a nice question, and we are by no means certain that the General Term are not right, although we do not think the "fallacy" pointed out is very clear. But the practical solution will be that it being too late to vote for this office at the coming election, Surrogate Calvin will act as de facto surrogate for another

year.

The recent decision of our Court of Appeals in Van Voorhis v. Brintnall, on marriage by a prohibited divorced party, out of the State, has excited some criticism, on the ground that it is impolitic thus to render it easy for such defendants to remarry. If we could have our way we would make it still easier by removing the prohibition. It has long seemed to us a serious mistake to prohibit a divorced party from remarrying. If viewed in the light of punishment, it is ridiculous. If viewed in the light of safety to others contracting subsequent marriage with such parties, it seems superfluous; better leave these matters to the risk of the parties. If viewed in the light of the peace of the community, it seems very unwise. Every divorced man (not to say woman) forbidden to marry becomes a sort of sexual wolf preying on the folds of his neighbors, and endangering their wives, daughters and sisters. To forbid any part of a community, for any reason, to marry, puts a premium on adultery and fornication. The strongest passion of man's nature will not bow down at the bidding of a decree in Chancery. The idea, too, that a husband once unfaithful will always be unfaithful, is unsound. Even Henry VIII had his Jane Seymour, whom he loved, and by whom he desired to be buried. If she had lived he might have been a better man. In respect to this decision, there is no escape from the cogent and admirably expressed reasoning of Judge

Danforth.

IN

NOTES OF CASES.

'N Pollock v. Sullivan, to appear in 53 Vt. 507, it was held that an action of damages for fraud and deceit may be maintained by a woman against a married man promising marriage to her, she supposing him unmarried. The court said: "The defense claims that the action should have been assumpsit for the breach of the contract. The adjudged cases seem to establish that the innocent party, in such case, may sustain an action for a breach of the promise of marriage; that the other party will not be permitted to allege that he cannot perform his contract because he had a wife when he agreed to marry another. If such action was brought, and the defendant should be foolhardy enough to offer to perform his contract, the plaintiff must desist, or subject herself to a criminal prosecution. The essential wrong to the plaintiff is not that she has not attained a husband, as she expected, but that she spent her time and money in arrangements and preparation for marriage with the defendant, when, in fact, he had then and now a wife, and was deluded into this relation by the fraud and falsehood of the defendant, and by such deception

and fraud she has suffered grievously in property and reputation. This action is appropriate to redress this species of wrong.' Now is it true that if a married man, or a single man, sued for breach of promise of marriage, offers to perform, the plaintiff is bound to desist? We suppose not. In such an action evidence of an offer to marry, made aftet the action was brought, is inadmissible to reduce damages. Bennett v. Beam, 42 Mich. 346; S. C., 36 Am. Rep. 442.

In Carlton v. Carlton, to appear in 72 Me. 117, it was held, under a statute that "a woman, having property, is not deprived of any part of it by her marriage," that a divorced woman can maintain an action against her former husband for personal services performed by her for him before their mar"The word 'property' riage. The court said: includes choses in action as well as choses in possession. It includes money due as well as money possessed. It includes money due for personal services as well as money due for any thing else. In its broadest sense it includes every thing which goes to make up one's wealth or estate. We cannot doubt that this is the sense in which it is used in this statute. It follows, therefore, that a woman, by her marriage, can no more be deprived of money due to her than she can of money actually possessed by her, of money due from the man she marries no more than of money due from any one else. It may be that while the marriage relation subsists no action of any kind can be maintained by her against her husband. But when this relation ceases, this impediment is removed, and no reason is perceived why she cannot then sue him as well as We think she can. Webster v. Webany one else.

ster, 58 Mc. 139; S. C., 4 Am. Rep. 253; Blake v. Blake, 64 Me. 177." But the court held, in Abbott v. Abbott, 67 Me. 304; S. C., 24 Am. Rep. 27, that a divorced woman cannot maintain an action against her former husband for an assault committed by him on her during coverture.

