lots with clear reference to such map or plan, although not recorded, the purchasers of lots in such town acquire, as appurtenant thereto, every easement, privilege and advantage which the map or plan represents as part of the town. Upon the sale of lots with reference to the map or plan, the dedication of the places indicated as streets, public squares, alleys and parks, become irrevocable. 37 And if one of them is diverted from the purpose dedicated, as if under a sale from city authorities a house is built on land that is part of the street, this does not authorize the original owner of the tract to sue in ejectment for the lands so built upon. The title of the land is in the public for the use designated, so long as the town exists.

Property dedicated to public uses without any provision for a forfeiture does not revert to the dedicator on a misuser of it; but only where the use becomes impossible of execu. tion. The proper remedy in the former instance would probably be injunction, or an action to enforce a specific execution of the purposes of the dedication. If a street is abandoned by the public prima facte, the reversion would be in the owners of the abutting lots, unless the injured grantor had in express terms reserved the right to himself in his deed conveying the lots, or in his act of dedication; 38 as, where lands are sold bounded by a highway, the boundary line extends to the center of such highway, unless a contrary intention is clearly expressed from the conveyance.

It does not appear to be well settled as to whether the statute of limitations, as such, will run against the rights of the public in lands dedicated to its use; but although the public can not be technically disseized, yet public as well as private rights may be lost by reason of unreasonable delay in asserting them. So an abandonment by those interested in enforcing such rights, may be infer

37 Carter v. City of Portland, 4 Or. 339; Hawley v. Baltimore, 33 Md. 270. Deeds referring to a plat, but given before the grantor acquired title, do not bind him as an act of dedication; but an unequivocal recognition of the map after purchase would operate as an affirmance of the original intention of dedication, and give it full force and effect. Nelson v. City of Madison, 3 Biss. 244.

38 Bayard v. Hargrave, 45 Ga. 342; Evansville v. Evans, 37 Ind. 229; Vest v. Leonard, 34 Iowa, 9; McDunn v. Des Moines, 34 Iowa, 467; Briel v. Natchez, 48]Miss. 423; Wiggins v. McCleary, 49 N. Y. 346.

red from circumstances or presumed from long continued neglect.39

CHARLES BURKE ELLIOTT.

39 Town of Derby v. Alling, 40 Conn. 410; Williams v. First Presbyterian Society, 1 Ohio St. 478. See Mowry v. Provinence 10 R. I. 52. A party occupying lands that have been dedicated to the public use can not acquire title thereto, because such lands are, from and the moment of the dedication, out of commerce, and not subject to individual or private ow. nership. Shreveport v. Walpole, 22 La. Ann. 526.

PARENT AND CHILD.

It has been held that a parent may maintain an action against one who entices away a minor child.1 But it was held in the case of Commonwealth v. Murray,2 that a mother could not maintain an action; yet if the father be dead and she thus become the head of the family, she could doubtless maintain such an action, or where he was alive at the time of the wrong, and died without moving in the matter. However, a contrary doctrine has been held in a number of cases.4

Where a third person procures, or is instrumental in procuring the marriage of an infant child, neither the parents, nor any one standing in loco parentis, can recover against such third person therefor.5

A parent can not maintain an action against the teacher of a public school for refusing to instruct his child as a pupil; 6 but he may maintain an action for the seduction of a

1 Jones v. Tevis, 4 Littell, 25; s. c.. 14 Am. Dec. 98; Vaughan v. Rhodes. 2 McCord, 227; s. c., 13 Am. Dec. 713; Kirkpatrick v. Lockhart, 2 Brev. 276; Sargent v. Mathewson, 38 N. H. 54; Steel v. Thatcher, 1 Wall. 91; Plummer v. Webb, 4 Mason, 380; Cutting v. Seabury, Sprague, 522; Wadell v. Coggeshall, 2 Met. 89; Caughey v. Smith, 47 N. Y. 244; Schouler's Dom. Rel., 3 and 54; 3 Bls. Com., 140.

