ileges and property of both the employer and the employee, and places upon both the badge of slavery, by denying to the one the right of managing his own private business, and assuming that the other has so little capacity and manhood as to be unable to protect himself or manage his own private affairs."

NOTES OF RECENT DECISIONS.

--

PUBLIC SCHOOLS BIBLE READING- SECTARIAN INSTRUCTION.-The case of State v. District Board, 44 N. W. Rep. 967, decided by the Supreme Court of Wisconsin, will have more than local interest, being on the subject, agitated at considerable length a few years ago, following the decision of an Ohio case, of the right to exclude the Bible from the public schools. The substantial question in the present case was simply as to the right to prevent the reading of the Bible in the schools, and whether such reading was in effect religious instruction. The opinions by Lyon, and Cassaday, JJ., are too long to give in full and our readers will have to be satisfied with a succinct statement of the main points:

1. The courts will take judicial notice of the contents of the Bible, that the religious world is divided into numerous sects, and the general doctrines maintained by each sect; for these things pertain to general history, and may fairly be presumed to be subjects of common knowledge.

2. The "sectarian instruction" prohibited in the common schools by Const. Wis. art. 10, § 3, is instruction in the doctrines held by one or other of the various religious sects, and not by the rest; and hence the reading of the Bible in such schools comes within this prohibition, since each sect, with few exceptions, bases its peculiar doctrines upon some portion of the Bible, the reading of which tends to inculcate those doctrines.

3. The practice of reading the Bible in such schools can receive no sanction from the fact that pupils are not compelled to remain in the school while it is being read; for the withdrawal of a portion of them at such time would tend to destroy the equality and uniform. ity of treatment of the pupils sought to be established and protected by the constitution.

4. The reading of the Bible is an act of worship, as that term is used in the constitution; and hence the tax-payers of any district who are compelled to con. tribute to the erection and support of common schools have the right to object to the reading of the Bible therein, under Const. Wis. art. 1, § 18, cl. 2 declaring that "no man shall be compelled to support any place of worship."

erect or

5. As the reading of the Bible at stated times in a common school is religious instruction, the money drawn from the State treasury for the support of such school is "for the benefit of a religious seminary," within the

meaning of Const. Wis. art. 1, § 18, cl. 4, prohibiting such an appropriation of the funds of the State.

The court calls attention to the fact that a number of cases in different States supposed to have a bearing upon the question here considered are not really in point because in none of the States in which such decisions were made is there a direct constitutional prohibition of sectarian instruction. We confess ourselves at a loss to understand how if, as the court holds, the reading from the Bible itself is sectarian instruction, text books containing extracts and passages therefrom may be read without objection as said by Judge Lyon, and this, even though the text books may contain passages "from which some inferences of sectarian doctrine might possibly be drawn." If it is sectarian instruction to read passages from the Bible is it not equally so when the reader reads the same thing from another book?

WILL MADE ON SUNDAY-VALIDITY OF. The Supreme Court of Indiana in Rapp v. Reehling 23 N. E. Rep. 777, hold very properly that a will may be made on Sunday. Olds, J., says:

It is contended by counsel for appellant that a will executed upon Sunday is void unless it be shown that some unusual circumstances existed making a necessity for its execution upon that day; that the drafting and execution of a will come within the definition of a "common labor," and is prohibited by section 2000, Revised Statutes of 1881, which provides that "whoever, being over fourteen years of age, is found, on the first day of the week, commonly called Sunday, rioting, hunting, fishing, quarrelling, at common labor, or engaged in his usual avocation (works of charity and neccessity only accepted), shall be fined in any sum not more than ten dollars nor less than one dollar; but nothing herein contained shall be construed to affect such as conscientiously observe the seventh day of the week as the Sabbath, travellers, families removing, keepers of toll-bridges and toll-gates and ferrymen, acting as such." It is contended that a broad construction should be given to the words "common labor" and "usual avocation," so as to include the drafting and execution of a will, and that such has been the construction placed upon the statute by this court, by holding that contracts and bonds, and even church subscriptions, come within the term "common labor," and their execution is prohibited on Sunday, and are therefore invalid unless afterward ratified. We are unable to agree with the theory of counsel. There is a wide distinction between the execution of contracts, notes and bonds on Sunday and the execution of a will. The former are instruments executed in the common, every-day affairs of life in the usual course of business. They create a liability from one person to another. They are the foundation of, or a necessity for their execution arises out of, business transactions. It is not so in regard to a will. Its execution is the voluntary act of the testator. It may be revoked or changed, in a proper manner, at his discretion.

