svval or mixed, the death of either party between the essary to his recovery; that thereupon the sheriff and verdict and the judgment should not thereafter be al- his deputies, with the knowledge and consent of the leged for error, provided the judgmeut be entered defendants, removed the wounded prisoner, who was within two terms after the verdict. But that does not theu expected to live only a short time, to the resiapply to the present case, which comes within the dence of the plaintiff which was about one-fourth of a principle that every personal action dies with the per- mile from the place where the prisoner was shot, and sou unless some statute revives it. that the sheriff then requested the plaintiff to give the Revivor, as Cotton, L. J., has explained, goes on the prisoner such treatment, nursing and medicines as his principle that there is a continuing interest which de- condition required. volves upon some one, but here the object of the suit It was alleged that the plaintiff, at the instance and is gone. The Legislature might have authorized the request of the sheriff, took charge of and attended continuance of divorce proceedings for some collateral upon and nursed the prisoner from the 25th day of purposes, though their main object is gone, but it has November, 1883, till the 25th day of February, 1884, not done so. The case appears to be clear on princi- during which time be furnisbed and provided fuel for ple, and it authority were wanted, Grant v. Grant, % the benefit of the prisoner, and beyond what was necSw. & T. 5:22, is enough to show tbat the appeal must essary for the personal use of the plaintiff, of the value fail. of $12; and that he expended for medicines and remeFRY, L. J. I am of the same opinion, and feel no dies for the prisoner the sum of $118.65, which it is aldoubt ou the case. The only decree that could be leged were necessary, and were prescribed by the atasked for would be that the marriage should be dis-tending physician; and that he attended and waited solved, or that it should be deemed to have been dis- upon the prisoner for the period of ninety days, aud solved, from the date of the decree nisi. Neither al- that his services were necessary and reasonably worth ternative is possible. As regards the first, no power $3 per day, and of the aggregate value of $270; after can dissolve a marriage which bas been already dis- which time the sheriff again took charge of the prissolved by the act of God. As regards the second, the oner and conveyed him to the county jail. He alleges court cannot pronounce a decree declaring tbat the that the articles furnished, money expended, and the marriage was dissolved at an earlier date, because the services rendered were necessary for the recovery of statute gives it no such power, but only authorizes it the prisoner, and were furnished, expended and rellto pronounce a decree “declaring such marriage to be dered at the request of the sheriff, and with the knowl. dissolved.” edge, consent and approval of the defendants; that in For these short reasons, I agree that the appeal must 1884 Cyrenius B. Hendricks was convicted of murder be dismissed with costs. in the first degree, and sentenced to suffer death, and Appeal dismissed. that he is now in the penitentiary awaiting the execu- no estate, property or means of any kind to pay the COUNTY-LIABILITY FOR BOARD AND LODGING plaintiff's claim, and that he will lose the same unless paid by Chautauqua county; that on the 5th day of OF PRISONERS OUT OF JAIL. January, 1885, the plaintiff duly presented his claim to the county commissioners for allowance, which was KANSAS SUPREME COURT, JULY 9, 1886. rejected, and he avers that it is now due and unpaid. The defendaut demurred to the petition upon the HENDRICKS v. BD. Of Co. Com'rs or CHAUTAUQUA ground that it did not state facts sufficient to constiCOUNTY.* tute a cause of action against it. The demurrer was The duty of keeping the county jail, and supplying the pris- sustained by the court, and the plaintiff is prosecuting oners committed thereto with board and lodging, devolves this petition in error to reverse that ruling. ity of the county of Chautauqua in favor of the plainUnder section 331 of the Criminal Code, the board of county tiff. The statute provides that jails shall be estab commissioners may allow a moderate compensation for lished aud kept in every county, at the expense of the In another chapter the liability of the county for ited. The sheriff is allowed forty cents per day, exclu• McBrian & Pile, for plaintiff in error. sive of fuel, lights, furuiture and bedding, where a B. S. Henderson, for defendant in error. jail is provided, and sixty cents per day where no jail in provided. Sess. Laws 1881, ch. 701, $ 1. JOHNSTON, J. F. E. Hendricks brought this action The county commissioners are not compelled to alagainst the board of county-commissioners of Chau low or pay more than the fees above named for every tauqua county, and in his petition alleged substan