cellor in Crane v. Crane, 17 Dick. Ch. (62 N. J. Eq.) | equitable jurisdiction upon the ground of some 21. In these cases jurisdiction was assumed upon the ground that marriage is a civil contract and that courts of equity have always entertained suits to set aside contracts on the ground of fraud. We have referred to the doctrine of the Carris case, and have cited with approval the McClurg, Rooney and Crane cases, as illustrating the view which our courts take of the doctrine of equitable jurisdiction as contradistinguished from the narrower English rule. The rule of the Carris case has been generally followed in this country, but in England it has been discussed and squarely rejected. Moss v. Moss (L. R. Prob., 1897), 263. The court below held that the remedy of establishing and destroying personal status does not belong to the original jurisdiction of chancery, and, so far as it exists, is wholly of statutory origin. This is supported by certain English decisions, but is contrary to the principle laid down in the Carris case and is not the law of this State. Therefore, although this status of the complainant is an issue, the Court of Chancery, independent of any statute, has jurisdiction. If it appeared in this case that only the complain ant's status and personal rights were thus threatened or thus invaded by the action of the defendants and by the filing of the false certificate, we should hold, and without hesitation, that an individual has rights, other than property rights, which he can enforce in a court of equity and which a court of equity will enforce against invasion, and we should declare that the complainant was entitled to relief, and to a decree establishing the truth as to the paternity of the child, relieving the complainant of the intolerable burden prima facie put upon him by the false record and preventing the wife from perpetuating a fraud upon the husband. Pavesick v. New England Life Insurance Co., 122 Ga. 190, adopting the dissenting opinion of GRAY, J., and rejecting the doctrine laid down by the majority in Roberson v. Rochester Folding Box Co., 171 N. Y. 538, a case seldom cited but to be disapproved, the force of which was subsequently removed by statute (Laws of N. Y., 1903, chap. 132). But it is not necessary to place the decision upon this ground, because there are sufficient facts presented to enable us to put this case upon the technical basis that the jurisdiction we are exercising is the protection of property rights, and to declare that the complainant is entitled to restrain the unwarranted use of his name as the father of the child upon the ground that such action is calculated to injure his property and the probable effect of it will be to expose him to risk or liability. property right, however slender and shadowy, and the tendency of the courts is to afford more adequate protection to personal rights and to that end to lay hold of slight circumstances tending to show a technical property right. (See note, Vol. 37, L. R. A., p. 787.) It sufficiently appears that the complainant's property rights now existing, and the contingent interest of himself and of other parties, are seriously menaced by the unlawful and unwarranted use of the complainant's name as the father of the child in the recorded birth certificate. It is indisputable that the complainant is now subject to the risk of liability for the support and maintenance of the infant. If, through the mental incapacity of the complainant, or in case of his death, inability or neglect to produce evidence of facts as to the paternity of the child, the certificate of birth should not be contradicted, it would afford evidence of the facts therein contained and the complainant's liability would become fixed. The complainant is confronted with the risk of prosecution during his lifetime, and with a strong probability of litigation over his will or his property in case of his death. If a court of equity may interfere to prevent the unlawful use of a person's name in a case where there is no evidence of actual fraud, how much more should the court assume jurisdiction in a case of actual fraud, involving moral turpitude. The jurisdiction of a court of equity to interfere where there has been an unwarranted use of a man's name, the probable effect of which is to expose him to risk of future liability, has been sustained by authority. In England, the Court of Chancery, even under the more restricted rule that there prevails, sustained an injunction to restrain the unauthorized use in a prospectus of a man's name as a trustee of a corporation. Routh v. Webster, 10 Beav. 561. The unauthorized use of the name of "The Times" newspaper in London was also restrained by parties engaged in the sale of cycles. Walter v. Ashton (L. R. A., Ch. Div., 1902, Vol. 2, p. 282). In each of these cases an injunction was granted because the unauthorized use of the plaintiff's name was calculated to injure his property and to expose him to risk of future liability. In neither case was