24 Binney, 487; 8. C., 5 Am. Dec. 412.

8 Re Ryder, 11 Paige, 185; Gray v. Durland, 50 Barb. 100 (this is a leading case on the subject); Dedham v. Natick, 16 Mass. 135; Hammond v. Carhett, 5 N. H. 501; Matthewson v. Perry, 37 Conn. 435; Freeman v. Van Sire, 56 N. Y. 453, overruling the dicta of the earlier case of Bartle v. Richtmyer, 4 N. Y. 38; Blanchard v. Ilsley, 120 Mass. 487; Parker v. Meek, 3 Sneed, 29. The last case takes extreme grounds, and can not be safely relied upon as authority.

4 South v. Dennison, 2 Watts, 474; Bartlet v. Richtmyer, 4 N. Y. 38, overruled by Freeman v. Van Sire, supra; Logan v. Murray, 6 Serg. & R. 175; s. c., 9 Am. Dec. 422.

daughter under age, even though she be at the time in the service of a third party. And any one standing in loco parentis to the party seduced may maintain such an action. If the party seduced be a minor, it matters not where she may reside, if she be legally under the control of, and required to perform services for the party seeking to recover; but if she be not a minor, she must reside with and perform services for the plaintiff. Very slight acts of service will suffice to render seducer liable. It has been held, however, that the party seduced must be actually in plaintiff's service at the time of the seduction. Where parent has parted absolutely with the services or control, by apprenticeship or otherwise, he can not maintain an action; 10 but if any portion of services are retained, as where the child assists with the household duties of evenings, a parent can recover. Where the person seduced is an adult, the facts of residence and services must be clearly made out. 12 Where a daughWhere a daughter who is over age continues to reside with her father, this is sufficient evidence of services rendered. 13 No change in relation will be presumed simply because the child has attained its majority. 14

11

A step-father who stands in loco parentis may maintain an action for seduction, because he is invested with all the rights and

7 Bolton v. Miller, 6 Ind. 662.

8 Ball v. Bruce, 21 Ill. 161; Fores v. Wilson, Peake, 55; Maxwell v. Thompson, 2 Car. & P. 303, Bracey v. Kilbe, 31 Bush. 273; Coon v. Moffett, 2 Pinnington, 583; s. C., 4 Am. Dec. 392; Martin v. Payne, 9 Johns. 387 (a leading case); s. C., 6 Am. Dec. 288; Nickelison v. Stryker, 10 Johns. 115; s. C., 6 Am. Dec. 318; Mulvahill v. Millwood, 11 N. Y. 243; Freeman v. Van Sire, 56 N. Y. 453; Blanchard v. Illsley, 120 Mass. 489; Hamketh v. Barr, 8 Serg. & R. 36; s. C., 11 Am. Dec. 568; Gray v. Dueland, 50 Barb. 190; Clark v. Fritch, 2 Wend. 459; White v. Nellis, 31 N. Y. 405; Terry v. Hutchinson, L. R. 3 Q. B. 599; Wallace v. Clark, 2 Overton, 93; s. c.. 5 Am. Dec. 654.

9 Bartley v. Richtmyer, 4 N. Y. 38; Irwin v. Devinnon, 11 East. 23; Ingersoll v. Jones, 5 Barb. 661.

10 Dain v. Wikoff, 7 N. Y. 191; Kennedy v. Shea, 110 Mass. 150; Bolton v. Miller, 6 Ind. 662; Ellington v. Ellington, 47 Miss. 239.

u Rist v. Faux, 4 Best. & S. 09.

12 Nickleson v. Stryker, 10 Johns 115; s. c., 6 Am. Dec. 318; Miller v. Thomson, 1 Wend. 447; Briggs v. Evans, 5 Ired. 21; Patterson v. Thompson, 24 Ark. 55; Lee v. Hodges, 13 Gratt. 726.

13 Lipe v. Eisenlied, 32 N. Y. 229; Sutton v. Huffman, 3 Vroom, 58; Briggs v. Evans, 5 Ired. 21; Wilhoit v. Hancock, 5 Bush. 567.

14 Brown v. Ramsey, 5 Dutch, 118; Mercer v. Walmsley, 5 Hair. & J. 27; s. C., 9 Am. Dec. 486; Greenwood v. Greenwood, 28 Met. 369.

