once for all, and, hence, we cannot wait to see how the unknown adversities or contingencies of the future may affect the question; as if, by some other calamity, those prospects, which we presently estimate, should turn out to have had no existence at all; as if the girl should die before she reaches womanhood; or, having reached it, should find a profitable marriage notwithstanding the disfigurement.

"In the case of Ernestine Koch, injured on shipboard, a servant girl, who, among other injuries, received a wound in the forehead, from which a permanent scar resulted that 'somewhat disfigured' her, Judge Deady allowed, as one item, $500 for the scar, concerning which he uses this language: It may be that the sum of $500 is an insufficient compensation for such a blemish upon the personal appearance of the libelant. But it does not appear that the scar will affect her personal appearance so as to make her presence offensive or painful to others.' etc. And then he says this: Still, the scar will be a permanent disfigurement of her person, for which she is entitled to some compensation. Karr v. Parks, 44 Cal. 49. In this country, at least, it is still open to every woman. however poor or humble, to obtain a secure and independent position in the community by marriage. In that matter, which is said to be the chief end of her existence, personal appearance-comeliness-is a consideration of comparative importance in the case of every daughter of Eve.' The Oriflamme, 3 Sawy. 397; Fed. Rep. Cas. No. 10, 572; 3 Suth. Dam. 268, 1 Suth. Dam. 765.

"There are other familiar instances where loss of marriage prospects are elements of damage, as in seduction, breach of promise (for the particular loss by that breach of contract), slander or libel (under some circumstances), and sometimes of false representations amounting to a distinct and actionable injury. Cooley, Torts, 277; 3 Suth. Dam. 323. An injury to the person of a woman affecting her prospects of marriage should be as actionable as one to her character.

"The petition in this case does not specially plead any loss of marriage prospects, but in a case like this it is difficult to see why there should be any special plea. It is said by Mr. Sutherland that special damages are required to be stated in the declaration, and that an unmarried woman cannot secure damages on account of her prospects of marriage being lessened by the personal injury for which she sues, unless such special damage be alleged; for which he cites: Hunter v. Stewart, 47 Me. 419; 1 Suth. Dam. 763, 765; 3 Suth. Dam. 268, and note. Not having an opportunity of examining that case to see the age of the woman, its bearing is not fully understood. But presumably it was a woman, and not a child of five years of age, as to which it could hardly be said that she could truthfully set up any special plea or averment as to a loss of marriage; and, therefore, presumably the case, and all like it, would fall within the general rule of pleading

that damages not following directly as a consequence of the particular circumstances must be specially pleaded. The loss of a particular prospect of marriage must be specially pleaded, no doubt, but why should the loss of the general prospect belonging to a child whose injury so disfigures her as to make marriage almost impossible? It would seem rather to fall within the rule of the Ohio case above cited, as applicable to a girl's prospects in the future, although a mere infant now; and, generally, within the doctrine that such a loss is a natural consequence of the injury, and not a special consequence, very much like the loss to growing crops, which may be compensated in damages. Suth. Dam. 158, 187,

193-198.

"It would be agreed by all that the injury to this plaintiff does seriously impair her prospects of marriage when she reaches the marriageable age, and I had no hesitation in holding that such impairment is an element of damage for the consideration of the jury. It is not more likely to unduly influence a jury, nor is it more difficult of estimation than any other element of damages confessedly within their consideration when a mere child is injured, nor at all unlike most of the elements of calculation or estimation in all cases of personal injury. It all depends on the fair judgment of the jury, and is especially subject to the scrutiny of the court and its power to control excessive verdicts, as was said by Cresswell, J., in Smith v. Woodfind, 1 C. B. (N. S.), 660, in a somewhat analogous estimation of damages without the aid of a precise rule. 3 Suth. Dam. 323, and note; Id. 289; 1 Suth. Dam. 810."