thing included within the terms “boarding and lodgtially that on November 25, 1883, the sheriff of Chau ing," nor is the county liable to any other officer or tauqua county and his deputies arrested one Cyrenius B. Hendricks, and that while they bad him in custody person for the same than the sheriff. The duty and at a point fifteen miles from Sedan, where the county responsibility of keeping the jail, and supplying and caring for the prisoners, is devolved by law upon the jail was located, he was shot and so severely wounded sheriff. The care and safe-keeping of the prisoners is that he could not be removed or taken to the county committed to him, and in regard to their board and jail, and that his condition resulting from the wound lodging, the board of county commissioners deals only was such that it was impossible for him to receive the with him. The only statute authorizing the payment treatment and attention in the county jail actually nec of compensation by the county board provides that it * 1] Pacific Reporter, 450. shall be paid to the sheriff, aud to him alone is the ERROR county liable for supplying board and lodging for the favor of the plaintiff, and and against the county, and It appears that the prisoner was held and cared for must therefore be affirmed. MARRIAGE - DIVORCE - ADULTERY - CONNIVhere, he may be temporarily held and supplied outside ANCE OF HUSBAND IN PRIOR ACT. JULY 16, 1886. MORRISON V. MORRISON. Connivance of a husband at one act of adultery by his wife is ble compensation, to be paid out of the county treasury.” Laws 1881, ch. 107, $ 1. not a bar to an action of divorce for a prior act of adulThe liability of the county for the services of these tery of which he was then ignorant. the , S. Lincoln and J. R. Smith, for libellant. The items of the plaintiff's account, and for which GARDNER, J. The question raised on this case is the bonds of matrimony. Pub. Stat., ch. 146, § 1. It Our divorce statutes make no provision respecting liability against the county. According to the peti- connivance, collusion, condonation, or recrimination, tion, the only formal presentation of the matter to the and this court has assumed that the Legislature iucounty board was when the claim was presented in tended to adopt the general principles which had gov. January, 1885, at which time the board, as it had the erned the ecclesiastical courts in England in granting option and right to do, refused to make the allowance divorces from bed and board, so far as these principles and rejected the claim. It is clear that the petition, are applicable and are found to be reasonable. Robas it now stands, does not state a cause of action in bins v. Robbins, 140 Mass. 5:28; S. C., 5 N E. Rep. 837. This assumption does not go so for as to einbrace the bas relaxed with one man he has no right to complain recent statute law of England in relation to divorce. of another.” The language of the court was applica Under the English Divorce Act, 20 & 21 Vict., ch. 85, ble to the facts of the case, and cannot be referred to a divorce will not be granted if the court find that dur- a state of facts not existing. It could not refer to a ing the marriage the petitioner bas been accessory to prior act of adultery. The facts of the case did not or condiving at the adultery, or had condoned the authorize such reference. Whatever misconduct the adultery complaiued of. It has been repeatedly held court found must have been such as conduced to the under this statute that connivance on the part of the subsequent or contemporaneous adultery. When his husband will in point of law bar him from obtaining lordship said, “If he has relaxed with one man, he relief on account of the adultery which he has allowed connot complain of another," he said in substance, to take place. Volenti non fit injuria is the principle "If he has relaxed with the appreutice, he cannot upon which the rule has been founded. Rogers v. complain of the man who contemporaneously commitRogers, 3 Hagg. Ecc. 67; Phillips v. Phillips, 1 Rob. ted adultery with his wife.” This case is no authorEcc. 151. ity for the doctrine contended for by the libellee. Under this principle, it is not always necessary to We have been referred to no case where the court show active connivance. If it is proved that there has has held that connivance was a bar to & divorce for a been a long course of criminal conduct on the part of prior adultery. The English statutes and decisions the wife, of which the husband was cognizant, or of seem to require that the adultery complained of must which by law and presumption he must be supposed in some way be the result of or connected with the to have been cognizant, he cannot secure relief. connivance charged or the divorce will not be barred; Crewe v. Crewe, 3 Hagg. Eco. 123. The conduct of the as where a wife sets up in defense her husband's conhusband, after being informed of the adultery of his nivauce at an adultery with a different person prior to wife, his refusal