Neither the parent nor any one standing in loco parentis can recover damages for injury to personal feelings, or for mental anxiety in an action for seduction. 16 It is not requisite that the seduction be followed by pregnancy, in order to render the seducer liable. 17

Where a woman of adult years submits to seduction by or on account of the advice of a third party, that it will be no crime because she is the affiance of the seducer, she can not maintain an action for damages against such third party.18 It has been held that when a woman has been seduced under promise of marriage, in an action for breach of such promise, she may be allowed fair, liberal compensation for loss of time, virtue and reputation, and for mental suffering and sense of disgrace resulting from such seduction. 19 Where a child is injured by a wrongful act of another person, and the parent is put to trouble or expense because of such injury, he can recover for the same;20 or if the injury occasion loss of services.21

It has been held that a minor is liable in damages for an injury inflicted and its consequences, even when done in sport.

22

23

An adopted child inherits from its adopted parents the same as one born in wedlock; but adopted parents can not inherit from adopted children as against blood relations; the property must follow the ordinary laws of descent. 24 Not even when the child obtained

15 23 Alb. L. J. 162; 11 Reporter, 159. 16 Wyman v. Leavitte, 71 Md. -; s. c., 11 Reporter, 335; 2 Car. & P. 292; 10 La. Ann. 331.

17 Abrahams v. Kidney, 104 Mass. 222; Van Horn v. Trueman, 1 Halst. 322; White v. Nellis, 31 N. Y. 405; Knight v. Wilcox, 14 N. Y. 13; Briggs v. Evans, 5 Ired. 16; Keller v. Donnelly, 5 Md. 211.

18 Jordan v. Hovey, 12 Cent. L. J. 215; Sherman v. Rawson, 102 Mass. 400; Kelly v. Riley, 106 Mass. 839; s. C., 8 Am. Dec. 336; Bank v. Shain, 3 Bibb, 341; Whalem v. Layman, 2 Blackf. 194; Wells v. Padgett, 8 Barb. 232; Saner v. Schulenberg, 33 Md. 288; s. c., 8 Am. Rep. 174; 23 Alb. L. J. 229.

19 Gierer v. Schultz, 4 Wis. L. News, 99; Leavitte v. Cutler, 37 Wis. 54.

20 Dennis v. Clark, 2 Cush. 347.

21 Hammer v. Pierce, 5 Harr. (Del.) 171; Sawyer v. Sauer, 10 Kan. 569.

22 Peterson v. Heffner, 11 Rep. 598; 33 Ind. 531; 29 Barb. 218; Reeves' Dom. Rel. 386, note 2; 3 Cooley's Bl. 120, note 4.

23 Burrage v. Briggs, 20 Mass. 103; Small v. Roberts, 115 Mass. 260; Barnhizel v. Terrill, 47 Ind. 255; Hale v. Robbins, 10 N. W. Rep. 617.

24 Hale v. Robbins, 10 N. W. Rep. 617; Commonwealth v. Nancrede, 32 Pa. St. 389; Schafer v. Eucer, 54 Pa. St. 304; Barnhizel v. Terrill, 47 Ind. 355.

United States Circuit Court, District of Oregon. November 8, 1882.

The priority of the United States under sees. 3466-7 of the Revised Statutes does not attach in the lifetime of an insolvent debtor, unless his property is taken by process of law as in bankruptey, insolvency or attachment, or he makes a voluntary assignment thereof to a third person for the benefit of his creditors; and a judgment or judgments confessed by such debtor for an amount equal to the value of his assets with intent to hinder, delay or defraud the United States is not such an assignment.

George H. Williams, for the plaintiffs; James F. Watson, for the defendants.

DEADY, J., delivered the opinion of the court: This case was before this court on October 2, on a motion by the district attorney to dismiss the bill of review for want of jurisdiction.

The motion having been denied, the defendant demurred and the cause was argued and submitted on the bill and demurrer.

