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Fourteenth Amendment. Right Of Colored Child To Attend School. — Supreme Court. Ward v. Flood. — On petition for mandamus, the Supreme Court have held that —
"The latter clause of the first section of the fourteenth amendment to the federal Constitution — 'nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws' — secures to each child in California, regardless of the race or color of such child, a legal right to attend as a pupil and receive instruction at the public schools in the State, under the law providing for common schools.
"The act of the legislature providing for the maintenance of separate schools for the education of children of African or Indian descent, and excluding them from schools where white children are educated, is not obnoxious to constitutional objection.
"But unless such separate schools be actually maintained for the education of colored children, then the latter have a legal right to resort to schools where white children are instructed, and cannot be legally excluded therefrom by reason of race or color."
This would seem to do away with the necessity — in California, at least — of the Civil Eights Bill.
Bank Checks. Liability Of Bank To Holder. — Supreme Court, Fourth National Bank of Chicago v. City National Bank of Grand Rapids. — Bill in equity to restrain defendants from prosecuting a suit at law against plaintiffs to recover on a bank check. L. had obtained a discount of 85000 at plaintiff bank, and that sum was there placed to his credit. He gave the check for $1000, of which defendant became the owner, and afterwards became bankrupt. In this cause the court have now held that the holder of the check became entitled to as much of the fund as it represented, and that the bank had no equitable right of set-off or lien as against the holder of the check to secure L.'s indebtedness to it out of the fund, although L. was insolvent and his assignee might bring suit against the plaintiff bank.
Bar Association. — We are glad to receive a copy of the Constitution and By-laws of the Chicago Bar Association, and to see that it has actively organized as an association to comprise the whole bar of the state. We esteem it of the highest consequence that the members of our profession should, by constant conference and association, "maintain the honor and dignity of the profession of the law," and " increase its usefulness in promoting the due administration of justice."
Union Pacific R.R. Co. Mandamus To Compel Operation Of RailRoad. — United States Circuit Court. Hall et al. v. Union Pacific R.R. Co. — On this petition Judge Dillon, while reserving all questions on the merits of the controversy, has ordered an alternative writ of mandamus to issue to compel the respondents to operate their road as a continuous and through line, and to desist from operating their bridge over the Missouri River as a VOl. vin. 50
separate and independent line. Judge Dillon considers the question whether the petitioners, who are merchants having goods to he transported, have a right to a day in court to compel the respondents to perform a public duty,— deciding that the weight of authority is decidedly in favor of that right.
Fraud As A Ground For Annulling Marriage. — The case of Carris v. Carris,-1 Am. Law Times Reports, N. S. 41 (and which extends into the next number), contains a long and able discussion of this question. The discussion is divided into two branches. The first, whether the chancery court of New Jersey has succeeded to the powers of the ecclesiastical courts of England over this subject, and whether it hence has, without any express statutory grant of jurisdiction, power to annul a marriage on the ground of fraud. And this question is resolved in the affirmative (vansykel, J., dissenting). The second question discussed is, whether the fraud developed by the evidence in the particular case was of sufficient magnitude to avoid the marriage. The facts in proof were, that at the time the parties were married the complainant, the husband, believed from the acts of the wife and otherwise that she was chaste and virtuous; but, nevertheless, so artfully had she and her friends concealed her condition, that two months after the marriage she was delivered of a full-grown child, begotten by some other man. The complainant found himself in a condition as perplexing as that of another man whose wife was delivered of a child a week after their marriage. This latter went to a cabinet-maker and ordered a cradle, and told the mechanic that he might as well make him fifteen or twenty while he was about it, for his wife had a young one every week. In fact, —
"A seven months' babe had been a truer gift;
Upon these facts the court held that the want of chastity and the concealment avoided the consent, and constituted such a fraud as would warrant a court of equity in declaring the marriage void ab initio.
