change in his demeanor; "he was always walking with his head bowed down, and a gloomy expression, and the entire vitality and cheerfulness which the man had before was gone; ""he was gloomy, dull, mopish;' "he sat down in the office and moaned and would be gloomy there;" "he always complained of his head; he would say: 'the trouble is here; it is all in my head, my head; "" that shortly before his death he had "a vacant expression in his face;" "he had a queer expression about his eyes; it was a sort of wild, unnatural expression;" "that kind of expression which the human face takes on when one is frightened; a far off, glassy look, as though the mind was dwelling on nothing; " that he was very much changed, and was very excitable; he looked different and had a wild expression; he staid a great deal by himself when he came home from business; he would go to his room and lie on his bed with his hat and overcoat on, and not come out to his meals." The experts called for the plaintiff testified that Ferguson was suffering from that kind of unsoundness of mind which they termed melancholia. There was clearly some evidence of insanity for the jury, and the question of its weight was for them, and not for the court. Insurance Co. v. Rodel, 95 U. S. 232.

The remaining and the most important question in the case is whether a self-killing by an insane person, having sufficient mental capacity to understand the deadly nature aud consequences of his act, but not its moral aspect and character, is a death by suicide, within the meaning of the policy. This is the very question that was presented to this court in 1872 in the case of Life Ins. Co. v. Terry, 15 Wall. 580. At that time there was a remarkable conflict of opinion in the courts of England, in the courts of the several States, and in the Circuit Courts of the United States, as to the true interpretation of such a condition. All the authorities agreed that the words "die by suicide" or "die by his own hand" did not cover every possible case in which a man took his own life, and could not be held to include the case of self destruction in a blind frenzy or under an overwhelming insane impulse. Some courts and judges held that they included every case in which a man, sane or insane, voluntarily took his own life. Others were of the opinion that any insane self-destruction was not within the condition.*

In Terry's case (the trial of which in the Circuit Court before Mr. Justice Miller and Judge Dillon is reported in 1 Dillon, 403), it was admitted that the person whose life was insured died by poison, self-administered; and the insurance company requested the court to instruct the jury, first, that if he destroyed his own life, and at the time of self-destruction had sufficient capacity to understand the nature of the act which he was about to commit, and the consequences which would result from it, the plaintiff could not recover on the policy; and secondly, that if the selfdestruction was intended by him, he having sufficient capacity at the time to understand the nature of the act which he was about to commit, and the consequences which would result from it, it was wholly immaterial that he was impelled thereto by insanity, which impaired his sense of moral responsibility, and * Borradaile v. Hunter, 5 Man. & Gr. 639; S. C., 5 Scott N. R. 418; Dormay v. Borradaile, 10 Beav. 335; Schwabe v. Clift, 2 Car. & K. 134, and 3 C. B. 437; Stormont v. Waterloo Ins. Co., 1 F. & F. 22; Dufaur v. Professional Ins Co., 25 Beav. 599, 602; Solicitors' Assurance Society v. Lamb, 1 Hem. & Mil. 716, and 2 D. J. & S. 251; Breasted ▾ Farmers' Loan & Trust Co., 4 Hill, 73, and 8 N. Y. 299; Dean v. American Ins. Co., 4 Allen, 96; Cooper v. Massachusetts Ins. Co., 102 Mass. 227; Eastabrook v. Union Ins. Co., 54 Me. 224; Gove v. Farmers' Ins. Co., 48 N. H. 41; St. Louis Ins. Co. v. Graves, 6 Bush, 268; Nimick v. Mutual Benefit Ins. Co., 10 Amer. Law Reg. (N. S.) 101; Gay v. Union Ins. Co., 9 Blatchf. C. C. 142; Terry v. Life Ins. Co., 1 Dill. 403.

rendered him to a certain extent irresponsible for his action. 15 Wall. 581, The Circuit Court declined to give either of the instructions requested, and instructed the jury in substantial accordance with the first of them only, saying: "It devolves on the plaintiff to prove such insanity on the part of the decedent, ex isting at the time he took the poison, as will relieve the act of taking his own life from the effect which, by the general terms used in the policy, self-destruction was to have, namely, to avoid the policy. It is not every kind or degree of insanity which will so far excuse the party taking his own life as to make the company insuring liable. To do this the act of selfdestruction must have been the consequence of the insanity, and the mind of the decedent must have been so far deranged as to have made him incapable of using a rational judgment in regard to the act which he was committing. If he was impelled to the act by an insane impulse, which the reason that was left him did not enable him to resist, or if his reasoning powers were so far overthrown by his mental condition that he could not exercise his reasoning faculties on the act he was about to do, the company is liable. On the other hand, there is no presumption of law, prima facie or otherwise, that self-destruction arises from insanity, and if you believe from the evidence that the decedent, although excited or angry, or distressed in mind, formed the determination to take his own life, because in the exercise of his usual reasoning faculties he preferred death to life, then the company is not liable, because he died by his own hand within the meaning of the policy." 15 Wall. 582.

