formed, organized in semi-military style, and much used in London as quick and thoroughly reliable messengers, are not in the habit of indulging in first-class carriages, and the circumstance of this messenger riding in such style attracted the ticket collector's attention, who took down his employer's name and address. The gallant captain, on his return to town, found a letter awaiting him from the solicitors of the railway company, stating that by giving away his ticket, he had broken the by-law printed thereon and laid himself open to a penalty. C. wrote a sensible letter in reply, explaining that it was an inadvertence on his part which should not occur again, and he felt justly indignant, when with no further ceremony, he was served with the present summons. Unfortunately he had kept no copy of his letter. Arrived at court, we were by no means pleased to see the venerable but strict Sir Robert Carden on the bench, in the place of the genial Stone, who at that time occupied the civic chair. Sir Robert, too, was evidently in a tantrum and was just galloping, spurs and all, down the throat of an unfortunate and nervous lawyer who seemed unable either to contradict him with firmness or to yield with grace. My courage was fast ebbing out at my shoes, when a keen looking man, with a single eyeglass, whom I instantly recognized as the famous George Lewis, the hero of the criminal courts, courteously made room for me, beside him in the lawyer's pen. To him I made bold to explain my predicament and in a few words he put me right. "Don't plead guilty, let them prove their case and call for the letter. If you get hold of that, you're all right. No one will ask you if you are admitted."

In a few minutes our case was called. The company's lawyer, after a short speech, which had the good effect of annoying Sir Robert, who seemed to be in a great hurry, put the commissionaire and the collector in the box. My mind was relieved when he handed me the letter, saying in an aside, that "he didn't want the full fine-only an example" When my turn came, I simply read the letter and asked the alderman if he did not think it rather hard that a gentleman should be brought into a police court for a mere inadvertence such as any one might commit, especially after such a fair and reasonable letter. The old man eyed C. for a moment, and then went for the company in a manner perfectly refreshing. Their lawyer tried to expostulate and made matters worse Outrageous piece of oppression "—" abominable pettifogging "— such were some of the judicial utterances, and he closed by saying that the defendant left the court with the sincere regret of the bench that he should ever have been brought there. Mr. Lewis turned to me with a pleasant smile and a pleasant wish that my first case might be the commencement of many successes, a wish that unfortunately has not been fulfilled.

For the rest of that day I imagined myself a second Cicero, and the climax of my pleasure was reached, when in the evening W. came back from

Westminster, roaring with laughter, and showed me the "Echo" where, under the heading " Attempt at extortion by a railway company," the magistrate's remarks appeared in full, and the closing sentence was, "the defendant and his youthful solicitor left the court amidst applause, which was speedily suppressed." C., like a good fellow, took me out to dinner at Blanchard's, and a jolly evening celebrated the lucky termination of my first case. A. B. M.

DELIVERY NOT ALWAYS ESSENTIAL TO A
GIFT.
II.

A portion of the fund was withdrawn by the depositor. The court said: "She may not have been aware that she had no right to draw from the trust fund, but that fact would not take away the character which she had given to that fund." In this case there was however no controversy about the fund that had been drawn out, the action having been brought by the depositor's administratrix to determine the question of the beneficiary's title to the fund that still remained on deposit. The opinion of the court on this point was only obiter, as in Martin v. Funk.

In Minor v. Rogers the beneficiary was not aware of the trust until after the depositor's death, and it appeared that he had drawn out the amount of the deposit. The court sustained a judgment against the depositor's administrator for the full amount of the deposit. This decision is a clear and express authority in favor of the irrevocability of such a trust, and thus the law may be regarded as settled.

While as between the depositor and the cestui que trust the title passes at once on the making of the deposit, yet for at least one purpose, the depositor, when he makes himself trustee, is still regarded as the owner of the fund. He may draw it from the bank, and the bank is protected in paying him, though it expressly appears that he is a mere trustee as to the money, unless the beneficiary under the trust has claimed the fund and directed the bank not to pay it to the trustee. Boone v. Citizens' Bank, 84 N. Y. 83. This case went even further, and decided that payment by the bank to the administrator of the depositor and trustee was a valid payment of the cestui que trust. The court said: "It may not be doubted that if the intestate in her life-time had demanded the money of the bank and had presented her pass-book, no claim by the beneficiary having been interposed, the bank would have been bound to pay; and this for the reason that such was their express contract. What the trust was they neither knew nor were bound to inquire. That was a matter wholly between the trustee and cestui que trust - at least until the latter gave notice to the bank of a hostile claim. They had received the money of the trustee, agreeing to return it to her as trustee on demand. When she called for it they were bound to pay, and having done so were discharged from liability."