It provides for the disposition of the testator's estate after his death. It might be said to have some elements of sacredness about it. It is executed in anticipation of the death of the testator, and is to take effect at his death, and be operative thereafter. One of its prime objects is to enable the testator to provide in a proper manner for those who are the objects of his bounty, giving to those who need, and who ought to receive, his bounty, but who would not, were it not for the right of testamentary dispositon of property. By the execution of a will the testator is also enabled to aid in continuing and building up institu. tions of charity and learning, which would not be done by other methods, requiring a surrender of the full control of one's property during life; and these objects, accomplished by means of testamentary disposition of property, are entitled to be treated with some degree of sacredness and respect. But if the drafting and execution of a will could be said to fall within the term "common labor," yet there would at all times exist a necessity for the immediate execution of a will. The law recognizes the right of persons to make a testamentary disposition of their property by will, and to make such disposition while in life, and possessed of sufficient mental capacity to make a will; and the only certainty of being able to make such disposition of one's property is to do so instantly, when one is possessed of his faculties. Death is certain, and life is uncertain. One has no lease of life or his mental faculties. Either may be extinguished instantly, and the only security one has of being able to execute a will and dispose of his property in that manner as he may desire, is to do so when in the possession of his faculties; and the uncertainty of life creates a constant necessity, and presents to one's mind the uncertainty of being able to provide for those who are near to him, and are the objects of his bounty, or making provision for and aiding in the perpetuation of those institutions in which he is interested, and which are sacred to him and beneficial to the public interests, if the making of the will be delayed. The drafting and execution of a will is akin to the execution of a marriage contract, and solemnizing the marriage. * But we are not required to pass upon the question without authority, as the courts of other States have passed upon the same question, and held that a will executed on Sunday is valid. Bennett v. Brooks, 9 Allen, 118; Beitenman's Appeal, 55 Penn. St. 183; George v. George, 47 N. H. 27.

MUTUAL BENEFIT SOCIETY-SICK BENEFITS -LUNATIC.-The case of McCullough v. Expressman's Mut. Ben. Ass'n 19 Atl. Rep. 355, decided by the Supreme Court of Pennsylvania, will prove instructive to the managers of mutual benefit organizations. It is there held that a mutual benefit association which agrees to pay benefits to "every member who through sickness or other disability is unable to follow his usual business," must pay benefits to a member who becomes a lunatic. Mitchell, J., says:

That insanity is a sickness in some senses of the word is beyond question, and such legal authorities as appear to have considered the question hold that it ickness, within the meaning of such charters and

articles of association as the defendant's. Thus in Burton v. Eyden, L. R. 8 Q. B. 295, an action against a "friendly society," the English designation of associations like the present appellee, the words of the by-law were: "During any sickness or accident that may befall him." Blackburn, J., said: "I am of opinion that lunacy is sickness, within the meaning of the rules of this society. * * Insanity depends on the state of mind and body of the person. * * It certainly seems to me that lunacy is a sickness affecting the health of the body in such a way as to prevent a man's ability of earning his livelihood. If it were not the intention to include it, the rules of the society should be framed so as expressly to exclude it." And Quain, J., said further: "I am also of opinion that insanity is sickness, within the society's rules. * The words # * entitling the member to relief are, during any sickness or accident,' except certain excluded cases, insanity not being one." In Kelly v. Ancient Order, 8 Daly, 292, Van Brunt, J., says: "Insanity has always been considered a disease, and comes strictly within the meaning of the term 'sickness."" And in Pellazzino v. Society, 16 Wkly. Cin. Law Bul. 27, it is assumed by Harmon. J., apparently without question by either party, that insanity entitles a member of such society to sick benefits.

MARRIAGE-PROOF OF COHABITATION. A case illustrating this subject is White White, 23 Pac. Rep. 276, decided by the Supreme Court of California. The court there considered the evidence and held it sufficient to establish a marriage by consent of the parties. As to the validity of such marriage Thornton, J., after quoting Lord Cranworth in Campbell v. Campbell L. R. 1 H. L. Sc. 200, and Lord Westbury in the same case, to the effect that cohabitation with habit and repute is a mode of proving the fact of marriage, rather than a mode of contracting marriage, says:

