are therefore driven to the necessity of holding that the marital status itself is a species of property vested in each of the parties to thrat relation, and such that it may not lawfully be taken away by subsequent legislation. The only other ground from which this position could receive a semblance of support would be that the enactment of such a statute would amount to an assumption of judicial power on the part of the legislative body. Both these views are satisfactorily confuted by Mr. Bishop in the chapter already referred to. As to the rule of construction, his conclusion is (§ 102): "It being the primary object of the divorce suit to regulate the order of society and purify the fountains of morality, while still as between the parties it is a private controversy,-and the proceeding being in the highest degree remedial, so that the spirit and reason of the divorce statutes should be pre-eminently the guides to their interpretation,-we should, in all cases where the legislative intent is not plain in the words, prefer the construction which makes the statute applicable to past offences, the same as to future."

XIII. Statutes adverse to the State's own Interest.-The state has an undoubted right to pass a retrospective law impairing her own rights: Davis v. Dawes, 4 W. & S. 401; for when a state legislature passes a retroactive law which operates only on property belonging to such state, no private rights are infringed: Lewis v. Turner, 40 Ga. 416.

XIV. More particularly of Ex Post Facto Laws.-The term ex post facto received an authoritative exposition in the leading case of Calder v. Bull, 3 Dall. 386. The definition there given by Mr. Justice CHASE may be regarded as having settled the law for this country, inasmuch as it has been followed in numberless cases, and no court has been found to deviate from it. It is in the following language: "I will state what laws I consider ex post facto laws within the words and the intent of the prohibition. 1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required

at the time of the commission of the offence, in order to convict the offender." And see Marion v. State, 5 Crim. Law Mag. 859; Kring v. State, 4 Id. 550. To these should probably be added the case where the period of limitation for the prosecution of offences has been enlarged, and it is attempted to include within it an instance where a right to acquittal had been absolutely acquired by the completion of the period prescribed when the offence was committed: Com. v. Duffy, 96 Penn. St. 506. But it must be noted that the prohibition against ex post facto laws relates to crimes and their punishments and not to criminal proceedings: In re Perry, 3 Gratt. 632; People v. Mortimer, 46 Cal. 114. Thus a statute erecting a new tribunal, or giving jurisdiction to an existing court, to try past offences, is not ex post facto: Com. v. Phillips, 11 Pick. 28. Neither is a statute giving to the state a certain number of peremptory challenges of jurors, though extending to the trial of offences committed before its passage: State v. Ryan, 13 Minn. 370; Walston v. Com., 16 B. Mon. 15.

The rule against aggravating the crime or increasing the punishment is rigorously applied. Thus a law increasing costs on conviction for an offence cannot be applied to acts committed before its passage: Caldwell v. State, 55 Ala. 133. Again, in the language of the head-note to Ross's Case, 2 Pick. 165, "an enactment that where a person has been convicted of a crime punishable by confinement to hard labor, he shall, upon conviction of another offence punishable in like manner, be sentenced to a punishment in addition to the one prescribed by law for this last offence, is not ex post facto when applied to a case in which the second offence was committed after the passing of the statute; aliter, if applied where the second offence was committed before the statute was passed." But a law which plainly reduces or mitigates the punishment for a past offence is not ex post facto; on the contrary it is an act of clemency, and open to no constitutional objection: State v. Arlin, 39 N. H. 179; Com. v. Wyman, 12 Cush. 237; Hartung v. People, 22 N. Y. 105. In the case last cited DENIO, J., says: "In my opinion, it would be perfectly competent for the legislature, by a general law, to remit any separable portion of the prescribed punishment. For instance, if the punishment were fine and imprisonment, a law which should dispense with either the fine or the imprisonment might, I think, be lawfully applied to existing offences; and so, in my opinion, the term of imprisonment might be reduced,

or the number of stripes diminished in cases punishable in that manner. Anything which, if applied to an individual sentence, would fairly fall within the idea of a remission of a part of the sentence, would not be liable to objection. And any change which should be referable to prison discipline, or penal administration, as its primary object, might also be made to take effect upon past as well as future offences, as changes in the manner or kind of employment of convicts sentenced to hard labor, the system of supervision, the means of restraint or the like. Changes of this sort might operate to increase or mitigate the severity of the punishment of the convict, but would not raise any question under the constitutional provision we are considering."

Williamsport, Pa.

H. CAMPBELL BLACK.

RECENT AMERICAN DECISIONS.

Supreme Judicial Court of Massachusetts.

TRAINER v. TRUMBULL.

A., an infant, had a father and mother living, but who did nothing for his support; he himself being in an almshouse, and in a sickly condition. B. was told by the father of A. that A. would at his (the father's) death, be worth $10,000, and was requested by the father to care for A.; and B., after satisfying herself of the truth of the statements made by the father, and relying solely upon the credit of the estate which was to be A.'s at the death of his father, removed A. from the almshouse, and undertook and continued the maintenance of A. for a number of years. Held, that the Superior Court was justified in finding, on the facts, that the food, clothing, &c., furnished A., were necessaries for which he should be held responsible, notwithstanding that he, being a pauper and an inmate of an almshouse, was supplied with necessaries there.

