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is entitled to recover the consequential damages of the attachment to his bus-
iness, credit and reputation, together with the counsel fees and expenses inci-
dent to the defense of the attachment suit. 1870. Lawrence v. Hagerman
(56 m. 68), Vin. 674.

MANDAMUS.

1« Title to office. Mandamus does not lie to try and determine the title to
an office ; but where the relator held the proper certificate of his election to
an office and had duly qualified, but had been refused possession by the former
officer, whose term had expired, on the ground that he was not legally elected ;
hM, that mandamus would lie to compel the former officer to deliver posses-
sion. 1870. .»a<ev.i9A<fnMXKf(15Minn.221),n, 116.

% To gorernor of State. A court has jurisdiction to compel the governor
of the State to cause a bill which has become a law by reason of his failure to
return it with his objections to the legislature within the prescribed time, to
be authenticated as a sUtute. 1870. ^arptfTuftn^ v. J7at^A^89 Cal. 189), II. 482.

3. A mandamus will not be issued to compel the governor of a State to

perform an act required by law to be done by him ; e. ^. to execute and deliver
bonds as directed by an act of the legislature. 1870. 8t(Ue v. Warmoth (22
La. An. 1), U, 712.

^ A writ of mandamus is not issuable from the Supreme Court to the

governor of the State, to direct him, as commander-in-chief, to perform a duty
which is properly within the sphere of his duties as commander-in-chief^
though the same is imposed upon him by a statute of the State. 1865. Mau»
ran v. anUth (8 R. L 192), V, 564, and note, 572.



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236 MANDAMUS — MARRIAGE.

6. In case of a private oorporaftioii, a mandamas xnaj issae on ita petiti(»i
against persons claiming to hold its offloee. 1869. American BaUway Frog
Go. ▼. Hanmi (101 Mass. 898), III, 877.

6. To board of canvassers. The board of canvassers of general elections
in Florida met to perform the duties of their office on the day appointed bj
law, but were restrained from acting by an injunction. Returns from all the
counties had not at that time been received. The board again met pursuant
to adjournment, and proceeded to certify and declare the result of the election,
as the same appeared from the returns received at the time of their first meet-
ing, notwithstanding that returns from all the counties had been received
before the completion of the canvass. The board then adjourned Hne die.
Held, that the supreme court has power to issue a writ of mandamus, requir-
ing the board to re-assemble and make a complete canvass of all the returns
in their possession. 1871. Florida v. Oihbe (18 Fla. 55), VII, 888.

7. A mandamus will lie compelling trustees to admit colored persons to
the public schools, where separate schools are not provided for such persons.
1872. 8UUe v. Duffy (7 Nev. 843), VIII, 718.

See Carribk; Removal of Cause; Troyeb.
MANSLAUOHTER- S8« Crdcikal Law.
MARITIME LAW— iS^ Ship and SHiPPiNa.
MARINE INSURANCE— ^INBUBANCOB.

MARRUGE.
L Contract of marriaob.

1. Generally.

2. Action for breach of.

U. RlOHTS AND LIABILITIES OF HX78BAND.

III. Rights and liabilities of wife.

IV. Contracts and conybtancbs.
V. Divorce.

VI. Dower,

I. Contract OF MARRIAGE.
1. Generally.

1. A marriage between slaves, void at the time, is made valid by ratification
of the parties after thej become free, and their children have heritable blood,
1872. Jones v. Jones (86 Md. 447), XI, 505.

2. Marriages between whites and blacks. By a law of Indiana, intermar-
riage between white persons and negroes is made a felony. Upon a prose-
cution for violation of this law, held, that the regulation of the marriage con-
tract is under the control of the State governments, and that the statute in
question was not abrogated by the act of congress known as the dvil rights
bill, or by the fourteenth amendment of the Federal constitution. 1871. Statd
V. Gibson (86 Ind. 889), X, 42.



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MAEEIAGE. 237

3. Special act duolaring panoni mMrxUd ia unoonatitatloiial. When, by
general statutes, the gailtj divorced party is prohibited from marrying %gain
without leave of court, and he marries again without such leave, believing he
has a right so to do, the subsequent marriage is invalid. A special act of the
legislature declaring the two persons so married " to be husband and wife to
all legal intent and purposes/' is unconstitutional. 1870. WTiiU v. White (105
Mass. 825), VII, 520, and note, 528.

^ A wife is not a '^reUtton'' within the meaning of a statute which pro-
vides that *' where a devise of real or personal estate is made to a child or other
relation of the testator, and the devisee dies before the testator, leaving issue
who survive the testator, such issue shall take the estate so devised in the same
manner as the devisee would have done had he survived the testator." 1869.
Btty V. Clark (101 Mass. 86), UI, 820.

