Notes of English Decisions. CARRIAGE OF GOODS.-A charter-party incorporated in a bill of lading provided (inter alia) as follows: "Freight payable one-third in cash on arrival, and the remaining two-thirds on right delivery of cargo, less value of cargo short delivered or damaged if any not covered by the preceding act of God clause, etc." The act of God clause contained the usual exceptions. The holders of the bill of lading and consignees of the cargo, which was one of deals, claimed to deduct from the freight the value of some of the cargo which was "delivered damaged." The damage was due to inherent vice, and not to any cause for which the ship owner was responsible. Held, that the consignees were liable to pay the whole of the freight, as the words "cargo damaged," meant damage due to causes for which the ship owner was responsible. SHIPPING. Under a bill of lading the plaintiff's shipped on board the defendants' steamer a quantity of explosives to be carried from London to Yokohama, and to be delivered at Yokohama, or “so near thereto as the vessel may safely get." The bill of lading contained the exception of "restraint of rulers, princes or people," and a clause that, "if the entering of or discharging in the port shall be considered by the master unsafe by reason of war or disturbances, the master may land the goods at the nearest safe and convenient port." The vessel, which had other goods on board belonging to other owners, arrived in the course of her voyage at Hong Kong, when war had been declared between China and Japan, and having explosives on board, which were admitted to be contraband of war, she was compelled to anchor and by a red flag, thereby announcing that she had explosives on board, a fact which was generally known. There were in the port several Chinese cruisers, and within sight were (Adm. Ct. Eyre, Evans & Co. v. Watsons; The two Chinese war vessels, and the master, in the Barcore; 75 L. T. Rep,, 168. JUSTICES JURISDICTION.- To justify a magistrate in granting a search warrant to search for stolen goods, the information before him need not allege that the goods have been actually stolen, but is sufficient if it can fairly be understood as alleging reasonable grounds for suspecting that the goods have been stolen; and such search warrant need not specify the goods for which the search is desired. (Q. B. Div. Jones v. German, 75 L. T. Rep. 161.) MARINE INSURANCE. The plaintiffs insured under a time policy on freight covering a total loss only, and containing the exception "Warranted free from any claim consequent on loss of time, whether arising from the perils of the sea or other wise." During the currency of this policy the plaintiff's vessel sailed under a voyage charter with goods on board, but on the day following her departure from the port of loading her main shaft was broken by perils of the sea insured against and she had to be towed back to the port of lading. The delay necessary for the repair of the vessel was such as to frustrate the object of the adventure, and the cargo was discharged at the port of loading, and the plaintiff's lost the whole freight. In an action by the plaintiffs (the assured) against the underwriters: Held, that, as the damage caused by a peril insured against was such as to frustrate the adventure, the claim was not a claim "consequent on loss of time" within the meaning of the exception, but was a claim consequent on the disabling of the vessel by a peril of the sea, and that the assured was therefore entitled to recover. (Q. B. Div. Bensaude et al. v. Thames & Mersey Marine Insurance Co. 75 L. T. Rep. 155.) well-founded belief that, if he proceeded with the explosives on board, the vessel would be stopped and the explosives confiscated, landed the explosives at Hong Kong and proceeded on his voyage to Yokohama, where he arrived safely. In an action by plaintiffs to recover the expenses of the storage and subsequent forwarding of their goods to Yokohama: Held, (1) that the well-founded fear of seizure was, under the circumstances, a "restraint of rulers or princes," within the meaning of the exception; (2) that, under the clause as to the entering of or discharging in the port of destination, the master was justified in landing the goods at Hong Kong, which, owing to the danger of continuing the voyage with the explosives on board, was "the nearest, safe and convenient port;" and (3) that, apart from the bill of lading, the action of the master in so landing the explosives at Hong Kong was a proper discharge of the general duty imposed on him to take reasonable care of the goods intrusted to him; and that upon each of these grounds the defendants were entitled to judgment. (Q. B. Div.: Nobel's Explosive Company, Limited, v. Jenkins & Co., 75 L. T. Rep. 163.) New Books and New Editions. JEWETT'S ELECTION MANUAL, 1896, by F. G. Jewett, Clerk to the Secretary of State. This is a complete compendium to date, for election officers and voters in New York State, of the general election law, town meeting law and the provisions relating to school meetings. The provisions of the Penal Code, General Laws and the Constitution of New York are also included, together with the requisite annotations, forms, instructions, and a complete index. Published by Matthew Bender, 511-513 Broadway, Albany, N. Y. The Albany Law Journal. ALBANY, OCTOBER 31, 1896. Current Topics. to prove the conclusion of the witness, his purpose, or the object of another person." It is clearly apparent that the words "For Protection" in the Seagrist memorandum must have been prejudicial to the defendant in the eyes of the jury. There are, however, two matters concerning the case which have been of particular and peculiar interest. In the first place it will be recalled what tremendous difficulty there was in In the second place the case would be almost barren