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his wife from setting up the right of homestead to a certain tract of difficulty and embarrassment. The amount of property which the land in the neighborhood of Jacksonville, which they claim as necessary interpretation of the exemption will sometimes embrace, such. The whole tract consists of about forty acres in an unincor-will undoubtedly appear as a great hardship and injustice to cred= porated suburb, called East Jacksonville, much of which has been itors. It is a great stride from that state of things in which the laid out into building-lots, and on which the bankrupt resides and sanctity of a debt induced the legislature not only to take from the has a steam saw-mill, which he has operated for many years as his debtor all his property, but even his liberty itself. It may be a principal business. question whether it is not carrying the principle of exemption too far The constitution of Florida, adopted in 1868, reserves to every for the public welfare. It is true that the farmer without his farm, head of a family residing in the state, and to his heirs, his home- the blacksmith without his forge, the miller without his mill, the stead and one thousand dollars worth of personal property, free trader or business man without his shop, in fine any citizen withfrom the claims of creditors. If not in an incorporated city or town, out his place to work and labor, or pursue his ordinary calling, is iit may be a homestead to the extent of one hundred and sixty acres deprived of the power to support himself and his family, becomes (of land; if in such city or town, half an acre without any limit as a burden instead of a help to the community. These establishtto value. The reservation, however, is only that of the homestead, ments or places of labor or occupation are respectively adjuncts of and embraces no more, although the party may own more a man's homestead, and, within the intent and meaning of the conwwithin the prescribed limit of quantity. It is very material, there-stion of Florida, form a part of it. Whether the provision is politic ffore, to know what is meant by and embraced in a homestead. or impolitic is a question with which the courts are not concerned. Within the meaning of the constitution of Florida, however it may In the eye of the philosophic economist, taking a broad view of ¡be elsewhere, it certainly embraces more than a house for shelter; the interests and objects of human society, it has many reasons in for it may extend to one hundred and sixty acres of land which its favor; and the creditor cannot complain of injustice, for he uncould never be needed for that purpose alone. As one hundred derstands the conditions when he gives the credit. It is a pure and sixty acres is the usual quantity for a farm in the country, the question of policy, namely: whether the advantages obtained by policy of the constitution seems to be to allow a man such quantity the exemption are equivalent to the disadvantage arising from the of land with his house as he is accustomed to use therewith in the unwillingness of capital to remain in a community where such an pursuit of his occupation. In other words, the object seems to be, exemption exists; or whether from the latter cause the law will not only to preserve to the unfortunate debtor his house for shel- not operate too depressingly upon enterprise. Speculation howter, but his usual means of employment by which to earn his live-ever is unnecessary. The people of the State of Florida have, in lihood and support his family. The state as well as the individual himself is interested in his labor and industry; and, therefore, takes care that he shall not be deprived of the power to employ ¡them.

In the case of a farmer; therefore, it is clear that the exemption embraces his house and farm, not exceeding the amount limited; of course it includes (and so the constitution declares) the improvements thereon. Those improvements, however, must be such as to make them properly a part of the homestead, such as outhouses, barns, sheds, wagon-houses, fences, etc. They would not embrace tenant houses, though built on the farm, for these would be no proper part of the farm-homestead. They contain capital separately invested. They produce a revenue of their own distinct from that of the farm.

For the same reason the farmer's homestead would not include a saw-mill, or a grist-mill, or a carding and fulling-mill, though erected on a portion of the tract of which the farm is a part. These are separate enterprises in which the farmer has been enabled to invest his surplus capital. They are no part of the farm. If he runs it he does it as a separate business from that of his farm, and he cannot claim both as appurtenant to and part of his homestead. They constitute the basis of outside and separate industries. A mill-owner, in like manner, may have a farm attached to his mill, and work it as a separate and secondary business. He may claim his mill as part of his homestead, but not the former also; otherwise by multiplying his branches of business and trade a man might have a large domain, consisting of many establishments, and claim them all as incident to his homestead. This never could have been the intent of the constitution. It would be an unreasonable construction of its terms. Those terms must be fairly construed so as to fully carry out the policy of the constitution, and yet not to nullify all obligations of a debtor to pay his debts. That the preservation of a house holder's means of carrying on his business, as well as a house for shelter, is within the constitutional purpose, is evident from the clause relating to city property, namely, that in a city or town the exemption shall not extend to more improvements or buildings than the residence and business house of the owner, showing that the business house as well as the residence is included.