The necessary effect of giving these instructions, after refusing to give the second instruction requested, was to rule that if the deceased intentionally took his own life, having sufficient mental capacity to under stand the physical nature and consequences of his act, yet if he was impelled to the act by insanity, which impaired his sense of moral responsibility, the com pany was liable. That the ruling was so understood by this court is apparent by the opening sentences of its opinion, on page 583, as well as by its conclusion, which, after a review of the conflicting authorities on the subject, was announced in these words: "We hold the rule on the question before us to be this: If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. If the death is caused by the voluntary act of the assured, he knowing and intending that his death shall be the result of his act, but when bis reasoning faculties are so far impaired that he is not able to understand the moral character, the general nature, consequences and effect of the act he is about to commit, or when he is impelled thereto by an insane impulse, which he has not the power to resist, such death is not within the contemplation of the parties to the contract, and the insurer is liable." Pp. 590, 591.

In Insurance Company v. Rodel, 95 U. S. 232, the same rule was expressly re-affirmed. In that case the Circuit Court declined to instruct the jury that the plaintiff could not recover if the assured knew that the act which he committed would result in death, and deliberately did it for that purpose; and instead thereof, repeated to the jury the instructions of the Circuit Court in Terry's case, and the conclusion of the opinion of this court in that case, as above quoted. This court in affirming the judgment, said: "This charge is in the very words of the charge sanctioned and approved by this court in the case of Life Insurance Company v. Terry, 15 Wall. 580, including an explanatory clause of the opinion of the court in that

In fact this principle of law is conceded in this case, but it is denied that the defendant is liable in this form of action. It is said that being personally innocent of the fraud, she cannot be convicted of that which has been committed by another with no authority from her, except that which results from his agency. This may be true in a criminal prosecution, but not in a civil action. If she is liable that liability must be ascertained in the proper form of action. Here is no contract of any kind, express or implied, between the parties which can afford any remedy for the injury of which the plaintiff complains. He claims that a wrong, for which the defendant is responsible, has been done him. For that wrong he seeks a remedy. What remedy can he have except an action of tort? The counsel says two. He may rescind the contract, and recover back the consideration paid, or in an action for money had and received, recover the profits accruing from the fraud. But neither of these may be adequate to his injury. If he rescinds the contract he may perhaps lose all the consideration paid, and it would be difficult if not impossible to ascertain the amount received on account of the fraud, if that should be held to differ from the amount of damages recoverable in this form of action. But how does this change of form relieve the defendant's feelings or reputation? In either case the action is founded upon a fraud, and one which must be proved. In either case it is not her own fraud but that of another for whose doings she is legally, though perhaps not morally responsible.

The counsel relies largely, if not entirely, upon the English cases to support his views and some of them do so. But an examination of them will show that they are conflicting, many of them decidedly sustaining the instruction given to the jury in this case. It will however be noticed that in the most, if no all of them, the form of the action is not considered material. The object is to limit the extent of the liability to the advantages received from the fraud, applying a somewhat different test to the amount of damages to be recovered. It is unnecessary to refer to these cases in detail. They will be found collected and commented upon in Benjamin on Sales, §§ 462-467; Bigelow's Leading Cases on Torts, 25-33.

The American cases are more uniform, and sustain the instruction complained of, both as to the form of action and extent of liability. Bigelow on page 23, says: "In America it has generally been held that an action of deceit may be maintained against the principal; but the cases are at variance as to the ground of liability." As are the cases, so we find the text books uniform in sustaining the liability of the principal in actions of tort for the wrongful acts of the agent done within the scope of his authority, even though the principal himself is innocent. In a note on page 443 in Benjamin on Sales, it is said: "Where an agent makes a false representation, or in any other manner commits a fraud in a purchase or sale, with or without the privity, or knowledge, or assent of his principal, and the principal adopts the bargain and attempts to reap an advantage from it, he will be held bound by the fraud of the agent, and relief will be given to the other party to the transaction. The principle is that fraud by an agent is fraud by the principal; that the principal should be bound by the fraud or misconduct of his own agent, rather than that another should suffer." To the same effect are the following authorities some of which are directly in point, and all recognized the principle: 1 Chitty on Pleading (16 ed.), 91; 2 Green. Ev., § 68; 1 Parsons on Contracts, 73; Kerr on Fraud and Mistake, 111-112; Story on Agency, §§ 308, 452; Locke v. Stearns, 1 Met. 560; White v. Sawyer, 16 Gray, 586; Howe v. Newmarch, 12 Allen, 49; P. & R. R. Co. v. Derby, 14 How. 468-486; Pratt v. Bunker, 45 Me. 569;