Although a guardian is not obliged to provide for the support of his ward when he has no property of the ward available for that purpose, and although he may, under such circumstances, place the ward in an almshouse, this by no means implies that a boy, with an expectation of a fortune of $10,000, should be brought up in an almshouse, if any suitable person will take him, and bring him up properly, on the credit of his expectations; and the support and education furnished to an infant of such expectations, whose means were not presently available, fall clearly within the class of necessaries.

THIS was an action of contract for articles furnished to the defendant, a minor, by the plaintiff. Hearing in the Superior Court, before BRIGHAM, C. J., without a jury, who found the following facts: Defendant was a minor, who was born in January 1868, and was the only child of George B. Trumbull, who died at the Soldier's

Home in Togus, Maine, November 1st 1883, where he had resided from 1876 and previously. Defendant's mother, who was the wife of said George B. Trumbull, was, on October 25th 1875, committed to the house of industry on Deer Island, Boston, and defendant was, on the same day, sent to the almshouse on said Deer Island as a pauper, and there remained until he was removed to the Marcella street home for paupers and neglected boys and girls, in April 1877. On November 17th 1877, the plaintiff removed defendant from said Marcella street home to her home, he then being a pauper, and in a diseased and sickly condition, and there kept him to the time of bringing this action, and during all this period maintained defendant, providing him with food, clothing, lodging, medical attendance, and nursing when sick, and the means of education, at a cost to plaintiff, which, in addition to the reasonable value of her services in making such provision,-which the court ruled, as a matter of law, was a provision for necessaries to defendant,-was not less than the sum stated in the account annexed to the declaration. Plaintiff, on a visit to Togus, and to the Soldiers' Home, in 1876, became acquainted with said George B. Trumbull, who exhibited much distress on account of defendant being an inmate of an asylum for paupers, and his reported sickly condition; stating to her that he, George B. Trumbull, had certain property bequeathed to him by one Susan Bryant, whose adopted son he was, which gave him only a small income, but that at his death the defendant would be worth $10,000. Plaintiff, at said George B. Trumbull's request, having informed herself of the provisions of the will of Susan Bryant, and of the terms of a lease to one Cutler, made by George B. Trumbull, of the property received from said Susan Bryant, and of the value and income of the estate to which it related, undertook and continued the maintenance of defendant as aforesaid, not in any respect relying upon the credit of George B. Trumbull, but relying solely upon the credit of defendant's estate. One Teele, since November 1883, as guardian of the defendant, has had possession and control of real estate in Boston of the value of about $8000, which constitutes all of defendant's property. At the close of plaintiff's case defendant offered no evidence, but requested the court to rule, as matter of law, that upon all the facts in evidence on the part of the plaintiff this action could not be maintained. The court refused to rule as requested, and ruled that upon the facts found the plaintiff was entitled to the sum stated in her account, found for the

plaintiff, assessed damages in the sum of $1112.53, and ordered judgment for plaintiff for that sum; and the defendant alleged exceptions.

Brown & Keyes, for defendant.

J. R. Smith, for plaintiff.

The opinion of the court was delivered by

C. ALLEN, J.—The practical question in this case is whether the food, clothing, &c., furnished to the defendant were necessaries for which he should be held responsible. This question must be determined by the actual state of the case, and not by appearances; that is to say, an infant who is already well provided for in respect to board, clothing, and other articles suitable for his condition, is not to be held responsible if any one supplies to him other board, clothing, &c., although such person did not know that the infant was already well supplied: Angel v. McLellan, 16 Mass. 31; Swift v. Bennett, 10 Cush. 436; Davis v. Caldwell, 12 Id. 512; Barnes v. Toye, 13 Q. B. Div. 410. So, on the other hand, the mere fact that an infant, as in this case, had a father, mother and guardian, no one of whom did anything towards his care or support, does not prevent his being bound to pay for that which was actually necessary for him when furnished. The question whether or not the infant made an express promise to pay is not important. He is held on a promise implied by law, and not, strictly speaking, on his actual promise. The law implies the promise to pay from the necessity of his situation; just as in the case of a lunatic: 1 Chit. Cont. 197; Hyman v. Cain, 3 Jones (N. C.) 111; Richardson v. Strong, 13 Ired. 106; Gay v. Ballou, 4 Wend. 403; Epperson v. Nugent, 57 Miss. 45-47. In other words, he is liable to pay only what the necessaries were reasonably worth, and not what he may improvidently have agreed to pay for them. If he has made an express promise to pay, or has given a note in payment, for necessaries, the real value will be inquired into, and he will be held only for that amount Earle v. Reed, 10 Metc. 387; Locke v. Smith, 41 N. H. 346; Metc. Cont. 73, 75.

But it is contended that the board, clothing, &c., furnished to the defendant were not necessaries, because he, "being a pauper, and an inmate of an almshouse, was supplied with necessaries, suitable to his estate and condition, and, under the circumstances, it

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