But whilst the cases which we have supposed are comparatively easy of solution, a great many others will arise presenting greater

their constitution, declared what their will is on this subject, and that declaration is binding on both the people and the courts.

In the case under consideration the debtor claims to follow the business and trade of sawing lumber, and asks to have his mill, which adjoins his dwelling, reserved as a part of his homestead. In our opinion this claim is supported by the constitutional provision. The raill in the sense of that constitution is appurtenant to, and part of the debtor's homestead. If it be objected that the value is unreasonably great, we answer that the constitution prescribes no limit of value and the courts can not prescribe one. As before stated we think that a man's shop, store or mill in which he possesses his usual trade or avocation (as well as the farmer's farm), if connected with and adjacent to his dwelling, is intended to be included in his homestead. It is the stand or place on which and by means of which he may continue to pursue his industrial labor and be a useful citizen, and is within the object which the constitution has in view.

But the debtor can not ask to retain those portions of the forty acre tract which are not auxiliary to his homestead, considered as the homestead of a lumber-man running a saw mill.

Those portions will be for the assignee, under the direction of the district court, to separate from the rest. Under the circumstances we do not think the debtor has pursued such a course as to throw undue embarrassments in the way of the assignee, which need to be removed by the interference of a court of equity. The main thing which he claims, the saw mill, we think he is entitled to claim, unless there is some foundation for the allegation of the bill that debts to a large amount, which have been proved, were incurred for the erection of improvements on the mill, and for labor. As this, however, will be a matter which the district court can better investigate, when marshalling the assets of the bankrupt estate, and enforcing any liens which particular creditors may have on particular parcels of property, we do not think there is any call for the interposition of this court.

The motion for injunction is denied and the bill dismissed, without costs and without prejudice to the complainant, as to any part of the property except the house and saw mill and such reasonable extent of land about the same as may be necessary and proper for their enjoyment as a homestead by the debtor and his family, and without prejudice as to the effects of debts contracted for improvement and labor.

We do not think that any decree should be made authorizing said Lewis, he then and there drank the same, and thereby was the assignee to sell the reversion of the homestead, as the constitution expressly declares that the exemption shall accrue to the heirs of the party having enjoyed or taken the benefit thereof. This however, is also a question which the district court can as well decide as this court, and presents no ground for the interference of a court of equity. BILL DISMISSED.

Note. We are indebted for this valuable opinion to the courtesy of Hon. William Archer Cocke, Attorney-General of Florida. The question discussed has reference to the character of the premises in which the homestead right may subsist The decisions upon this question in other states, and in other federal courts, form one of the most instructing chapters in the law of homesteads. We have not space in this note to indicate in any degree their scope nor do anything more than give a list of the cases, which, so far as our searches have gone, are as follows: Mayho v. Cotton, 69 N. C. 289; Hubbell v. Canady, 58 Ill. 425; Re Tertelling, 2 Dillon, C. C. 339; West River Bank v.

made intoxicated and contentious, and engaged in quarrelling and fighting with certain persons, and was. thereby beat, struck, badly assaulted, and injured, physically disabled, mentally deranged, and killed, whereby the plaintiff permanently lost the means of her support, the comforts of a home, and the society and protec tion of her said husband, and has suffered, and always will suffer, for the necessaries and comforts of life, and from mental anguish.. Also, for that the said defendant, at said Walpole, to-wit, on the: first day of February, 1872, did unlawfully keep, sell furnish, and deliver spirituous liquors to one Lewis Bedore, of Surry, in said' county, laborer, who then and there was the lawful husband of the plaintiff, and upon whom and whose labor and effort she then was, still is, and ever will be dependent for her support and for the comforts of a home, and also to other persons who were then and there present, and that by reason of such unlawful keeping, selling, furnishing, and delivering such spirituous liquors to said Lewis and to said other persons, they then and there drank the same and thereby were made intoxicated and contentious, and engaged in quarrelling and fighting with each other, and the said Bedore was thereby beat, struck, badly assaulted, and injured, physically disabled for labor and effort, mentally deranged, and killed, the comforts of a home, and the society and protection of her said whereby the plaintiff permanently lost the means of her support, husband, and has suffered, and always will suffer, for the necessa