6. Tha daCspdant, as bailaa^ held property of plaintiff's under instniotions
not to deliver it to any one without plaintiff's written order. Defendant
delivered the property to plaintiff's wife upon an order which proved to be a
forgery. Beld, that the defendant was liable for the value of the property,
notwithstanding the fact that the defendant could maintain an action against
both the husband and wife for the wrongful act of the latter. 1872. Rowing
V. Manley (49 N. Y. 192), X, 846.

6. Tastimony of husband ^d wfib^ The testimony of a husband which
may tend to criminate his wife, or the testimony of a wife which may tend to
criminate her husband, is admissible in a collateral proceeding, provided that
no use can afterward accrue therefrom in any direct proceeding against either
of them. But a husband or wife objecting to give such testimony will be
entitled to the protection of the court. 1869. 8taU v. Bngge (9 R. I. 861), XI»
270.

7. When husband and wife are by statute excluded as witnesses " for

or against each other," in an action against them for slanderous words spoken
by the wife, she is a competent witness in her own behalf, and he is a compe-
tent witness in his own behalf. 1870. Moutler v. Harding (88 Ind. 176),
V, 195.

2. Aeti<mforbreaeh of.

8. When right of action aoomea. The plaintiff and defendant entered int^
a contract to marry " in the fall." In October the defendant expressly refused
to marry the plaintiff at any time. Held, that an action for breach of the con-
tract commenced on the 25th of October, was not prematurely brought. 1870.
J^urtie V. Thompmm (42 N. T. 246), 1. 516.

9. One who contracts to marry at a future day, and, before thai day

arrives, refuses to perform the contract at any time, is instantly liable to an
action for breach of promise to marry. 1871. HoUoway v. Oriffith (82 Iowa,
409). VII, 208. and note, 218.

10. A oontraot by a married man with a single woman to marry her, if
entered into by her in ignorance of his condition, is valid on her part, and she
may maintain an action for a breach thereof. But if, after learning his condi-



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238 MARRIAGR

CioD, she freelj, and uninfluencea bj fraudalent representationB, oonsents to
the oontinaanoe of the oontract, the jury may eonsider that fact in mitlgati<m
of damages. 1870. Caver ▼. Davenport (1 Heiskell, 868), II, 706.

11. In an action by a woman for breach of a promise of marriage, held,

that the action could be maintained although the defendant was married at
the time of the promise, if the plaintiff was ignorant thereof. 1871. Keil^
V. Silejf (106 Mass. 889), VIII, 886.

12. ZMdsnoe. In an action for breach of an oral contract of marriage, it
appeared that plaintiff had been in possession of all the correspondence between
the parties, and had destroyed or refused to produce a portion of it. HM, (1)
that plaintiff might, notwithstanding, give, in evidence, any letters of defendant
containing' admissions of the existence of the contract, and of its breach by
him, and (2) that plaintiff might give in evidence a letter replying to one which
was destroyed or not prodaoed. 1870. Stone v. Sanborn (104 Mass. 819), VI^
288.

13. Damages. When the defendant, in an action for a breach of promise to
marry, attempts to justify his breach by alleging in his answer, as the cause
of his desertion, that plaintiff has had criminal intercourse with various per-
sons, and fails to prove the allegation, the jury have the right to take this dr-
cumstance inio consideration in aggravation of the damages to which the plain-
tiff may be entitled. 1870. Thorn v. Knapp (43 N. Y. 474), I, 561.

14. Where there is evidence, in an action for breach of promise of

marriage, sufficient to establish tjie promise, the breach thereof, and the seduc-
tion of the plaintiff by the defendant subsequent to the promise, and also evi-
dence tending to show that the seduction was procured by means of the prom-
ise to marry, the jury may consider the fact of the seduction as an aggrava-
tion of damages. 1870. Sauer v. SehtUenberg (88 Md. 288), III, 174.

16. In an action for breach of promise of marriage, evidence that

plaintiff was seduced by defendant under promise of marriage, is admissible in
aggravation of damages. 1871. KeUy v. HUey (106 Mass. 889), VIII, 886.

16. In an action for damages for breach of promise to marry, evidence

that, since the commencement of the action, the plaintiff has made declarations
to the effect that she had no affection for defendant, and would not think of
marrying him but for his property, is not admissible on the part of the defend-
ant in mitigation of damages. 1872. Miller v. Haj/s (84 Iowa, 496), XI, 154.

IL Bights and liabilities of husband.

