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the partnership business; and in an action to recover!

the latter alone the party sued may set of a debt du hitn from them having no relation to the transaction

of the firm. Collyer Part., $ 764; Hulbrooke T. Lorby 13 Met. 133, 134; Nehrbas v. Bliss

, 8% N T. II. y The relation of the surviving plaintiffs to the actie

is in no sense that of representatives of assigarci di the firm as distinguished from the firm itself. The

cause of action is theirs, deemed originally their et

and continues to be such. They in law are prin pals and owners in respect to the matters of the par

: ot

nership by virtue of their relation as partenai because they are survivors. Their rights in this 1

respect are not derivative or representatire. Ik

right of action in question was in the firm Tz I death of the member neither rests any rights in the

survivors, nor does it divest them of any rigtas property or action then existing. In the protect

tion of this action they are exercising ni titel 71

derived powers, and asserting no new or sditha

rights, Adams v. Hacket, 27 N. H. 289; 59 An Le id

376, 377.

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. CRIED in the twilight of an underground da

B known as Mr. W's office, Guild Hall, irs

formed, organized in semi-military style, and much Westminster, roaring with laughter, and showed used in London as quick and thoroughly reliable me the "Echo" where, under the heading “ Attempt messengers, are not in the habit of indulging in at extortion by a railway company," the magisfirst-class carriages, and the circumstance of this trate's remarks appeared in full, and the closing messenger riding in such style attracted the ticket

sentence was,

"the defendant and his youthful collector's attention, who took down his employer's solicitor left the court amidst applause, which was name and address. The gallant captain, on his speedily suppressed.” C., like a good fellow, took return to town, found a letter awaiting him from the me out to dinner at Blanchard's, and a jolly evening solicitors of the railway company. stating that by celebrated the lucky termination of my first case. giving away his ticket, he had broken the by-law

A.B. V. printed thereon and laid himself open to a penalty. C. wrote a sensible letter in reply, explaining that

DELIVERY NOT ALWAYS ESSENTIAL TO A it was an inadvertence on his part which should not

GIFT. occur again, and he felt justly indignant, when with

II. no further ceremony, he was served with the present summons. Unfortunately he had kept no copy of A portion of the fund was withdrawn by the deposihis letter. Arrived at court, we were by no means tor. The court said: “She may not have been aware pleased to see the venerable but strict Sir Robert that she had no right to draw from the trust fund, but Carden on the bench, in the place of the genial

that fact would not take away the character which she

had given to that fund." In this case there was howStone, who at that time occupied the civic chair.

ever no controversy about the fund that had been Sir Robert, too, was evidently in a tantrum and was drawn out, the action having been brought by the dejust galloping, spurs and all, down the throat of an positor's administratrix to determine the question of unfortunate and nervous lawyer who seemed unable

the beneficiary's title to the fund that still remained either to contradict him with firniness or to yield only obiter, as in Martin v. Funk.

on deposit. The opinion of the court on this point was with grace. My courage was fast ebbing out at my

In Minor v. Rogers the beneficiary was not aware of shoes, when a keen looking man, with a single eye- the trust until after the depositor's death, and it apglass, whom I instantly recognized as the famous peared that he had drawn out the amount of the deGeorge Lewis, the hero of the criminal courts, posit. The court sustained a judgment against the courteously made room for me, beside him in the

depositor's administrator for the full amount of the

deposit. This decision is a clear and express authority lawyer's pen. To him I made bold to explain my

in favor of the irrevocability of such a trust, and thus predicament and in a few words he put me right. the law may be regarded as settled.