On the subject of conditional sales we are referred to Ketchum v. Brennan, 53 Miss. 596. There personal property was delivered, to be paid for by installments, title not to vest until payment in full. The court said: "Reason and the overwhelming weight of authority pronounce in favor of the right of the vendor in such conditional sale to recover his property in the case stated, either from his vendee or a purchaser from his vendee. Who has not title, cannot confer it. In the case stated, the vendee has no title until he performs the condition on which title is to vest in him. Until payment of the price, by the express terms of the contract the title is in the vendor. No law forbids such a contract, which, being valid, determines the rights of the parties. A buyer must beware of purchasing

from one who has not title. Possession is not title. It is prima facie evidence of title, but nothing more. A buyer should not content himself with prima facie title. It cannot avail him as against

the title. It will, until the presumption arising from possession is removed; but when the prima facie title is destroyed by proof, that while title seemed to be in the possessor, it was in truth in another, the prima facie title must yield to the actual title. A buyer may trust to appearances; but if they prove false and delusive, he takes the risk, and must abide the result. Until possession shall be made conclusive evidence of title, a buyer must be held to take the risk that the prima facie title of his vendor, from possession, may be destroyed by the truth of the case. Whether the possessor of property has borrowed it, or hired it, or purchased it, and what is the nature and extent of his right to it, should be ascertained by him who proposes to deal with him as to such property." Citing Patton v. Mc Cane, 15 B. Monr. 555. "The Supreme Court of Kentucky has overruled the case of Patton v. McCane, supra, but we prefer the reasoning of the earlier case. 99 See, also, Heryford v. Davis, 102 U.

S. 235; and ante, 226, 264, 280.

In Root v. Commonwealth, Pennsylvania Supreme Court, June 22, 1881, 38 Leg. Int. 365, it was held that the public do not acquire, by twenty-one years' use, a right of way through a lane opened and used by the owner of the land for the purpose of reaching his private ferry, which connected with no public road on either side of the stream, and was used only by customers of the ferry. The court said: "No man had a right to go to that ferry except on the implied invitation of its owner. The owner wanted customers - he proposed to carry them across the river for a consideration, and those who went accepted his terms. It is not claimed by the Commonwealth that the owner of the land dedicated an easement to the public, but she claims that the lane became a highway because of user, on the principle that 'twenty-one years' adverse use of a way under claim of right is sufficient to authorize the presumption of a grant, and if the use was open and notorious in the ordinary manner, the owner would be presumed to know and acquiesce therein.' This principle has been often repeated when one man claims a way; that is, the right of going over another man's ground. A user will not give title unless it be adverse and under claim of right, nor when it appears it was not done with the knowledge and acquiescence of the owner, or when the way is used under leave or favor, and by permission and at the will of the owner. The presumption may be repelled by evidence which accounts for the possession or user without resorting to a title by grant or otherwise. Esling v. Williams, 10 Barr, 126. If the use of the way by an individual is merely a permissive use, no presumption of grant will arise from lapse of time. In order to establish a way by user, the user must be adverse, not permissive. Demuth v. Amweg, 9 Nor. 181. Like principles generally apply where the easement is claimed as public. Gowen v. Phil. Exchange Co., 5 W. & S. 141. The use of ground in front of a warehouse, extending to the river, by the public and by the owner for

such purposes as he desired, for more than thirty years continuously, gave the public no right against the will of the owner, for the use was not adverse to him, but by his consent, and it was not exclusive by the public, but in common with him for travel and entirely in him for several purposes of a private character. Irwin v. Dixion, 9 How. 10. From the nature of wharf property the access must be kept open for the convenience of the owner and his customers, but the property continues private. No length of time during which the property is so used can deprive an owner of his title, nor give the community a right to abate the owner's ferries over it as a nuisance on the ground that they have acquired a legal easement in it."

ESTOPPEL BY FORMER ADJUDICATION
IN ACTION GROWING OUT OF
THE SAME TRANSACTION.