17. Ijiability of husband for wife's debts. A married woman, engaged in
business on her own account, purchased goods on credit, to be used in that
business, the husband having no connection with the business, nor in any way
participating in the profits therefrom. In an action against the husband for
the value of the goods, Jield^ that, in the absence of proof that the husband had
assented to his wife's conducting the business, he was not liable for the debt.
1870. Tuttle V. ffoag (46 Mo. 88), H, 481.



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MARRIAGE. 239

18. — G. married M., a female guardian, who continued to exercise her
guardianship after the marriage. Subsequentlj she obtained a divorce a vin-
culo, HM, that he was not relieved bj the divorce from liability for her debts
under the guardianship contracted before and during coverture. 1870.
Alien V. MeCuOough (2 Heisk. 174). y,37.

19. For fees of wifis*8 attorney. Plaintiff, who had been attorney for defend-
ant's wife, in a suit brought against her for divorce on the ground of adulterj,
and which was ''dismissed without prejudice/' brought an action against her
husband for professional services. HM, that he was not entitled to recover.

1870. Bay v. Addm (50 N. H. 82). IX,. 175.

20. A husband prosecuted, unsuccessfully, his wife, to compel her to

find sureties to keep the i>eace. HM, that he was liable as for necessaries*
for the fees of the attorneys employed by her to defend such prosecution.

1871. Warner v. Heiden (28 Wis. 517), IX, 515.

21. A man has no right to beat or strike his wife even if she is drunk
or insolent, and If he do so, and she die from such beating, he will be
guilty of manslaughter, at least. 1871. OomiriMnweaUh v. McAfee (108 Mass.
458), XT, 888.

m. Rights ahd liabilitibs of wifb.

22. A nuunied woman may sue in her own name under the statutes of
New York, for injuries to her paraphernalia given to her by her husband.

1872. Bcnimn v. The Penmyhania RaUroad Co. (48 N. Y. 212), VHI, 548.

23. A married woman may maintain an action in her own name, for per-
sonal injuries, under a statute providing that " all property * * which
any married woman, during coverture, acquires * * shall be and remain
her sole and separate property " on the ground that such a right of action
is her ** separate property ;" but if the action is commenced by the husband
and wife jointly, an agreement made by him, with her consent, to withdraw
the suit, for a spedfied sum, will be binding on her and bar a subsequent
separate action by her. 1889. Chicago, Burlington^ ete., R. B. Co, v. Dunn
(52 m. 260), IV, 606.

24. A Judgment in £RVor of a wife against her husband, rendered by default
in a court of law, is valid. 1870. Simmons v. Thomas (48 Miss. 81), V, 470.

26. Judgment against, on promissory notew In an action against a married
woman upon a promissory note indorsed by her and made a charge upon her
separate estate, an ordinary pecuniary judgment, as upon a personal contract,
is proper. 1870. Corn Exchange Ins. Co, v. Babeoek (42 N. Y. 618), 1, 601.

26. Iilmit of recovery. A married woman, in an action to recover damages
for personal injuries, caused by the wrongful act of another, can only recover
for the direct injury, unless she is engaged in carrying on business, trade or
labor, upon her sole and separate account, in pursuance of a statute permitting
litr so to do. 1872. Filer v. N. T, C R. B, Co. (49 N. Y. 47), X, 827.

27. Power as to separate estate. A feme covert Is absolutely a feme sole
with respect to her separate estate, whe^she is not specially restrained by the
instrument under which she acts, to some particular mode of disposition ; and*



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240 MARRIAGE.

although a particular mode of disposition ia pointed out, it will not prednde
her from adopting anj other modfk of disposition, unless there are words
restraining her power of disposition to the very mode pointed out. 1870i. Kimm
V. Weippert (46 Mo. 532), II, 541.

28. A married woman may charge her separate estate to the extent that

the liabilities may be incurred for the benefit of such estate, or for her owu
benefit, upon the faith of her separate property. Such power is incident t4>
the unqualified ownership of property, and is only limited by the terms of the
instrument creating the estate, or by implication arising therefrom. 1870.
Phillips V. Grate* (22 Ohio St. 371), V. 675, and note, 686.

29. TiiaWtity for goods poxohas^d by her. Where a married woman pur-
chases goods tor herself in her own name and on her own credit, the law will
presume that she intends to charge her separate estate, although the goods
may be necessaries which the husband is bound to furnish, and although the
agreement is yerbal 1871. ifi/^ v. .B>^nf n (47 Mo. 504), IV, 845.

