Page images
PDF
EPUB

made in the prospectus inviting subscriptions for the debentures. It is there said: "This is what is called an action of deceit; the plaintiff alleging that statements were made by the defendants which were untrue, and that he had acted on the faith of these statements so as to incur damage for which the defendants were liable. In order to sustain such an action the plaintiff must show that the defendants intended that the people should act on the statements, that the statements are untrue in fact, and that the defendants knew them to be untrue, or made them under such circumstances that the court must conclude that they were careless, whether they were true or not." The judgment against the directors personally was affirmed, all the judges concurring.

We might extend these quotations to much greater length, but deem it unnecessary to do so, as we think our conclusions are in accord with reason and the established principles of justice. Forms of action do not obtain in our practice. All suits are actions on the case, and we think it can make no material difference in determining the questions here involved, whether the suit is called an action for deceit, an action to recover damages for the violation of a trust, or an action to recover damages for negligence in the performance of a duty. We have examined with much care all authorities cited by counsel for appellees in their able and exhaustive brief that are accessible to us, but none of them, we think, militate against the correctness of the conclusions expressed in this opinion. If this was a suit brought by a stockholder to recover damages resulting to the corporate property, many of appellees' authorities would apply, and we would hold with those authorities, that appellant could not maintain an action for his individual benefit alone.

For the reasons stated, we are of opinion that there is error in the judgment of the court below, and that it should be reversed, and cause remanded.

STAYTON, C. J. Report of Commission of Appeals examined, opinion adopted, judgment reversed, and cause remanded.

[See Cowley v. Smyth, 46 N. J. L. 380; S. C., 50 Am. Rep. 432; Westervelt v. Demarest, 46 N. J. L. 37; S. C., 50 Am. Rep. 400; Cole v. Cassidy, 138 Mass. 437; S. C., 52 Am. Rep. 284; Clark v. Edgar, 84 Mo. 106; S. C., 54 Am. Rep. 84.-ED.]

UNITED STATES SUPREME COURT AB-
STRACT.

JURISDICTION-FEDERAL QUESTION-ABDUCTION OF ESCAPED CRIMINAL FROM SISTER STATE.-A criminal having escaped from justice to another State, pending extradition proceedings, was forcibly seized by an agent appointed by the governor demanding his extradition, carried to the State where he had been indicted, and was there arrested on a legal warrant. Held, that he could not be released on a petition of habeas corpus to a Federal court, on account of the personal injuries received from private persons acting against the laws of one State and without authority from the other, or because of the indignities committed against the State from which the prisoner was removed, the illegal mode in which he was brought from the other State violating no right secured by the Constitution or laws of the United States, but solely concerning that State, which may bring the persons abducting the prisoner to justice. It is contended that the detention of the appellant is in violation of the provisions of the fourteenth amendment of the Constitution, that "no State shall make or enforce any law which shall abridge the privileges or immuni

ties of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law;" and also in violation of the clause of the Constitution providing for the extradition of fugitives of justice from one State to another, and the laws made for its execution. As to the fourteenth amendment, it is difficult to perceive in what way it bears upon the subject. Assuming, what is not conceded, that the fugitive has a right of asylum in West Virginia, the State of Kentucky has passed no law which infringes upon that right or upon any right or privilege of immunity which the accused can claim under the Constitution of the United States. The law of that State which is enforced is a law for the punishment of the crime of murder, and she has merely sought to enforce it by her officers under process executed within her territory. She did not authorize the unlawful abduction of the prisoner from West Virginia. As to the removal from the State of the fugitive from justice in a way other than that which is provided by the second section of the fourth article of the Constitution, which declares that "a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime," and by the laws passed by Congress to carry the same into effect, it is not perceived how that fact can affect his detention upon a warrant for the commission of a crime within the State to which he is carried. The jurisdiction of the court in which the indictment is fouud is not impaired by the manner in which the accused is brought before it. There are many adjudications to this purport cited by counsel on the argument, to some of which we will refer. The first of these is that of Ex parte Scott, 9 Baru. & C. 446. There it appeared that the prisoner, who had been indicted in the King's Bench for perjury, and for whose apprehension a warrant had been issued, was arrested by the officer, to whom the warrant was specially directed, at Brussels, in Belgium, and conveyed to England. A rule nisi was then obtained from the court for a writ of habeas corpus, and the question of her right to be released because of her illegal arrest in a foreign jurisdiction was argued before Lord Tenterden. He held that where a party charged with a crime was found in the country, it was the duty of the court to take care that he should be amenable to justice, and it could not consider the circumstances under which he was brought there, and that if the act complained of was done against the law of a foreign country, it was for that country to vindicate its own law, and the rule was discharged. The next case is that of State v. Smith, which was very fully aud elaborately considered by the chancellor and the Court of Appeals of South Carolina. 1 Bailey, 283. Though this case did not arise upon the forcible arrest in another jurisdiction of the offender to answer an indictment, but to answer to a judgment the conditional release from which he had disregarded, the principle involved was the same. Smith had been convicted of stealing a slave and sentenced to death. He was pardoned on condition that he would undergo confinement during a designated period, and within fifteen days afterward leave the State and never return. The pardon was accepted, and the prisoner remained in confinement for the time prescribed, and within fifteen days afterward removed to North Carolina, and remained there some years, when he returned to South Carolina. The governor of the latter State then issued a proclamation stating that the prisoner was in the State in violation of the condition of his pardon, and offering a reward for his arrest. Smith afterward returned to North Carolina, where he was forcibly seized by parties from

