[Decided March 20, 1883.]

CONTRACT PAYABLE IN GOLD COIN-USURY.- A contract payable in gold or silver coin must be paid in such coin or its equivalent in notes. Dutton v. Pailard. 2 P. F. Smith, 109; Bronson v. Rhoads, 7 Wall. 229; Trebilcock v. Wilson, 12 id. 687; The Vaughan, 14 id. 258. Were the law otherwise, neither the government, the banks nor the people, could procure coin for their respective needs if it was selling at a premium, and such a payment is not usurious. Issett v. Caldwell. Opinion by Paxson, J. [Decided Oct. 2, 1882.]

LEASE - HOLDING OVER-IMPLIED CONTRACT.-If a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under which the tenant previously held. If that was a tenancy by the month, it will presumptively so continue. The landlord cannot impose a longer term, nor one radically different from the former. If the lessee enters as a tenant by the year, and holds over, it is optional with the landlord either to treat him as a tenant from year to year or as a trespasser. Hemphill v. Flin, 2 Bar, 144. It is true, for some purposes the lessee for any certain time less than a year is recognized as a tenant for years; 2 Bl. Com. 140; Shaffer v. Sutton, 5 Binn. 228. Hollis v. Burns. Opinion by Mercur, J. [Decided Oct. 2, 1882.]

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PARENT AND CHILD-NO IMPLIED CONTRACT BETWEEN, AS TO SERVICES OR SUPPORT. - Ordinarily parents and children do not expect to pay or receive payment for acts of kindness to each other, nor do other members of a family. For services rendered by members of a family to each other no promise is implied for remuneration, because they are not performed in the expectation, by either party, that pecuniary

compensation would be made or demanded. No action can be maintained for such services in the absence of an express contract or engagement to pay for them. Updike v. Titus, 2 Beasly, 151; Smith v. Milligan, 43 Penn. St., 107; Butler v. Slam, 50 id. 456; Douglass' Appeal, 82 id. 169. Frequently it has been said that "relationship, either by consanguinity or affinity, is a fact which tends to rebut the presumption which the law raises, that a promise to pay is intended when personal services are rendered." But alone it does not overcome that presumption, except in the case of parent and child. In all other cases there must be evidence beyond relationship that the creation of no debt was intended. The nearer the relationship the less expectation of payment and greater strictness of proof to overcome the presumption. And where the parties are members of the same family the relationship excludes the implication of a promise. An instance of such exclusion is Duffey v. Duffey, 44 Peun. St., 399. Between parent and child the rule is, that there can be no recovery for services, boarding or the like, in the absence of an express contract to pay therefor. The degree of proof to establish it cannot be the same in all cases. Nor is a contract for the payment of money for services or goods, subject to the same rules respecting its proof as are applied to oral contracts for the conveyance or devise of land by a father to his son, as was the case in Harris v. Richey, 56 Penn. St., 395. When a son continues in his father's family and service after his majority, as before, he cannot recover wages, unless there be direct, clear and positive proof of an express contract. But there it has been held essential that a witness was present with the parties face to face and heard their bargain. However, the circumstances require much stronger proof to establish a contract than when the son had left his father's home, had done business for himself for years, and the father requested his return, care and services. In one case the circumstances are opposed to the idea of a contract, in the other they are corroborative of the father's declarations to third persons that the promised his son to pay him. The question always is, whether the parties contemplated payment and dealt with each other as debtor and creditor. A sou who takes his decrepit parents into his house and supports them is presumed to do so from the promptings of natural affection; no contract is implied. But if the father, before they go, and afterward, repeatedly declares that he was to pay for their board, such declarations are evidence, and with the circumstances may be so direct and strong as to compel belief that he expressly agreed to pay for it. Loose declaratious made to the son or others will not That which may be only the expression of an intention to compensate is not evidence of an agreement to compensate. If he intended to pay, and often said so to others, he was not bound. It must appear that he purposed to assume a legal obligation, capable of being enforced against him. A mother made a visit to her son in a distant State, remained some months and died there. She said that she intended to pay what was right for her boarding. It was held that "there is nothing like evidence of a contract in that." Lynn v. Lynn, 29 Penn. St., 369. Miller's Appeal. Opinion by Trunkey, J. [Decided Oct. 2, 1882.]

answer.

found, only intended to collect the cases in our own State, decided since the act of 1879. "Simply that and nothing more," and because the court had in every case failed to consider an authority which to us seemed "decisive," we ventured to call attention to the fact, that Hamilton v. Van Rensselaer had been overlooked. Three months have passed and goue, and now the news comes from "Aurora" that we are "clearly misled" as to the effect both of that case and also the one in 44 N. Y.