30. Promissory- note — when ^lazga on s^Morat^ estateb Where a married
woman, possessed of separate real estate, indorsed notes as surety for her
husband, without consideration and without benefit to her separate estate,,
which indorsement purported, in terms, to charge her separate estate with
payment, — Held, (1) that such indorsement was a sufficient charge upon her
separate estate; (2) that an action on such indorsements, the complaint in
which sets forth, in addition to the ordinary allegations, the coveture of the
defendant, a separate estate in her, and her intent to charge such estate, is
maintainable ; (8) in order to make the indorsemenl of a married woman a
charge upon her separate esttate, all that Is necessary is her declaration in the
contract of indorsement or instrument creating the charge of her intent so to>
charge her separate estate. The charge need not be in such form as to create
a specific lien. 1870. The Com Exchange ln$, Oo, ▼. Bdbeock (42 N. Y. 618), 1, 601.

31. A married woman, having separate property, joined with her hus-
band in a note for the purchase price of real estate purchased by the husband.
To secure the payment thereof a deed of trust of the same real estate was exe-
cuted by both husband and wife. Default being made in the payment, the
land was sold, and suit brought to make good the deficiency out of the wife's
separate estate. Heldy that the note was not a charge on the wife's estate. 1870.
Kimm v. Weippert ^46 Mo. 582), II, 541.

32. A corporation of Louisiana, authorized by its charter to lend money

to the "agricultural interest, on notes and mortgages," and to make such con-
tracts with married women, and to enforce the same against their property,
brought an action on such a contract made in that State, against a married
woman in another State, where she lived, and by the laws of which she was
not personally liable on her contracts. Heldf that the action could not be
maintained. 1872. Bank v. WiUiame (46 Miss. 618), XII, 819.

33. A married woman gave a promissory note in payment of her husband's

debts, without, in terms, making it a charge upon lier separate estate. Held,
that an action could be maintained against her on said note and her separate.



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MARRIAGE. 241

estate applied in payment of the same. 1871. Ds&ring ▼. Beyle (8 Kans. 686),
XII, 48a

3^ Bvftdanoe of intent to ^iazg«a^>arat« eitata. A married woman haying
separate estate, joined with her husband in a note for the purchase price of
real estate purchased bj the husband. HMt that parol evidence was not
admissible to prove the intent of the wife to charge her separate estate. 1870.
Kifwn y. Weippert (46 Mo. 683), U, 641.

36. The intention of a married woman to charge her separate esute. at

the time Iter liability was incurred, may be either expressed or implied. Such
intention may be implied from the fact that she executed a note, bond or other
obligation for the indebtedness ; and courts of equity will enforce the payment
of such obligation against her separate estate, first, by subjecting her personal
property ; second, by sequestering the rents and profits of the realty, and, third,
by sale of the realty when the same is necessary. 1870. PhiUipi y. Oravei (23
Ohio St. 371), V, 676.

36. Promise aftsr termination of oorartnre. In an action on a bill of
exchange, accepted by a married woman in payment for property purchased
by her, the defendant pleaded coverture at the date of the acceptance ; replica-
tion tliat defendant, after her husband's death, promised to pay the bill. Held,
that the replication was bad ; the acceptance being void when made, there was
no consideration for the subsequent promise. 1872. Porterfleld y. Butler (47
Miss. 166), XII, 829.

37. A wife's authority in business matters Is special and limited, and when
she exceeds that authority her husband Is not bound. 1870. Ooodrieh y.
Traey (48 Vt 814), V, 281.

38. Where a married woman insnrMi her realty which she acquired before
coverture, the exi8t«*nce of the marriage relation need not be stated in the
application for a policy of insurance, which requires a statement of the inter-
est of assured when it is '* not an absolute ownership." Her estate continues
to be absolute after marriage, although the husband is entitled to a joint
occupancy and a contingency by courtesy. 1869. Cknnmereial Ine, Co, v. Spahh-
nebU (62 Dl. 68), IV, 682.

39. Bquitable estate — astoppeL Real estate, intended for the wife, was
conveyed to the husband, the wife paying part of the consideration, ffeld,
that an equitable estate pro tarUo vested in the wife ; and tliat she was not
estopped from asserting her estate against one seeking to subject it to the
execution of a judgment on a loan made to her husband after the conveyance^
on his personal credit, the loan not being induced or influenced by her oonducL
1871. MeChvem v,Enox (21 Ohio St. 647), VIII, 80.

40. liability for acts oommittad in husband's prasenoe. On the trial of an
indictment against a wife for selling intoxicating liquors, the judge was
requested to charge the jury ** that if any of the sales were made by the wife-
in the presence of her husband, she would be presumed to act under the
coercion, compulsion or direction of her husband, and would not be liable for
such sales." The request was refused. ffeld,eoTnct. 1871. State y.CleacfS
(5« Me. 298). VHI, 422.