Don't plead guilty, let them prove their case and While as between the depositor and the cestui que call for the letter. If you get hold of that, you're trust the title passes at once on the making of the de

posit, yet for at least one purpose, the depositor, when all right. No one will ask you if you are admitted."

he makes himself trustee, is still regarded as the owner In a few minutes our case was called. The com

of the fund. He may draw it from the bank, and the pany's lawyer, after a short speech, which had the

bank is protected in paying him, though it expressly good effect of annoying Sir Robert, who seemed to appears that he is a mere trustee as to the money, unbe in a great hurry, put the commissionaire and the less the beneficiary under the trust has claimed the

fund and directed the bank not to pay it to the truscollector in the box. My mind was relieved when

tee. Boone v. Citizens' Bank, 84 N. Y. 83. This case he handed me the letter, saying in an aside, that

went even further, and decided that payment by the "he didn't want the full fine - only an example bank to the administrator of the depositor and trustee When my

I simply read the letter and was a valid payment of the cestui que trust. The court asked the alderman if he did not think it rather said: “It may not be doubted that if the intestate in

her life-time had demanded the money of the bank hard that a gentleman should be brought into a

and had presented her pass-book, no claim by the police court for a mere inadvertence such as any one

beneficiary having been interposed, the bank would have might commit, especially after such a fair and reason- been bound to pay; and this for the reason that such able letter. The old man eyed C, for a moment, and was their express contract. What the trust was they then went for the company in a manner perfectly neither knew nor were bound to inquire. That was a refreshing. Their lawyer tried to expostulate and

matter wholly betweon the trustee aud cestui que trust made matters worse -

- at least until the latter gave notice to the bank of a Outrageous piece of op

hostile claim. They had received the money of the pression ”-“ abominable pettifogging "— such were trustee, agreeing to return it to her as trustee on desome of the judicial utterances, and he closed by mand. When she called for it they were bound to pay, saying that the defendant left the court with the and having done so were discharged from liability.”

"But Susan Boone (the trustee) died besincere regret of the bench that he should ever have

fore withdrawing the money. If now her right to debeen brought there. Mr. Lewis turned to me

mand and receive the deposit devolved upon her ad. with a pleasant smile and a pleasant wish that my ministrator, no change came over the right and first case might be the commencement of many suc- duty of the bank as it respected a payment to him cesses, a wish that unfortunately has not been ful- All the right of the deceased to demand and receive

the money would pass to him, and such payment by the

bank to him would be so effectual a discharge as if paid For the rest of that day I imagined myself a

to the intestate in her life-time.

We are of opin• second Cicero, and the climax of my pleasure was ion that upon the death of Susan Boone her rights as reached, when in the evening W. came back from trustee devolved upon her administrator” (citing au


ne regretfully ruminating over the fate which had

ferred me, a lad of seventeen, from the place leisure of a country towa, with abundant cricks no drudgery, to my present quarters, where center stances were exactly reversed, when the sales appearance of the lively Captain C. woke This gentleman, ever jorial and impecuzinza FB* fine specimen of the promoter " clue and te pe of Dickens alone could have done justice to the

natty, blithe exterior and that frank ingentina y dress which had so long enabled their sinit pa

sessor to live upon his wits and the British pen. On this occasion he was even liselier than 10 being, as he quickly informed me, about to en


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h / in # new role, that of defendant at the la Hd House police court, in a charge of defraudingite

Hlo / way company. His face fejl some aber britse

learned that Mr. W. was at Westminster and a All likely to return till the afternoon, but hi the si

mons was for eleven o'clock, and that boxe ? d) already past, there was no time for deliberatiu de

after a minute's pause, he asked me to scolau

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him and as he expressed it, "cheek the thing direz FC somehow.” According!r off we went togetdi

in-arm stopping on our way to adorn ouniya 17 / offense were very simple. On arriving at bisa - there

, summoning him out of town for ser du?

flowers, in approved city style. The foco


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w | He sent a commissionaire to his wife at his career

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he / home, with a note to explain his abiertos

thinking no harm, gave the man the retara bela

his railway ticket. Now the competition . Po of be it explained, are a corps of old soldiers