In reply, we would say that "S." "misleads" when he quotes as the language of the Court, words taken from the mouth of counsel and which the court effectively answers. Being an earnest seeker after that which will give "light" unto our legal understanding, and welcoming it from whatever source it comes, we have again consulted the case, to find wherein we were "misled," and what was really decided therein, and the result is, that our first impressions are strengthened, and we are still of the opinion that it decides the point at issue, in principle, and in favor of the statutory rate after maturity.

In Hamilton v. Van Rensselaer the sole question was as to the liability of the guarantor to pay the interest (as interest) which had accrued since maturity. There were two grounds upon which it might be held that he was not so liable:

1. Being a guarantor he had "a right to insist that his liability should not be extended beyond its precise terms." (p. 245).

But the court preferred to place its decision on the (2) broad ground, "that by the plain and ordinary meaning of the language used in the contract" the interest accruing after maturity, by whatever name it might be called, was not in the contemplation of the parties at the time, and was not the interest specified and provided for in the defendant's contract," and therefore it could not be recovered by virtue of the contract. See opinion, p. 247.

Now of course the case did not decide, whether interest after maturity shonld be given at the contract or statutory rate; nor was it necessary so to do; the question was not in the case, but it does decide, that where a party had agree to pay a certain sum, with interest at a given time, the interest accruing after maturity, "is not in the contemplation of the parties:" That question was in the case and it was the only one. Will not the rule of interpretation as thus laid down be applicable to the usual contract for the payment of principal and interest in any case that may be brought to the court of last resort?

And should a case involving the question be taken to the Court of Appeals, we maintain that Hamilton v. Van Rensselaer is an authority for the position that by the contract no interest after maturity is recoverable at all, and if that be so, what need to consider what the rate shall be?

Let us now consider the authorities cited by "S." to uphold the contract rate.

But two of them sustain it fairly. 60 How. 9, and 27 Alb. L. J. 154. Prouty v. Lake Shore, 26 Hun, 546, was the case of a judgment recovered prior to the passage of the act of 1879, and it was held not to be affected thereby, and is clearly distinguishable from the case of a contract between parties not yet merged in judgment. In the case of Smith v. Hathorn, 25 Hun, 159, there being a difference of opinion between the members of the court, it was thought best to follow the decision of the Gen. Term, 1st dept., in Erwin v. Neversink, 23 Huu, 578." That case has since been overruled in Salter v. Utica, etc., 86 N. Y. 401.

In the case in 10 Paige, 49, the contract called for interest at less than the legal rate, and it was held, that it might be presumed, that the same rate was to continue, as part of the contract.

The same may be said of Rouse v. Northern Ins. Co., 12 Week. Dig. 85, and we might add Sullivan v. Fosdick, 10 Hun, 181. On the theory of an implied agreement, or that the contract continued, they were correctly decided; if on the other hand there was no continuing contract, then the interest should have been given at the statutory rate, as damages.

Every case cited in Wait's Law & Pr. has been adverted to.

The citation from 2 Vern. Chy. 145, is a particularly unfortunate one. S. says that "the discussion of this precise point resulted in dissenting opinions."

We may be "misled" as to what an opinion decides, but we don't find opinious where there were none given.

The facts of that case were these: A mortgage was given in 1650 with interest at 8 per cent. In 1660 the rate was changed by statute to 6 per cent, but the mortgagor continued to pay at the old rate for several years; on a bill to redeem he wanted 2 per cent of the interest since 1660 to be applied in discharge of the principal, but the chancellor "was of opinion that the 8 per cent being paid and received as interest, no part of it ought to be applied to sink the principal and that the statute had no retrospect beyond 1660." On the bill of review "Lords Rawlinson and Hutchins held that the statute made it unlawful to take more than 6 per cent upon any contract whether made before or after the act of Parliament." "Lord Trevor, being there was a decree already made in it, would not reverse it." Although the case was decided nearly 200 years ago, yet the action of my Lord Trevor suggests many a "modern instance."