South Carolina, without warrant or authority from any officer or tribunal of either State, except the proclamation of the governor of South Carolina, and was brought into the latter State and lodged in jail. He sued out a writ of habeas corpus, and was brought before the chancellor of the State, and his discharge was moved on the ground that his arrest in North Carolina was illegal, and his detention equally so. The motion was refused, and the prisoner remauded. The chancellor gave great consideration to the case, and in the following extract from his opinion furnishes an answer to the principal objections urged in the case at bar to the detention of the appellant: "The prisoner," said the chancellor, "is charged with a felonious violation of the laws of this State. It is answered that other persons have been guilty, in relation to him, of an outrageous violation of the laws of another State, and therefore he ought to be discharged. I perceive no connection between the premises and the inference. The chief argument is drawn from the supposed consequences which are likely to follow by bringing our government into collision with others. This is less to be apprehended among the States of the Union, where the Federal Constitution makes provision for a satisfaction of the violated jur- | isdiction. But suppose the case of a foreign State. There is no offense in trying, and if he be guilty, convicting, the subject of a foreign government, who has been guilty of a violation of our laws, within our jurisdiction. Or if he had made his escape from our jurisdiction, and by any accident was thrown within it again; if he were shipwrecked on our coast, or fraudulently induced to land, by a representation that it was a different territory, with a view to his being given up to prosecution-there would be no reason for exempting him from responsibility to our laws. In the case we are considering the prisoner is found in our jurisdiction in consequenco of a lawless act of violence exercised upon him by individuals. The true cause of offense to the foreign government is a lawless violation of its territory. But a similar violation of a foreign jurisdiction might be made for other purposes, and it would not be in the power of our tribunals to afford satisfaction. An individual might be kidnapped and brought within our territory for the purpose of extorting money from him, or murdering him. It would not seem to be an appropriate satisfaction to the injured government to exempt a person justly liable to punishment under our laws, where we have no means of giving up to punishment those who have violated its laws. But there is no difficulty among the States of the Union. Upon demand by the State of North Carolina those who have violated its laws will be given up to punishment." 1 Bailey, 292. Subsequently the prisoner was brought before the presiding judge of the Court of Appeals of the State to answer to a rule to show cause why his original sentence should not be executed and a date fixed for his execution. He showed for cause that he had received an executive pardon, and had performed all the conditions annexed to it, except the one which prohibited his return to the State, which it was submitted, was illegal and void. And for further cause he showed that he had been illegally arrested in North Carolina and brought within the jurisdiction of this State against his own consent, and it was therefore insisted that he was not amenable to the courts of South Carolina, but was entitled to be sent back to North Carolina or to be discharged, and sufficient time allowed him to return thither. The judge held the grounds to be insufficient, and the defendant then moved the court to reverse his decision on substantially the same grounds, and among them that he was entitled to be discharged in consequence of having been illegally arrested in North Carolina and brought into the State.