Gale, 42 Vt. 27; Buxton v. Dearborn, 46 N. H. 43; Martin v. Hughes, 69, N. C. 293; Williams v. Hall, 33 Tex. 412; Adams v. Jenkins, 82 Mass. 146; Kresin v. Man, 15 Minn. 116; Bunker v. Locke, 15 Wis. 635; Tumlinson v. Swinney, 22 Ark. 400; Rayland v. Rogers, 34 Tex. 617; Sarahas v. Fenlon, 5 Kas. 592: Finley v. Dietrick, 12 Iowa, 916; Taylor v. Boulware, 17 Tex. 74; Bassett v. Messner, 30 Tex. 604; Woodward v. Till, 1 Mich. (N. P.) 210; Parker v. King, 16 Wis. 223; Campbell v. McManus, 32 Tex. 442; Thornton v. Boyden, 31 Ill. 200; Gregg v. Bostwick, 33 Cal. 220; Kelly v. Baker, 10 Minn. 154; Clark v. Shannon, 1 Nevada, 568; Mercier v. Chace, 11 Allen, 194; Goldman v. Clark, 1 Nevada, 607; Mills v. Estate of Grant, 36 Vt. 269; Lazell v. Lazell, 8 Allen, 575; Brown v. Keller, 32 Ill. 151; Casselman v. Packard, 16 Wis. 114; Herrick v. Graves, 16 Wis 157; Reinbach v. Wal-ries and comforts of life, and from mental anguish. ter, 27 Ill. 393; Dyson v. Sherley, 11 Mich. 527; Moore v. White, 30 Tex. Also, for that the defendant, at said Walpole, to-wit, on the first: 440; Walker v Darst, 31 Tex. 681; Wassell v. Tymach, 25 Ark. 101; Mc- day of February, 1872, did unlawfully sell, furnish, and deliver to Donald v. Badger, 23 Cal. 393; Kurz v. Brusch, 13 Iowa, 371; Stanley v. Lewis Bedore, then of Surry, in said county, and being the husGreenwood, 24 Tex. 224; Phelps v. Rooney, 9 Wis 70; Prior v. Stone, 19 band of the said plaintiff, upon whom and whose labor and efforts Tex. 371; Hancock v. Morgan, 17 Tex. 582; Methury v. Walker, 17 Tex. she then was and ever would be dependant for support and for the 593; True v. Morrill, 28 Vt. 672; Cook v. McChristian, 4 Cal. 23: Taylor v. comforts of a home, and did also at the same time and place, unHargous. 4 Cal. 268; Walters v. People, 18 Ill. 194; Rhodes v. McCormick ;lawfully sell and deliver to other persons then present, spirituous 4 Iowa, 368; Crow v. Whitworth, 20 Ga. 38; Rogers v. Hawkins, 20 Ga. 200 Pinkerton v. Tumlin, 22 Ga. 165; Delaney's Estate, 37 Cal. 176; Thorn v. liquors, which the said Lewis Bedore and other persons then and Thorn, 14 Iowa, 49; Hill v. Bacon, 43 Ill. 477; Williams v. Jenkins, 25 Tex. there drank, and therewith became intoxicated, contentious, and 279; Beecher v. Baldwin, 7 Mich. 488; Thomas v. Dodge, 8 Mich. 51; Hel- quarrelsome, whereby the said Lewis Bedore was then and there fenstein v. Cave, 3 Clarke (Iowa), 287. badly beaten, physically enfeebled, and mentally deranged, by reason of which the said Bedore wandered off, became frozen and

Sale of Intoxicating Liquor-Civil Liability of disabled, and died, whereby the plaintiff lost the society and proSeller where Death Results from Intoxication-tection of her husband, her means of support, and the comforts of Constitutional Law.

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1. Sale of Intoxicating Liquors-Constitutionality of New Hampshire Civil Damage Act.-The act of July 2, 1870, which provides that the person who sells or furnishes to another intoxicating liquor, in violation of law, shall be liable, in

certain cases where death results, to any person dependent on the deceased for support, for all damage or loss occasioned by such injury, held constitutional.

2.-. Who may Sue.-The widow of the deceased, who was dependent on him for support, may maintain an action for damages under this statute.