of interest if it were not for the Rev. THE 'HE decision of the Court of Appeals in the case of Police Inspector McLaughlin of New York city fully justifies the action of the late Judge C. E. Pratt in granting a stay of pro- securing the jury which convicted McLaughlin Judge C. E. Pratt in granting a stay of pro-and the numerous charges and counter-charges ceedings on the ground that a fair and impar-which were made by one side or the other relatial trial could not be had in the county of New tive to the influencing or attempts to influence York. Judge Pratt was so often harshly It would seem crticised for staying execution in criminal certain witnesses and talesmen. cases pending appeal, that even now, after his apparent on the face of these facts, and others still more dangerous, that it would be far better death, we must feel a certain satisfaction in to have the trial take place in another county finding his course in the McLaughlin case so where so much prejudice does not exist. completely upheld by the court of last resort. The Court of Appeals also in its judgment continues the stay in force until the determination of the defendant's application for a change of venue. We have noted several times, after a careful study of the record in the McLaughlin case, our conviction that the judgment could not stand before the Court of Appeals of the State of New York, principally because of the introduction of the memorandum book kept by Seagrist, from whom the defendant was said to have accepted fifty dollars in money. The district attorney attempted to show that the extortion was practiced through the agency of one Sergeant Burns, and the trial judge admitted in evidence the entry made by Seagrist in the memorandum book in the following words: "November 21, 1891. Material. Paid to McLaughlin for protection by Sergeant Burns, ordinance officer, $50." In reference to this entry Seagrist testified that he did not remember whether he paid the money to the defendant or to Burns, but that he recollected paying it to one or the other. The Appellate Division upon the review of the judgment declared that the entry was competent evidence as to the date when the money was paid and to whom it was paid, as neither of these facts could be proved by the witnesses. The Court of Ap-court holds that one who has been induced to peals, however, differs from the Appellate Division and from the trial court, and holds that the evidence is clearly inadmissible. Judge Martin in his opinion says: "A memorandum made by a witness cannot be admitted VOL. 54 No. 18. Dr. Parkhurst. He has condemned the Court of Appeals, he has convicted McLaughlin, and has set himself up and established himself as the judge and jury not only of McLaughlin, but of the court of last resort and all the judges of the State. Truly he is a remarkable man. But only consider how fortunate McLaughlin is, for even the most impartial juror would neglect his sworn duty and bring in promptly. a judgment of "Not Guilty" if only Parkhurst would take the stand and testify that the defendant was guilty. At one time we hear of the Rev. Dr. Parkhurst dancing the "can can " in a place of peculiar character, and at another time he condemns the law and our courts with a flourish of his pen. Truly it is great to be versatile; at one time to be gay and merry and at another to be able to comprehend what one knows nothing of. The Court of Appeals have handed down their decision in the case of Kujek v. Goldman, which we have commented upon in these columns when it was previously decided by the General Term of the First Department. The enter into a marriage contract by the misrepresentations of another that a woman was virtuous and respectable, when in fact she was pregnant by the inducer of the marriage, may maintain an action against the person guilty of the misrepresentations for the damages thereby sustained, and that in such a case exemplary damages may be awarded. The court further holds that such an action is maintainable upon the ground of the loss of consortium, as well as that of pecuniary loss. Some of the facts in the case are necessary to be comprehended in order that the law laid down by the court in affirming the former judgment may be under stood. On these questions it is interesting to read the opinion of the court: In remote times, when actions were so carefully classified that a mistake in name was generally fatal to the case, a form of remedy was devised by the courts to cover new wrongs as they might occur so as to prevent a failure of justice. This was called an "action on the case," which was employed where the right to sue resulted from the peculiar circumstances of the case and for which the other forms of action gave no remedy (26 Am. and Eng. Encyc. of Law, 694). For instance, the action for enticing away a man's wife, now well established, was at first earnestly resisted upon the ground that no such action had ever been brought. In an early case the court answered this position by saying: "The first general objection is that there is no precedent as any such action as this, and that, therefore, it will not lie; and the objection is founded on Lit., sec. 108, and Co. Lit., 81, b., and several other books. But this general rule is not applicable to the present case; it would be if there had been no special action on the case before. A special action on the case was introduced for this reason, that the law will never suffer an injury and a damage without a remedy, but there must be new facts in every special action on the case." (Winsmore v. Greenback, Willes. 