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thorities). * “When therefore he appeared at hostility to the trust. The testator held the legal title the bank and produced his letters of administration to the fund as trustee, and it was competent for him and the pass-book, which by the contract was evi. to withdraw it to make another investment or for any dence of his right to withdraw the deposit, and de- purpose not inconsistent with the trust. There is no mand its payment, the bank had no alternative. It evidence that he ever repudiated the trust, and no had no right to inquire into the character of the trust, presumption that he did so can be indulged to let in and owed no duty to the beneficiary until the latter the defense of the statute of limitations. The right of by notice or forbidding payment or demanding it for action upon the facts presented did not acorue until himself, created on the part of the bank such right and the testator's death, which presumptively upon the duty."

evidence was the period when the trust termin. The decision of the court below was against the val- ated." idity of the payment, the court in effect deciding that The rule declared in Young v. Young, 80 N. Y. 422, the creation of the trust operated as an immediate that no trust could be created where the donor intransfer of the title to the deposit to the cestui que tended to make a gift and not to establish a trust, was trust. On this point the Court of Appeals say: “Vor held in that case to apply even to cases where the does it alter the situation to call this an executed donor and intended donee sustained to each other the trust and insist upon the right of the beneficiary to relation of parent and child. In that case the donor have the pass-book and the fuud. If he has such a was the father of the two sons to whom he clearly inright it reaches the bank through the trustee, and the tended to give the bonds which they claimed. His bank can only pay the beneficiary at the peril of estab- acts were held not to constituto a good gift, and the lishing the latter's rigbt as against the trustee to the court refused to sustain the transaction as a declarapossession of the fund.”

tion of trust, because a trust was not intended. The This does not appear to be a very satisfactory answer court said: “It has in some cases been attempted to to the argument of the court below that the title was establish an exception in favor of a wife and children in the beneficiary. The principle on which all the on the ground that the moral obligation of the donor courts have proceeded is that the creation of a trust is to provide for them constituted what was called a as effectual to pass the title to property or money as a meritorious consideration for the gift; but Judge valid gift consummated by delivery. As between the Story (Eq. Jur., vol. 2, § 987, and vol. 1, § 433) says trustee and the cestui que trust the title at once passes, that the dootrine seems now to be overruled, and that

The bank can justify payment to the trustee only on the general principle is established that iu no case
the ground of ignorance of the nature of the trust. It whatever will courts of equity interfere in favor of
cannot claim that the trustee has any right to the mere volunteers, whether it be upon a voluntary con-
fund. He has no active duty to perform. The trust is tract or a covenant or a settlement, however merito-
a merely passive trust. The beneficiary has the right rious may be the consideration, and although the ben-
to sue for and recover the money. It is his in every eficiaries stand in the relation of a wife or child. Hol-
sense of the word. The bank cannot with very good loway v. Headington, 8 Sim. 325; Jefferys V. Jefferys,
grace set up ignoranco of the nature of the trust to ex- 1 Craig & Phillips, 138, 141."
onerate it from liability to the beneficiary. It knows Another exception to the rule that delivery is essen-
that a trust has in fact been created. The nature of tial to the validity of a gift is the well-established doc-
that trust can be ascertained; or it can notify the trine that where securities or contracts are taken or
beneficiary of the deposit, and if he claims the money the deposit of money is made by a husband in the
it can protect itself against a double payment by an in- joint names of himself and wife, or in his wife's namo
terpleader. It is thus apparent that no great hardship | alone, the transaction constitutes a gift revocable dur-
would be imposed on the bank by requiring it to pro- ing the life of the husband, but irrevocable after his
tect the rights of the cestui que trust. The rule estab. death, although there has been no delivery of the se-
lished by the Court of Appeals is in conflict with prin curity, contract or instrument to the wife, and al-
ciple, as it permits the bank to exonerate itself from though no consideration is paid by her. Scott v.
liability to A. by paying his money to B., and more- Simes, 10 Bosw. 314; Roman Catholic Orphan Asylum
over this rule utterly ignores the rights of the bene- v. Strain, 2 Bradf. 34; Borst v. Spelman, 4 N. Y. 284;
ficiary to the deposit, and permits the bank to disre- Sanford v. Sanford, 45 id. 723; Draper v. Jackson, 16
gard his rights to money under its control when Mass. 480; Gaters v. Madeley, 6 Mees. & W. 423; Christ
it might fully protect him without injury or loss to Hospital v. Budgin, 2 Vern. 683; Dummer v. Pitcher,