Stickney v. Munroe, 44 id. 195; Goddard v. G. T. R., 57 id. 202. In Holbrook v. Connor, 60 id. 578, the misrepresentations were made by an agent, but that fact was not even suggested as a defense, though the action was of the same form as the present. Numerous decisions in other States and in England, to the same effect will be found cited in the text books above referred to.

As already seen all the cases, both here and in England, hold the principal liable for the fraud of the agent to some extent when he has adopted the contract into which that fraud has entered, and if liable we see no good reason why that liability should not be co-extensive with the injury, in accordance with the great weight of authority. If he would avoid this he may, as undoubtedly the law would authorize him to do, repudiate the contract, and restore to the injured party what has been taken from him. But in this case no such offer has been made, but defendant still holding the fruits of what the jury have pronounced a fraud denies any liability on her part.

Out of quite a number of alleged misrepresentations set out in the writ the presiding justice, under instructions to which no exceptions were filed either for omission of any law applicable or erroneous statement of that given, submitted three to the consideration of the jury excluding the remainder. An objection is made to these, that they are too indefinite to be actionable, though in other respects accompanied with all the facts necessary to constitute fraud. That which refers to the quantity of hay cut the preced ing years comes within the case of Martin v. Jordan, 60 Me. 531, and is there held sufficient. The words fixing the time during which this quantity was cut, though somewhat indefinite, do not make the material fact as to the quantity any less certain; nor is there any doubt that it includes the years immediately preceding the sale. If no preceding year can be found in which that quantity was cut, and none appears in this case, the falsehood of the statement would seem to be sufficiently apparent. If any such year had been found it would certainly not operate against the defendant. How far it would have been a defense or how many years the plaintiff must have proved are questions not raised here.

The second allegation submitted may be somewhat uncertain as to the number of the rocks which might be found consistent with the truth and honesty of the statement made. But difficulty in proof does not change the principle. The statement is clearly one of an existent fact and not a matter of opinion. It is a fact too, which is material to the value of the land. Whether it was sufficiently proved to have been false and fraudulent is not now the question.

The representation as to the amount of stock pastured the preceding year does not now seem to be questioned.

It is said that the second representation is not nega. tived in the declaration. Good pleading would undoubtedly require this. That part of it which relates to the absence of rocks is abundantly so. The evenness of the surface is part of the same representation and the whole is averred to have been false and fraudu lent. If this is not sufficient, there is no suggestion that in that respect the defendant did not have all her rights at the trial. The defect, if any, is amendable, and there is no occasion for a new trial upon that point.

What representations are sufficient is pretty fully discussed in Long v. Woodman, 58 Me. 49; Martin v. Jordan, supra; Savage v. Stevens, 126 Mass. 207, and these representations, so far as submitted to the jury, clearly come within the principles there laid down.

It is further objected that the representation as to the rocks should not have been submitted to the jury,

for the reason that it appears that the plaintiff went upon the land and should have seen its condition, and therefore in this matter the maxim caveat emptor applies to him. This may be true as a proposition of fact or perhaps of law, even if there had been nothing to have prevented his seeing them. But the case shows that there was an obstruction. There was considerable testimony tending to show that there was snow upon the ground. There may have been a conflict as the counsel says as to the depth, but it does not appear that any existed as to the fact itself. It follows then that whether the plaintiff was bound to look out for himself, or in other words was in the exercise of due care, depended upon the inference to be drawn from this testimony.

It is however objected that this testimony should not have been admitted because there is no allegation in the writ upon which it can be founded. There is no occasion for any. It is not offered to prove a substantive fraud against the defendant. She was responsible for the representation made, and not for the fact that the land was covered with snow. This fact may have imposed an additional burden upon her for the misstatement. Nevertheless her responsibility is for that and that alone. The presence or absence of snow may have affected the duty of the plaintiff, but not that of the defendant. This view is perfectly consistent with the case of Parker v. Moulton, 114 Mass. 99, relied upon by the defendant. In that case the representations set out in the writ were not actionable but the attempt was made to sustain them by other acts or statements of the defendant alleged to be fraudulent, and none or made for the purpose of preventing the plaintiff from ascertaining the truth. In this case the representation is actionable, and the proof offered is not of any act or statement of the defendant, fraudulent or otherwise, but of a fact existing without the agency of either party and is important only as it has a bearing upon the question of care on the part of the plaintiff.