a present property right actually prejudiced, but only threatened and liability only anticipated. In Routh v. Webster, supra, the Master of the Rolls, Lord Langdale, said: "I think that the plaintiff is entitled to the injunction. I have no doubt that the plaintiff never did consent to be a trustee. The name of Mr. Routh, who desired to have nothing to do with this concern, has been published to the world as a In many cases courts have striven to uphold the trustee; his name was also used at the bankers; and though he may not be subjected to the duties of trustees, yet it is plain that he is exposed to some risk by the unauthorized act of the defendants in using his name." In Prudential Assurance Co. v. Knott (L. R., 10 Ch. Appeal Cases, 142, 1875), Lord Cairns approved Routh v. Webster in these words: "That case appears, if I may say so, to have been quite rightly decided. The difficulties in which the plaintiff hight have been placed are obvious; and he was held entitled to restrain, not any libel, for there was no libel, but that improper and unauthorized use of his name." In Walter v. Ashton, supra, BYRNE, J., said: "The principle is clear enough: the court does not grant an injunction to restrain the use of a man's name simply because it is a libel or calculated to do him injury; but if what is being done is calculated to injure his property, and the probable effect of it will be to expose him to risk or liability, then if I rightly understand the law of this court, an injunction is the proper remedy." Furthermore, this case comes within the well settled rule that a court of equity will prevent the threatened invasion of property rights and protect a party from exposure to the risk of litigation and liability. It is clear that the complainant has a property interest under his mother's will in certain specific real estate in New York city, consisting not only of an income for life, but of a vested remainder in a certain undivided share of the real estate in question. This vested remainder is, under the real property law of New York, as a future estate, descendible, devisable and alienable in the same manner as an estate in possession. (Real Property Law [N. Y.], Sections 26, 27, 30 and 49.) There is more than a "tangible probability," to use the phrase employed in Walter v. Ashton, supra, that a claim will be made by or in behalf of the infant upon the estate of the complainant in the event of his death, whether he leaves a will or dies intestate. His right to make absolute disposition of his estate by will is menaced by the fraudulent record. His property is exposed to the risk of litigation after his death, to the detriment of his lawful heirs. If he desires to leave his property, as an entirety, under the law of New York, where the land is situ ated, to charity, by making a devise to any benevolent or charitable society or institution, his will may be attacked, not upon any ground of mental incapacity, but upon the ground that he has devoted more than one-half part of his estate to a charitable institution, in violation of the statute of New York, which prohibits such a disposition where a person leaves a husband, wife, child or parent. (See Revised Statutes of N. Y., Birdseye's Ed., 1901, Title "Wills," sec. 25, Vol. III, p. 4022.) The jus disponendi of a testator is a property right (O'Neill v. Supreme Council, Am. L. of Honor, 41 Vroom. [70 N. J. L.] 411), and one which should be protected by a court of equity from a threatened or anticipated attack. The court below suggested that the inherent power of a father to make a will would protect him against this contingency. With this we cannot agree. Courts not infrequently set aside wills on the application of heirs-at-law, and this infant defendant, in attacking the will of the complainant, might succeed in having it set aside on the ground of the complainant's insane delusion in believing him to be the son of another, as was attempted in the case of Smith v. Smith, 3 Dick. Ch. (48 N. J. Eq.) 566, and might prove that this was a delusion by the production of the very record which is now attacked. If he dies without lawful issue, he may dispose of his property absolutely, but the New York statutory limitation above referred to, if he gave all of his estate to charity, might be used by the infant to invalidate his full intention, wholly independent of any question of mental incapacity or undue influ ence. If he dies intestate, the child may institute an action of ejectment against his heirs and subject them to litigation, when witnesses are dead or other evidence unavailable to contradict the certificate of birth. The rights of his heirs-at-law should not be overlooked. The complainant is under the strongest moral obligation to leave no taint upon the inheritance, if by any act of his he can blot out the stain and prevent false and fraudulent claimants from obtaining possession of his property to the exclusion of his relatives by blood. The absence of precedents or novelty in incident presents