Upon this the court said: "The pursuit of the prisoner into North Carolina and his arrest there was certainly a violation of the sovereignty of that State, and was an act which cannot be commended. But that was not the act of the State, but of a few of its citizeus, for which the Constitution of the United States has provided a reparation. It gives the governor of that State the right to demand them of the governor of this, and imposes on the latter the obligation to surrender them; but until it is refused there can be no cause of complaint." And the motion was refused. In the case of State v. Brewster the same doctrine was announced by the Supreme Court of Vermont. 7 Vt. 118. There it appeared that the prisoner charged with crime had escaped to Canada, and was brought back against his will, and without the consent of the authorities of that province, and he sought to plead his illegal capture and forcible return in bar of the indictment; but his application was refused, the court observing that the escape of the prisoner into Canada did not purge the offense, nor oust the jurisdiction of the court, and he being within its jurisdiction, it was not for it to inquire by what means or in what manner he was brought within the reach of justice. Said the court: "If there were any thing improper in the transaction, it was not that the prisoner was entitled to protection on his own account. The illegality, if any, consists in a violation of the sovereignty of an independent nation. If that nation complain, it is a matter which concerns the political relations of the two countries, and in that aspect is a subject not within the constitutional powers of this court." In State v. Ross the Supreme Court of Iowa declared the same doctrine, and stated the distinction between civil and criminal cases where the party is by fraud or violence within the jurisdiction of the court. 21 Iowa, 467. The defendants were charged with larceny, and were arrested in Missouri and brought by force and against their will, by parties acting without authority, either of a requisition from the governor or otherwise, to Iowa, where an indictment against them had been found. In Iowa they were rearrested, and turned over to the civil authorities for detention and trial. It was contended that their arrest was in violation of law; that they were brought within the jurisdiction of the State by fraud and violence; that comity to a sister State, and a just appreciation of the rights of the citizen, and a due regard to the integrity of the law, demanded that the court should under such circumstances refuse its aid; and that there could be no rightful exercise of jurisdiction over the parties thus arrested. But the court answered that "the liability of the parties arresting them (the defendants) without legal warrant, for false imprisonment or otherwise, and their violation of the penal statutes of Missouri, may be ever so clear, and yet the prisoners not be entitled to their discharge. The offense being committed in Iowa, it was punishable here, and an indictment could have been found without reference to the arrest. There is no fair analogy between civil and criminal cases in this respect. In the one (civil) the party invoking the aid of the court is guilty of fraud or violence in bringing the defendant or his property witnin the jurisdiction of the court. In the other (criminal) the people, the State, is guilty of no wrong. The officers of the law take the requisite process, find the prisoners charged within the jurisdiction, and this too without force, wrong, fraud or violence on the part of any agent of the State or officer thereof. And it can make no difference whether the illegal arrest was made in another State or another government." Other cases might be cited from the State courts holding similar views. There is indeed an entire concurrence of opinion as to the ground upon which a release of the appellant in the present

was affirmed. He then brought the case to this court, where it was contended that under the treaty of extradition with Peru he had acquired by his residence in that country a right of asylum, a right to be free from molestation for the crime committed in Illinois -a right that he should be forcibly removed from Peru to the State of Illinois only in accordance with the provisions of the treaty; and that this right was one which he could assert in the courts of the United States. But the court answered that there was no language in the treaty on the subject of extradition which said in terms that a party fleeing from the United States to escape punishment for a crime became thereby entitled to an asylum in the country to which he had fled; that it could not be doubted that the government of Peru might of its own accord, without any demand from the United States, have surrendered Ker to an agent of Illinois, and that such surrender would have been valid within Peru; that it could not therefore be claimed, either by the terms of the treaty or by implication, that there was given to a fugitive from justice in one of those countries any right to remain and reside in the other; and that if the right of asylum meant any thing it meant that. So in this case it is contended that because under the Constitution and laws of the United States a fugitive from justice from one State to another can be surrendered to the State whera the crime was committed, upon proper proceedings taken, he has the right of asylum in the State to which he has filed, unless removed in conformity with such proceedings, and that his right can be enforced in the courts of the United States. But the plain answer to this contention is that the laws of the United States do not recognize any such right of asylum as is here claimed on the part of a fugitive from justice in any State to which he has fled; nor have they, as already stated, made any provision for the return of parties, who by violence and without lawful authority have been abducted from a State. There is therefore no authority in the courts of the United States to act upon any such alleged right. In Ker v. Illinois the court said that the question of how far the forcible seizure of the defendant in another country, and his conveyance by violence, force or fraud to this country, could be made available to resist trial in the State court for the offense charged upon him, was one which it did not feel called upon to decide, for in that transaction it did not see that the Constitution, or laws, or treaties of the United States guarantied to him any protection. So in this case we say, that whatever effect may be given by the State court to the illegal mode in which the defendant was brought from another State, no right, secured under the Constitution or laws of the United States, was violated by his arrest in Kentucky, and imprisonment there, and the indictments found against him for murder in that State. It follows that the judgment of the court below must be affirmed. May 14, 1888. Mahon v. Justice. Opinion by Field, J.; Bradley and Harlan, JJ., dissenting.