To the same effect is the opinion of Lord Moncreiff in Lapsley v. Grierson, 8 Ct. Sess. Cas. (2d Series), 61, and in Lowrite v. Mercer, 2 Ct. Sess. (2d Series), 966. The same rule is recognized by the law of England. See Goodman v. Goodman, 28 Law. J. Ch. 745; Plunkett v. Sharpe, 1 Lee, Ecc. 441; Bond v. Bond, 2 Lee, Ecc. 45; Diddear v. Faucit, 3 Phillim. Ecc. 580; Hervey v. Hervey, 2 W. Bl. 877. See Starkie, Ev. (4th Ed.) 45, where the doctrine is explained. The observations of Starkie are quoted in 1 Fras. Husb. & Wife, 397. See, also, remarks of Lord Cranworth in L. R. 1 H. L. Sc. 199, 200. Fraser states that the rule is acknowledged to a limited extent in Code Civil of France, in relation to the legitimacy of children. Fras. Husb. & Wife, 397, 398.

The proof of marriage by cohabitation and repute has been recognized in many cases in the United States; as in Fenton v. Reed, 4 Johns. 52; Clayton v. Wardell, 4 N. Y. 230; Jones v. Hunter, 2 La. Ann. 254; Barnum v. Barnum, 42 Md. 251; Cargile v. Wood, 63 Mo. 501; Foster v. Hawley, 8 Hun, 68; Bicking's Appeal, 2 Brewst. 202; Purcell v. Purcell, 4 Hen. & M. 512; Brinkley v. Brinkley, 50 N. Y. 197, 198; Hynes v. McDermott, 10 Daly, 428, 82 N. Y. 46, 91 N. Y. 451; Badger v. Badger. 88 N. Y. 554; Van Tuyl v. Van Tuyl

57 Barb. 237; Rose v. Clark, 8 Paige, 580-582. That a marriage in this State may be established per verba in præsenti, or by a contract per verba de futuro, cum subsequente copula; was recognized in Estate of McCausland, 52 Cal. 577. The contract characterized as entered into per verba de futuro is only evidence of marriage as proving the requisite matrimonial consent. Such consent is essential to every marriage (1 Fras. Husb. and Wife, 415); and, prior to the adoption of the Civil Code in this State, consent alone constituted marriage.

In that

TEACHER AND PUPIL-PUNISHMENT OF PUPIL.—An interesting case on the subject of the right of the teacher to punish the pupil is Boyd v. State, 7 South. Rep. 268, decided by the Supreme Court of Alabama. case the principal question decided was that the teacher, in view of the facts, was guilty of assault and battery in administering excessive and cruel punishment, but the statement of the law by Somerville, J., governing the rights and responsibilities of teachers was tersely and clearly stated. The better doctrine of the adjudged cases is that the teacher is, within reasonable bounds, the substitute for the parent, exercising his delegated authority. He is vested with power to administer moderate correction, with a proper instrument, in cases of misconduct which ought to have some reference to the offense, the sex, age, size and physical strength of the pupil. As to the extent of the punishment it may be laid down as a general rule that teacher's exceed the limits of their authority when they cause lasting mischief, but act within the limits of it when they inflict temporary pain. State v. Pendergass, 2 Dev. & B. 395; Lander v. Seaver, 76 Amer. Dec. 156; State v. Alford, 68 N. C. 322. And see article on the general subject in 28 Cent. L. J.

CRIMINAL LAW-PRIZE FIGHTING VIDELICET. The case of Sullivan v. State, 7 South. Rep. 275, decided by the Supreme Court of Mississippi, illustrates that a videlicet in criminal pleading may be a veritable boomerang, and proves the wisdom of the advice given by Mr. Bishop "to have nothing to do with the videlicet unless in exceptional circumstances." It was held there that an indictment for prize fighting must charge that the persons fought together, and against each other, in order to constitute the offense of "engaging" in the fight, and an indictment which charges

that S did unlawfully engage in a prize-fight with K, "to-wit, did then and there, enter a ring, commonly called a 'prize ring,' and did then and there, in said ring beat, strike, and bruise said" K, is defective, as the videlicet excludes the conclusion that K fought. The opinion by Cooper, J., contains an exhaustive discussion of the object and effect of a videlicet.

THE MODERN LAW OF CURTESY.