** * "But Susan Boone (the trustee) died before withdrawing the money. If now her right to demand and receive the deposit devolved upon her administrator, no change came over the right and duty of the bank as it respected a payment to him 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 to the intestate in her life-time. We are of opin ion that upon the death of Susan Boone her rights as trustee devolved upon her administrator" (citing au

thorities). "When therefore he appeared at the bank and produced his letters of administration and the pass-book, which by the contract was evidence of his right to withdraw the deposit, and demand its payment, the bank had no alternative. It had no right to inquire into the character of the trust, and owed no duty to the beneficiary until the latter by notice or forbidding payment or demanding it for himself, created on the part of the bank such right and duty."

The decision of the court below was against the validity of the payment, the court in effect deciding that the creation of the trust operated as an immediate transfer of the title to the deposit to the cestui que trust. On this point the Court of Appeals say: "Nor does it alter the situation to call this an executed trust and insist upon the right of the beneficiary to have the pass-book and the fund. If he has such a right it reaches the bank through the trustee, and the bank can only pay the beneficiary at the peril of establishing the latter's right as against the trustee to the possession of the fund."

This does not appear to be a very satisfactory answer to the argument of the court below that the title was in the beneficiary. The principle on which all the courts have proceeded is that the creation of a trust is as effectual to pass the title to property or money as a valid gift consummated by delivery. As between the trustee and the cestui que trust the title at once passes.

The bank can justify payment to the trustee only on the ground of ignorance of the nature of the trust. It cannot claim that the trustee has any right to the fund. He has no active duty to perform. The trust is a merely passive trust. The beneficiary has the right to sue for and recover the money. It is his in every seuse of the word. The bank cannot with very good grace set up ignorance of the nature of the trust to exonerate it from liability to the beneficiary. It knows that a trust has in fact been created. The nature of that trust can be ascertained; or it can notify the beneficiary of the deposit, and if he claims the money it can protect itself against a double payment by an interpleader. It is thus apparent that no great hardship would be imposed on the bank by requiring it to protect the rights of the cestui que trust. The rule established by the Court of Appeals is in conflict with principle, as it permits the bank to exonerate itself from liability to A. by paying his money to B., and moreover this rule utterly ignores the rights of the beneficiary to the deposit, and permits the bank to disregard his rights to money under its control when it might fully protect him without injury or loss to itself.

A question of some interest was decided in Willis v. Smyth. The original deposit was in trust for Sarah J. Urner. She subsequently married. After that another deposit of $2,000 was made to the same account. It was urged that as to this $2,000 there was no valid trust for the reason that there was then no such person as Sarah J. Urner in being. The court said: "We think this position not well founded. It is manifest that the deposit was made for the benefit of the intestate's daughter originally and continued so after her marriage. Her marriage could not change the nature of the deposit or the intention of the intestate to make it for her daughter's benefit."

In Mabie v. Bailey the statute of limitations was set up as a defense. The depositor and trustee drew out the deposit in 1867. The action against his executor to recover the amount of the deposit was commenced in 1881. The court said: "We think the defense of the statute of limitations was not made out, supposing the statute applies in such a case. The withdrawal of the deposit in 1867 was not so far as the case discloses in

hostility to the trust. The testator held the legal title to the fund as trustee, and it was competent for him to withdraw it to make another investment or for any purpose not inconsistent with the trust. There is no evidence that he ever repudiated the trust, and no presumption that he did so can be indulged to let in the defense of the statute of limitations. The right of action upon the facts presented did not accrue until the testator's death, which presumptively upon the evidence was the period when the trust terminated."

The rule declared in Young v. Young, 80 N. Y. 422, that no trust could be created where the donor intended to make a gift and not to establish a trust, was held in that case to apply even to cases where the donor and intended donee sustained to each other the relation of parent and child. In that case the donor was the father of the two sons to whom he clearly intended to give the bonds which they claimed. His acts were held not to constitute a good gift, and the court refused to sustain the transaction as a declaration of trust, because a trust was not intended. The court said: "It has in some cases been attempted to establish an exception in favor of a wife and children on the ground that the moral obligation of the donor to provide for them constituted what was called a meritorious consideration for the gift; but Judge Story (Eq. Jur., vol. 2, § 987, and vol. 1, § 433) says that the doctrine seems now to be overruled, and that the general principle is established that in no case whatever will courts of equity interfere in favor of mere volunteers, whether it be upon a voluntary contract or a covenant or a settlement, however meritorious may be the consideration, and although the beneficiaries stand in the relation of a wife or child. Holloway v. Headington, 8 Sim. 325; Jefferys v. Jefferys, 1 Craig & Phillips, 138, 141."