Case. The declaration is as follows: *

* in a plea of the case for that the said defendant, at said Walpole, to-wit, on the first day of february, 1872, did unlawfully keep, furnish, sell, and deliver spirituous liquors to one Louis Bedore, of said Surry, who then and there was the lawful husband of the plaintiff, and upon whom and upon whose labor and efforts she then was, still is, and ever would be dependent for her support and for the comforts of a

home, and that by reason of such unlawful keeping, furnishing, selling, and delivering such spirituous liquors as aforesaid to the

To appear in Vol. 54 N. H. Reports.

her home, to the damage of the said plaintiff, as she says, the sum of twenty-five hundred dollars.

The defendant demurred generally.

Lane & Healey, for the plaintiff; Cushing, for the defendant. LADD, J. The material part of the act upon which this suit is brought, is as follows: "In case of the death or disability of any person, either from the injury received as herein specified, or in consequence of intoxication from the use of liquor unlawfully furnished as aforesaid, any person who shall be in any manner dependent on such injured person for means of support, or any party on whom such injured person may be dependent, may recover from the person unlawfully selling or furnishing any such liquor as aforesaid, all damage or loss sustained in consequence of such injury, to be recovered in an action on the case. Laws of 1870, ch. 3, sec. 3.

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There can be no question but that the declaration shows a case entirely within the provisions of this statute. It shows that the plaintiff is the widow of Lewis Bedore, who came to his death by reason of intoxication caused by liquor unlawfully furnished to him by the defendant, and that she was dependant upon him for

support.

But the defendant says, the action can not be sustained, because the wife has no rights in the person of her husband which can legally be made the basis of a recovery by her of damages for causing his death; that the value of human life is inappreciable, and not capable of being reduced to a pecuniary standard of valuation; and therefore a law which allows damages for its destruction, to be

recovered in money by the person injured, is in violation of the fundamental rights of private property guaranteed by the constitution of the state.

Y. 310; Quinn v. Moore, 15 N. Y. 432; Tilley v. Hudson River R.
Co., 24 N. Y. 471; McMahon v. Mayor, &c., of New York, 33
N. Y. 642.

We think the position, that the act under which this suit is brought is unconstitutional, for the reason that it gives compensations in damages for causing the death of a human being, can not be sustained.

Doubtless it is to be understood as settled, that no remedy ex- Most of the states now have statutes providing, in one way or ists as common law in favor of the person injured against one another, and in terms more or less general, for the recovery of who has caused the death of another, even for the direct pecuni-private damages for causing the death of a human being, and we ary loss and damage occasioned thereby; and so it has been held are not aware that the constitutionality of such acts has been in this state. Wyatt v. Williams, 43 N. H. 102. It is not import-called in question in any of the numerous cases which have arisen ant in this case whether the reasons on which this supposed rule under them. of the common law rests are satisfactory or unsatisfactory. We are not called upon to discuss or consider them. I must say, however, that I have never been able to comprehend their force or admit their soundness. That one person may have a direct pecuniary interest in the life of another, and so suffer a direct pecuniary damage as the immediate and necessary consequence of the act which destroys such life, is too plain to require argument or illustration. The pecuniary loss occasioned to the owner of a dumb animal, byquence of the defendant's illegal act in furnishing the liquor. But the careless or wilful act which destroys its life, is no more the natural, necessary, and immediate result of the act, than the loss occasioned to a tenant, per autre vie, by the destruction of the human life upon which his estate depends.

But the question is not whether the rule itself is sound, or whether the various reasons that have been given in its support are consistent and satisfactory, or otherwise; the position of the defendant can only be sustained by going much further, and holding that it is of so high a character as to come within the protection of the constitution against legislative encroachment or repeal. To be sure, the right of possessing and protecting property is guaranteed by the constitution, and that doubtless implies that the property of one shall not be ruthlessly, or without legal cause, taken from him and bestowed upon another. But by what possible stretch can it he said that this act does any such thing? The legislature have done no more than give redress and compensation for damage actually inflicted by one party and suffered by the other, in a case where no remedy was furnished by the law as understood and administered by the courts before.