case is asked, namely, that his forcible abduction from another State and conveyance within the jurisdiction of the court holding him, is no objection to his detention and trial for the offense charged. They all proceed upon the obvious ground that the offender against the law of the State is not relieved from liability because of personal injuries received from private parties, or because of indignities committed against another State. It would indeed be a strange conclusion if a party charged with a criminal offense could be excused from answering to the government whose laws he had violated because other parties had done violence to him, and also committed an offense against the laws of another State. The case of Ker v. Illinois, decided by this court, 119 U. S. 437, has a direct bearing upon the question presented here, whether a forcible and illegal capture in another State is in violation of any rights secured by the Constitution and laws of the United States. In that case it appeared that Ker was indicted in Cook county, Ill., for embezzlement and larceny. He fled the country and went to Peru. Proceedings were instituted for his extradition under the treaty between that country and the United States, and application was made by our government for his surrender, and a warrant was issued by the president, directed to one Julian, as messenger, to receive him from the authorities of Peru, upon his surrender, and to bring him to the United States. Julian, having the necessary papers, went to Peru, but without presenting them to any officer of the Peruvian government, or making any demand on that government for the surrender of Ker, forcibly arrested him, placed him on board the United States vessel Essex, then lying in the harbor of Callao, kept him a close prisoner until the arrival of that vessel at Honolulu, in the Hawaiian Islands, where after some detention, he was conveyed in the same forcible manner on board another vessel, in which he was carried a prisoner to San Francisco, Cal. Before his arrival in that State the governor of Illinois had made a requisition on the governor of California, under the laws of the United States, for his delivery as a fugitive from justice. The governor of California accordingly made an order for his surrender to a person appointed by the governor of Illinois to receive him and to take him to the latter State. On his arrival at San Francisco he was immediately placed in the custody of this agent, who took him to Cook county, where the process of the criminal court was served upon him, and he was held to answer the indictment. He then sued out a writ of habeas corpus before the Circuit Court of the State, contending that his arrest and deportation from Peru was a violation of the treaty between that government and ours, and that consequently his subsequent detention under the process of the State court was unlawful. The Circuit Court remanded him to jail, holding that whatever illegality might have attended his arrest, it could not affect the jurisdiction of the court or release him from liability to the State whose laws he had violated. He then applied to the Circuit Court of the United States for a writ of habeas corpus, asking his release upon the same ground; but the court refused it, holding that it was not competent to look into the circumstances under which the capture and the transfer of the prisoner from Peru to the United States were made, nor to free him from the consequences of the lawful process which had been served upon him for the offense which he was charged with having committed in the State of Illinois. When arraigned on the indictment in the trial court he raised similar questions on a plea in abatement, which was held bad on demurrer, and after conviction he carried the case on a writ of error to the Supreme Court of the State, where the same conclusion was reached, and the judgment against him

ABSTRACTS OF VARIOUS RECENT DE-
CISIONS.