Another exception to the rule that delivery is essential to the validity of a gift is the well-established doctrine that where securities or contracts are taken or the deposit of money is made by a husband in the joint names of himself and wife, or in his wife's name alone, the transaction constitutes a gift revocable during the life of the husband, but irrevocable after his death, although there has been no delivery of the security, contract or instrument to the wife, and although no consideration is paid by her. Scott v. Simes, 10 Bosw. 314; Roman Catholic Orphan Asylum v. Strain, 2 Bradf. 34; Borst v. Spelman, 4 N. Y. 284; Sanford v. Sanford, 45 id. 723; Draper v. Jackson, 16 Mass. 480; Gaters v. Madeley, 6 Mees. & W. 423; Christ Hospital v. Budgin, 2 Vern. 683; Dummer v. Pitcher, 5 Sim. 35.

In Sanford v. Sanford the court said: "Taking this note in the name of himself and wife shows that the husband intended thereby to give it to her in case she survives him, and a delivery to her was unnecessary to perfect the gift."

In Roman Catholic Orphan Asylum v. Strain the hus. band deposited a sum of money and took a certificate of deposit in favor of himself and wife. The surrogate held that on his death she became the absolute owner of the money.

In Dummer v. Pitcher the husband transferred two sums of bank annuities into the names of himself and wife, and died in her life-time. The court held that on his death she became absolute owner.

In Christ's Hospital v. Budgin the husband loaned money on bond and mortgage, and took the securities in the joint names of himself and wife. The court de cided that the absolute title vested in her on his death.

In Scott v. Simes the husband took a promissory note for money due him in the name of his wife, but

never delivered it to her, and he collected the interest from time to time. The court held that upon his death the note became her property. On the subject of delivery the court said: "No actual delivery to the defendant was necessary to constitute it an executed gift. The taking the security in her name constituted the gift, and its retention in his custody was a delivery to her." * * * "An executory contract by its mere form survives to the wife when made in her name or the joint names of herself and husband."

In Borst v. Spelman the court thus expresses the same doctrine: "Where an obligation or contract is taken to the husband and wife, or to the wife alone with the assent of the husband, the action survives to the wife, who is entitled to the proceeds as against the heirs and personal representatives of the husband. This is the rule at law as well as in equity."

The gift however is not in one sense complete. The husband may at any time revoke it. Scott v. Simes, Sanford v. Sanford, Borst v. Spelman, Roman Catholic Orphan Asylum v. Strain.

In Sanford v. Sanford the court said: "Taking this note in the name of himself and wife shows that the husband intended thereby to give it to her in case she survived him, and a delivery to her was unnecessary to perfect the gift. Assuming this to be, yet during the life of the husband, the note is subject to his control and disposition. The wife has no legal interest in it until his decease."

In Scott v. Simes the court recognized this rule, holding that as the husband had not done any act signifying a different intention, "or by which he revoked the gift," the property upon his death became the property of the wife. It has been held that the receipt of interest or dividends on the security is not sufficient evidence to warrant a court in deciding that there has been a revocation. Scott v. Simes. In this case a note was taken by the husband in the name of his wife. He collected the interest on it from time to time, and appropriated the interest to his own use. The court held that this did not constitute a revocation of the gift. Monell, J., said: "The receipt of the accruing interest by the husband was not an appropriation of the principal." And Robertson, J., in deciding that there had been revocation, said: "The receipt of the mere interest is not sufficient for the purpose." See also on this point Burr v. Sherwood, 3 Bradf. 85; Nash V. Nash, 2 Mad. C. C. 133.

The question of the validity of a gift has arisen in a number of analogous cases in the New York Court of Appeals under circumstan ces so peculiar that this article would be incomplete without a brief review of them.

The first case is Champney v. Blanchard, 39 N. Y. 111. The defendant had in her possession certain money belonging to one Mary Champney. She delivered to her a paper stating that fact. Mary Champney on her death bed gave the paper to defendant, stating that she gave her the money. The court held the gift valid, although there was no delivery of the money. "Delivery of the subject-matter is no doubt essential to gifts either inter vivos or mortis causa; but the object of delivery is to give possession, and in this case possession was already complete in the douee."