In England, as early as 1846, the rule we are considering, which obviously had its origin with the courts, was repealed by the legislature. The statute of 9 and 10 Vict., known as Ld. Campbell's Act, after reciting that "no action at law is now maintainable against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is oftentimes right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him," enacts "that, whensoever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect, or default is such as would (if death had not ensued), have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony."

A large number of actions have been brought upon the provisions of this act, wherein it has undergone the careful scrutiny of eminent counsel, as well as the courts. Among the reported cases are, Franklin v. South Eastern Railway Co., 3 Hurlst. & N. 211; Dalton v. South Eastern Railway Co., 4 C. B. (N. S.) 296; Blake v. Midland Railway Co., 18 Q. B. 93 ; Pym v. Great Northern Railway. Co., 4 B. & S. 396; Read v. Great Eastern Railway Co., L. R. 3 Q. B. 555; Rowley v. L. & N. Railway Co., L. R. 8 Exch. 221; -but in no case do I find that it has ever been supposed or suggested, either at the bar or from the bench, that any natural or constitutional right of the subject, with respect to private property, had been invaded by the act.

The same may be said in reference to a similar act, passed in New York the next year after Ld. Campbell's Act, and the cases decided under it ;-see Oldfield v. N. Y. & Harlem R. Co., 14 N.

No question of remoteness has been made before us. But upon that point we are clear that no valid objection can be raised to the act. It is true the injury may not always be the immediate conse

what constitutes remoteness beyond the actionable degree is often a perplexing and troublesome question, and certainly it is one with respect to which the decisions of the courts have not been so uniform and clear as to show the existence of a fixed and definite rule, applicable to all cases. Upon principle, it may not be easy to see why the very liabilities imposed by this statute would not follow from a just application of familiar doctrines of the common law without any legislation on the subject at all. But whether that may be so or not, we are satisfied it was entirely within the constitutional power of the legislature to say that a certain mischief resulting from a certain prohibited act should form the basis of a recovery of damages by the person injured; and that no right of property guaranteed by the constitution is infringed.

It has been further argued that the law is a penal law, and that
it is unconstitutional because it inflicts a second penalty, to be
measured only by the caprice of a jury, for an offence already
made punishable by a prescribed and definite fine. This view can
not be sustained, for the reason that it is not true in fact. The
statute gives to certain specified persons the right to recover the
damage actually caused to them by the defendant's illegal act,
and nothing more. Whether the defendant has been, or may
thereafter be, prosecuted for his violation of the criminal law of
the state, no more concerns the party who has suffered a private
wrong and damage by the same act in this case, than in case of an
assault and battery, a larceny, or other crime, whereby damage
is inflicted on an individual by the same act which constitutes a
public wrong or crime.
DEMURRER Overruled.

Mormon Divorces-Alimony Pendente Lite.
ANN ELIZA YOUNG v. BRIGHAM YOUNG.
Territory of Utah, Third District Court, May, 1875.

Before Mr. Chief Justice Lowe.

1. Ad Interim Alimony-Appeal.-An appeal will not lie from the District Court

of Utah to the territorial supreme court from a decree awarding ad interim alimony in a suit for divorce.

2.. Effect of Answer Setting up Bigamous Marriage. In a suit for divorce, where the defendant files a sworn answer which, if true, shows the marriage to have been bigamous or polygamous, and the complainant files no replication thereto, and it is not made to appear that such marriage was entered into ignorantly by the complainant, or through fraud on the part of the defendant, alimony pendente lite ought not

to be allowed.

3. Pleading-Utah Practice Act-Effect of Answer without Replication.— The provisions of the 65th section of the Utah practice act, "that every material állega

tion of the complaint, when it is verified, not specifically controverted by the answer, shall, for the purpose of the action, be taken as true," and that "the allegation of new matter in the answer shall, on the trial, be deemed controverted by the adverse party," refer to the trial of the merits of a cause, and not to interlocutory proceedings. In such proceedings a sworn answer setting up new matter, to which there is no replication, will have the force of an affidavit.