no obstacle to the exercise of the jurisdiction of a court of equity. The case presented is novel in incident, but not in principle; but it is no objection to the exercise of jurisdiction that in the ever-changing phrases of social relations a new case is presented and new features of wrong are involved. As said Lord Hardwicke in his letter to Lord Kames on the Principles of Equity, dated June 30, 1759: "Fraud is infinite, and, were a court of equity once to lay down rules, how far they would go, and no farther, in extending their relief against it, or to define strictly the species or evidence of it, the jurisdiction would be cramped and perpetually eluded by new schemes which the fertility of man's invention would contrive." (Parkes' History of the Court of Chancery, 508.) Chancellor Cottenham, in Wallworth v. Holt, 4 Myl. & C. 619, said: "I think it the duty of this court" (meaning equity) "to adapt its practice and course of proceeding to the existing state of society, and not by too strict an adherence to forms and rules, established under different circumstances, to decline to administer justice, and enforce rights for which there is no other remedy." Paraphrasing the language of Justice HERRICK in Green Island Ice Co. v. Norton, 105 App. Div., N. Y., 331, the jurisdiction of equity is constantly growing and expanding, and relief is now granted in cases where formerly the courts would not have thought for a moment of so doing. From time immemorial it has been the rule not to grant equitable relief where a party praying for it had an adequate remedy at law; but modern ideas of what are adequate remedies are changing and expanding, and it is gradually coming to be understood that a system of law which will not prevent the doing of a wrong, but only affords redress after the wrong is committed, is not a complete system and is inadequate to the present needs of society. As for precedents: In a New York case the defendant, having procured from his wife, by fraud, a confession on her part of adultery, commenced an action to divorce her, upon the ground of that adultery. The wife invoked the equitable jurisdiction of the court to restrain the use of such confession as evidence in the then pending divorce action. The statute of New York at that time forbade husbands and wives to be sworn as witnesses in actions for divorce upon the ground of adultery, and hence the wife would not have been able, in the divorce action, to overcome the evidential effect of the written confession by showing that it was procured by fraud and duress. A demurrer was interposed in the equity suit upon grounds similar to those urged here, viz., that there was no head of equity jurisdiction under which such relief could be granted, and that there was no basis for the interposition of equity to enjoin the use of the written confession, or any copies thereof, as evidence. The court overruled the demurrer, and the opinion of that eminent jurist, the late Mr. Justice VANN BRUNT, is not only interesting but pertinent as holding to the contrary of the ruling below in the case at bar. The court held that novelty in incident was no barrier to equitable jurisdiction; that if such were the rule, gross injustice, under the guise of forms of law, might be perpetrated, and, further, that it was quite within the power of a court of equity, in case of fraud, to broadly restrain the use of documents as evidence. Callender v. Callender, 53 How. Pr., N. Y., 364, 365; vide Meldrum v. Meldrum, 11 L. R. A. 65, 70. marriage between the woman and the plaintiff with the bureau of vital statistics, and thereupon the woman obtained a transcript of such record, and caused the same to be lodged and filed with the authorities in the province of the plaintiff's birth in Italy. The purpose of the woman was to claim, at some time in the future, to be the plaintiff's wife, or his widow after his death. These were the findings of fact of the Supreme Court. The plaintiff brought his action in equity, and made parties defendant the woman, Francesca Roppolo, and Thomas Darlington, as Commissioner of Health of the city of New York, who was, under the law of New York, the custodian of the records of marriages. The statute of New York relating to the making and filing of marriage certificates (Birdseye's Revised Statutes, Vol. II, p. 2810, sec. 22, as amended by the Laws of 1904, chapter 392, p. 991), is, in essential particulars, the same as the statute of New Jersey (P. L. 1888, p. 52), and the marriage certificate had practically the same evidential character as the birth certificate in this case. The Supreme Court held (opinion by MADDOX, J.), that the case was within the jurisdiction of a court of equity, and judicially determined and decreed that the plaintiff was not, as stated in the certificate filed, married to the defendant; that, as to the plaintiff, the pretended marriage was a nullity; that “the defendant, Francesca Roppolo, be and she hereby is perpetually restrained and enjoined from claiming or