THE

THE decision of the Wisconsin Supreme Court, in Ressequie v. Byers, September, 1881, 9 N. W. Rep. 779, will interest our readers generally; and it will interest lawyers in this State especially, because it dissents from decisions of our own courts. It was there held that a judgment rendered by a justice of the peace in an action by a physician for services in favor of the plaintiff, the defendant interposing a general denial as to the value of the services, and failing to appear at the trial, is no bar to an action by that defendant against the physician for malpractice in respect to the same services. The court, Cole, C. J., said: "There is undoubtedly high authority which supports the ruling of the learned Circuit Court. There are cases which distinctly hold that a judgment in a justice's court, in favor of a physician or surgeon for professional services, is a bar to any action by the defendant therein against such physician or surgeon for malpractice in rendering such services. Gates v. Preston, 41 N. Y. 113; Blair v. Bartlett, 75 id. 150; S. C., 31 Am. Rep. 455; Bellinger v. Craigue, 31 Barb. 534. There is however some conflict of authority on this subject, and as the question is now presented to this court for the first time, we feel at liberty to adopt a rule which seems to us founded on sound principle, and is most in accord with reason and convenience in practice. The courts in New York in effect say that the question of the proper care and skill on the part of the physician or surgeon is one necessarily involved in, and adjudicated upon, in an action by him to recover compensation for his services rendered; therefore, a judgment in his favor should estop the parties to such suit from ever after questioning that fact in any other action. And the courts of that State even apply the rule to a case where, though the defendant at first appeared in the justice's court, put in an answer which he afterward withdrew, and did not contest the plaintiff's claim, yet the judgment was held to be a bar to a subsequent action by him against the physician for malpractice. Blair v. Bartlett, supra. But the doctrine of the New York courts has not escaped

criticism. Mr. Bigelow, in his learned work on Estoppel (2d ed.), p. 98 et seq., reviews these decisions, as well as the adjudications of other courts in strictly analogous cases, and questions the soundness of the New York rule 'unless the distinctions taken in New Hampshire, between a judgment by confession and one by default or on trial without alleging the defense, be correct. Page 107. It may sometimes be difficult to draw a line of distinction between a judgment which will operate as a bar to an action for a specific claim, and one which leaves the claim outstanding to be enforced by a crossaction' (Church, C. J., in Dunham v. Bower, 77 N. Y. 76; S. C., 33 Am. Rep. 570); but where, as in this case, the defendant makes default in a justice's court, and does not even attempt to contest the value of the services rendered, or raise the question of their proper performance, it is more difficult to perceive any solid ground for holding that he is concluded from showing, in another action, that the plaintiff in that case was guilty of negligence in his professional treatment." "The issue in this action was not necessarily involved in the justice's suit, and the plaintiff may maintain it notwithstanding the defendant recovered for his services in that court. The plaintiff's claim for damages resulting from malpractice constitutes a separate and independent cause of action, which he can enforce without disturbing any matter litigated in that case. He was not compelled to make the defense before the justice that the defendant's services were of no value in order to save his rights. He had his election either to recoup his damages pro tanto in the justice's court or go for his entire claim in this. seems to us that this is the better and more convenient rule to lay down upon this subject. If the plaintiff were compelled to make his defense in the justice's court that the professional services were of no value, and that he had been injured by the defendant's negligence, then it would follow that he must either split up his demand so that there might be two suits instead of one upon it, or content himself with merely defeating the claim for services, or limit his damages to $200, the extent of the jurisdiction of the justice. We are not inclined to adopt a rule which would lead to any such inconvenient consequences."

It

The court cite several cases as opposed to the New York doctrine. We will state the substance of these decisions.

In O'Connor v. Varney, 10 Gray, 231, it was held, Shaw, C. J., giving a short opinion, that a judgment for the defendant in an action for work done under a contract, upon the ground of imperfect performance of the work, is a bar to a susequent action by him to recover damages for such non-performance. "He cannot use the same defense, first as a shield, and then as a sword."