to interfere with her, or to institute the adultery charged, she must prove the prior adulproceedings against his wife for a divorce, or long tery. Stone v. Stone, ubi supra; Harris v. Harris, % delay in so doing, may not in themselves be conniy- Hagg. Ecc. 376. ance, but may be evidence of it. A total indifference The equity which deprives the suitor of a right of to such adultery may lead to the inference of original justice in a court of equity is not general iniquitous consent. If there was consent there was no injury, conduct, unconnected with the matter iu suit, but and the husband cannot ask for relief where he has evil practice or wrongful conduct in the particular not been injured. matter or transaction in respect to which judicial proIt has also been held that a husband who connives at tection or redress is sought. Woodward v. Woodward, an act of adultery by his wife, cannot complain of any 4 Atl. Rep. 424. We find no authority for laying down subsequent act, whether with the same or another the rule, that under all circumstances, connivance at particeps criminis. Gipps v. Gipps, 3 Swab. & T. 116; one adultery is an absolute bar to a divorce for a prior Stone v. Stone, 3 Notes of Cas. Adm. & Ecc. 282. It adultery, and we feel inclined to say that it is not a has been held that the same principle, above stated, reason for refusing a divorce under any state of facts. extends to any act of adultery subsequent to the one The character of the counivance, under some circumdirectly connived at, because the husband, having stances, may be so open, gross and revolting that the consented to the fall of the wife from virtue, cannot court may find that no injury has been done the huscomplain of acts naturally arising from such fall. It band, and that therefore there is nothing to redress; has been doubted whether the general doctrine that that the husband has entirely abandoned all right to connivance at one adultery is a bar to any subsequent claim that his wife should be shaste; and that he had adultery, either with the same or another particeps thus consented to her prior adultery. He may come becriminis, should govern all cases. The doctrine may fore the court with such impure hands that upon the be carried too far, and thus deprive a man of all hope, soundest considerations of public policy his divorce however repentent he may be, and however he may should be refused. On the other hand, the circumstrive to win his wife to repentance. 2 Bish. Marr, & stances of the connivance may be of such a character, Div., $ 44. baving no connection or relation with the prior adulIn Ilodges v. Hodges, 3 Hagg. Ecc. 118, it was held tery, as not to operate as a bar or otherwise against that a husband proceeding against his wife for her the right of the husband to find relief, gross adultery committed after a separation of five In the case at bar the presiding justice ruled that years from him, resulting in the birth of children, the record of the former suit was not a bar to mainbaptized in his name, was not barred, although before taining the libel if the libellant proved that the adulthe separation he had connived at her adultery with tery charged in the present suit was committed prior men other than the one with whom this was commit- to the adultery charged in the former suit, and not ted. This case has been doubted and overruled. known to him at the time he brought the former libel. Stone v. Stone, 3 Notes of Cas. 278; Rogers v. Rogers, 3 Upon inspection of the record of the former suit, and Ilagg. Ecc. 57. See also Hledden v. Hedden, 21 N. J. examination of the evidence reported, we do not find Eq. 61. the connivance found by the court in that case to be of The libellee relies upon the language used by Lord such a character as to bar the libellaut from a divorce Stowell in Lovering v. Lovering, 3 Hagg. Eco. 85. In for the adultery charged in the libel at bar. that case an apprentice was continued in the house Exceptions overruled. with the husband's permission, after he knew of great and indecent familiarities between the appreutico and his wife, and until she was guilty of adultery with CONSTITUTIONAL LAW COUNTY INDEBTEDanother. The court found that the facts amounted NESS-CROUINAL EXPENSES, almost to consent, and was a degree of delinquency which rendered him unworthy of a remedy; that the MISSOURI SUPREME COURT. husband had convived at another adulterous act, APRIL TERM, 1886. nearly contemporaneously committed, with another person. The wife made no defense. “The ecclesiastical POTTER V. DOUGLAS COUNTY. law," said Lord Stowell, “ requires two things: that a The Constitution of Missouri provides that no county shall man shall come with pure hands himself, and shall have be allowed to become indebted in any manner or for any exacted a due purity on the part of his wife, and if he purpose to an amount exceeding in any year the income and revenue provided for such year without the assent of the same views must hold, even if the provisions of