5 Sim. 35.
A question of some interest was decided in Willis v. In Sanford v. Sanford the court said: "Taking this
Smyth. The original deposit was in trust for Sarah J. note in the name of himself and wife shows that the
Urner. She subsequently married. After that husband intended thereby to give it to her in case she
another deposit of $2,000 was made to the same ac- survives him, and a delivery to her was unnecessary

It was urged that as to this $2,000 there was to perfect the gift." no valid trust for the reason that there was then no In Roman Catholic Orphun Asylum v. Strain the hussuch person as Sarah J. Urner in being. The court band deposited a sum of money and took a certificate said: “We think this position not well founded. It of deposit in favor of himself and wife. The surrois manifest that the deposit was made for the benefit gate held that on his death she became the absolute of the intestate's daughter originally and coutinued so owner of the money. after her marriage. Her marriage could not change In Dummer v. Pitcher the husband transferred two the nature of the deposit or the intention of the intes- sums of bank annuities into the names of himself and tate to make it for her daughter's benefit."

wife, and died in her life-time. The court held that In Mabie v. Bailey the statute of limitatious was set on his death she became absolute owner. up as a defense. The depositor and trustee drew out In Christ's Hospital v. Budgin the husband loaned the deposit in 1867. The action against his executor to money on bond and mortgage, and took the securities recover the amount of the deposit was commenced in in the joint names of himself and wife. The court de. 1881. The court said: “ We think the defense of the cided that the absolute title vested in her on his statute of limitations was not made out, supposing the death. statute applies in such a case. The withdrawal of the In Scott v. Simes the husband took a promissory deposit in 1867 was not so far as the case discloses in note for money due him in the name of his wife, but

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never delivered it to her, and he collected the interest that thereupon defendant did give plaintiff one dollar
from time to time. The court held that upon his for the purpose of satisfying the whole debt; that
death the note became her property. On the subject plaintiff accepted the same, and balanced his books as
of delivery the court said: “No actual delivery to the follows:
defendant was necessary to constitute it an executed Wm. Barton cr. by cash on account....... $ 1 00
gift. The taking the security in her name constituted Gift to balance account

820 91 the gift, and its retention in his custody was a delivery and delivered to defendant a receipt, of which the folto her."

* "An executory contract by its lowing is a copy : “Received from Wm. Burton one mere form survives to the wife when made in her

dollar in full to balance all book accounts up to date name or the joint names of herself and husband.”

of whatever name and pature.” The court held that a In Borst v. Spelman the court thus expresses the valid gift of the account had been made, and sustained same doctrine: “Where an obligation or contract is the defeuse, Grover, J., saying: “Had the plaintiff taken to the husband and wife, or to the wife alone written upon a copy of the account that the same was with the assent of the husband, the action survives cancelled by a gift thereof to the defendant, and signed to the wife, who is entitled to the proceeds as against and delivered the same to the defendant with intent the heirs and personal representatives of the husband. to make a gift thereof to him, and the latter had acThis is the rule at law as well as in equity.”

cepted it as a gift froin him, can there be a doubt that The gift however is not in one sense complete. The the gift would have been effectual? It was all the dehusband may at any time revoke it. Scott v. Simes, livery the subject was capable of. But in this Sanford v. Sanford, Borst v. Spelman, Roman Catholic

case the plaintiff balanced his books by gift to the deOrphan Asylum v. Strain.