Connected with this subject are some cases that bring together the sad and the comical in curious juxtaposition. In the case of The Kiny v. The Inhabitants of Birmingham, 8 Barn. & Cress. 29, the marriage of a female pauper was brought about by fraud of the parish officers, for the purpose of changing her domicile to the parish in which the husband was settled. It was nevertheless held that the marriage was valid, and that it operated to give the wife a settlement in the husband's parish. Precisely the same device was resorted to in a case in Vermont. The wife was a pauper, and so, it would seem, was the husband. They were settled upon different towns. Some of the inhabitants of the town which had the support of the wife hired the husband for sixty dollars to enter into marriage with her, in order to get her off their hands. The fraud was consummated, the marriage duly solemnized, and the wife's domicile thereby changed to the husband's town. About three weeks afterwards the wife was deserted, and, as it would seem, turned out to starve. Upon her petition the marriage was declared a nullity. Barnes V. Wyethe, 28 Vt. .
In a case in Tennessee, a husband, before his death, devised his plantation and six slaves to his wife " during her natural life or widowhood," with remainder to his children. After the death of the husband the widow became involved in debt; judgments were recovered against her, and executions levied upon this plantation and these slaves. How to save to herself the use of this property was to her, no doubt, an all-important question; and, probably acting on the advice of some shrewd lawyer, she resorted to the experiment of entering into a marriage, in legal form and solemnity, with a drunken and degraded fellow, with whom, it seems, she never cohabited, and never expected to cohabit. This done, of course the property immediately vested in the children, and the creditor was defeated. The latter brought a bill in equity for the purpose of annulling the marriage, on the ground that it was entered into solely in order to defraud him out of the satisfaction of his judgment. But the Supreme Court held that such a bill could not be maintained. The opinion was written by Judge McKinney, and is a fine illustration of the terse, clear, and conclusive reasoning for which that jurist was distinguished. After showing quite conclusively that a court will not exercise its jurisdiction to annul a marriage on the ground of fraud at the suit of third parties, where the parties to the marriage contract do not complain, he puts the question involved in the particular case beyond doubt in the following sentences : "The interest of the defendant, Mary, was an estate upon condition, and her subsequent marriage with the other defendant was an absolute forfeiture of that estate as to herself, her creditors, and all other persons. This forfeiture she might incur at pleasure, — it depended solely upon her own volition and act, — and no power known to our law could have restrained her from doing so. It would be grossly paradoxical, then, to hold that a forfeiture lawfully incurred could be relieved against, or that a court of equity, though powerless to prevent the forfeiture by restraining the marriage, had nevertheless the jurisdiction to relieve against the consequences of such forfeiture." McKinney v. Clarke, 2 Swan, 321. The case of Castellar v. Simmons, determined about the same time in Tennessee, which has never been reported, but a copy of which the present writer has in his possession, presents the question in a still sadder aspect. The plaintiff recovered against the defendant a judgment of $1500 for a breach of promise of marriage. On the day after the summons was issued in the suit for the breach of promise, the defendant Simmons transferred his property to a third person, to avoid the payment of the judgment which might be obtained. After recovering her judgment, the plaintiff filed a bill in chancery to set aside this conveyance. Pending the chancery suit, the defendant Simmons proposed to marry the plaintiff, for the secret purpose of defeating her bill. The plaintiff was simple enough to consent. The ceremony was performed, and within ten minutes .thereafter Simmons eloped with a strumpet, and betook himself to parts unknown. When the wife discovered how wretchedly she had been deceived, she filed a bill in equity to annul the marriage; and the case coming before the Supreme Court, the same learned judge said :—
Has the Court of Chancery power to annul the marriage f In a case at Nashville (McKinney v. Clarke, supra), a creditor filed his bill to annul a marriage celebrated for the purpose of defrauding him of his debt. Relief in his case was refused. But here we are called upon by one of the parties to the marriage to grant relief against a fraud which the other party has, through the marriage, perpetrated upon her. In the opinion of a majority of the court we are compelled to announce that the marriage cannot be set aside on this ground. Misrepresentations as to station, property, and the like afford no ground of relief against a marriage. The fraud in this case consists in the secret intention of the party to desert the wife. The object was to secure a pecuniary benefit. If this were a ground of relief, the courts of chancery would be crowded with applications of this kind.
We are of opinion that the complainant is entitled to relief by divorce and alimony. But in the view we take, the sale, which would be void against a creditor (and such the plaintiff was until her marriage with the defendant Simmons), would be valid as against the party himself, and as against the wife by the subsequent marriage, who can only claim under him. In this attitude the plaintiff now finds herself. The only relief, then, against the property will be to reach the purchase-money so far as it remains unpaid. Though the answer states that the purchase-money is paid, there is much in the case to attack it indirectly, and Bo much suspicion against it that we will require the purchaser to show the payment by clear proof. Cause remanded for proof on this point. Costs accrued and to accrue to be paid by defendant.