representing herself to be the wife of the plaintiff herein, or from claiming any right and interest in and to his property and estate;" that "the defendant Thomas Darlington, as Commissioner of Health of the city of New York, be and he hereby is directed to endorse upon the said certificate of marriage a reference to this decree." Randozzo v. Roppolo, New York Supreme Court, Kings county, not yet reported; judgment entered July 14, 1906. This case carries with it not only the weight of a precedent, but shows the tendency of courts of equity to intervene to prevent the infringement of personal rights. Finally, the technical basis of the jurisdiction we are exercising is the protection of property rights. The equitable character of the action itself requires us to regard comparatively remote and trifling interferences with such property rights in the light of the great and immediate interference with the personal rights of the complainant; although, as we have already stated, whether this bill might not be rested on such personal basis alone, without refer ence to the technical protection of property, is not now decided, because the present case does present the property feature to an extent sufficient to satisfy even the rule adopted by the court below. We find in New York also a case where a woman went through the form of a marriage ceremony with a man who personated the plaintiff. This was done at the instance of the woman. The priest perform- Upon the whole case, we are of the opinion that ing such marriage ceremony filed his certificate of a the Court of Chancery has jurisdiction to afford the complainant ample and complete relief, as already indicated in this opinion; that, should the Court of Chancery refuse relief under the circumstances stated in the bill, it would cease to be a court of equity, governed by principles of natural justice, especially where property rights may be said to be threatened and personal rights are clearly invaded. The decree sustaining the demurrer is reversed. : 0: CORRESPONDENCE. An Interesting Legal Document. To the Editor of the Albany Law Journal: The original of the appended brief, in the handwriting of the late Chief Justice Ryan, was found by the undersigned among the old letters and papers of the late Judge Doolittle, for twelve years a Senator from Wisconsin. The document is interesting and valuable for its brevity and clearness, and for its method of treatment of the legal questions involved. It is hardly necessary to remark that Judge Ryan's client won the decision in the Supreme Court of Wisconsin, as, indeed, the argument would seem to indicate he ought. The case is reported in 6 Wis. 14, and is entitled State ex rel. Brayton and ano. v. Merriman, and was an information in the nature of a quo warranto. It was decided in 1857. no The Constitution of Wisconsin provides that " county, with an area of nine hundred square miles or less, shall be divided or have any part stricken therefrom, without submitting the question to a vote of the people of the county, nor unless a majority of all the legal voters of the county voting on the question shall vote for the same." Dodge county, in that State, contains twenty-five townships, of, presumably, six miles square, making exactly nine hundred square miles. The Legislature of 1856 attempted to detach several towns from the county and attach them to an adjoining county. This was done in face of the constitutional provision above quoted. This was held to be in violation of the Constitution, and void. The court, however, discussed and determined an interesting question in the case, viz.: What are the number of square miles in a township, and how shall same be ascertained? The court held that the original surveys by the United States government are not to be taken as conclusive by presumption of law; they may be rebutted and impeached as to their correctness; but, prima facie, they are to be presumed to be correct until their accuracy has been impeached. The case involved the right to hold title to a county office, depending on the votes cast in the territory attempted to be detached from one county by said legislative act and added to another. The case is altogether an interesting one. Very truly yours, DUANE MOWRY. Attorney-General v. Merriman. Chapter 27 of the General Statutes, 1856, is unconstitutional and void for the following reasons: I. The measurement of the townships of six miles square by the surveys of the United States is adopted by the State as a legal conclusion. The area of a county is legally ascertained by the multiplicaton of the base lines of the township, upon a plane. The irregularities of the surface cannot be taken into account to vary the area. The area of the county of Dodge of 900 square miles is thus ascertained, as a conclusion of law, and cannot be contradicted within the meaning of section 7, of article 13, of the Constitution. See U. S. Stat. at Large, Vol. 1465, sec. 2; Vol. 2277, sec. 1; Rev. Stat. 53, sec. 9; & 58, sec. 31. And the