two-thirds of the voters thereof voting at an election to section 6088, Revised Statutes, be resorted to, and a be held for that purpose. Held, that this is no limitation guard employed in the county where the arrest ocupon the incurring of expenses in the administration of curs; for the like objections could be taken to the the criminal laws of the State. A jailer's bill for the keep- employment of such guard, thereby causing an indebting, boarding, clothing, etc., of prisoners should there-edness to accrue. fore be allowed as a charge against the county, although After carefully considering the subject, I am not of at the time it is presented the revenue of the county for opinion that the constitutional prohibition should be the year is exhausted. ruled to apply to instances like the present. For this F. S. Heffernan, for appellant. conclusion these are my reasons: N. E. Ide, for respondent. I do not regard section 12, supra, as applying here, because the effect of such construction would be deSHERWOOD, J. Plaintiff brings the action to recover structive of the peace and good order in every county of defendant the sum of $459 on account of services embraced within the provisions of section 6090 aforeperformed by him as sheriff and jailer of Greene said, for it would be an impossibility to submit to a county, in keeping, boarding, clothing and taking to vote of the people of the county concerued, the quescourt certain prisoners committed to the jail of that tion of an unascertained and unascertainable indebtcounty by the sheriff of defendant, under the provis- / eduess to be incurred in the future as the exigencies ions of section 6090, Revised Statutes. The bill of l of the case might demand. Who could foretell how plaintiff for these services, though approved by the many criminals would be arrested in the course of the Circuit judge and the prosecuting attorney, the ensuing year? If this could be done, is it not glaringly County Court of defendant, on its presentation, re- obvious that no question as to the amount of the infused to pay or pass upon. The case was tried on an debtedness could possibly be submitted to the people agreed statement, as follows: 1. It was agreed and ad-for the sanction of their suffrages? The maxim, “lex mitted that the various counts as charged in plaintiff's non cogit ad impossibilia," may appositely be invoked petition are just and true, and remain unpaid. 2. That in the present case; a maxim equally invocable at the time the fee bill charged in said petition was whether the law be statutory or organic. It is not to presevted to the County Court the revenue for said be intended that those who framed or those who by year was expended, and the same could not be paid their votes adopted our Constitution, contemplated or without issuing warrants in excess of the income of sanctioned any such mischievous and destructive rerevenue for said year. 3. It is agreed that the revenue sult. That Coustitution, as its preamble fitting recites derived in said county under the existing laws dues and declares, was established "for the better governnot exceed $2,500 per year, and does not more than ment of the State," aud the idea is not to be tolerated pay the expense for the first eight months of each that the framers and the adopters of tbat orgauic inyear. Wherefore the plaintiff and defendant submit strument would insert a clause therein wbich would this case on the above facts as the testimony in said in many a county destroy those restraints and those cause. Whereupon the court refused to declare the protections which the law iu its wisdom has with foslaw to be in favor of plaintiff's recovery, and thus re- tering care thrown around peace-loving and law-abidfusing, gave judgment for defendant. ing people, and turn them over without let or hinThe only point then for discussion is the liability of drance to the ravages and revenges of that class against defendaut in such circumstances as already set forth. whom its denunciations are leveled and its penalties The section of the statute to which reference has been and punishments are commauded to be enforced. made makes it the duty of the sheriff or jailer of a Such a construction, destroying as it would, the very county to receive prisoners from another county,where fundamental safeguard and bulwarks of organized there is no jail, or an insufficient one, and safely keep government and society, would be to attribute to the them, subject to the order of the judge of the court for | framers of the Constitution a most palpable absurdthe county whence such prisoners are brought. Audity; and by an absurdity is meant that which is to be sectious 6091, 0092, make it the duty of the sheriff or regarded to be morally impossible, which is contrary to jailer where the prisoners are thus confined to have reaso!), or in other words, which could not be attributed them before the Circuit Court of the county appoiuted to men in their right senses. State v. Hayes, 81 Mo. for their