Totten, J., dissented.
So much for this interesting question. Without doubt the books contain many other cases equally curious and equally irreconcilable. — Central Lave Journal.
The Legislature. Practice Act. — The legislature, during this session, has passed the following very important act:—
"An Act to amend some of the Rules of Practice in the Supreme Judicial and Superior Courts.
"Sect. 1. In the Supreme Judicial and Superior Courts a separate list shall be kept of cases to be tried by a jury; and no civil action shall be entered upon such list, unless some party shall, within such time after the parties are at issue as the court may, by general or special orders, direct, file a notice that he desires a trial by jury, provided that any cause now pending or hereafter to be instituted may be entered on said list at any time by order of the court for good cause shown. In actions pending and not on the list of cases for trial by jury at the time when this act takes effect, the notice may be filed within thirty days thereafter. Other civil actions shall be heard and determined by the court, and judgment entered as in case of verdict of a jury.
'' Sect. 2. Whenever any party shall allege exceptions to or appeal from any opinion, ruling, or direction of a judge of either of said courts in the course of any trial, with or without a jury, the judge may, whenever it would be just so to do, give leave to such party to enter the verdict or judgment, or to alter or modify the same, or to increase or reduce the damages, in such manner as the Supreme Judicial Court, sitting in banc, shall determine. In such cases the bill of exceptions or report, or, in case of appeal, the record, shall state the leave given; and the full court shall thereupon make such order, direction, judgment, or decree as is fit and proper for the further disposition of the case.
"Sect. 3. In all actions where the plaintiff seeks merely to recover a debt, or a liquidated demand in money, —payable by the defendant with or without interest, —if the defendant appears, the plaintiff may, on affidavit filed at any time within twenty days after the defendant's answer verifying the cause of action, and swearing that in his belief there is no defence, enter an order, calling on the defendant to show cause why judgment should not be given for the plaintiff, and he shall immediately give to the defendant notice in writing of such order; and unless the defendant, within seven days after such notice, or such further time as the court may for good cause allow, shall consent to a default and judgment for the sum demanded, or shall disclose by affidavit, or in such other manner as the court may order, such facts as shall constitute a defence, or such other facts as the court may think sufficient to entitle him to defend, the court shall enter and advance such actions for speedy trial. The court shall require the defendant to disclose specifically and clearly the substantive facts on which he relies, and shall not allow general or vague allegations or denials. Affidavits on behalf of a corporation may be sworn by some officer thereof." ,
This act is of interest as one of the many steps forward occasioned by the general dissatisfaction with the jury system, and with the power afforded by our courts to a slow debtor to postpone his creditor at six per cent for a year or more, by simply appearing in court and answering the general issue.
Admiralty. Parties. Joint Owners. — United States District Court. Joshua Richmond v. The New Bedford Copper Co. — This was a libel for damages brought by thirteen part owners of the bark Lancer against the defendants, who had contracted to repair, and who, it was alleged, had furnished unfit materials. Three part owners alleged that the libel was brought without their consent, and moved that their names should be stricken out therefrom. Judge Lowell has denied the motion, giving leave to apply to have the suit stayed until indemnity for costs was given, on the ground that, as courts of admiralty resemble courts of equity in their practice and modes of proceeding, the unwilling part-owners should not be allowed to prevent the prosecution of a claim for damages by the remaining owners in the name of the whole.
Bankruptcy. Union Pacific Railroad Co. — United States DisTrict Court. — The petitioner alleged that he was a creditor of the Union Pacific Railroad Company, a corporation created by an act of Congress, and having its domicile and usual place of business at Boston, in this district; that the petitioner was the owner of eight bonds of the company payable to bearer for one thousand dollars each, commonly known as income bonds, which were not secured by mortgage, and would be due on the first day of September next; that the defendant corporation was possessed of a railroad, and of certain lands, easements, and other property, subject to certain mortgages, and, being so possessed and being insolvent, did, on the eighteenth day of December last, make a transfer and assignment of said railroad and other property to the Union Trust Company of New York, to secure sixteen millions of bonds, which purported to be issued in discharge of and exchange for its