In Gray v. Barton, 55 N. Y. 68, the action was on an account. The defense was that plaintiff had given the account to defendant. The referee found as matters of fact that the defendant being indebted to the plaintiff, the plaintiff proposed to give him the debt; that the defendant said a gift would not stand in law; that plaintiff said that if defendant would give him one dollar that he would make it lawful, and that he then proposed that if defendant would give him a dollar, he, plaintiff, would give him the entire debt; and

that thereupon defendant did give plaintiff one dollar for the purpose of satisfying the whole debt; that plaintiff accepted the same, and balanced his books as follows:

........

Wm. Barton cr. by cash on account...... $ 1 00 Gift to balance account... 820 91 and delivered to defendant a receipt, of which the following is a copy: "Received from Wm. Burton one dollar in full to balance all book accounts up to date of whatever name and nature." The court held that a valid gift of the account had been made, and sustained the defense, Grover, J., saying: "Had the plaintiff written upon a copy of the account that the same was cancelled by a gift thereof to the defendant, and signed and delivered the same to the defendant with intent to make a gift thereof to him, and the latter had accepted it as a gift from him, can there be a doubt that the gift would have been effectual? It was all the delivery the subject was capable of. But in this case the plaintiff balanced his books by gift to the defendant. Had he stopped here, making no delivery of any thing to the defendant, the act would not have been of any effect; nothing would have been delivered to him; and the books continuing in the possession of the plaintiff, the gift would not have been executed. But when to complete his purpose of giving the debt, he executed and delivered to the defendant a receipt in full for the account, to effect the intention of the parties, the law will construe the instrument, if necessary, as an assignment of the account and of the right of action thereon to the defendant.”

The case of Ferry v. Stephens, 66 N. Y. 321, was an action for specific performance of a contract to con. vey real estate. It appeared that S., the owner, intending to give plaintiff the property, executed the contract by which he agreed to convey it to plaintiff on payment of $1,100. However it was never intended that plaintiff should pay any thing, and S. subsequently indorsed upon the contract a receipt in full for the purchase price. No money was ever paid. The court held that the indorsement of the receipt constituted under the circumstances a valid gift of the amount due from plaintiff under the contract, and entitled her to specific performance as much as if she had actually paid that amount. It does not appear that there was any delivery of the receipt, but there must have been, as it was indorsed upon the contract which was in plaintiff's possession.

In Carpenter v. Soule, 88 N. Y. 251, the court found that plaintiff had executed a bond and mortgage to defendant's testator, and that subsequently such testator, with intention of giving plaintiff $2,000 to apply on the bond and mortgage, executed and delivered to plaintiff an instrument, of which the following is a copy: "Received of J. S. Carpenter, of Norway, Herkimer county, New York, two thousand dollars to apply on a bond and mortgage I hold against him, the same to be indorsed on said mortgage." The $2,000 was never actually indorsed upon the bond and mortgage. The court said: "The question comes back to the inquiry whether there was such actual gift both intended and executed. That fact is found, and rests upon sufficient evidence. There must be a delivery of the gift; the donor must part with his dominion over it; it must not rest in a mere promise. But the character of the gift dictates the manner of its delivery. Here a receipt for so much of the mortgage debt was executed and delivered with the intention of giving it to the mortgagor. The mortgage itself was not delivered, because not wholly discharged, and the gift was executed by the delivery of the receipt which operated to cancel and discharge so much of the debt."

In Larkin v. Hardenbrook, 90 N. Y. 333, plaintiff's testator conveyed to defendant certain real property

for which defendant gave him his promissory note. Thereafter testator cancelled the note, and surrendered it to the defendant. In an action on the note the court held that the transaction constituted a valid gift of the note, and exonerated the defendant from all liability thereon.