ANIMALS ORDINANCE RESTRAINING DOGS FROM RUNNING AT LARGE-PUNISHMENT OF OWNER ILLE

GALITY. Under an ordinance of the city of Baton Rouge, the owner of a dog was ordered by the mayor of the city to produce the animal at his office that it might be killed. The dog was brought to the mayor's office in compliance with the order, but the killing was prevented by an injunction from a competent court. Thereupon the owner of the dog was sentenced to imprisonment in the parish jail for twenty

days. Held, that the sentence was null and the action of the mayor arbitrary and oppressive. The ordinance in question is entitled a "Dog Ordinance," and merely provides for the killing of dogs running at large on the streets, but denounces no penalty whatever against the owners of such animals or against any one for a violation of the ordinance. Nor are pointed to any law of the State-and know of noneunder which the action of this officer can obtain the least justification or its enormity be palliated. La. Sup. Ct.. Feb. 13, 1888. State v. Vay. Opinion by Todd, J.

We

COPYRIGHT — SHEET MUSIC PERFORATED STRIPS FOR ORGANETTES.-The manufacture and sale of perforated strips of paper to be used in organettes, and by which a certain tune is produced, is not a violation of the copyrighted sheet music of the same tune. This case has been thoroughly presented to the court. It is admitted that the plaintiffs are the owners of a valid copyright in a certain song and musical composition entitled "Cradle's Empty, Baby's Gone," and that the defendant makes perforated papers, which when used in organettes, produce the same music. The sole question in issue is whether these perforated sheets of paper are an infringement of copyrighted sheet music. To the ordinary mind it is certainly a difficult thing to consider these strips of paper as sheet music. There is no clef, or bars, or lines, or spaces or other marks which are found in common printed music, but only plain strips of paper with rows of holes or perforations. Copyright is the exclusive right of the owner to multiply and to dispose of copies of an intellectual production. Drone Copyr. 100. I cannot convince myself that these perforated strips of paper are copies of sheet music within the meaning of the copyright law. They are not made to be addressed to the eye as sheet music, but they form part of a machine. They are not designed to be used for such purposes as sheet music, nor do they in any sense occupy the same field as sheet music. They are a mecbanical invention made for the sole purpose of performing tunes mechanically upon a musical instrument. The bill itself states that they are adapted and intended for a use wholly different from any use possible to be made of the ordinary sheet music. Their use resembles more nearly the barrel of a hand organ or music box. It is said that sheet music may consist of different characters or methods, as for example the Sol Fa method, and that the perforated strips of the defendant are simply another form of musical notation; but the reply to this is that they are not designed or used as a new form of musical notation. If they were, the case would be different. Again it is said that they can be used as sheet music the same as the Sol Fa method; but the auswer to this is that they are not so used. While it may not be denied that some persons, by study and practice, may read music from these perforated strips, yet as a practical question in the musical profession, or in the sale of printed music, it may be said that they are not recognized as sheet music. The question is not what may be done as an experiment, but whether, in any fair or proper sense, these perforated rolls of paper, made expressly for use in a musical instrument, can be said to be copies of sheet music. The complainants further suggest that the Sol Fa copy, or the raised copy for the blind, do not take the place of printed music, in reply to which it may be said that their purpose and object is to supply the place of printed music, and that they subserve the same purpose. I find no decided cases which, directly or by analogy, support the position of the plaintiffs, and it seems to me that both upon reason and authority they have failed to show any infringement of their copyright. Mass. U. S. Cir. Ct., Jan. 27, 1888. Kennedy v. McTammany. Opinion by Colt, J.

[ocr errors]

CRIMINAL LAW-ADULTERY — INDICTMENT.-Under a statute providing that "a man with another man's wife, or a woman with another woman's busband, found in bed together, under circumstances affording presumption of an illicit intention, shall each be punished," etc., an indictment charging that the respondent" being then and there a man" was found in bed with another man's wife, "under circumstances affording presumption of an illicit and felonious intention," is bad for lack of allegation as to what the "illicit intention was. The rule as to when it is sufficient to charge an offense in the words of the statute was stated in State v. Higgins, 53 Vt. 191, being quoted from Mr. Pomeroy, and was thus: "Whether an indictment in the words of a statute is sufficient or not, depends on the manner of stating the offense in the statute; if every fact necessary to constitute the offense is charged, or necessarily implied by following the language of the statute, the indictment in the words of the statute is undoubtedly sufficient; otherwise not." That rule, in substance, has always been the test applied to indictments in this State. Under it this indictment is insufficient. The word "illicit," as its derivation indicates, means that which is unlawful or forbidden by the law. Bouv. Law Dict.; Webst. Dict. It is not claimed that every illicit intention would warrant a conviction under this statute. It must be a particular unlawful intention. Therefore as the indictment stands, all the allegations might be true and the respondent be not guilty. The illicit intention might have been to steal, burn or murder, as well as to have unlawful sexual connection. Vt. Sup. Ct., Feb. 24, 1888. State v. Miller. Opinion by Veazey, J.

