite conclusion was reached in a similar case, where causes of action survived for wrongs done to the property rights or interests of another. Baker v. Crandall, 78 Mo.584. An action for slander of title to a trade-mark survives, since it is an injury to property. Hatchard v. Mege, 18 Q. B. D. 77. A statute providing for the survival of causes of action for wrong done to the property rights or interests of another does not include injuries to the person, and a party, who sued for loss of society, expenses of care and medical treatment of his children, whose sickness and death were due to noxious gases introduced into his house by the bad plumbing of his house by the deceased, defendant was allowed damages for his expenses, but not for the loss of his children's society, since that was an injury to the person. Scott v. Brown, 24 Hun, 620. Where a father sued for his expenses in caring for his son and for loss of his society due to his death, his executor was allowed to recover said expenses but no damages were allowed for loss of society, because such damages died with the father. James v. Christy, 18 Mo. 162. Where a wife, who assisted her husband in his business, was injured by a common carrier, and he was put to expense in nursing her and in providing another to take her place in conducting his business, his executor was allowed to recover those expenses in a suit against the carrier. Potter v. Metropolitan, etc., R. R., 24 L. T. R. (N. S.) 765.

The principal case is in its conclusions in harmony with the decisions generally. They hold that an action for injury to property, to which a personal injury is merely an incident, survives the death of one of the parties; but when the cause of action is an injury to the person, and property is merely incidentally affected, the cause of action does not survive. Jenkins v. French, 58 N. H. 532; Wolf v. Wolf, 40 Ohio St. 111. As otherwise stated, that; which is merely incidental to the principal thing, must fall when the principal falls. Hovey v. Page, 55 Me. 142; Smith v. Sherman, 4 Cush. 408; Vittum v. Gilman, 48 Ν. Η. 416. The form of the action cannot alter the rule. Boor v. Lowrey, 103 Ind. 468.

It is considered, that there is but one cause of action, and all the damages are but mere consequences thereof, and cannot be separated from it so as to constitute an independent cause of action. Cregin v. Brooklyn, etc., R. R., 75 N. Y. 192. Actions for breach of promise of marriage are considered to be actions for injuries to the person, which in most of the States do not survive the death of either of the parties. Price v. Price, 75 N. Y. 244; Wade v. Kalbfleish, 58 N. Y. 282. It has been intimated, that they may survive, if special damages to property are alleged, but it has been doubted whether there can be any such special damages. Chase v. Fitz, 132 Mass. 359. Claims for loss of time and services and expenses incurred are considered to be merely incidental damages and do not

constitute a substantive cause of action. Smith v. Sherman, 4 Cush. 408. Where the statute provided, that actions for trespass on the case should survive, it was decided that an action on the case is maintainable by a woman against a man for his deceit by which she is led into a void marriage with him, and that such action survives against his administrator, but she cannot sue for her services, since there was no promise express or implied to pay for them. Withee v. Brooks, 65 Me. 14. Another court held in a similar case, that the law would imply a promise to pay for such services. Higgins v. Breen, 9 Mo. 293. In asimilar case it was held, that the woman was entitled to half the property accumulated by the two while living together as man and wife, but this decision was influenced by the local laws about community property. Morgan v. Morgan, 1 Tex. Civ. App. 315.

JETSAM AND FLOTSAM.

COMPARATIVE CITATION OF REPORTS.

The editor of "Legal Bibliography" has compiled some interesting statistics of the frequency with which the judges of a State cite and rely upon foreign reports. His tables show the result of a count made of the citations in the judgments reported in the current volume of each set of State Reports, and of the United States Reports, omitting, of course, the citations by each court of its own decisions.

To present an accurate result from one point of view, the tables should, of course, have taken into account the small number of citable cases in the Reports of the smaller States. If, for instance, instead, of sixteen volumes of Rhode Island, there were one hundred and fifty, as there are of Illinois, and the frequency of citation were maintained, Rhode Island would stand ninth, next but one after Illinois, instead of in her present position of thirty-sixth. From the point of view of a purchaser of law books, which is the purpose for which the statistics were compiled, that is just as much her misfortune, although not her fault.

The final result is so interesting that the Review copies it in full. "Cases of other courts were cited in the decisions contained in the latest volumes of reports from forty-five States (including all the newer States, as well as the older), as follows: United States, 1669; English, 1594; New York, 1424; Massachusetts, 1268; California, 805; Pennsylvania, 532; Illinois, 471; Michigan, 385: Iowa, 355; Indiana, 317; Missouri, 306; Wisconsin, 303; Maine, 230; Minnesota, 215; Ohio, 207; Connecticut, 206; New Hampshire, 205; New Jersey, 205; Alabama, 163; Kansas, 158; Vermont, 151; Maryland, 131; Texas, 126; North Carolina, 103; Georgia, 92; Tennessee, 89; Kentucky, 87; Nebraska, 78; Mississippi, 70; South Carolina, 66; Virginia, 66; Colorado, 62; Louisiana, 59; Nevada, 58; Arkansas, 53; Rhode Island, 39; Oregon, 39; West Virginia, 34; Arizona, 22; Montana, 21; Idaho, 15; Florida, 14; South Dakota, 13; Washington, 12; North Dakota, 9; Delaware, 8; Wyoming, 2."-Harvard Law Review.