The first question for consideration is-Had the United States, upon the facts stated and found, a right of priority of payment out of the property of Griswold on January 6, 1879, by virtue of sec. 3466 of the Rev. Stat.? which reads: "Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts to the United States shall be first satisfied; and the priority hereby established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes

a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed." At this date, it appears that Griswold confessed judgments to sundry persons for an aggregate sum which, together with his indebtedness to the United States and sundry mortgage creditors, far exceeded the value of his assets, and that said judgments, with the exception of the one to the plaintiffs hrein for $348.82, were based upon fictitious claims and confessed with the intent to hinder, delay and defraud the United States in the collection of a claim against Griswold, then in suit in this court, and upon which it obtained judgment against him on July 30, 1879, for $35,228 and $2,821.60 costs and disburse

ments.

Upon this state of facts it was tacitly admitted by counsel and assumed by the court on the hearing of the original case, that the priority of the United States attached to the property of Griswold, subject to the liens of the valid mortgages thereon. It is admitted that the statute giving the priority of payment was not applicable to this case, unless Griswold had made a voluntary assignment of his property; and it is also admitted that he had not done so, unless the confessing of these judgments amounted to such assignments. There is no doubt but that the effect of these judgments by means of the lien they carned, when docketed, unless set aside at the suit of creditors for fraud, was practically to transfer whatever interest Griswold had in the property in question to the plaintiffs therein.

But upon further reflection and examination I am satisfied that they did not amount to or operate as an assignment within the purview of the statute. The latter is only applicable to cases where the debtor's estate, either by his death, legal bankruptcy or insolvency, has passed into the hands of an administrator or assignee for the benefit of his creditors, or where the debtor himself has voluntarily made such disposition of it. It does not apply, then, to a conveyance, assignment or transfer by whatever means accomplished to a real or pretended creditor or creditors, in payment or satisfaction of a debt or claim. There must be, in some way, an assignment of the debtor's property to a third person, for distribution among his creditors, before the statute can be invoked, and then it operates directly upon the assignee by requiring him to pay the claim of the United States first, and making him personally liable therefor if he does not. R. S., sec. 3467. The following authorities bear with more or less directness upon these conclusions: United States v. Fisher, 2 Cr. 390; United States v. Hooe, 3 Cr. 90; Conard v. Atlantic Ins. Co., 1 Pet. 438; Beaston v. Farmer's Bank of Delaware, 1 Pet. 132; 1 Kent's Com., 247; United States v. Canal Bank, 3 Story, 81; United States v. McLellan, 3 Sum. 350; Conk. Treat., 723.

It follows that so much of the decree as pro

vides that lot 8 in block 10, and the west half of lots 1, 2, 3 and 4 in block 73, in the town of Salem, shall be subject to the payment of the judgment of the United States, after they had been sold on legal process from the State court and before the entry of said judgment, upon the assumption that the priority of the United States had attached thereto, prior to such sale, to-wit: on January 6, 1879, is erroneous, and must be reversed, and a decree entered dismissing the bill as to the plaintiff's in error.

EVIDENCE OF GOOD CHARACTER INADMISSIBLE IN A CIVIL ACTION IN FAVOR OF A PARTY CHARGED WITH FRAUD.

SIMPSON v. WESTENBERGER.

Supreme Court of Kansas, November, 1882. Evidence of good character and reputation for honesty and fair dealing is not admissible on the part of a plaintiff claiming possession as mortgagee of personal property under a chattel mortgage held by him in an action of replevin, brought by the plaintiff against an officer to recover the possession of property levied upon in attachment proceedings against the mortgagor, when the mortgage is assailed as fraudulent, as against the creditors of the mortgagor.

Error from Leavenworth County.

Edward Stillings,for plaintiffs in error; William McNeil Clough and Lucian Baker, for defendant in error.