SUBROGATION SURETIES ON OFFICIAL BOND. -In Myers v. Miller, 31 S. E. Rep. 976, decided by the Supreme Court of Appeals of West Virginia, it was held that sureties on the official bond of a sheriff, upon being compelled to make good the default of their principal, will, by the fact of payment, become equitable assignees, and be subrogated to the position of the State in respect of all its securities, liens, and priorities, for the purpose of enforcing reimbursement from their principal. The court said in part: "If sureties know that they can be subrogated to the priority of the State, less apprehension will be felt in joining in the bonds of collectors, and less delay in payment by solvent sureties. Other creditors are not injured, for, if the State has the first claim upon the fund, it does them no wrong, whether this claim is enforced by the State or by those standing in its stead. In Enders v. Brune, 4 Rand. 445, the court, in treating the subject of subrogation, says: 'In enforcing these principles, courts of equity look not to the form but to the essence of the transaction. They consider the doctrine of substitution, not as one founded in contract, but the offspring of natural justice; nor do they leave it to the creditor to cede his actions, but, so soon as a third person who has become bound with the debtor pays his debt to the cred

itor, they substitute him to the creditor, giving him every right, every lien, every security, to which the creditor could resort, and, if the creditor should with bad faith release any of those securities, it would be a bar pro tanto to his recovery against the surety.' McNeil v. Miller, 29 W. Va. 480, 2 S. E. Rep. 335 (Syl. point 1): "The doctrine of subrogation, being the creation of courts of equity, is so administered as to secure essential justice, without regard to form, and is independent of any contractual relation between the parties to be affected by it.' 3 Pom. Eq. Jur. sec. 1419: "The surety who has paid or satisfied the principal's debt or obligation is entitled to be subrogated to, and to have the benefit of, all securities which may at any time have been put into the creditor's hands by the principal debtor, or which the creditor may have obtained by the principal debtor. By the fact of payment the surety becomes an equitable assignee of all such securities, and is entitled to have them assigned and delivered up to him by the creditor, in order that he may enforce them for his own reimbursement and exoneration;' and note 1 to same section and cases there cited. On the subject of sureties on official government bonds, 24 Am. & Eng. Enc. Law p. 220: 'Sureties on bonds for government officials, upon being compelled to make good the default of their principal, will be subrogated to the position of the government, in respect of all its securities, liens and priorities, for the purpose of enforcing reimbursement from their principal or contribution from their co-sureties. And it is immaterial how the government's right of priority originated, whether out of common-law prerogative, positive statute or contract; once established that it is entitled to rank as a preferred creditor, the same preference will be upheld, by way of subrogation, for the benefit of the surety.' Hawker v. Moore, 40 W. Va. 49, 20 S. E. Rep. 848; Boltz's Estate, 133 Pa. St. 77, 19 Atl. Rep. 303; Turner v. Teague, 73 Ala. 554; Livingston v. Anderson, 80 Ga. 175, 5 S. E. Rep. 48; Irby, v. Livingston, 81 Ga. 281, 6 S. E. Rep. 591; Hunter v. United States, 5 Pet. 173; Roberston v. Trigg's Admr. 32 Gratt. 76; Crawford v. Richeson, 101 Ill. 351; Hook v. Same, 115 Ill. 431, 5 N. E. Rep. 98; 1 Jones, Liens, secs. 99, 100. It is contended that the auditor had no authority to assign the judgment of the State to plaintiffs. It is immaterial whether an assignment is made or not, as it will be seen from the authorities above cited that the doctrine is well established, by almost an unbroken line of decisions, that a surety who has paid the debt of his principal obligor is subrogated in equity, by the act of payment, not only to the securities of the creditor, but to all his rights of priority;' and 'what difference can logically result whether the creditor to whom the sureties made payment is the State or an individual?' Orem v. Wrightson, 51 Md. 34. The statement of the auditor, purporting to be an assignment, supplies the evidence of payment of the judgment to the State by the sureties. It is

argued that because one of the plaintiffs made his note, and the others became indorsers, in order to raise the money to pay the State the amount of the judgment, as disclosed by the evidence, therefore, the maker of the note is the only one who paid anything on the judgment, and the others cannot be entitled to the release, because they have not suffered. The sureties had a right, among themselves, to devise ways and means to get the money, and, as between themselves, they may each and all be equally liable for the amount of the note so made and indorsed. They got the money and paid the debt, and are entitled to all the rights, remedies and priorities of the State in respect to said judgment. And how is the complaining lienholder in any worse condition than he would be if the sureties had not paid the judgment, and the State were now pressing its collection instead of the plaintiffs?"