BOOK REVIEWS.

WEBSTER ON NATURALIZATION.

The importance of this subject, its application and effect on the institutions of the country, renders a volume devoted to its special consideration, of more than ordinary value. The author, Mr. Prentis Webster, has heretofore written an acceptable treatise on the law of citizenship and is well qualified for the presentation and discussion of questions of this character. In connection with the text all the cases bearing on questions of naturalization are cited. The work embraces not only the naturalization laws of this country but also that of most of the leading nations. It is a book of four hundred pages beautifully printed and bound. Published by Little Brown & Co., Boston.

VAN FLEET ON RES JUDICATA.

These two large volumes exhibit an extraordinary amount of industry and care on the part of the author, who has already made himself favorably known to the profession by his admirable treatise on "Collateral Attack." The volumes before us discuss in detail and exhaustively the subject of the law of former adjudication and contains a complete analysis of all the precedents and principles concerning the effect of judicial decrees, judgments, orders, and sentences upon the rights of parties, privies and strangers in other judicial proceedings either civil, criminal or ecclestiastical and includes a discussion of the rules for determining when judgments at law and decrees in equity are final and conclusive adjudications. The above statement of its scope will have to suffice us, though were it not that want of space forbids, we would be pleased to undertake a detailed statement of the contents of so able and meritorious a work. We have given it careful consideration and study and find it to be in every respect accurate, exhaustive and evidently prepared by a master hand. The great number of complicated and perplexing questions which are constantly arising on the subject of res judicata renders this treatise of more than ordinary value to the practitioner, whose library will not be complete without them. The volumes, in point of mechanical execution also, are to be commended, being beautifully printed and bound. Published by Bowen-Merrill Company, Indianapolis and Kansas City.

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1. ACCOUNTING Jurisdiction in Equity. Where a contractor agrees to pay an employee a per cent. of the profits of contracts with different municipalities, a bill by the employee, joining the municipalities as codefendants with the contractor, for an accounting, though subject to dismissal for multifariousness at the instance of one of the municipalities, is not so at that of the contractor.-OLDS V. REGAN, N. J., 32 Atl. Rep.

827.

2. ADVERSE POSSESSION-What Constitutes. If, during the time throughout which possession by one claiming under an administrator's sale is relied upon as being adverse, he has admitted that he had no deed to the land, and could give none, and that he had never paid the purchase money, his possession and claim of ownership are in subserviency to the title which he thus recognized.-SAMPLE V. REEDER, Ala, 18 South. Rep. 214.

3. APPEAL-Case Made. -The object of a case made is to present to an appellate court, complete in itself, a statement of so much of the proceedings and evidence or other matter in the action as may be necessary to bring to the notice of the appellate court the errors complained of. It must embrace and include all that is necessary for a full understanding of the questions submitted for decision.-DAVIS V. RENGER, Kan., 41 Pac. Rep. 676.

4. ARBITRATION - Certainty of Award.-Where the award of arbitrators refers to certain books of account, from which the amount awarded shall be fixed, and such accounts are so incomplete that the amount cannot be computed therefrom without other evidence, the award is void for uncertainty.-MATHER V. DAY, Mich., 64 N. W. Rep. 198.

5. ASSUMPSIT-Money Paid by Mistake. -Money paid by mistake of the payor, as interest in excess of the rate provided by the note, may be recovered, though there be no deceit or concealment, mutuality of mistake, imposition, or compulsory payment.-STOTSENBURY V. FORDICE, Ind., 41 N. E. Rep. 313.

6. ATTACHMENT - Claims of Third Persons. In attachment, where the property is claimed by a third person under a bill of sale which is attacked for fraud, claimant may show that she did not, at the time the bill of sale was executed, purchase certain claims pledged by the attachment defendant as collateral, since such testimony has reference to the consideration of the bill of sale, which, as between her and the creditor, could be explained by parol.-TROY FERTILIZER CO. V. NORMAN, Ala., 18 South. Rep. 201.

7. ATTACHMENT AND MORTGAGE - Priority.-An attachment of chattels so situated as to require separate and distinct seizures takes precedence of a mortgage thereon, filed on the same day as the seizure, as to such of the chattels only as are actually taken into the hands of the officer before the filing.-MAXWELL V. BOLLES, Oreg., 41 Pac. Rep. 661.

8. ATTACHMENT BY AGENT. In the absence of evidence that a principal participated in or ratified the malice of his agent in levying an attachment, he is not liable therefor. -THOMPSON V. BELL, Tex., 32 S. W. Rep. 142.

9. ATTORNEY AND CLIENT - Authority.-An attorney at law, to whom a debt secured by chattel mortgage is sent for collection, has no power to release the mortgage lien without express authority from his client.LUDDEN & BATES' SOUTHERN MUSIC HOUSE V. SUMTER, S. Car., 22 S. E. Rep. 738.

10. BASTARDY-Commitment to Jail. -A defendant in bastardy proceedings, who has been committed to jail by a justice, on default of bail, is entitled to the writ of habeas corpus, under Code, § 4761, providing that any person who is imprisoned or restrained of his liberty on any criminal charge may prosecute the writ of habeas corpus.-EX PARTE CHARLESTON, Ala., 18 South. Rep. 224.

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