It is still further insisted that even with this evidence in, the question of care should have been ruled upon as a matter of law and not submitted as fact to the jury, but it is quite clear that whether the plaintiff negligently permitted himself to be deceived by the alleged false statements, or without due care, was an inference to be drawn from the evidence and was therefore for the jury. Savage v. Stevens, supra, settles this question in accordance with well established principles.

The testimony in regard to the plaintiff's request to go upon the land the second time and what the neighbors might have told him is to the same effect. It was not introduced to show a substantive cause of action but as bearing upon the question of due care; a portion of it was also pertinent as giving additional force and emphasis to the statements previously made.

The testimony as to the number of acres in the pasture was not objectionable. There was an allegation of the number of acres of cleared land. That allegation however was excluded from the consideration of the jury, and when so excluded it necessarily carried with it all the testimony offered in its support. It is therefore immaterial, except so far as it may have some tendency to show the capacity of the pasture to support the amount of stock alleged. For this purpose it would seem to be admissible. If it has no such

tendency it does not appear how the defendant can by any possibility have been aggrieved by its admission. The testimony as to the condition of the pasture and the hay raised prior to and immediately following the sale was relevant as bearing upon the truth, or falsehood of the representations made. They were circumstances only the weight of which were for the jury.

Loring Town had testified as to the value of the farm without objection. There is no reason perceivable why he should not be permitted to state how that value was made up. Certainly no harm to the defendant could come from it.

Exceptions overruled.

Appleton, C. J., Walton, Virgin, Peters and Symonds, JJ., concurred.

SEPARATE SCHOOLS FOR COLORED CHILDREN LAWFUL.

NEW YORK COURT OF APPEALS, OCTOBER 9, 1883.

PEOPLE EX REL. KING V. GALLAGHER. School authorities under the provisions of the Federal Constitution, that "no State shall make and enforce any law which shall abridge the privileges or immunities of citizens," are not required to furnish each person attending school without regard to sex, color, or age, the same privileges in the same place and under the same circumstances as those enjoyed by others attending school. Accordingly held, that the Board of Education of Brooklyn may establish separate schools for colored children, and exclude them from schools established for white children. PPEAL from an order of the General Term of the City Court of Brooklyn affirming an order of the Special term denying a writ of mandamus. The opinion states the case.

A

F. W. Catlin, for appellant.

F. E. Dana, for respondent.

RUGER, C. J. The relator applied to the court below at a Special Term of the City Court of Brooklyn, for a writ of mandamus against the respondent, then the principal of Public School No. 5, of that city, after a refusal, to compel him to admit her to the privilege of a pupil at such school, which application was denied. This appeal is brought from the affirmance of such decision by the General Term of that court.

The relator is a colored female, about twelve years of age, residing in Public School District No. 5, of the city of Brooklyn, and would be entitled to attend that school but for the regulations of its Board of Education. By such regulations, schools for the exclusive use of its colored population, of equal grade and educational advantage with its other schools, were established at convenient and accessible points, and the colored children residing in said city were duly assigned to the respective schools provided for them.

One of these schools, that which the relator was assigned to attend, was located in the same school district in which she resided.

These schools have been presumably established and conducted for a period of years, and their adaptation to the accomplishment of the most efficient purposes of education have been subjected to the test of actual experiment and trial, without any claim being made but that the system adopted has contributed to the best interests of both classes. The relator however complains, not but that she is receiving the highest educational advantage that the city is capable of giving her, but that she is not receiving those facilities at the precise place which would be the most gratifying to her feelings.

The question broadly stated presented by this appeal is whether the school authorities of that city have the right to classify the pupils in such schools, in the administration of their authority to regulate the methods of education pursued therein, or whether the provisions of the Constitution of the United States require that each person attending such school shall, without regard to sex, color, or age, be awarded upon demand the same privileges, in the same place, and

under the same circumstances as those enjoyed by any other scholar therein.

Such school authorities have determined, in the exercise of their discretion, that the interests of education may be best promoted by the instruction of scholars of different races in separate schools, and the question is now presented whether they are debarred by the law of the land from adopting those methods, which in their judgment are the wisest and most efficient to accomplish the purpose intended.