attempt to divide the county without a submission to the voters of the county is a violation of the constitutional provision. II. If the court should hold the first proposition ill taken, then it is submitted that the area is at least prima facie 900 miles square. And being so, no legislation is constitutional which assumes it to be more, until it is authoritatively ascertained, in some proper way, that it is in fact more. This cannot be the subject of an issue of fact. The constitutionality of a legislative act cannot be the subject of the finding of a jury. The validity of legislation cannot rest in pais. In different cases, juries might, upon their views of the weight of testimony, find differently. And thus the absurdity would arise that the same provision would be held constitutional and unconstitutional in different cases. III. The conditional submission of the question to the votes of the people cannot aid the act. Because it is left discretionary with the authorities of the county to proceed or not; Because this court might, or might not, appoint the commissioners designed by the act; Because the commissioners, if appointed, might not act. And the provision of the Constitution being positive, the compliance with it cannot be conditional. IV. The prima facie area of the county being 900 square miles, it is a judicial function to determine | at a contested election.-London Evening Standard. In a murder trial in Cincinnati a negro hotel por it less. Laws of Kansas, 1903, Chap. 67, Sec. 1. That the term "automobile" and "motor vehicle," as used in this act, shall be construed to in clude all types and grades of motor vehicles pro or pelled by electricity, steam, gasoline, or other source of energy, commonly known as automobiles, motor vehicles, or horseless carriages, using the public tracks. highways and not running on rails Nothing in this section shall be construed as in any way preventing, obstructing, impeding, embarrassing or in any other manner or form infringing upon the prerogative of any political chaffeur to run an automobilious band-wagon at any rate he sees fit compatible with the safety of the occupants thereof; provided, however, that not less than ten and not more than twenty ropes be allowed at all times to trail behind this vehicle when in motion, in order to permit those who have been so fortunate as to escape with their political lives an opportunity to be dragged to death; and provided further, that whenever a mangled and bleeding political corpse implores for mercy, the driver of the vehicle shall, in accordance with the provisions of this bill, "Throw out the life-line." : 0: The Humorous Side of the Law. His Honor, Judge Addison, who died recently, had once to deal with the problem, "When does an egg become stale?" The plaintiff suggested that in summer eggs became stale "about a week after they came to market," but the judge declared that the real test of an egg's staleness was the moment it became fit for use 66 ter was called as witness. How many shots were fired?" he was asked. "Two shots, suh," he answered. "Close together?" "Des laik dat, suh," he said, slapping his hands sharply as quick as he could. "Where were you when the first was fired?" "I was in de basemen' of de hotel, suh, shinin' a gemman's shoes." "And when the second shot was fired where were you?" "At dat time, suh, I was passin' de Big Fo' depot." The burglar's wife was in the witness box, and the prosecuting attorney was conducting a vigorous crossexamination. "How did you come to contract a matrimonial alliance with such a man?" getting old, and had to choose between a lawyer and a Well," the witness said, sarcastically, "I was burglar." The cross-examination ended there.-Sketch. A Western Senator, generally esteemed as one of the ablest lawyers at the north end of the capitol, enjoys telling of an experience of his early days at the bar in Chicago, which showed that he did not then enjoy the reputation he now holds. "I was retained by an old Irishwoman," says the Senator, "to defend her only boy, charged with housebreaking. Shortly after the beginning of legal proceedings against the boy, I received a message from the old lady to meet her on pressing business. When we met, she rushed up to me, and, in an excited voice, exclaimed: "I want ye to git a continuance for me b'y.' “Very well, madam,' was my reply; 'I will do so, if I can; but it will be necessary to present to the court some grounds for a remand. What shall I say?' "Sure,' responded the old lady, 'ye can jist tell the coort that I want a continuance till I can git a better lawyer for the b'y."-Chicago News. One of the justices of the Supreme Court tells of a young lawyer in the West who was trying his first case before Justice Harlan. The youthful attorney had evidently conned his argument till he knew it by heart. Before he had proceeded ten minutes with his oratorical effort the justice had decided the case in his favor, and had told him so. Despite this, the young lawyer would not |