In conclusion, the case of Armitage v. Mace, 96 N. Y. 538, deserves some consideration. It is a "borderline" case, but it seems to the writer to have been correctly decided. The question involved was as to the validity of a gift from a husband to his wife. In such case it is always difficult to prove an actual delivery of the subject of the gift, because of the control usually exercised over the property of the wife by the husband. The property of either is always more or less in the possession of both; and it frequently happens that the thing which the husband has given to his wife remains practically just as much under his control as it was before. If therefore the rigid rule requiring actual delivery were not somewhat modified in its application to cases of gifts between husband and wife, such gifts could rarely, if ever, be so made as to be valid in law. In Armitage v. Mace it appeared that the husband owned a certain mare which the wife had often expressed a desire to own. On one occasion they had just returned from the depot with the mare, and while standing at the stable beside her, the wife repeated her request for the mare, to which the husband replied: "Very well, you like her so much I will give her to you; she shall be your property." He then called the man who was taking care of her, and told him of the gift, and informed him that thereafter the previous orders that he had given him about the use of the mare were changed, and that he was thereafter to deliver the mare to Mrs. Armitage as she wanted it. Previous to this Mrs. A. had never driven the mare alone, but had driven another horse, and Mr. A. had always driven the mare. After this he ceased to drive the mare, and used another horse, and Mrs. A. used the mare exclusively. After this Mr. A. always recognized his wife's ownership, and the mare was known as hers in her husband's family. The court said: "She thus had all the possession a wife living with her husband could have. She controlled the mare, used her when she chose to do so, she was recognized as hers, and no one else; used her without her consent. While these facts do not make a very clear case of gift, they were sufficient to carry the case to the jury and to authorize a finding by them that the mare was delivered to and possessed by her in pursuance and consummation of the gift. Subsequently to the gift the mare was kept in the husband's stable, cared for by a hostler paid by him, and he paid for her feed, shoeing and training, as Mrs. Armitage had no estate or income. These facts were proper for the consideration of the jury, but did not nullify or destroy the gift, or conclusively show that one valid in law had not been made.".

GUY C. H. CORLISS.

CRIMINAL EVIDENCE-WIFE AS WITNESS AGAINST HUSBAND.

NEW JERSEY SUPREME COURT.

STATE V. GORDON.

C. H. Winfield, for State.

Puster, Daly & Ryerson, for defendant.

SCUDDER, J. The defendant was indicted under section 82 of the act for the punishment of crimes, for the abduction and seduction of a girl under the age of fifteen years. He was found guilty and sentenced to the State prison for the term of five years. Many objections were taken at the trial to the admission of testimony, and requests to charge were made to the trial judge, some of which were granted and others refused. Two exceptions only were argued on the return to the writ of error, the others having been abandoned. The first was an exception to the admission of the witness A. B., the child in question, on the part of the State, against the defendant, because she was alleged to be the wife of the defendant, and therefore an incompetent witness. When this objection was made by the defendant's counsel the court directed that the witness be examined on the voir dire as to the alleged marriage. She was questioned as to the form of a marriage ceremony extracted in part from the marriage service used in the Protestant Episcopal Church, and said to have been repeated by the parties when they were together, without any witness, in Brooklyn, Long Island, State of New York. She denied that there was any such ceremony. She was shown a certificate in writing, signed by her and the defendant, dated November 2, 1883, which stated that they had been married by repeating certain portions of the Episcopal marriage service. She testified that when she signed it he told her it was only a joke. Certain letters were shown her which she admitted had been written and signed by her after November 2, 1883, in which she addressed him as her husband and called herself his wife. These she said were addressed and signed in that way because he told her to do so, and she had agreed and intended to marry him in the following spring.

On December 3, 1883, she left her home in Astoria, and went with him to the mayor's office in the city of New York to be married, but the mayor declined to marry them because of her youthful appearance. On the same day she went with him to Jersey City, where she was introduced as his wife by the defendant to friends of his residing there. She was silent before them. They occupied the same bed-room at a hotel in that city for a night, a day and part of the second night, when the defendant was arrested on pursuit and complaint of her adopted father, who had never given his consent to a marriage between them. Her 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 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 where either of the parties to a marriage shall be incapable for want of age and understanding of consenting to a marriage, etc., or when the consent of either party shall have been obtained by force or fraud; also section 26 of the New York Crimes Act, making it criminal to take away any female under the age of fourteen years from her father, mother, guardian, or other person, without their consent, either for the

purpose of prostitution, concubinage or marriage. After the above examination the court allowed the witness to be sworn on the part of the State, and to this an exception was prayed, allowed and sealed.

There was no error in the admission of this witness to testify. If she had, in her examination, admitted that she was the wife of the defendant, and that his allegations were true, a different question might have arisen under the statutes of the State of New York, where it was claimed the ceremony of marriage took place; but she denied them, and whether they were married or not was a disputed question in the cause. The court did right, at that stage of the trial, in accepting her statements on the voir dire for the purpose of allowing her to be sworn in behalf of the State against the defendant. It would be a petitio principii to assume, on a bare allegation, that she was the wife of the defendant, and therefore disqualified to be a witness against him, when one of the questions at issue was whether there was ever a valid marriage between them. He was undoubtedly a competent witness, by statute, to prove his defense, and there was therefore the greater reason why the State should not be deprived of her testimony. The contrary rule would exclude the most important testimony on the part of the State, and leave the defendant to prove his own case without possibility of contradiction, when they only were present, and artifice, constraint or force was used to extort apparent consent to marriage from a mere child by the overpowering will of a man so much older than she. He was forty-seven years old.