trial, while sectiou 6093 announces a penalty 574; Fusz v. Spuunhorst, 67 id. 256; Smith Cont., $$ 486, for failure thus to bring the prisoner before the proper 465, 518. court for trial, and reuders such sheriff, etc., liable to At the present term of the court, in the case of imprisonment for contempt, and also to a civil action Kunce v. Earle, the section of the Constitution under for damages; and section 6095 permits such sheriff, discussion was examined, and held to apply to a case etc., for such failure, etc., to be removed from office where, without a vote of the people, a debt was inand rendered incapable thereafter of holding the curred for making additions to a court-house. But the ruling in that case supports the ruling this oue; These sections are to be considered in comuection for there the amount of the indebtedness could be aswith section 12 of article 10 of our Constitution, pro- certained, and being ascertained, and being in excess viding that "No county, city, town, township, school of the "income and revenue provided for such year, district or other political corporation or subdivision | it was properly ruled that “the assent of two-thirds of of the State shall be allowed to become indebted in the qualified voters," etc., was a sine qua non to the any manner or for any purpose to an amount exceed- validity of the indebtedness. ing in any year the income and revenue provided for But another reason also occurs why that section such year, without the absent of two-thirds of the cannot apply to the case at bar. The iubibiiion of the voters thereof, voting at an election to be held for that Constitution, it will be observed, is levelled against a purpose.” county becoming indebted, i. e., through the ordinary It is manifest if that section of the Constitution ap- chamel, the action of the County Court, the financial plies iu cases of this sort, the predicament in which agent of the county. But here the indebtedness was those counties are placed which have neither jails nor not so incurred. It was created entirely independent sufficient revenue is a most lamentable one; bereft, of any action of the County Court; created by the as they would be, of all means for the safe-keeping of sheriff of the county pursuant to the command of secthat dangerous class of persons whose violations of tion 6090, supra. The law itself gave license to the inlaw cause their arrest. And in similar circumstances curring of such a debt; it was incurred by operation of law, and the fact that the county would ultimately been digested in writing, it was still available to in- We reverse the judgment and remand the cause. ject of oral communication to, and discussion by, the board of equalization when actiug upon the questions officers charged with the duty of determining the NEW YORK COURT OF APPEALS ABSTRACT. values of property for the purposes of taxation in the State are either competent from their own knowledge CERTIORARI-STATE BOARD OF ASSESSORS-EQUALI and experience to properly discharge such duty, or ZATION-VALUATION OF PROPERTY.-In a case where that they will by their own voluntary action fit themthe General Term has exercised its discretion with re selves for its due and proper performance. No special spect to the allowance or denial of a writ of certioruri education is required to enable a witness to testify as to the value of real estate. It does not jo volve any to review the equalization of property by the State assessors, under section 2127, Code of Civil Procedure, question of science or skill, and no reason exists why and has refused to grant it, on the ground that it any person of ordinary intelligence and judgment can. ought pot, under all of the circumstances of the case, not qualify himself to estimate with reasonable accuto be issued, this court has no jurisdiction to review racy the value of such property by making special inits determination. People, ex rel. v. Board of Com. of quiry and examination respecting it wherever it may New York, 97 N. Y. 42. But in a case where that court be situated. Lawson Expert Ev. 436; Swan v. County has exercised its discretion with respect to the allow of Middlesex, 101 Mass. 173. The valuation of propance or denial of the writ, and has refused to grant it erty is necessarily a matter of opinion among men, on the ground that it ought not, under all of the circum and must auder all circumstances be finally deterstances of the case, to have been issued, this court has mined by the judgments of iudividuals, and the no jurisdiction to review its determination, and so it scheme of the statute seems to be to leave its decishas been repeatedly held. People, ex rel. v. Board of ion to the officers selected for that purpose, and that Tax Com. of New York, 85 N. Y. 655; People, ex rel. their determination shall be conclusive evidence of Vanderbilt, v. Stilwell, 19 id. 531; People, ex rel. Da such value for the purposes of taxation. The law does vis, v. Hill, 53 id. 547. In the opinion referred to in not