On the death of the wife, the husband takes a freehold estate, for the term of his natural life, in all the lands and tenements of which the wife was seized in possession, in fee-simple or in tail, at or during coverture, provided always that there has been lawful issue born alive, which would have been entitled to inherit such estate. This interest is called a tenancy by the curtesy, or an estate by the curtesy, the terms being used interchangeably in the common law. The great body of the common law has been changed or modified by legislative enactment, and that particular branch now under review made partially to conform to the demands of justice. As regulated by statute, the law of curtesy, given us under the colonial government, is still in force in most of the States. There are, however, some exceptions to this rule. Under the civil law, curtesy could not exist. As Texas, California and Louisiana fell under the ban of the civil law, tenancy by the curtesy has never been recognized in those States. In still other instances the provisions of the common law have been disregarded and the husband has been given a certain fixed interest in his deceased wife's estate, by way of inheritance. This rule prevails in Iowa and Indiana, where the estate proper is abolished by statute. But to Georgia and North Carolina must be given the credit of making the first great improvement in the common-law provisions. While in these States curtesy is defeated, the husband's interest in the realty of the deceased wife is an absolute fee.2 Oregon and Iowa have made the nearest approach to justice and common sense by vesting the estate in

1 Shouler H. & W. 473.

2 52 Ga. 315; 1 Wash. 129.

the husband, independent of the birth of issue.3

Essentials of the Estate.-To constitute an estate by the curtesy four things are necessary; first, the marriage; second, seizin in the wife; third, issue born alive capable of inheriting; fourth, death of the wife. Upon issue had, the right of the husband is said to be initiate; at the wife's death consummate. It would, however, be more properly claimed that the interest of the husband attaches at the time of marriage, subject to death or consummation by the happening or not happening of subsequent events. For instance, a woman, just before marriage, conveyed her real estate to a third party. The conveyance was very properly adjudged a fraud upon the husband and promptly set aside. Here is established, by inference, at least, that the right of curtesy is really initiate at marriage and before the birth of issue. To admit any other disposition would be to proclaim a rule that wedlock was an unnecessary preliminary to the enjoyment of the estate. The birth

of issue is the second step towards consummation. Issue, born alive, out of wedlock, would defeat, not advance the husband's interest. Marriage is emphatically the first essential, and there is no just reason why it should be regarded otherwise. With marriage and issue born alive, curtesy is possible; without marriage the estate cannot exist.

1. Marriage. It is enough here to give the well defined rules, which determine as to form and place, the validity of the contract by which curtesy is made to exist. The lex loci contractus governs the validity of the marriage. If valid where the contract is made, it is valid everywhere; invalid where made, invalid everywhere. In America, marriage is usually regarded as a civil contract and differs from other contracts only that it cannot be rescinded at the will of the parties. Hence, any agreement based upon the mutual consent of the parties, by which a man and woman agree to cohabit as man and wife necessarily establishes a legal marriage. Solemnization by clergymen is considered unnecessary in all but a few States and consent per verba de presenti is sufficient to constitute a valid contract.5

35 Sawyer, 125; 1 Wash. 249.

4 Robertson v. Stevens, 1 Ired. Eq. 247.

5 23 N. Y. 90; 6 Halst. 12; 6 Binn. 405; 1 Bush, 62, 12

2. Seizin of the Wife.-The wife must be possessed of the realty, which becomes the subject-matter of the estate. The seizin may be of two kinds, pedis possessio or actual possession, and constructive or legal possession. At common law actual seizin was necessary to constitute the estates both of curtesy and dower. But the husband's seizin in law was sufficient to establish the wife's dower, while curtesy could not attach, without possession by the wife both in deed and in fact. Actual possession was constituted by the wife holding the right to the fee and title, and either the wife, husband or a tenant of an estate less than freehold, occupying the estate, under the right of the wife or by the same title. But if the life estate of another was an incumbrance upon the wife's estate, and the wife held, in fee, simply the remainder or reversion, the pedis possessio necessary to entitle the husband to an estate by curtesy did not exist. In such a case, even the right and title of the wife may have been indisputable. In America the right to possession has at all times been considered equivalent to possession in fact. The ques

tion of possession was finally settled by the United States Supreme Court in the case of Davis v. Mason.9 Livery of seizin first gave birth to the common-law rule, afterwards livery became unnecessary and constructive seizin of the wife speedily followed. The court held: "If a right of entry, therefore exists, it ought, by analogy, to be sufficient to sustain the tenure acquired by the husband; as it is laid down in the books relative to a seizin in law, he has the thing, if he has the right to have it." The opinion concludes by resting upon Lord Coke's celebrated maxim, "Cessare ratione legis, cessat ipsa lex."