fendant. Had he stopped here, making no delivery of In Sunford v. Sanford the court said: “Taking this

any thing to the defendant, the act would not have note in the name of himself and wife shows that the

been of any effect; nothing would have been delivered husband intended thereby to give it to her iu case she

to bim; and the books continuing in the possession of survived him, and a delivery to her was unueccssary the plaintiff, the gift would not have been executed. to perfect the gift. Assuming this to be, yet during But when to complete his purpose of giving the debt, the life of the husband, the note is subject to his con- he executed and delivered to the defendant a receipt trol and disposition. The wife has no legal interest in in full for the account, to effect the intention of the it until his decease."

parties, the law will construe the instrument, if necesIn Scott v. Simes the court recognized this rule, holdsary, as an assignment of the account and of the right ing that as the husband had not done any act signify- of action thereon to the defendant." ing a different intention, " or by which he revoked The case of Ferry v. Stephens, 66 N. Y. 321, was an the gift,” the property upon his death became the action for specific performance of a contract to con. property of the wife. It has been held that the re

vey real estate. It appeared that S., the owner, inteudceipt of interest or dividends on the security is not

ing to give plaintiff the property, executed the consufficient evidence to warrant a court in deciding that tract by which he agreed to convey it to plaintiff on there has been a revocation. Scott v. Simes. In this payment of $1,100. However it was never intended case a note was taken by the husband in the name of that plaintiff should pay any thing, and S. subsehis wife. He collected the interest on it from time to quently ivdorsed upon the contract a receipt in full time, and appropriated the interest to his own use.

for the purchase price. No money was ever paid. The court held that this did not constitute a revoca- The court held that the indorsement of the receipt tion of the gift. Monell, J., said: "The receipt of the constituted under the circumstances a valid gift of accruing interest by the husband was not an appropri- the amount due from plaintiff under the contract, and ation of the principal.” And Robertson, J., iu deciding entitled her to specific performance as much as if she that there had been revocation, said: “The receipt of had actually paid that amount. It does not appear the mere interest is not sufficient for the purpose." See that there was any delivery of the receipt, but there also on this point Burr y. Sherwood, 3 Bradf. 85; Nash must have been, as it was indorsed upon the contract 7. Nash, 2 Mad. C. C. 133.

which was in plaintiff's possession. The question of the validity of a gift has arisen in a In Carpenter v. Soule, 88 N. Y. 251, the court found number of analogous cases in the New York Court of that plaintiff had executed a bond and mortgage to de. Appeals under circumstances so peculiar that this ar- fendant's testator, and that subsequently such testaticle would be incomplete without a brief review of tor, with intention of giving plaiutiff $2,000 to apply on them.

the bond and mortgage, executed and delivered to The first case is Champney v. Blanchard, 39 N. Y. plaintiff an instrument, of which the following is a 111. The defendant had in her possession certain copy: “Received of J. S. Carpenter, of Norway, Hermoney belonging to one Mary Champney. She deliv- kimer county, New York, two thousand dollars to apered to her a paper stating that fact. Mary Champ- ply on a bond and mortgage I hold against him, the ney ou her death bed gave the paper to defendant, saine to be indorsed on said mortgage." The $2,000 was stativg that she gave her the money. The court held never actually indorsed upon the bond and mortgage. the gift valid, although there was no delivery of the The court said: “The question comes back to the inmoney. “Delivery of the subject-matter is no doubt | quiry whether there was such actual gift both intended essential to gifts either inter vivos or mortis causa ; but and executed. That fact is found, and rests upon sufthe object of delivery is to give possession, and in this ficient evidence. There must be a delivery of the gift;

the donor must part with his dominion over it; it In Gruy v. Barton, 55 N. Y. 68, the action was on must not rest in a mere promise. But the character an account. The defense was that plaintiff had given of the gift dictates the manner of its delivery. Here a the account to defendant. The referee found as mat- receip: for so much of the mortgage debt was executed ters of fact that the defendant being indebted to the and delivered with the intention of giving it to the plaintiff, the plaintiff proposed to give him the debt; mortgagor. The mortgage itself was not delivered, bethat the defendant said a gift would not stand in law; cause not wholly discharged, and the gift was executhat plaintiff said that if defendant would give him ted by the delivery of the receipt which operated to one dollar that he would make it lawful, and that be cancel and discharge so much of the debt. then proposed that if defendant would give him a dol- In Larkin v. Hardenbrook, 90 N. Y. 333, plaintiff's lar, he, plaintiff, would give him the entire debt; and (testator conveyed to defendant certain real property