It is only where there has been a valid marriage that the parties are excluded from giving evidence for or against each other by the common law. Ros. Crim. Ev. 124; 1 Greenl. Ev., § 339; Whart. Crim. Ev. 390. It has therefore been held in indictments for bigamy, after proof of the first marriage, that the second woman married is a competent witness against her husband, for the second marriage is void and she is no wife. To test this competency the woman may be examined on the voir dire as to this void marriage. Whart. Crim. Ev., §§ 395-397; 1 East P. C. 469; Seeley v. Engell, 13 N. Y. 542.

Courts have even goue further and held that on the trial of an indictment for the forcible abduction and marriage of a woman, under the statute prohibiting such marriage, she may be a witness for the crown, and that this is not a case within the general law excluding the testimony of a wife against her husband, for she is not legally his wife, a contract of marriage, like any other contract, obtained by force, having no obligation in law. Brown's case, Vent. 243; Fulwood's case, Cro. Car. 483; Rex v. Wakefield, 2 Lewin C. C. 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 matrimony 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 attending and following it, it is evident that there are some facts to which she must necessarily testify to prevent this statute, intended for the protection of parents and their young female children, from becoming useless. The court were right in admitting the girl's testimony, and leaving its credibility to the jury.

The second point of exception that was argued by counsel was that the court charged in effect, among other things, that if the jury found that the defendant brought the girl to Jersey City, and there de

tained her either by force or by persuasion, it was such an unlawful conveying and taking away within this State as is contemplated by the statute. This instruction was correct. A girl, within the protection of the statute, is in the possession, custody or governance of her parent or guardian though she be not in the same house with them. If not in their actual possession when in the streets, in school or in some place of public resort, or visiting in the house of friends, she is so constructively. She is still in their custody for care, keeping and security, and under their governance, for they may control her will by their command. If she go upon a journey, they may follow her and direct her return to them. The mere fact that she entered another State does not alter her relations or obligations with her parent or guardian. Whenever the defendant, with the intent set out in the statute, interposed his will or persuasion between her and her guardian's control, so as to overcome her purpose and intention to return to her home, the abduction is accomplished. Nor can her willingness to come to this State with him take away his offense, for by our statute he can give no consent, and whenever she intends to return to her guardian, be may not disuade or oppose her. In this sense I understand the words used by the court in Regina v. Mycock, 12 Cox C. C. 28, where it is said that a girl who is away from her home is still in the custody or possession of her father if she has the intention of returning to him. Baron Bramwell, in Regina v. Olifier, 10 Cox C. C. 402, says: "If finding she has left her home, he (the defendant) avails himself of that to induce her to continue away from her father's custody, in my judgment he is guilty if his persuasion operated on her mind so as to induce her to leave." Nothing can be plainer in this case than that his persuasion induced her to leave her home in Astoria and come with him to Jersey City, and when there, after, as she testifies, he had read to her the account in the papers of her elopement with him, she wished to return to her home, he sought by persuasion to keep her, and opposed her expressed wishes to go back. The mere fact of her leaving her guardian's home and coming to this State with the defendant might not complete the crime with which he was charged, but when the intent was here manifested to seduce or contract matrimony with her by proclaiming her as his wife in the presence of his friends, and keeping her a day and night in a sleeping-room at a hotel, and opposing her wish to return home, he became amenable to the punishment affixed by our law to this statutory crime. These facts which appear in the case, if found by the jury, would constitute the crime of abduction within this State, and there was no error in the direction of the court.

The judgment is affirmed.

CONTRACT-RIGHT OF ONE NOT PARTY TO.

NEW JERSEY SUPREME COURT. FEBRUARY TERM, 1884.

MARVIN SAFE Co. v. WARD.* The general rule is that one who is not a party to a contract cannot sue in respect of a breach of duty arising out of the contract. There is a class of cases in which a person performing services or doing work under a contract may be held in damages for injuries to third persons, occasioned by negligence or misconduct in the execution of the contract; but these are cases where the duty or liability arises independent of the contract, and in such cases the plaintiff must count upon a wrongful act or negli

gence.

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