TORT DAMAGES TO WIFE BY HUSBAND CAUSE OF ACTION.-In Deeds v. Strode, 55 Pac. Rep. 656, decided by the Supreme Court of Idaho, it appeared that plaintiff, a married woman, having a husband from whom she had never been lawfully divorced, married defendant. The latter marriage having been declared null and void, plaintiff brings action to recover damages from defendant for injuries alleged to have been received by her from defendant while they were cohabiting together, by reason of the defendant's having inoculated her with a veneral disease. It was held that, it not appearing that defendant had induced plaintiff to enter into marital relations with him by any fraud, deceit, or misrepresentation, no recovery could be had. The following is from the opinion of the court: "It does not appear that the defendant in any way misled the plaintiff, that he made any false representations to her, or practiced any fraud upon her, to induce her to enter into the marriage relation with him. If there was fraud or deceit practiced in bringing about the relation, it was presumably, under the statements in her complaint, attributable to the plaintiff. She was the incapacitated party. It was by her procuration-upon her motion-that the pretended divorce from Deeds, her former husband, had been procured. She was in a position to know and is presumed to know, whether that divorce was legal or not; whereas the defendant cannot be presumed to have any knowledge or information upon the subject. There is no allegation in the complaint that defendant knew of the existence of the divorce in Deeds against Deeds. The plaintiff, holding herself out as one capacitated and qualified to enter into the marriage relation, accepted the proposals of the defendant to, and did, enter into such relations with him. Her act was at least a fraud upon the defendant. Plaintiff claims that by, through, and in consequence of, said relations she has been damaged, and asks the court to award her compensation for such damage. We know of no principle of law or equity which will support this contention.

Appellants' counsel cite Nels. Div. & Sep. § 1023. The language there used is as follows: The woman is relieved of her incapacity to sue and be sued. She may sue the man who has entrapped her into a void marriage, and compel him to account for rents and profits of property he took under such marriage. Where a woman is induced by fraud and deceit to enter into a void marriage, she may recover damages for such tort without first having the marriage annulled.' This may be accepted as a correct statement of the law; but how is it made applicable to the case made by the record under consideration? The plaintiff has undoubtedly the right to sue and be sued, but to avail herself of that right she must, like every other person, have a cause of action. There is no question of property rights involved in this case. It is not claimed that the plaintiff brought to the community any estate or property whatever, or that the defendant derived any pecuniary benefit from said relation. The complaint alleges that the defendant is the owner and possessed of property of the value of $150,000. It is not claimed or pretended that the plaintiff was induced by fraud and deceit to enter into a void marriage.' The case of McDonald v. Fleming, 12 B. Mon. 285, cited in note to section 1023 of Nelson on Divorce and Separation, was one in which the parties, after having cohabited together as husband and wife for several years, separated, and the woman brought action to recover for her services during the time of such cohabitation, and also for money advanced by her to the defendant for the purchase of certain real estate. The court held that, while she could not recover for services, she might for the money advanced, and so decreed. The parties in that case were in pari delicto. While this decision supports the text in Nelson, it has no application to the facts in the case at bar. Blossom v. Barrett, 37 N. Y. 434, cited by appellants in their brief, was an action brought by the plaintiff to recover damages of the defendant for fraudulently inducing the plaintiff to marry the defendant, and to cohabit with him, he having another wife living, from whom he was not lawfully divorced, and the defendant being at the time incapacitated to marry any one while his prior wife was living.' The plaintiff's right to recover in that case was based upon the fraud of the defendant. It could not be considered an authority in support of the contention of the plaintiff in this case. In Robbins v. Potter, 98 Mass. 532, cited by appellants, the plaintiff sued to recover money advanced to defendant by her while they were living together as husband and wife under a marriage which both parties knew to be void. The court in that case held, in substance, that while the plaintiff would not be allowed to recover for services rendered to defendant during the existence of the illegal relation between them, still she could recover for money loaned defendant during that period, and which he had expressly contracted to pay. Cooper v. Cooper, 147 Mass. 370, 17 N. E. Rep.