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for which defendant gave him his promissory note. guardian's control, so as to overcome her intention to re-
Thereafter testator cancelled the note, and surren- turn to her home, the abduction is accomplished, and he
dered it to the defendant. In an action on the note may be indicted in this State.
the court held that the transaction constituted a valid

N error to the Court of General Quarter Sessions
gift of the note, and exonerated the defendant from
all liability thereon.

states the case. In conclusion, the case of Armitage v. Mace, 96 N. Y. 538, deserves some consideration. It is a border- C. H. Winfield, for State. line" case, but it seems to the writer to have been

Puster, Daly & Ryerson, for defendant. correctly decided. The question involved was as to the validity of a gift from a husband to bis wife. In

SCUDDER, J. The defeudant was indicted under such case it is always difficult to prove an actual deliv

section 82 of the act for the punishment of crimes, for ery of the subject of the gift, because of the control

the abduction and seduction of a girl under the age of usually exercised over the property of the wife by the

fifteen years. He was found guiltý and sentenced to husband. The property of either is always more or

the State prison for the term of five years. Many obless in the possession of both; and it frequently hap

jeotions were taken at the trial to the admission of pens that the thing which the husband has given to

testimony, and requests to charge were made to the his wife remains practically just as much under his

trial judge, some of which were granted and others control as it was before. If therefore the rigid rule

refused. Two exceptions only were argued on the rerequiring actual delivery were not somewhat modified

turn to the writ of error, the others having been abanin its application to cases of gifts between husband

doned. The first was an exception to the admission and wife, such gifts could rarely, if ever, be so made

of the witness A. B., the child in question, on the part as to be valid in law. In Armitage v. Mace it appeared

of the State, against the defendant, because she was that the husband owned a certain mare which the wife

alleged to be the wife of the defendant, and therefore had often expressed a desire to own. On one occasion an incompetent witness. When this objection was they had just returned from the depot with the mare,

made by the defendant's counsel the court directed and while standing at the stable beside her, the wife

that the witness be examined on the voir dire as to the repeated her request for the mare, to which the hus

alleged marriage. She was questioned as to the form band replied: “Very well, you like her so much I will

of a marriage ceremony extracted in part from the give her to you; she shall be your property." He then

marriage service used in the Protestant Episcopal called the man who was taking care of her, and told

Church, and said to have been repeated by the parties him of the gift, and informed him that thereafter the

when they were together, without any witness, in previous orders that he had given him about the use

Brooklyn, Long Island, State of New York. She deof the mare were changed, and that he was thereafter

nied that there was any such ceremony. She was to deliver the mare to Mrs. Armitage as she wanted it.

shown a certificate in writing, signed by her and the Previous to this Mrs. A. had never driven the mare

defendant, dated November 2, 1883, which stated that alone, but had driven another horse, and Mr.

they had been married by repeating certain portions A. had always driven the mare. After this he

of the Episcopal marriage service. She testified that ceased to drive the mare, and used another

when she signed it he told her it was only a joke. Cero horse, and Mrs. A. used the mare exclusively. After

tain letters were shown her which she admitted had this Mr. A. always recognized his wife's ownership,

been written and signed by her after November 2, and the mare was known as hers in her husband's

1883, in which she addressed him as her husband and family. The court said : “She thus had all the posses

called herself his wife. These she said were addressed sion a wife living with her husband could have. She

and signed in that way because he told her to do so, controlled the mare, used her when she chose to do so,

and she bad agreed and intended to marry him in the she was recognized as hers, and no one else, used her following spring. without her consent. While these facts do not make