4. Case in Judgment.-Upon a rule to show cause why the defendant, Brigham Young, should not be compelled by attachment to comply with the order heretofore

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Opinion by Lowe, Ch. J.—On the 26th day of February last, an order was made in this cause directing the defendant to pay to the plaintiff, as alimony pendente lite, the sum of $9,500, being at the rate of $500 per month from the commencement of the suit; also to pay her $500 per month subsequently during the pendency of the suit, and $3,000 as attorneys' fees to the attorneys of the plaintiff. It appears that under said order and subsequent proceedings, the attorneys' fees, $3,000, and of alimony, $500, have been paid. A rule upon the defendant to show cause why he should not be compelled by attachment to further comply with said order, has been granted, to which the defendant has answered, and the plaintiff now moves for an attachment, and the defendant moves to discharge the rule.

A discharge of the rule is asked upon three several grounds. The first that the court has not jurisdiction of the action. The decision of the supreme court of the territory in the case of Cast v. Cast, and the overruling of the demurrer to the complaint in this cause, seem to conclude that question in this court for this case. Any reagitation of that question should be in the supreme court. The second ground of defence is that an appeal from the order now sought to be enforced has been taken to the supreme court. If there were any reasonable ground for holding that under the practice act such an appeal was maintainable, I would most gladly act upon it, and thus hope to obtain the opinion of the supreme court upon the order in question; but it seems too plain for doubt that no appeal lies from such an interlocutory order, and that it can not by any admissible construction be embraced in any one of the provisions of section 328 of the practice act, which defines appealable cases. I think, therefore, that the attempted proceedings in appeal are inoperative and nugatory.

There remains for consideration the further ground urged in argument, that upon the pleadings and records such a state of facts is disclosed as shows it to be inequitable to require the payment of ad interim alimony.

Chancellor Walworth said, "it is not a matter of right under all circumstances, for the wife who has commenced a suit for a divorce or for a separation, to require the court to direct an allowance to be paid to her by the defendant, for the purpose of defraying the expenses of the suit. Nor is it a matter of right that she should be allowed her ad interim alimony in all cases." And ad interim alimony was refused, because there appeared no probability that the plaintiff ought to succeed in the case. 2 Barb. Ch. Rep. 146. In Worden v. Worden, the vice-chancellor, said: "If the answer be true the complainant had no just cause of complaint * * * It is not a matter of course in every case, whatever may be the complexion of it, to make an order for temporary alimony;" and ad interim alimony was refused on the ground that it did not appear from all that was before the court that the complainant had a meritorious cause of action. 3 Edwds. Ch. Rep. 387. It is also conceded that the order for temporary alimony when made, remains subject to the control of the court during the pendency of the cause. The present case upon the record is in brief this: The plaintiff alleges a marriage and adequate statutory grounds for divorce. The defendant concedes a marriage, but alleges facts as new matter in avoidance and defence, which clearly show the marriage to be bigamous or polygamous. To these new facts alleged there is no denial. How then does the case stand upon such pleadings? It seems to be supposed that such new matter in the answer is to be deemed as controverted by force of the statute. But this is a mistake when applied to an interlocutory proceeding. The 65th section of the practice act declares, “that every material allegation of the complaint, when it is verified, not specifically controverted by the answer, shall, for the purpose of the action, be taken as true. The allegation of new matter in the answer shall, on the trial, be deemed controverted by the adverse party." Thus the new matter of the answer is to be deemed controverted only "on the trial," the statute not prescribing the character in which the new matter is to be regarded for the other purposes of the action, as is done in the same section in reference to the allegations of the complaint. The allegations of new matter, therefore, in the answer, for the purposes of the action, other than the trial, must have their ordinary legal effect, and that is to regard them as true, unless actually controverted. And such appears to be the character attributed to the answer in interlocutory proceedings by the Supreme Court of California, under a statute which is identical with the 65th section Cal. 156, was an appeal from an order dissolving an injunction, of our practice act as quoted above. Burnett v. Whitesides, 13 the case having been heard upon complaint and answer alone. The answer denied the equity of the complaint and set up affirmative matter in avoidance, and the court says: "The answer of the defendants is as much proof of the defendants' right, as the complaint of the plaintiff is evidence of his right; and the order disJohnson, 44 Cal. solving the injunction was affirmed. Delger v. 182, a very late case, was also an appeal from an order dissolving an injunction which had been heard upon complaint and answer alone, the pleadings being verified. The answer set up new affir