DEDICATION PIPES ACROSS.-. -A grantor of a block of city lots laid out an alley and dedicated it for the use of all the lots in the block. It did not appear that the dedication was for any particular purpose or under any restrictions. For many years the alley was used as a passage-way, and for drainage of waste water. Held, that the laying of underground sewer-pipes across it by the owner of part of the lots was a reasonable and proper use. We must assume that the alley was desigued for the use of the lots in common, for such purposes as an alley may ordinarily be applied. Nor is any inference of the existence of any restriction to be drawn from the mauner in which the alley was used, for the use of it has been in accordance with the general purpose stated. At first ashes were thrown upon it to keep it dry, and people passed and repassed along it at their pleasure. Ditches were dug from time to time upon it for drainage of the waste and surface water accumulated on the lots. It seems to have been used as any other alley similarly situated. Finally it was paved with brick, and continued in this condition until the defendant put in his sewer. If it was not restricted in its dedication, and has been used for the general purpose of an alley, the mere fact that it has as yet been used only for a passage-way and for drainage of the surface water, would not of necessity restrict it to these purposes in the future; the use to which it may be applied would depend upon the growth of the city, the improvement of the adjacent property, and the municipal regulations affecting the public health. Upon what evidence can it be said that the property holders adjacent to this alley were simply entitled to a passage-way, and to the drainage of the surface water? If it might be used for the drainage of surface water, why not for the drainage of any other accumulations which might come upon the premises in the ordinary and natural user of the property? The occupancy of the alley for drainage purposes, by putting in connections with the city sewer,

USE OF ALLEY -LAYING SEWER

would seem to be a most reasonable and proper use of the alley, under the terms of the dedication, and to be in conformity also with the general purposes to which it has heretofore been applied. Penn. Sup. Ct., Feb. 13, 1888. Appeal of McElhone. Opinion by Clark, J. MALICIOUS PROSECUTION EVIDENCE PLAINTIFF'S TREATMENT WHILE IN PRISON.-In an action

for malicious prosecution, plaintiff testified, against defendant's objection, as to his surroundings and treatment while in prison. Held, that the evidence was not admissible, as defendant was not liable for the conduct of public officials over whom he had no control. Peun. Sup. Ct., Jan. 3, 1888. Zebley v. Storey. Opinion by Paxson, J.

MARRIAGE

[ocr errors]

CONFLICT OF LAWS-PRESUMPTIONS AS TO LAWS OF OTHER STATES.-In Arkansas it is a presumption of law that the common law prevails without change in other States, and the husband's rights in property acquired by a married woman in another State is presumed to be governed by the common law in the absence of proof of what the law of that State is. It is enough, for the purpose of this case, to cite Hydrick v. Burke, 30 Ark. 124; Dyer v. Arnold, 37 id. 22; and Gainus v. Cannon, 42 id. 503. They are also cases involving similar questions. In each case money came to the wife in anothor State, where the husband and wife were then domiciled, and was invested in property in this State after the parties removed here. In each of the cases, as in this, there was a failure to prove what the law of the State was where the property was acquired, and it was ruled that the presumption would be indulged that the marital rights of the husband were governed by the common law in the State where the property was acquired; that by that law the money due to the wife, when collected, became the property of the husband, and remained his after removal into this State. The burden of proof in such cases is upon the wife to show that the property became and remained her separate property. To the same effect see Tinkler v. Cox, 68 Ill. 119; Litchtenberger v. Graham, 50 Ind. 288; Oliver v. Robertson, 41 Tex. 422. Especially applicable | to the facts of this case is the language used by the court in Gainus v. Cannon, in speaking of money received by the wife in the State of Mississippi: "The husband was entitled, by marital right, to receive his wife's distributive share of her father's estate, and the payment to her was payment to himself. She had no right to receive and hold it in opposition to him. * * * It was voluntarily paid to her, with her husband's assent, and became his by force of the common law, unless he, then or subsequently, by some agree. ment valid between them, constituted himself her trustee." Schouler Dom. Rel., § 82. We know judicially from the history of the country that the common law is the basis of Tennessee's jurisprudence. If that State has departed from the common principles of that system, the fact must be proved. We cannot take judicial notice of statutory changes that may have been made, nor can we presume that the same innovations have been made in that State as in our own. The familiar doctrine that a state of things once existing is presumed to continue until a change or an adequate cause of change is shown is indulged in regard to the existence of the common law in those States which recognize that system as the source of their jurisprudence. It rests upon the party who asserts that a different rule prevails to prove it. This has been frequently ruled by this court, and is in accord with the weight of authority elsewhere. See Norris v. Harris, per Field, J., 15 Cal. 252; cases collected, 2 Cent. Law J. 379; 1 Greenl. Ev., § 43, note a; Lawson Pres. Ev. 366, et seq; Reg. v. Nesbitt, 2 Dowl.