Ou December 3, 1883, she left her home in Astoria, a very clear case of gift, they were sufficient to carry

and went with him to the mayor's office in the city of the case to the jury aud to authorize a finding by them

New York to be married, but the mayor declined to that the mare was delivered to and possessed by her

marry them because of her youthful appearance. On in pursuance and consummation of the gift. Subse- the same day she went with him to Jersey City, where quently to the gift the mare was kept in the husband's

she was introduced as his wife by the defendant to stable, cared for by a hostler paid by him, and he paid friends of his residing there. She was silent before for her feed, shoeing and training, as Mrs. Armitage them. They occupied the same bed-room at a hotel had no estate or iucome. These facts were proper

in that city for a night, a day and part of the second for the consideration of the jury, but did not nullify

night, when the defendant was arrested on pursuit or destroy the gift, or conclusively show that one valid

and complaint of her adopted father, who had never in law had not been made.".

given his consent to a marriage between them. Her GUY C. H. CORLISS. parents were both dead. It had also been testified by

her older sister that she was born in October, 1869, and

was under the age of fifteen years when the alleged CRIMINAL EPIDENCE --WIFE AS WITNESS

abduction took place. The defendant's counsel of-

fered section 1 of the New York Marriage Act (Rev.
Stat., vol. III, p. 227), by which marriage in that State

is a civil contract, to which the consent of parties

capable in law of contracting shall be essential; and

also section 3 of the same act, making void a marriage STATE V. GORDON.

where either of the parties to a marriage shall be iuDefendant was indicted for unlawfully conveying or taking capable for want of age and understanding of consent

away a woman child under the age of fifteen years, with ing to a marriage, etc., or when the consent of either intent to seduce, etc,, under section 82 of the Crimes Act. party shall have been obtained by force or fraud; also Held, that she was a competent witness for the people. section 26 of the New York Crimes Act, making it If the defendant brought her within this State from criminal to take away any female under the age of another, and here, with the intent set out in the statute, fourteen years from her father, mother, guardian, or interposed his will or persuasion between her and her other person, without their consent, either for the

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purpose of prostitution, concubinage or marriage.tained her either by force or by persuasion, it was After the above examination the court allowed the such an unlawful conveying and taking away within witness to be sworn on the part of the State, and this State as is contemplated by the statute. This into this

exception was prayed, allowed and struction was correct. A girl, within the protection sealed.

of the statute, is in the possession, custody or governThere was no error in the admission of this witness ance of her parent or guardian though she be not in to testify. If she had, in her examination, admitted the same house with them. If not in their actual posthat she was the wife of the defendant, and that his session when in the streets, in school or in some place allegations were true, a different question might of public resort, or visiting in the house of friends, have arisev under the statutes of the State of New she is so constructively. She is still in their custody York, where it was claimed the ceremony of marriage for care, keeping and security, and under their govtook place; but she denied them, and whether they ernance, for they may control her will by their comwere married or not was a disputed question in the mand. If she go upon a journey, they may follow her cause. The court did right, at that stage of the trial, and direct her return to them. The mere fact that iu accepting her statements on the voir dire for the she entered another State does not alter her relations purpose of allowing her to be sworn in behalf of the or obligations with her parent or guardian. WhenState against the defendant. It would be a petitio ever the defendant, with the intent set out in the principii to assume, on a bare allegation, that she was statute, interposed his will or persuasion between her the wife of the defendant, and therefore disqualified and her guardian's control, so as to overcome her purto be a witness against him, when one of the questions pose and intention to return to her home, the abduoat issue was whether there was ever a valid marriage tion is accomplished. Nor can her willingness to come between them. He was undoubtedly a competent to this State with him take away his offense, for by witness, by statute, to prove his defense, and there our statute he can give no consent, and whenever she was therefore the greater reason why the State should intends to return to her guardian, be may not disuade not be deprived of her testimony. The contrary rule or oppose her. In this sense I understand the words would exclude the most important testimony on the used by the court in Reginu v. Mycock, 12 Cox C. C. part of the State, and leave the defendant to prove 28, where it is said that a girl who is away from her his own case without possibility of contradiction, home is still in the custody or possession of her father when they only were present, and artifice, constraint if she has the intention of returning to him. Baron or force was used to extort apparent consent to mar- Bramwell, in Regina v. Olifier, 10 Cox C. C. 402, says: riage from a mere child by the overpowering will of a If finding she has left her home, he (the defendant) man so much older than she. He was forty-seven avails himself of that to induce her to continue away years old.