However, the case having been decided on the ground that the statute was retrospective, is no authority, for the reason that the act of 1879 does not "in any way affect any contract or obligation made before the passage of this act."

"S." has evidently been "misled" by a "preponderance of authority."

The reason given for allowing interest after maturity at the contract rate is that "it is part of the contract and incident to the debt," "it continues as part of the unimpairable obligation," or as has been suggested (21 Alb. L. J. 47) that there was "an implied agreement that the old rate is to continue while the money remains unreturned-somewhat like the implication, that rent, payable by a tenant for having possession of the property after the term named in the lease is out, is the same as before."

Now, the above rule carried out, works a hardship. To illustrate: Suppose that the contract was not only silent as to interest, but thereby it was expressly agreed that no interest was to be paid. On failure to pay, if the contract is to govern, no interest could be recovered until it was merged in judgment for the reason, that by implication no interest was to be had after maturity.

In considering the reasons why the statutory rate should prevail, we submit the following: In Sutherland on Damages (vol. 1, p. 544), it is said:

'A contract for the payment of money at a definite future time, with a stipulation for the payment of interest at a specified rate, stands, if not performed, after the date fixed for the payment of the principal, simply as a chose in action. The contract has then no future; the time has elapsed for performance; there remains but a right of action for damages. There is no continuing contract to pay interest in any other sense than there is a continuing contract to pay the principal. The promise was, as to both, to pay at a day which is past.'

Now, what is the difference, in legal effect between a promise by A. made on the 31st day of Dec. 1876, to pay B. $500 in three years with interest at 7 per

cent, and a promise to pay $605 in three years from that date? Suppose that when pay day arrives A. fails to pay, what are B.'s rights; and if he brings suit, what does he recover? By A.'s failure to pay, B. is unquestionably damnified to the tune of $605, If the doctrine laid down by Mr. Sutherland, which is so tersely and aptly stated, is sound, and we think it consonant with both principle and reason, all that B. has, is a chose in action, as a result of A.'s breach of contract; and he is entitled to recover damages therefor, the measure of which is the $605 and interest thereon, at the legal rate, for “money like the staples of commerce is, in legal contemplation, always in market, and procurable at the legal rate of interest." 1 Sutherland on Damages, 128.

"On a contract for the mere payment of money, the unpaid principal, together with the stipulated, or after maturity the lawful rate of interest, is the measure of damages." 1 Sutherland on Damages, 128.

In Van Rensselaer v. Jewett, 2 N. Y. 135, Judge Bronson delivering the opinion of the court, said "that a man who breaks his contract to pay a debt, shall indemnify the creditor, so far as that can be done, by adding interest to the amount of damage which was sustained by the breach." See also Brainerd v. Jones, 18 N. Y. 35; Adams v. Fort Plain, 36 N. Y. 261.

The seeming conflict in the decisions of the U. S. Sup. Ct. is easily reconciled by bearing in mind the language of the court in Holden v. Trust Co., 100 U. S. R. at page 73, "the rule heretofore applied by this court under the circumstances of this case has been to give the contract rate up to the maturity of the contract, and thereafter the rate prescribed for cases where the parties themselves have fixed no rate. *** Where a different rule has been established, it governs, of course, in that locality. The question is always one of local law."

In the case of Cromwell v. County of Sac., 96 U. S. at page 60, the court (in referring to the Iowa stat. ute), said parties may agree in writing for any rate of interest not exceeding ten per cent a year, and that any judgment or decree thereon shall draw the rate of interest expressed in the contract “and again at page 61." By the settled law of Iowa, as established by repeated decisions of her highest court, contracts drawing a specified rate of interest before maturity draw the same rate afterward.