specify the degree of knowledge or information the order for the grounds of the decision of the court which the members of the State board shall possess to below, that court alleged no want of power to author entitle them to discharge their duty, and the only ize the writ, but stated many, and as we think, suff statutory coudition to the exercise of their authority cient, reasons why, upon all of the facts of the case, seems to be the possession by them of the assessment the writ ought not to have been issued. In arriving at rolls returned by the several counties of the State. the value of real property in a particular locality for Except for the provision of the statute authorizing the purpose of equalizing appraisements for taxation, parties whose property is assessed to appear before the the State board of assessors is not required to adopt as town, ward or city assessors and make affidavit as to its basis the considerations inserted in deeds of trans the circumstances and value of the property assessed fer in that locality. No rule of law requires the true to them respectively, no provision is made for the consideration to be inserted in conveyances of real es hearing of such parties by any of the administrative tate, and it is within the common knowledge of all bodies engaged in perfecting the valuations of taxable conveyancers that the amount stated therein is often property, and it is to be implied by irresistible inferdetermined by fanciful, capricious and arbitrary con ence therefore that the law contemplates that such siderations which render it utterly unreliable as evi bodies shall proceed in the performance of their dudence of value. It is frequently depressed by ties upon their own knowledge, information and judgforced and and unnatural sales, and enhanced ment, and so far as they may be deficient therein that by fictitious values placed upon property trans they will in their own way inform themselves of such ferred in exchange or deeded in settlement of facts as it may be necessary to know in order to disdisputed claims or given from considerations of charge their duties intelligently. While there is uo affection, liberality and duty, and is at the best, but want of power in the courts to review such determinathe opinions of the grantors and grantees of its value, tions by certiorari, yet a judicial view of conclusious or a declaration by them of the price placed by them based mainly, if not exclusively, upon the mental opupon the property. Such prices have usually been erations and the individual knowledge and qualificaheld inadmissible as evidence of value in actions re tions of the persons composing the tribunal referred lating to the property, for the reason that they are lia to, is obviously impracticable, if not impossible. Reable to be influenced by too many causes aside from the sons founded upon the personal knowledge and expeactual value to be regarded as competent evidence of rience of individuals, or conclusions reached by the that fact. Roe v. Hanson, 5 Lans. 305. Prices ob exercise of their intellectual faculties canuot be retained upou public sales are for obvious reasons con- corded and reproduced in such a manner as to enable sidered some proof of the value of the property sold, au appellate tribunal intelligently and fairly to review and are receivable as evidence upon the question of the correctness of their judgment. Iuherent and invalue. Campbell v. Woodworth, 20 N. Y. 499. The superable difficulties exist in the very nature of the usual method however of proving value in legal pro process by which their conclusions are reached, which ceedings is by the testimony of witnesses who express renders any appellate jurisdictton over their detertheir opinions under oaths as to such value, based mination impracticable and ineffectual. There must upon their knowledge of the subject-matter and fa from necessity reside somewhere the power of making miliarity with the circumstances bearing upon the a final disposition of questions of value for the purpose question. Clark v. Baird, 9 N. Y. 183; Greenl. Ev., of taxation, and the State has made the judgment of $ 440, 11.; Whart. Ev., $$ 447, 148, 149; Lawson Expert the members of its board of equalization the ultimate Ev. 435; DeWitt v. Barly, 17 N. Y. 310. It is not determination of such value; and a court has not the claimed that the State assessors have neglected to per power to substitute its own opinion for that of the form the duty imposed upon them, by visiting the va tribunal specially authorized by law to form and derious counties of the State and making inquiry as to clare one. July 27, 1886. People, ex rel. Mayor, etc., V. the value of real estate therein, and the ratio of as McCarthy. Opinion by Ruger, C. J. sessment to value prevailing in the several counties. CRIMINAL PRETENSES -- SEPARATE Although theiuformation thus obtained might not have TRIALS-EVIDENCE-JUROR'S OPINIONS-PRISONER AS LAW – FALSE |
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