L. 529. The cases are numerous in which it is said

that in the absence of proof the law of a foreign State will be presumed to be the same as that of the forum. But an examination of a number of such cases bas demonstrated that only in exceptional instances is the doctrine as applied inconsistent with the rule announced in Hydrick v. Burke, supra, and like cases. In many of the cases it will be found that a commonlaw principle, unaffected by statute, governed the question where the cause was tried, and the announce

ment of the rule, that the law of the forum would be presumed to be the law of the foreign State, was only another mode of saying that the common law was presumed to be in force in the foreign State. Thus in the case of Cox v. Morrow, 14 Ark. 603, the rule is announced to be that the law of a foreign State is presumed to be the same as that of the forum, unless the contrary is made to appear. But the court proceeded to settle the rights of the parties acquired under a North Carolina will of personalty; and under a Tennessee marriage, according to the common law, unaffected by statute, there being no proof of what the law of North Carolina or Tennessee was. But one of the parties in that case who took under the will died domiciled in Texas, and the law of Texas not being proved, the court permitted the statute of descents and distribution of Arkansas to govern. But it must be remembered that Texas did not derive her jurisprudence from the source whence comes the common law, and for this reason no presumption could be indulged that that system prevailed there. The plaintiff had not established his case by the law of Arkansas, and there was no room for the indulgence of a presumption that he could recover by any other law. 15 Cal. supra; Greenl. supra; Flato v. Mulhall, 72 Mo. 522. It may be that Chief Justice Watkins, who delivered the opinion of the court in Cox v. Morrow, and whose learning and wisdom give him place in the front of our jurisprudence, intended to obviate the constantly increasing difficulties and absurdities that the courts are led into by indulging the presumption of the prevalence anywhere of the common law without change since the revolution (see Newton v. Cocke, 10 Ark. 169,) by fixing a rule commendable for simplicity in its application, to the effect that parties by submitting their rights to our tribunals for determination elect thereby to have them determined by the laws of our courts, unless they adduce in evidence proof of different rules which should govern. But in the case of DuVal v. Marshall, 30 Ark. 240, Judge Walker, who sat in the case of Cox v. Morrow, speaking for the court, interprets that case as holding that in the absence of proof to the contrary, the courts of this State will presume the common law to be in force in another State. Looking alone to the application of the law made in the determination of that cause, we cannot say that such is not the judgment of the court. The rule as announced by Judge Walker has been often applied by the court. In the case of Seaborn v. Henry, 30 Ark. 469, a broader rule is announced, but all that was determined in that case was that in a suit on a Texas judgment a recovery could be had here unless the defendant showed that no recovery could be had on the judgment by the law of Texas. That it does not necessarily follow from this that we should indulge the presumption that the law of Texas is the same as the law of Arkansas, as was said in that case, we have the authority of Chief Justice Kent and of Lord Eldon. Thompson v. Ketcham, 8 Johns. 146; Male v. Roberts, 3 Esp. 163. See too Grider v. Driver, 46 Ark. 88. Ark. Sup. Ct., Feb. 4, 1888, Thorn v. Weatherley. Opinion by Cockrill, C. J.

MASTER AND SERVANT-EVIDENCE-DECLARATIONS OF FOREMAN.-Where the foreman in charge of work

« PreviousContinue »