HORTON, J., delivered the opinion of the court. Joseph Westenberger and Simson Loewenthal were partners under the firm name of S. Loewenthal & Co., doing business in Leavenworth City from January 1, 1880, to about the 18th day of January, 1881, at which time they alleged they dissolved, Westenberger claiming that he sold his interest in the firm to Loewenthal for the sum of $28,473.84, for which, after deducting $852.84, placed to his credit on general account, he took thirty-six notes of Loewenthal for $767.25 each, due respectively in two, three, four, five, six, seven, eight, nine, ten, and so on, up to thirty-seven months after date, in alleged settlement of the partnership. On the 14th of November, 1881, he obtained from Loewenthal a chattel mortgage upon his stock of goods in the store at Leavenworth, to secure thirty-four of said notes, and, on the same day, filed the mortgage in the office of the register of deeds of Leavenworth County. He also claimed that he took immediate possession of the property under the mortgage with the consent of Loewenthal. About this time Morse, Shepherd & Co. brought an action in the United States Circuit Court for the District of Kansas against Loewenthal to recover the sum of $4,141,69, and caused a writ of attachment to issue, which was placed in the hands of the United States Marshal, Benjamin F. Simpson, and thereunder

George F. Sharitt, a deputy United States Marshal, levied upon the goods embraced in the chattel mortgage. Thereupon Westenberger instituted an action of replevin in the District Court of Leavenworth County against Simpson and Sharritt to obtain possession of the goods. He obtained judgment in that court, and it is contended before us that this judgment must be reversed, because the court permitted evidence to go to the jury to prove his good character and reputation for honesty and fair dealing. His counsel claim this evidence was relevant and legitimate, and therefore properly admitted, and refer to 1 Greenl. on Ev. (10th ed.), sec. 54, pp. 76-79, and the cases there cited; especially Ruan v. Perry, 3 Caines, 120. It is stated in 1 Greenl. on Ev., supra: "And generally in actions of tort, wherever the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to repel it." In the note thereunder it is said: "The ground on which evidence of good character is admitted in criminal prosecutions is this: That the intent with which the act charged as a crime was done is of the essence of the issue; agreeably to the maxim, Nemo reus est, nisi mens sit rea; and the prevailing character of the party's mind, as evinced by the previous habit of his life, is a material element in discovering that intent in the instance in question. Upon the same principle, the same evidence ought to be admitted in all other cases, whatever be the form of proceeding, where the intent is material to be found as a fact involved in the issue." The basis of the text and the note seems to be the case of Ruan v. Perry, supra, where the court held that, "In actions of tort, and especially charging a defendant with gross depravity and fraud, upon circumstances merely, evidence of uniform integrity and good character is oftentimes the only testimony which a defendant can oppose to suspicious circumstances." This doctrine, it is said generally, was recognized by the court in Fowler v. Ætna Fire Insurance Co., 6 Cow. 673, and afterwards in Pownsend v. Graves, 3 Paige, 455-456. If the rule laid down in Greenleaf, and supported by the authority of Ruan v. Perry, supra, controls, then the testimony complained of was admissible. But, on the other hand, if the doctrine attempted to be established in Ruan v. Perry, supra, and by the text in Greenleaf, is not good law, the evidence was not only irrelevant and incompetent, but prejudicial to the opposing parties, and therefore they would be entitled to a reversal of the judgment. It is stated in 1 Whart. on Ev., sec. 47: "Although in criminal cases good character may be proved by the defendant as tending to substantiate the plea of not guilty, yet in civil suits such evidence has been held to be irrelevant. When the question comes whether the defendant has committed a crime, then as a matter of indul gence to one whose life or liberty are at stake, good character, such as would make it improbable that he would have committed the crime in question, may be introduced among the elements