577, 580.) As was recently said by this court in an action then without precedent: "If the most that can be said is that the case is novel and is not brought plainly within the limits of some adjudged case, we think such fact not enough to call for a reversal of the judgment." (Piper v. Hoard, 107 N. Y. 73, 76.) It seems that the defendant in 1891, and prior to that time, Katie Kujek, then named Katie Moritz, was an unmarried woman employed as a domestic by the defendant Goldman, by whom she had become pregnant. Upon discovering this fact, the defendants, as it is alleged in the complaint, conspired to conceal her disgrace, and to induce the plaintiff to marry said Katie, and to that end represented to him that said Katie was a virtuous and respectable woman, and he, the plaintiff, believing the same, married her on the 17th day of January, 1891. The plaintiff, it is further alleged, would not have contracted the marriage if he had known the facts, and subsequently, owing to the pregnancy which has been referred to, the wife gave birth to a child, of which Goldman was the father. Goldman set up a general denial, and the other defendant did not answer, and no judgment was taken against her. The evidence tended to sustain the allegations of the plaintiff. The court holds that while no precedent is cited for such an action, it does not follow that there is no remedy for the wrong done. Every form of action, when brought for the first time, must have been without a precedent to support it. Courts sometimes of necessity abandon their The question, therefore, is not whether there search for precedent, and yet sustain a recovery is any precedent for the action, but whether the upon legal principles clearly applicable to the defendant inflicted such a wrong upon the new state of facts, although there was no direct plaintiff as resulted in lawful damages. The precedent for it, because there never had been defendant, by deceit, induced the plaintiff to occasion to make one. The opinion holds, as enter into a marriage contract whereby he aswe have before mentioned, that exemplary sumed certain obligations and became entitled damages may be awarded. We think that this to certain rights. Among the obligations ascomes dangerously near the "Texas Doctrine," sumed was the duty of supporting his wife in and though we think the decision is proper sickness and in health, and he discharged this that exemplary damages should be awarded in obligation by expending money to fit up rooms such a case, yet we call attention to the fact for housekeeping, in keeping house with his that there is a fine distinction. To us it appears wife and caring for her during confinement, that the loss of consortium and mental suffering when she bore a child not to him but to the do not differ greatly as a measure of damage. I defendant. Among the rights acquired was the right to his wife's services, companionship and society. By the fraudulent conduct of the defendant, he was not only compelled to expend money to support a woman whom he would not otherwise have married, but was also deprived of her services while she was in child-bed. He thus sustained actual damages to some extent, and as the wrong involved not only malice but moral turpitude also, in accordance with the analogies of the law upon the subject, the jury had the right to make the damages exemplary. By thus applying well settled principles upon which somewhat similar actions are founded, this action can be sustained, because there was a wrongful act in the fraud, that was followed by lawful damages in the loss of money and services. The fact that the corruption of the plaintiff's wife was before he married her does not affect the right of action, as the wrong done to him was not by her defilement, but by the representation of the defendant that she was pure when he knew that she was impure, in order to bring about the marriage. It is difficult to see why a fraud, which, if practiced with reference to a contract relating to property merely, would support an action, should not be given the same effect when it involves a contract affecting not only property rights, but also the most sacred relation of life. Fraudulent representations with reference to the amount of property belonging to either party to a proposed marriage, made by a third person for the purpose of bringing about the marriage, are held to constitute an actionable wrong and the usual remedy is to require the person guilty of the fraud to make his representations good. (Piper v. Hoard, supra; Montifiori v. Montifiori, 1 Wm. Blackstone, 363; Atherly on Marriage Settlements, 484.) In such cases the injury is more tangible and the measure of damages more readily applied than in the case before us, but both rest upon the principle that he who by falsehood and fraud induces a man to marry a woman, is guilty of a wrong that may be remedied by an action, the amount of damages to be recovered depending upon the circumstances of the particular case. We have thus far considered the right of action as resting upon some pecuniary loss, which although trifling in amount, may be recovered as a matter of right, leaving it to the jury in their sound discretion, as in the case for the seduction of a child or servant, to amplify the damages by way of punishment and example. We think, however, that the action can be maintained upon a broader and more satisfactory ground, and that is the loss of consortium or the right of the husband to the conjugal fellowship and society of his wife. The loss of consortium through the misconduct of a third person has long been held an actionable injury, without proof of any pecuniary loss. (Bennett v. Bennett, 116 N. Y. 584; Hutcheson v. Peck, 5 Johns. 