from her father's custody, in my judgment he is guilty It is only where there has been a valid marriage that if his persuasion operated on her mind so as to induce the parties are excluded from giving evidence for or her to leave." Nothing can be plainer in this case against each other by the common law. Ros. Crim. than that his persuasion induced her to leave her home Ev. 124; 1 Greenl. Ev., $ 339; Whart. Crim. Ev. 390. It in Astoria and come with him to Jersey City, and has therefore been held in indictments for bigamy, when there,after, as she testifies, he had read to her the after proof of the first marriage, that the second account in the papers of her elopement with him, she woman married is a competent witness against her wished to return to her home, be sought by persuahusband, for the second marriage is void and she is no sion to keep her, and opposed her expressed wishes to wife. To test this competency the woman may be ex- go back. The mere fact of her leaving her guardian's amined on the voir dire as to this void marriage. home and coming to this State with the defendant Whart. Crim. Ev., $S 395-397 ; 1 East P. C. 469; Seeley might not complete the crime with which he was v. Engell, 13 N. Y. 542.

charged, but when the intent was here manifested to
Courts have even gove further and held that on the seduce or contract matrimony with her by proclaim-
trial of an indictment for the forcible abduction and ing her as his wife in the presence of his friends, and
marriage of a woman, under the statute prohibiting keeping her a day and night in a sleeping-room at a
such marriage, she may be a witness for the crown, hotel, and opposing her wish to return home, he be-
and that this is not a case within the general law ex- came amenable to the punishment affixed by our law
cluding the testimony of a wife against her husband, to this statutory crime. These facts which appear in
for she is not legally his wife, a contract of marriage, the case, if found by the jury, would constitute the
like any other contract, obtained by force, having no crime of abduction within this State, and there was no
obligation in law. Brown's case, Vent. 243; Fulwood's error in the direction of the court.
case, Cro. Car. 483; Rex v. Wakefield, 2 Lewin C. C.

The judgment is affirmed.
279; 1 Hale P. C. 301; 2 Hawk. P. C., ch. 46, & 78; 2
Russ. Cr. 984.
Our statute enacts that every such marriage, as

therein described, of any woman child within the age
of fifteen years shall be void if the man contract mat-

rimony with her without the consent of her father,

mother, or guardian. In any view that may be taken
of the alleged contract of marriage and the acts at-

tending and following it, it is evident that there are

The general rule is that one who is not a party to a contract some facts to which she must necessarily testify to

cannot sue in respect of a breach of duty arising out of prevent this statute, intended for

the contract. There is a class of cases in wbich a person

he protection of parents and their young female children, from becom

performing services or doing work under a contract may ing useless.

be held in damages for injuries to third persons, occasThe court were right in admitting the girl's testimony, and leaving its credibility to the

ioned by negligence or misconduct in the execution of the jury.

contract; but these are cases where the duty or liability The second point of exception that was argued by

arises independent of the contract, and in such cases the counsel was that the court charged in effect, among

plaintiff must count upon a wrongful act or negliother things, that if the jury found that the de

gence fendant brought the girl to Jersey City, and there de

*S. C., 46 N. J. Law, 19,

to marry him by the

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