The reason why in the Cromwell case interest was allowed after maturity at the contract rate, and in the Holden case at the statutory rate, was that "except where the Federal Constitution and laws are concerned, the courts of the United States in passing upon the Constitution and statutes of a State conform to the settled construction of them by the highest State court." Town, etc., v. Perkins, 94 U. S. 260, 267.

"If therefore different interpretations are given in different States to a similar local law, that law in effect becomes by the interpretations, so far as it is a rule of action, a different law in one State from what it is in the other." Christy v. Pridgeon, 4 Wall. 203.

Until now there has been no journal in any part of the world (except the Medico-Legal Journal) devoted exclusively to this subject.

Will you allow me to correct this, and to state that the library of the physicians to the German Hospital and Dispensary of this city contains the following periodicals:

1. Friedreichs Blätter fur gerichtliche Medicin, since 1864, edited in Nuremberg, founded as Friedreichs Blätter für gerichtliche Anthropologie, 1858. 2. Vierteljahrschrift für gerichtliche und öffentliche Medicin by F. L. Caspar, Berlin, since 1860, now edited as Vierteljahrschrift fur gerichtliche Medicin und öffentliches Sanitaetswesen by H. Eulenberg, Berlin, (since 1872). Yours very respectfully,

RECENT

FREDERICK HEPPENHEIMER, M. D. WOMEN'S

DISTURBANCE OF RIGHTS.

MARRIED

Editor of the Albany Law Journal: The later legislation, and most recent decisions of our court of highest resort, seem fraught with peril to the rights of the wife and widow. It has been generally supposed that the enlightened sentiment of nearly four decades past, voiced by legislation, had removed the common law disabilities of the feme covert and swept away the rubbish of fiction with which the feudal system incumbered the relation of baron and feme. But as we understand the present status of the married woman, she is substantially relegated by recent legislation and judicial authority to an existence merged in that of her husband, or at least suspended during coverture. Is not some legislation imperatively demanded, which shall make plain to the lawyer and layman just what her rights and obligations are? Shall she not be permitted to take and hold property, real and personal - from whatever source derived; to make and have the benefit of contracts, irrespective of the person with whom made; to maintain all rights of action in the same manner, and with the same effect as though she were unmarried. Such legislation properly guarded need not destroy the unity of person of husband and wife, but it should, we think, relieve the wife from the thraldom fastened upon her by the common law. B.

ALBANY, June 30, 1883.

A CORRECTION.

Editor of the Albany Law Journal:

J. T. COOK.

The latest number of the ALBANY LAW JONRNAL, (June 23,) contains the following sentence (p. 483):

1

NOTES.

N the 34th volume of New Jersey Equity Reports, we find no less than ten instances of a unanimous reversal by the Court of Errors and Appeals. Considering that this court is composed of sixteen judges, this is the most remarkable record that has met our eyes in a long time. The American Law Register for June contains a leading article on Survival of Actions, by John D. Lawson; also the following cases in full: Scarf v. Jardine (House of Lords), on liability of retiring partner, with note by Marshall D. Ewell; Carton v. Illinois Central R. Co., (Iowa), on legislative regulation of inter-State railroad freights, with note by Adelbert Hamilton; Langdon v. Union Mutual Life Ins. Co. (U. S. Circuit Court, Michigan), on wager life policies, with note by Lawrence Lewis, Jr.; Henry v. Koch (Kentucky), on easement of support, with note by W. W. Thornton.

The Albany Law Journal.

IN

ALBANY, JULY 14, 1883.

CURRENT TOPICS.

another column we give some extracts from the report, made on the 28th ult., Mr. William Reinecke, of Louisville, Ky., to the Kentucky State Bar Association, on the subject of Codification. We wish we had space to publish the whole of this perfectly admirable paper, - the most admirable in ability and temper that we can now recall on this momentous subject. In these extracts we have not been able to include all the gleams of wit which irradiate the essay. We join the learned and brilliant writer in his adoption of Ajax' aspiration: "If we must die, may we at least perish in the light;" with him we are thankful that although we may be surprised by a manuscript opinion of the Kentucky Court of Appeals, disentombed by the industry of opposing counsel from its merited rest in a musty bundle of appeal papers," "at least we can not be knocked out of time by the specter of an unwritten judicial utterance of King Stephen or Thomas a Becket;" and we agree with him that "our case law is chaos, tempered only by the United States Digest." Mr. Reinecke writes us: "The subject was so new to the members in attendance that I did not feel at liberty to press it for action, and is was accordingly postponed to the session of the next year for discussion and to be voted upon. The expressions of opinion are very encouraging, but I can only now appreciate properly the great service which the ALBANY LAW JOURNAL has rendered and yet renders to the legal profession and to the people at large in agitating the question of codification. The work of your journal is beginning to tell, and this State will surely range itself with those in favor of that reform of the law."