The same question was early passed upon in New York.10 The feme covert was the owner of uncultivated lands in fee. After

Vt. 396; 12 Ohio, 553; Yerg. 177; 6 Ala. 765; Law Journal, 384; 1 Abb. N. S. 195; 31 Mich. 126; 58 Mo. 510; 53 Miss. 371; 23 Minn. 528; 70 Ill. 484; 12 R. I. 485; 30 Ga. 173; 6 La. 463; N. H. 19 N. H. 257 (doubtful), North Carolina, Maine and Maryland require the statutory form to be observed.

62 Dev. & Batt. 177; 19 Me. 155; 35 Md. 361.

7 Co. Litt. 29a; 8 Paige, 645.

8 8 Johns. 262; 3 Hill, 182; 43 N. Y. 543; 56 Barb. 168;

1 Peters (U. S.), 503.

91 Peters, 503.

10 8 Johns. 262.

the wife's decease, the husband sought to enforce his right to curtesy and was met with the objection that, as his wife had not acquired actual possession, no such interest could legally attach. In establishing the rule the court reasoned thus: "The wife is considered in law as in fact possessed so as to enable her husband to be a tenant by the curtesy." Actual entry or pedis possessio by the wife or husband during coverture, is not required to the completion of tenancy by the curtesy. What amounts to a constructive season sufficient for an estate by curtesy to attach has been a subject of much dispute and the limits of seizin are not fully established. Some of the requirements, however, have been settled by judicial decision.

A person, in his wife's right, became copartner with others in the ownership of a cotton factory. He received a proportionate share of the profits until after the wife's death. The seizin of the wife was sufficient to sustain estate by curtesy." Title by descent or devise, and death before entry passed the estate, not to one's own heirs, but to the heirs of the person last actually seized. The statute of Henry VIII. ch. 10, § 2, changed the rule in regard to estates by purchase. Lord Coke says: "If a man dies seized of lands in fee-simple or fee tail general, and they descend to his daughter, who marries, has issue and dies before entry, yet in this case she had a seizin in law, but if she or her husband had entered during her life he would have been tenant by curtesy." The recovery, in ejectment, by the husband, of lands belonging to the wife is constructive seizin sufficient to vest a life estate in the husband in the lands recovered." equitable estate exists to the wife, although the rents are to be paid to her separate use during coverture, the seizin is sufficient, the receipt of the rents being conclusive evidence.14 The husband of a mortgagee in possession is not entitled to curtesy, though the estate become absolute at law, unless there has been a foreclosure or the mortgage has subsisted long enough to create a bar to redemption.15 Where money has been agreed

11 11 Barb. 437.

12 2 Bl. 232.

13 8 Paige, 634.

14 11 B. Mon. 138; 5 Madd. 408.

15 11 Barb. 44.

16 4 Kent, p. 50; 14 Barb. 441.

If an

to be laid out in the purchase of land, a court of equity will treat the money as land and the husband will have an interest therein.16 If partnership funds are used to purchase real property, for partnership purposes and there are proceeds remaining after paying debts of the firm and adjusting the equitable claims of the different members as between themselves, the property is treated as real estate and would be subject to curtesy." Real property, devised to the wife for life, who is also heir of the testator and, by reason of remainder being void, the wife succeeds to the remainder as heir, the life estate merges into the grantee estate and her husband's interest attaches.18 In a settlement of a dispute between husband and wife certain lands were conveyed to the husband and certain lands to the wife. The title to lands in the wife was made by transfer by husband and wife to a third person and by such person to the wife. Because the deed did not contain estoppel against the husband, he was entitled to curtesy in said lands. 19 Curtesy cannot be acquired where the husband's coverture begins and ends during the continuance of an adverse possession.20 There are some possible phases of constructive seizin not met by present adjudications, but the limits already prescribed are likely to cover the majority of instances, where the right to curtesy could be disputed.

3. Birth of Issue.-Marriage, seizin and death are incidents common to both dower and curtesy, but paternity is imposed as a condition precedent to the vesting of the latter, while the former becomes the wife's right whether she has had issue or not. It is not only necessary that the wife give birth to issue, but such issue must be born alive in the life-time of the wife, and capable of inheriting from her. What is evidence sufficient to establish that the child is born alive is the subject of much difference of opinion. Blackstone declares that, in order to enable the tenant to take by curtesy, it must be proved that the child was heard to cry and that by those who actually heard it and not by those who had learned it from hearsay."1 Lord Coke also maintained the sufficiency of

17 10 Barb. 44.

18 4 Kent, 99. 19 17 St. R. 648.

20 49 Hun, 416.

21 2 Black. 127.