from which the jurors are to make up their judgment. But whether it be because in a civil issue between two private parties, neither has the right to claim such an indulgence from the other, or whether it be because most civil suits grow out of, or may be supposed to grow out of, honest misconceptions of rights, Anglo-American courts have agreed in holding that so far as concerns the proof in civil issues, the character of either party is, as a rule, irrelevant." In reference to Ruan v. Perry, supra, the author says: "This case is sometimes cited as authority for the position that in actions for tort charging criminality, the defendant may put good character in evidence. In Fowler v. Ins. Co., 6 Cow. 675, and Townsend v. Graves, 3 Paige, 455, Ruan v. Perry is cited with qualified approval; but it is emphatically repudiated in Gough v. St. John, 16 Wend. 646; Platt v. Andrews, 4 Comst. 493, and Porter v. Seiler, 23 Pa. St. 424." In Fowler v. Ætna Fire Ins. Co., supra, cited as supporting Ruan v. Perry, the court refer to the latter case, but refer approvingly to Attorney-General v. Bowman, 2 Bos. & P. 532, and decide that evidence of general good character is inadmissible by way of defense in a civil action in which a party is charged with a specific fraud; and that in civil actions the character of every transaction must be ascertained by its own circumstances, and not by the character of the parties. In Townsend v. Graves, supra, also cited by Greenleaf as recognizing Ruan v. Perry, the real question before the Chancellor was whether the complainant, who charged the defendant with having fraudulently substituted another number in a package of lottery tickets in the place of the prize ticket, could be permitted, in the first instance, to give evidence of the general bad character of the defendant. The Chancellor decided, as such evidence had no bearing whatever, on the matter in issue in the cause, it was wholly inadmissible, and ought not to have been received. In Gough v. St. John, supra, the defendant was sued in an action on the case for a false representation as to the solvency of a third person. The representation was in writing, and verbal testimony was offered tending to show that the defendant knew it to be false. To rebut this charge, proof that the defendant sustained a good character for honesty and fairness in dealing was offered and admitted. Cowan, J., held that the fraudulent intent was a necessary inference of law from the falsity of the representation, and that the evidence of character was improperly admitted. He cited and condemned the case of Ruan v. Perry as favoring the general admissibility of evidence of character in civil actions for injuries to property. The other judges agreed that the evidence was improperly admitted, but said nothing as to the case of Ruan v. Perry. They denied, however, that fraud was in such cases an inference of law. In Smets v. Plunket. 1 Strobh. (S. C.) 372, it is said: "Evidence of the plaintiff's general character was no doubt intended to show that he was incapable of having first appropriated a por

tion of defendant's lumber dishonestly, and then rendered a false account of sales; and the evidence tended towards this purpose, if it could have laid bare the heart of the plaintiff and ascertained really the strength of his moral principles, it would have been highly influential. But examinations in court into general character according to reputation, usually distinguish only between the two classes, the good and the bad, without nice discrimination between the infinite degrees and varieties which exist of either class; of most persons there is really no general reputation as to character, and of some the general reputation is widely different from the truth which a full knowledge of their motives, principles and habits would disclose; sometimes, upon trials, the good are overthrown by unexpected assault, and often the bad are burnished and strengthened by the ready testimony which their influence procures in their favor, whilst many of their neighbors who think ill of them, shrink from being examined; or being examined, can not say that the suspicions which they entertain, and which they feel rather than know that others also entertain, have been uttered so as to constitute a bad reputation. In investigations concerning character, feeling and prejudice are more frequently exhibited than in inquiries upon any other subject. The number of witnesses is often extended far beyond the limit which, upon other topics, the court would indulge; and if there be contrariety of opinion, the matter is usually left at last in great uncertainty. These considerations suggest the propriety of adhering closely to the rules which have been established to regulate the admission of the evidence of reputation concerning general character. If in every case where an act of dishonesty is imputed, the imputation may be met by such evidence, then there are few cases into which such evidence might not be introduced. Trials would be insupportably tedious, and the result of a trial would as often depend upon the popularity of a party as upon the merits of his case." Again, in Wright v. McKee, 37 Vt. 161, the early case of Ruan v. Perry is cited as having been overruled, and as an argument for excluding evidence offered by a defendant to sustain a good character for honesty and integrity in a civil action brought to recover the value of a package of bank bills and silver delivered by the plaintiff to the defendant to carry to a third person, which it was alleged the defendant converted to his own use, the court says: "In criminal cases, the respondent is permitted to introduce evidence of this kind. In civil cases, where the question of character is directly in issue, and material as to the amount of damages as in slander and seduction, it is admitted. This we think is the extent to which it ought to be admitted in civil suits. In criminal cases, the law allows it to the respondent out of tenderness to help him, if it may, in his necessity, as it gives him the benefit of every doubt. And even in criminal cases, the law regards it of value only when the other evidence leaves the case in doub