196; Hermance v. James, 32 How. 142.) As has been well said by a recent writer: "To entice away or corrupt the mind and affection of one's consort is a civil wrong, for which the offender is liable to the injured husband or wife. The gist of the action is not in the loss of assistance, but the loss of consortium of the wife or husband, under which term are usually included the person's affection, society or aid." (Bigelow on Torts, 153.) The damages are caused by the wrongful deprivation of that to which the husband or wife is entitled by virtue of the marriage contract. They rest upon the loss of a right which the marriage relation gives and of which it is an essential feature. Whether that right is wrongfully taken away after it is acquired, or the person entitled to it is wrongfully prevented from acquiring it, does not change the effect or lessen. the injury. While the plaintiff has not been actually deprived of the society of his wife, he has been deprived of that which made her society of any value, the same as if she had been seduced after marriage. Although the formal right to consortium may remain, the substance has been taken away. In other words, when he entered into the marriage relation he was entitled to the company of a virtuous woman, yet through the fraud of the defendant that right never came to him. He has never enjoyed the chief benefit springing from the contract of marriage, which is the comfort, founded upon affection and respect, derived from conjugal society. If the defendant had deprived the plaintiff of his right to consortium after marriage, the law would have afforded a remedy by the award of damages. Yet the plaintiff, through the fault of the defendant, has suffered a loss of the same nature and to the same extent, except that instead of losing what he once had, he has been prevented son, I Brown's Ch. Cas. 543; Scott v. Scott, 1 Cox, 378.) These cases, as well as the more important case of Piper v. Hoard (supra), rest upon the principle that fraudulent representations as to the pecuniary condition of one party to a proposed marriage, made by a third person to the other party thereto, in order to promote the marriage, are actionable and authorize the recovery of such damages as may be proved. In this case we have a representation that did not relate to property directly, although it involved rights in the nature of property, but did relate to character, and so vitally that its falsity was destructive of all happiness belonging to the plaintiff by virtue of his marriage. The injury was not merely sentimental, for, as has been shown, it extended to a right which the law recognizes as of pecuniary value, and for the wrongful destruction of which it awards damages. from getting it when he was entitled to it. This is a difference in form only, and is without a substantial foundation. The injury, although effected by fraud before marriage, instead of by seduction after marriage, was the same, and why should not the remedy be the same? While the method of inflicting the injury is not the same, as it is tortious in character, has substantially the same effect, and causes damages of the same nature and to the same extent, why should damages be recovered in the one case if not in the other? Where false representations are willfully made as to a material fact for the purpose of inducing another to act upon them, and he does so act to his injury, he may recover such damages as proximately result from the deception. The representations in this case, as the jury has found, were made to promote the marriage, and they were false, as the defendant well knew. They were clearly material. The plaintiff acted upon them, and was thereby injured, for he made a contract entitling him to certain rights, which he has not received, and which the defendant knew he could never receive. Here are all the elements of a good cause of action founded upon fraud resulting in damage. The contract induced by the fraud was of a peculiar nature, but it was in law simply a contract, conferring certain rights, and imposing certain obligations. While it is not agreeable to treat a subject of sacred importance upon this narrow basis, it is necessary to do so, for our law considers marriage in no other light than as a civil contract. If the defendant had induced the plaintiff to enter into any other contract by making false statements of fact, which, if true, would have made the contract more valuable, he would have been liable for all the damages that naturally resulted. If he had induced the very marriage contract under consideration by representing to the plaintiff that he owed his proposed wife a certain sum of money, according to the common law, which entitles the husband to the personal property of his wife, he The ex-speaker ranked well as a sagacious could have been compelled to make his man of affairs and parliamentarian. While at representations good by the payment of that all times earnest and sincere, and courageous sum. (Montifiori v. Montifiori, supra; Redman beyond question, he never grew unduly exv. Redman, 1 Vern. 348; Neville v. Wilkin- | cited, and never lost command of himself. Hon. Charles F. Crisp, one of the most distinguished statesmen of the country and a leader of his party in the State of Georgia, died on October 23, 1896, at Atlanta, Ga. He was born in Sheffield, England, in 1843, and was a descendant of the Crisp theatrical family, the father having been William F. Crisp, a wellknown actor. His parents came to America when he was a young child, and he grew up until the age of sixteen, when he entered the Confederate army, and became a lieutenant in the Virginia brigade. At the close of the war he read law, and was admitted to practice at Elleville, where he remained for six years; at the end of that time he received the appointment of solicitor-general to the southwestern judicial district. In 1878 he located permanently at Americus, and four years afterwards became judge of the Superior Court. After he had served five years he resigned and accepted a nomination for congress. He entered the house of representatives at the beginning of the session of 1883, and served for eight years. It was principally as congressman that he attracted attention throughout the country. |