The Marine Court of the city of New York has been legislated out of existence, and the City Court has taken its place. This court originated in 1787 as the Justices' Court, holding that title until 1819, when it was named the Marine Court. It was unrestricted in its jurisdiction of marine cases, and it naturalized foreigners until 1849. Among the distinguished men who sat on its bench, says the Daily Register, were William Johnson, the reporter, John Wells, a leading lawyer of his day, and Chief Justice Jones; but the Register is rather astray in describing Noah Wheaton as "the author of Wheaton's International Law." The Register prints two interesting letters written in 1824 and 1825 by Judge Scott, of that court, and Mr. Tardy, its clerk, to Mr. Crolius, then speaker of the Assembly, protesting against a proposed bill extending the jurisdiction of justices to $100, on the ground that it "would entirely destroy the Marine Court." Mr. Tardy asserts that "the swarm of petty lawyers (I might call some of them, with a great deal of VOL. 28-No. 2.

propriety, pettifoggers), who infest this city, are all united in a hue and cry for the destruction of the Marine Court, because in it their enormous costs and high fees are clipped."

Mr. Bright, in a recently published letter, says: "A man may have a legal wife in the colonies, and another legal wife in England. He may bring his Canadian legal wife to England, where, when she touches our shores, she is not a legal wife, and where her children born here are not legitimate. If you can justify this I will not argue with you." Upon this the London Law Journal remarks: "The statement may or may not be justified, on the ground that we are not bound to alter our laws to suit the taste of those who visit us, but it may safely be traversed. If a Canadian, married to a deceased wife's sister in Canada, were to come to England, his wife would not cease to be his legal wife, and his children born here would be legitimate. In fact, the legality of a man's marriage does not depend on the place where he happens to be, or the legitimacy of his children on the place where they are born. It depends on his domicile at the time of his marriage. A man is not married and unmarried as he crosses a frontier." "When a politician puts his views on legal grounds, he should be sure his grounds are legal." And yet the House of Lords held, in Brook v. Brook, where an Englishman met and married his deceased wife's sister in Denmark, that the marriage although not forbidden in Denmark was invalid in England. And so, although Mr. Bright's statement was too broad, yet it would have been correct if he imagined a Londoner marrying his deceased wife's sister in Canada. That makes a case about as bad for the consistency of British laws.

In an interesting article on English and American Lawyers, the London Truth newspaper points out that lawyers are much more numerous and important here than there, not only in the law, but in politics and business. Truth also speaks of the superiority of legal education in this country, and calls attention to the fact that "the Supreme Court has never wanted a succession of learned judges to come after Ellsworth and Marshall." On the point of culture and eloquence Truth says: "If one were to examine the history of the Boston and Philadelphia bars, one would see that the connection between law and literature has been always close, and that if it were not the practice, after the fashion of Mansfield, to 'drink champagne with the wits,' it was the aim of advocates such as Choate and Pinckney to prepare themselves by sedulous cultivation of literature for forensic success. touch another point of contrast. Mr. Justice Stephen observes, in his recently published book, that eloquence has died out in our criminal courts, and he might have added in civil courts also. No one at the English bar cultivates with conspicuous success the art of which the present Chief Justice and his predecessors were masters, and it is nced