The plaintiff in her complaint alleges that she intermarried with the defendant on the 6th day of April, 1868, and sets up facts of negligence and desertion, which constitute statutory grounds for divorce. The defendant in his answer makes a qualified denial of the marriage, and alleges by way of avoidance that at the time of such marriage the plaintiff was the lawful wife of James L. Dee, who is still living, and from whom she has never been divorced; that the defendant was lawfully married on the 10th day of January, 1834, to Mary Ann Angell, who then became, and still is, his lawful wife. He further alleges in terms, that the marriage with the plaintiff was a plural marriage, entered into according to the doctrine and customs of the church of the Latter-day Saints. The complaint and answer is each upon oath, and it appears from the record as well as from the statement of counsel in argument, that the order for alimony and expenses was made upon the complaint and answer alone, without any other evidence or showing what-mative matter in defence, which the court says, "if true would

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In the very recent case of York v. York, 34 Iowa, 530, it is said, "alimony is a right that results from the marital relation, and the fact of marriage between the parties must be admitted or proved before there can be a decree for it even pendente lite." If some exceptional cases to this rule exist, they will be found to proceed upon facts and circumstances having no analogy to the present case. It is also an accepted doctrine, that alimony pendente lite, can not be claimed as a matter of right, but that its allowance rests in the sound legal discretion of the courts. In Jones v. Jones,

justify the court in dissolving the injunction." And in reference to the answer the court says, "it was held in Falkinburg v. Lucy, 35 Cal. 52, and many other cases in this court, that when the defendant moves, on the complaint and answer, to dissolve an injunction, the answer will be treated, for all the purposes of the motion, as an affidavit," and the injunction having been dissolved upon the uncontradicted new matter of the answer, the order was by the supreme court affirmed.

The record of this case, therefore, in view of the provisions of the 65th section of the practice act, and the authorities just cited, does disclose, for the purpose of the present enquiry, the uncontradicted fact that the alleged marriage was a bigamous or polygamous marriage. If such a marriage was entered into ignorantly by the complainant, and through the fraud of the defendant, equity will open its doors for her relief; but upon the case as it

stands, it is not in the judgment of the court, according to the paying his fare of fourpence from Monkstown to Queenstown. principles of equity and good conscience, to enforce the payment | of ad interim alimony. It appears from the record that the alleged marriage was celebrated in this city; that the plaintiff and defendant both reside in this city. It can not, therefore, be a difficult or expensive duty for the plaintiff to place upon the record a confutation or some explanation of the unexampled and most extraordinary allegations made, if any just explanation exists; and the court believes that such explanation is due to the common principles of equity and public justice, before proceeding further in the direction sought. It would be strange, indeed, if upon such a state of facts, uncontroverted by any rule of pleading or of law, and unextenuated by any evidence, it could be imposed as a duty upon a court of equity to direct or enforce the payment of alimony, and thus bestow the apparent, if not indeed the real sanction of the law upon a practice which is hostile to the civilization of the age, and which the penal statutes of the land visit with condign punishment. The motion for an attachment is denied, and the

RULE DISCHARGED.

Injury to Passenger Travelling on Free Pass with Condition against Liability.

NEVILLE v. THE CORK, BLACKROCK AND PASSAGE RAILWAY CO.

Irish Court of Common Pleas, January 29, 1875.

Before MONAHAN, Ch. J., and KEOGH, MORRIS, and LAWSON, JJ.

[Reported in 9 Irish Law Times Reports, 69.]

A passenger by steamer, holding from the carriers a free pass exempting them from liability in respect of injury to the holder, however caused, during the passage between two stations, entered on board the steamer with the intention of travelling as a passenger for hire, and of proceeding beyond the distance to which he was entitled to travel gra. tuitously; but that intention was not communicated to the carriers, and the fare was not paid to them. During that part of the transit to which the free pass applied, the passenger sustained personal injuries, and, in consequence, did not travel beyond that distance. In an action against the carriers for damages in respect of the injuries so sustained: Held, that the onus lay upon the plaintiff of showing that he was travelling as a passenger for hire, and not as a licensee upon the free pass; that the plaintiff, not having communicated his intention to the defendants, had failed to show that he was travelling otherwise than in right of his free pass; and that the defendants was not responsible accordingly.