31



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242 MABRIAGK

41. The presumptioii of law that the wife oommitted an offenae hj the

coercion of the husband, when he was present, is very slight, and maj be
rebutted bj slight circumstances ; and while the first portion of the request
was legally correct, the conclusion contained in the last clause that she " would
not be liable for sach sales " was incorrect. Jb,

42. Ijiability for gooda oo n v e g t ed by her. Where goods are stolen from a
shop and sold, by the thief, to a wife, in the absence of her husband, and the
wife converted them to her personal use as articles of dress, hM, that she, as
well as the husband, was liable for the goods. 1869. Heckle v. Lurveif
(101 Mass. 844), III, 866.

43. Wttnesa to wilL A wife is not a competent witness to a will containing
a devise to her husband. 1871. SulUean v. SuUioan (106 Mass. 474). VUI, 856.

4^ Ante-nuptial contract with minor. Where nothing appears on the face
of an ante-nuptial contract necessarily prejudicial to the minor wife, it is
voidable only, and, if not disaffirmed by her when she has the capacity so
to do, will be binding on her. 1870. WUder'e Sueeemum (22 La. An. 219),
n,721.

46. To ascertain whether such a contract is for the benefitjof the minor

so as to determine whether it is void or voidable, the lex loci eontraetus alone
must be considered. lb,

46. An ante-nuptial contract was made in the State of Missiaeippi by a

female minor with her intended husband. The contract was to be carried out
in Louisiana, where the husband and wife resided after marriage. Held, that
the capacity of the parties, as well as the form of the contract must be gov-
erned by the laws of Mississippi, while its effect must be governed by those of
Louisiana. lb.

47. Post-nnptial oontraot. Where there is a marriage between parties in a
foreign country, and a post-nuptial contract entered into respecting their prop-
erty, which contract applies in terms or intent only to present property, and
there is a change of domicile, the law of the actual domicile will govern the
rights of the parties as to all future acquisitions. 1869. Fuu v. Fuse (24 Wis.
256), 1, 180.

IV. Ck)NTRACT8 AND CONYBTANCBS.

48. Conwyanoe of lands to husband and wifa. Where land is conveyed
to husband and wife each takes an entirety, notwithstanding a statute provide
ing that all conveyances of land made to two or more persons shall be con-
strued to create estates in common and not in joint tenancy. 1868. Heminfftpo^
V. Scales (42 Miss. 1), II, 586.

49. An •zaootory oontraot made by the husband and wife in the statutory
mode, for the sale of the wife's separate property, is valid and binding upon
her, and may be enforced by a decree of specific performance. 1871. £f09e v.

Watkine (40 Cal. 547), VI. 624.

60. Deed from husband to wife — oonsideration. The duty of a mainte-
nance which the husband owes the wife is sufficient consideration for a voluntary



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MABRIAGK 243

deed of land made hy him to her ; and a ooort of eqaltj will sostain sach a
conveyance, though void at law. 1870. Hunt v. JohnMn (44 N. Y. 27), IV, 681.

61. — ' A married man executed and delivered a deed of real estate directly
to his wife, without the intervention of trustees, for a nominal consideration,
and it appeared that the rights of creditors were not interfered with by the
conveyance in question. HM, that the deed, though void at law, would be
suHtained in equity. 1871. i8i^m« v. .filfeA^ (85 Ind. 181), IX, 679.

62. 8al« by husband to wifs — daliTory. A husband, for a good consider-
ation, conveyed cattle to his wife by an absolute bill of sale, which he delivered
to her. The cattle were at the time upon the husband's farm, where both he
and the wife resided. No other delivery of the cattle was made and they
remained and were used upon the farm as before. The cattle having after-
ward been attached on a writ against the husband, held, in replevin by the
wife, that there was no sufficient delivery of the cattle from the husband to
the wife. 1872. McKee v. Oarcehn (60 Me. 166), XI, 200.

63. A mMiftoiioiui ooniidMratioii is not sufficient, in equity, to sustain a
promissory note given by a husband to his wife, as against his collateral heirs.
1878. WhUaker v. WhUak&r (62 N. T. 868). XI, 711.

V. DlYOBCB.

64. Fomm — Jozlsdiotion. It is settled, that the ii^ured party in the mar-
riage relation must seek redress in the fomm of the defendant, unless such
defendant has removed from what was before the common domicile of both.
1869. Bldsr v. Red (62 Penn. St. 808), I, 414

66. When a court has no jurisdiction, notice, or even process duly served



Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 31 of 51)