In Bodurtha v. Phelon, 13 Gray, 413, an action was brought before a justice of the peace on a note for the price of a horse. The defendant set up a breach of warranty, and judgment was given for a part of the note. The plaintiff appealed, and the defendant was defaulted. Held, that that judgment

This was

was no bar to an action on the warranty. put on the ground that on the appeal the judgment before the justice was vacated, the defendant withdrew his defense, and judgment was entered for the full amount of the note. The court said: "The plaintiff could not maintain this action, if the judgment recovered against him on his note given to the defendant for the price of the colt were in force. He would have received in the deduction of forty dollars from the amount of that note, his damages for the deception practiced on him by the defendant in the sale of the colt, and have been thereby barred from any further remedy for that deception."

In Bascom v. Manning, 52 N. H. 132, an action of damages for breach of warranty of cotton, it appeared that the defendant had pleaded the same facts in defense of an action in Massachusetts for the price of the cotton, but suffered judgment there by default. Held, that the Masachusetts judgment was no bar. The court said: "Whether there was in fact a warranty, and if so, whether it was broken, and what amount of damages the plaintiff suffered thereby, are questions which were not in point of fact litigated in the Massachusetts suit, and are not therefore res adjudicata. It is true, the plea, which was not withdrawn, raised these questions, and there was a judgment for the plaintiffs. But the fact that there was a judgment upon a default makes it as certain that this counter-claim was not passed upon and settled, by an actual adjudication, as though the plea had been formally withdrawn." In Barker v. Cleveland, 19 Mich. 230, it was held that an action for the purchase price of chattels is not affected by a judgment for breach of warranty of the same. The action for breach of warranty does not necessarily involve the question of payment of the price. The action for breach might be brought before the time for payment had elapsed. "Unless the vendor depends on the ground of nonpayment of the purchase price, the court does not concern itself with that question."

Mondel v. Steel, 8 M. & W. 858, was an action of damages for breach of a contract to build a ship in a specified manner. The defendant pleaded a judgment in a former action for the price, in which the same breach of contract was pleaded, and a deduction was made from the price on account thereof. Held, bad, and that the plaintiff might still recover for damage accruing subsequent to the delivery of the ship. Parke, B., said: "It must however be | considered that in all these cases of goods sold and delivered with a warranty, and work and labor, as well as the case of goods agreed to be supplied according to a contract, the rule which has been found so convenient is established, and that it is competent for the defendant, in all of these, not to set-off, by a proceeding in the nature of a cross-action, the amount of damages which he has sustained by breach of the contract, but simply to defend himself by showing how much less the subject-matter of the action was worth by reason of the breach of contract; and to the extent that he obtains or is capable of obtaining an abatement of price on that

supervision and maintenance in orphan asylums, and for expenses in hospitals, aggregate almost six millions of dollars. (1)

Add the numerous sums paid by forty different cities in poor relief of various kinds, and we have a total of from seven to eight millions of dollars officially expended in this State last year for the care of paupers, orphans and sick. If to this we add the amounts expended by private benevolence, the total becomes still larger.

If the system established and carried on at so great a cost, were really a benefit to the unfortunates under its care, if it alleviated their sufferings, atoned for their misfortunes, or helped to raise them one step toward happiness or usefulness, no one could complain. But it does none of these things. This is not the time nor the place for detail. In the Atlantic Monthly for June and August of this year are two papers on the "In-door Pauper" of the nation. Therein are described succinctly the alms-houses and poor-houses of the greater part of the country. The facts set out are derived from actual inspection or from official reports. The systems of Massachusetts and of | New York are described as the least faulty, but none are pleasant reading. The conclusions of the author are thus expressed:

"It is the system, not the men, which defies reform. And this will never be changed until the people themselves comprehend the atrocity of the wrongs done daily in their name. For behind lavish politicians and niggardly officials stand the real though most ignoraut promoters of the oppression of the poor- the American people. They have, with the kindest intentions, permitted the firm establishment of a system which destroys men, ruins women, and corrupts children; a system which tortures helpless lunatics, and sends into an overcrowded world hundreds of children doomed to the long horror of lives of hereditary vice, deformity and madness."