This was an action brought to recover damages for injuries sustained, through the defendants' negligence, by the plaintiff while a passenger on board the defendants' steamer, which plies between Passage and Queenstown, calling at Monkstown. The defendants, amongst other defences (including a traverse of the negligence alleged, and a defence of contributory negligence), pleaded that the plaintiff was on board the steamer as a mere licensee by virtue of a free pass in writing, gratuitously given to him, and that he was bound by the conditions therein contained as follows: "That it was to be used only by the person in whose favor it is issued, and that the use of it shall be taken as evidence of an agreement with the company that the latter are relieved from all pecuniary liability, or other responsibility to the holder, for personal injury, or for other delay or loss or damage to property, however caused, that may be sustained by such person while using the pass; and the person to whom it is issued is subject to the same by-laws, rules and regulations as the other passengers." On the trial before Deasy, B., and a special jury, at the Cork Summer Assizes, 1874, it appeared that the plaintiff, the Very Rev. Canon Neville, P. P., was the occupier of a house in Monkstown, which he had built himself; and, in consideration of his having so built and occupied the house, he was given a free pass by the defendants from Monkstown to Passage and back, subject to the above conditions. The plaintiff, on the 13th of April, 1874, went on board one of the company's steamers at Passage, with the intention, as he alleged, of going further to Queenstown and

He had previously, on the same day, travelled on the pass from Monkstown to Passage, whence he was then returning. The amount of fare from Passage to Queenstown was the same as from Monkstown to Queenstown. The fares of passengers were to be paid on board the steamer, and might be paid at any time during the passage. The intention of the plaintiff to go on to Queenstown, he, on his examination, stated that he communicated to a companion, the Rev. D. M'Namara, who deposed that, to the best of his recollection, the plaintiff had told him so. Before the steamer reached Monkstown the plaintiff accidentally placed his foot in a hole in the deck, and was thus tripped up and injured, in consequence of which he did not complete his journey to Queenstown, but was obliged to get out a Monkstown. The trial resulted in a verdict for the plaintiff for £500 damages; the learned judge reserving leave to the defendants to move to have the verdict entered for them if the court should see fit. A conditional order having been obtained by the defendants, to have either the verdict entered for them pursuant to the leave reserved, or for a new trial, on the ground that the verdict was against the weight of evidence.

Heron, Q. C. (with him O'Brien, Q. C., and Griott), on behalf of the plaintiff, showing cause.

W. M. Johnstone, Q. C. (with him G. Fitzgibbou, Q. C., and O'Reardon), contra.

M'Cawley v. The Furness Railway Company, L. R., 8 Q. B. 57, was cited.

LAWSON, J.-I think this case is free from all doubt that this gentleman, on the day of the accident, used his free pass, and that instead of paying his fare he travelled for nothing. Then, it has been said that by reason of his having formed an intention, in his mind, to go on further, he became a passenger for hire. He altered that intention-he never took a ticket, and got out at Monkstown. In my opinion there was nothing to go to the jury to show that he was not travelling on his free pass. The verdict must be entered up for the defendants.

MORRIS, J.-I am also of opinion that the verdict must be entered up for the defendants. I do not offer any opinion on the other questions which might arise in the case-namely, as to negligence. If the plaintiff had shown that he had gone into the vessel as a passenger from Passage to Queenstown, that might be sufficient evidence to show that he was a passenger for hire; but the moment it was disclosed that he had a free pass or a license, the onus was cast upon him to show that, although he had a license enabling him to go that portion of the journey on which this accident happened, and exempting the company from liability for damages, he was travelling otherwise than in right of that license. This accident happens while he is between Passage and Monkstown. Now, the onus being thrown upon him of showing that he was not then using this license-how does he do that? By showing that in his own mind he intended to go on to Queenstown. He does not tell that to the defendants. They must have supposed that he was travelling on the pass, because it entitled him to go to Monkstown. How were the company to conceive that he was not using his pass? There must be a mutuality of contract. And though this free pass might be determined by word of mouth, it was not determined. I rest my judgment upon the simple ground that the account given by the plaintiff has failed to show that he was a passenger for hire. I believe that the gentleman did intend to go on to Queenstown; but, at the time the accident occurred, he was not between Monkstown and Queenstown.

KEOGH, J.-I am of the same opinion. The condition on which the free pass was given was, that the company should not be liable in respect of personal injury to the passenger using it. It is a license to go to Cork from Monkstown; the plaintiff availed him

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