Under the common-school system its supervising authorities are necessarily invested with the exclusive right of determining all such questions as pertain to the exercise of the discretionary powers conferred upon them, and the natural and legal presumption in favor of the conscientious performance of official duty requires us to assume in the absence of any evidence to the contrary, that the classification in question secures the educational advantage of the community; that one common school system should be advocated to the best advantage for all interests. The most casual reflection, as well as the uniform practice in educational institutions, shows that its school authorities should be vested with large discretionary power in arranging and classifying the various departments of public instruction, to adapt them to the diversified capacity, disposition and needs of the numerous persons they are required to govern and instruct, and any arbitrary interference with the exercise of such discretion it is obvious must be productive of injury to the cause of education.

It would be unfortunate if it should be found that any imperative rule of law prevents those who are charged with the management of the common schools of the State from adopting such arrangements for instruction as their experience had shown to be adapted to the highest educational interests of the people. Upon reference to the various statutes on the subject, we find that the regulations referred to are fully authorized by the laws of this State, relating to the management and control of its public common schools. Section 1 of title 10 of chap. 555, of the Laws of 1864, specially provides for the establishment of separate schools for the education of the colored race, in all of the cities and villages of the State, wherever the school authorities of such city or village may deem it expedient to do so. The act containing this provision has been since its enactment frequently before the Legislature for amendment, and the provision in question has apparently been frequently approved by them, and now remains unchanged. The system of authorizing the education of the two races separately has been for many years the settled policy of all departments of the State government; and it is believed obtains very generally in the States of the Union.

The common schools of Brooklyn are organized and conducted under a special act relating to that city, contained in chapter 143 of the Laws of 1850, which confer upon the Board of Education of such city "the entire charge and direction of all its public schools," and the right to "make its own by-laws, keep a journal of its proceedings, define the duties of its officers and committees, and prescribe such rules and regulations for instruction and discipline in the said public schools as are not inconsistent with the laws of the State." Section 4 of this act reads as follows: "The Board of Education shall have power to organize and establish schools for colored children and such evening schools as it may from time to time deem expedient, and shall adopt the necessary rules for the gov ernment of the same." "No person shall be pro. hibited from attending the evening schools on account of age."

The powers conferred upon the Board of Education by this act were by section 1, title 16, chap. 863, of the

Laws of of 1873, made applicable to the re-organized department of public instructions for such city created by said act.

This law has therefore been in existence for over thirty years, and its operation and effect has hitherto been found unobjectionable and apparently satisfactory to all parties. It thereby appears that the Board of Education of Brooklyn possesses full legislative authority in the exercise of their discretionary powers to maintain separate schools for the education of white and colored children in that city, and the consequent power to render effectual, by the exclusion of one class from the schools designed for the other in the exercise of the discretion in regard to that subject which is conferred upon them by the statute.

All of the powers necessary to accomplish the object which the Legislature had in view in authorizing separate places of education for individuals of different color must be intended to have been granted when the authority to establish such schools was conferred. The mere right of establishing such separate schools, stripped of the power of determining the persons who might or might not attend them, would be a barren power, productive of no beneficial result, and destructive of the effect of the legislation referred to.

Neither is there any force in the claim made by the relator that the act excluding her from common school No. 5 was not the act of the Board of Educa tion of Brooklyn. Such a claim is not made in the petition or affidavit upon which her application is founded, and the case was heard upon the return of the respondent, in which it was distinctly asserted that the exclusion of the petitioner from Public School No. 5 was effected in pursuance of the orders and instruc tions of the Board of Education of the city of Brooklyn. This statement was not controverted by the petitioner, and for the purposes of this appeal must be assumed to be true.

Having seen that the action of the respondent under the authority of the Board of Education in excluding the relator from the school for white children was justified by the statute of this State, it remains only to inquire whether such statutes have been repealed by the Legislature or annulled by the paramount authority of the Constitution of the United States. It is claimed by the counsel for the relator that these statutes have been abrogated by the adoption of the Fourteenth Amendment to the Federal Constitution, which took effect in July, 1868. The determination of this appeal depends mainly upon the effect to be given to the provisions of this amendment. It reads as follows: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." On the 20th day of March, 1870, a further amendment of the Federal Constitution was adopted, which provided that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State, on account of race, color or previous condition of servitude."

The argument of the appellant's counsel is to the effect that the Fourteenth Amendment, under the laws of this State, giving equal privileges in its common schools to every citizen, confers upon the relator not only the right of equal educational facilities with white children, but that such education shall be furnished at the same time and place with that afforded to any other child; otherwise it is claimed that she is abridged of some "privilege or immunity," which of