Charity Organization believes that pauperism is not only a disease, but a contagious one, and that like all diseases it can be materially reduced by proper treatment in a scientific way. It believes that pauperism, unless checked, leads to crime; and that crime and pauperism both tend directly to perpetuating their species in an aggravated form. The experience of all who have investigated the matter leads to the same conclusion. The figures presented prove that the subject is of great moment in a pecuniary sense. The conclusions I have quoted show the present system of treatment to be worse than useless for the classes it

directly affects. While these further considerations teach that the entire community is vitally interested in correct dealing with this problem, and that as a matter of self-protection every citizen should do something in the work.

What are the causes of pauperism? State boards of charities, individual investigations, and charity organization societies all unite in the same answers. (2) These cannot be elaborated in a paper of this length. It is sufficient here to say that almost the entire pauper class owe their condition, either to their own faults, to injudicious treatment by officials, or to the unwise

charity of the public. The number of worthy paupers reduced to that condition by causes outside of their own acts is, by all competent authorities, pronounced exceedingly small, and the most lenient of these authorities does not place the number of public institutions at over ten per cent of the total. Two of these causes can be touched upon as especially instructive. It more and more strongly appears from each year of experience and investigation that a very large proportion of the chronic paupers have been actually trained for the poor-house or other dependence by out-door relief administered by law or by private charity. The State law in theory is correct. But many city officials claim they are not bound by it, and the abuse of the system as practiced in all parts of the State and the results therefrom are just beginning to be appreciated. When persons naturally idle or improvident learned that no exertion was requisite for living, they soon taught the lesson to their children and their neighbors, and the contagion spread until the extreme of the abuse brought some reflection to the community, and a reaction set in. Another cause, akin to this, is beginning to be understood. That is the absence of compulsory employment as a prerequisite to receiving aid, either in-door or out. By this, those who would not work have been placed on a par with honest labor, and have been taught that the spoils of dependence are as ample as the bread of industry.

The remedies for the growth of pauperism suggested by the best experience can only here be glanced at. The most important preventive agency would be the stoppage of all official out-door relief in cities, and its confinement in all cases to extraordinary circumstances. Two cities in this country have tried the experiment, both with marked success. These are Brooklyn and Philadelphia. In Brooklyn, in 1877, 46,350 persons received out-door relief, at a cost of $141,207. This was entirely cut off the next year and yet all records and investigations, both public and private, show that there was no perceptible increase either in attendance upon public institutions or in applications to private charities, proving that no actual suffering was the result. In 1879, Philadelphia abolished out-door relief, with the same results. Subsequent years have confirmed these experiences in both cities. (3)

The imposition of a labor test has also proved of great service in reducing unnecessary pauperism. Two other cities have tried this experiment. In Providence, R. I., in 1878, out-door relief cost $150,051. In 1879, the labor test reduced it to $7,333. In Cleveland, Ohio, in 1875, the out-door relief of 4.590 families cost $95,000. In 1877, the system of making all males work at $1 a day was adopted, and in 1880, only 1,200 families were relieved, at a cost of $17,000. (4)

In as compact a form as possible, we have endeavored to show that the problem of pauperism is deserving attention. That the treatment it has heretofore received has served merely to degrade its victims and to increase their numbers. That it is a disease, whose presence in a well-regulated community need be no more frequent than any other contagion; that its causes are capable of scientific deduction, and that it can be materially alleviated by proper measures.

Within a few years our State has cheerfully assumed its share of the responsibilities of the situation. Since the establishment of the State board of charities, one of the noblest of many noble institutions of the State, great progress has been made, chiefly by its instrumentality. The treatment of the insane and the

(3) "Out-door Relief in the United States; " a paper by Mr. Seth Low, read at National Conference of Charities and Corrections; Boston, 1881.

(4) These figures are from Mr. Low's paper,