Here we

less to say, it is rather despised by those who are not proficient in it. This is different from the American bar. An American advocate of repute is, as a rule, much more fluent and ornate than his English brother, and the leaders of the American bar, such as Mr. Evarts, aspire to a style of eloquence rarely ventured upon here. The tradition as to this art has never been quite the same in the two countries. Even florid English forensic speakers, such as Talfourd, were simplicity itself as compared with the standard set up and followed, say, by Daniel Webster. Erskine loved display, and took care, it was said, to put in front of him his books, in a picturesque heap, before he began to address a jury. Even he however was unaffected and unadorned in comparison with Pinckney, who addressed, we are told, the Supreme Court in the garb of a full-blown dandy of the day, bright colored gloves not excepted. And this taste, somewhat modified it is true, has lasted to the present time. Those who have heard the late Dana or Mr. Sumner pleading will agree that the forensic style of speaking of the two countries is decidedly unlike, and they will not be prepared to give off-hand the palm to the English style, which, if business-like and to the point, is so often slip-shod and so rarely elegant." And yet there can be no doubt that legal eloquence has greatly declined in this country. Such a scene as that when Webster closed his argument in the Dartmouth College case in the United States Supreme Court would now be impossible, for lack of audacity if not for lack of eloquence.

In the current number of our very reliable contemporary, Gibson's Law Notes, we found an inclosure of more than usual interest. It is entitled "Try Him, try Him." On investigation we discovered that it was a religious tract. Our first impression was that some of our friends among the English bishops had sent it to us, being interested in us by our recent complimentary remarks upon their part in the deceased wife's sister business. But a moment's reflection showed us that they could hardly yet have read those remarks, to say nothing of responding to them. And then we discovered that the tract is an extract from one of Mr. Spurgeon's sermons. There is a cut at the head of it exhibiting an old woman and a dog. We do not see the application of the cut. We have read the tract, and feel bound to say that it is a very incoherent, effusive, and inconclusive piece of exhortation. It winds up with some verses, in which the poet rhymes sore with "power," and "intrude" with "good." The sender should learn that it is not good to intrude. We do not feel hard toward the sender for mistaking us for irreligious persons, but we feel diffident of his good taste. With his permission we will forward the exhibit to some one who needs it say Col. Ingersoll, or one of those bloody Richmond editors, or to the editor of the Texas Law Review, who would fain challenge us to mortal combat.

66

The recent divorce case of Major Nickerson has excited a good deal of comment on account of the exceedingly impudent and easy fraud which the husband perpetrated on his wife, absent by his consent and procurement, and has brought into unpleasant notice the lax divorce law of Pennsylvania. Judge Thayer, in pronouncing the opinion of the common pleas on setting aside the husband's decree, remarked: "But the whole subject demands a thorough revision at the hands of the Legislature. The present laws not only rendered the commission of fraud easy, but encourage divorces by the ease with which they are obtained, and the collusion between the parties which they admit of. Divorces for the cause of desertion are so easily arranged between the parties that the practical effect of the existing laws is to permit all marriages to be dissolved at the pleasure of the parties. The effect of such a state of things upon the domestic relations of any society in which it exists, and upon public morals, is most injurious and contaminating. It is remarked by a celebrated English scholar and essayist, that for the first four hundred years of Rome not one divorce had been granted or asked, but in the age succeeding the civil wars men and women married with a view to divorce, and divorced in order to marry. Thus the very fountain of all the household charities was polluted, and after that we need not wonder at the assassinations, poisonings, and forging of wills, which then laid waste the domestic life of the Romans. During the French Revolution laws for facilitating divorces were passed by the Convention, which enabled any married person who desired it to obtain a divorce in six months. Laws which render easy the abolition of the marriage contract are indicative of corruption, disorder, and domestic anarchy in the social relations of any people. It is not saying too much to declare that the abolition of all laws permitted divorces would be better for the people of this State, and productive of fewer evils than the present lax state of the laws upon this subject."

News), the plaintiff, a child four or five years old, was injured by the closing of the defendant's railway draw-bridge while he was playing near or upon it. The court below directed a verdict for the defendant, but the Appellate Court held that the question of negligence should have been submitted to the jury. The bridge was a continuation of a public street, and the injury probably took place while the plaintiff was within the boundaries of the street, but the court declined to put the decision on that ground, and observed: "But even if we are to regard the locus in quo of the injury as being wholly upon the private grounds of the defendant, we think there was evidence which should have been submitted to the jury tending to charge the