892, cited by appellants, was an action for services, -held no recovery could be had. The case of Higgins v. Breen, 9 Mo. 497, is not in point,-another case of fraud by defendant. We have examined carefully all of the cases cited by counsel, and have found not one which supports, even by implication, the contention of appellants. Cooley, Torts, p. 279, has, under the head of 'Fraudulent Marriage,' the following: 'A serious wrong may be accomplished by inducing any one, through misrepresentation and fraud, to enter into an illegal marriage. * The tort

in such a case consists in the fraud accomplished, to the woman's serious, and perhaps permanent, injury.' Counsel for appellants insist that, the injury of which plaintiff complains having been the result of the wrongful act of defendant, plaintiff should be entitled to recover therefor, the same as though defendant had assaulted or poisoned her. We do not recognize the parallel contended for. The injury complained of in this case could scarcely have arisen but for the illegal relations existing between the parties, and such relations were entered into voluntarily by plaintiff, and were not induced by any fraud or misrepresentation on the part of the defendant; and the plaintiff's incapacity to enter into marriage relations constituted the illegality. The injury was consequent upon her own illegal act, and we know of no principle of law authorizing recovery for injuries in such a case."

ADVERSE POSSESSION-INTERRUPTION-TAX SALE.- In Harrison V. Dolan, 52 N. E. Rep. 513, decided by the Supreme Judicial Court of Massachusetts, it was held that where a tenant has continued in adverse possession of land for over twenty years, the fact that during his occupancy there was a sale and conveyance of the premises for taxes does not constitute an interruption of his possession. The court said in part: "Adverse possession is pure matter of fact, to be interrupted only by interrupting the possessor's exclusion of adverse claimants, abandonment of his claim, or a change in his intent. Whether the last two would have any effect unless they were manifested, we need not consider. In general, also, the effect of the adverse possession will not be abridged by a change of title. The adverse possessor ex hipothesi is a wrongdoer until the twenty years has elapsed. Commonly, at least, if not necessarily, his claim is adverse to all the world; and probably any dealings among the excluded parties, even when a deed by a disseisee is valid, would not affect him. Probably the purchaser would only stand in his seller's shoes. See Chapin v. Freeland, 142 Mass. 383, 387, 8 N. E. Rep. 128. At all events, the action of the original disseisee would be barred.

"When it is held that the disseisor's possession must be continuous in him and his predecessors in title during the whole time of limitation, and

when the statute does not run against the State, it may be held that the statute has not run if the State has had the title during a part of the time relied upon. Armstrong v. Morrill, 14 Wall. 120, 145; Braxton v. Rich, 47 Fed. Rep. 178, 188; Hall v. Gittings, 2 Har. & J. 112. But such decisions have no application to this case, if for no other reason, because the statute runs against the commonwealth as well as against private persons (Pub. St., ch. 196, sec. 11); and because, further, the commonwealth never had even a momentary title to the land.

"Again, the intimation in Abbot v. Railroad Co., 145 Mass. 450, 460, 15 N. E. Rep. 91, has no bearing. That intimation concerned the acquisition of a right of way across a railroad, and was to the effect that a user begun across an earlier three-rod location would be interrupted in its operation by a later five-rod location. In such a case, the wrongdoer has no possession. He merely commits a series of trespasses. Whether the acquisition and implied assertion of right on the part of a railroad company by a location be or be not sufficient to interrupt the running of prescription (see Powell v. Bragg, 8 Gray, 441; Brayden v. Railroad Co., 171 Mass., 51 N. E. Rep. 1081), the determination cannot help us in dealing with the effect attributed by statute to allowing oneself to remain disseised for twenty years.

"As there was not even a momentary possession under the tax deed, it is not necessary to consider whether the words and meaning of the statute would not bar a disseisee at the end of twenty years if he had been continuously kept out by a succession of disseisins, one upon another, beyond remarking that there is no analogy between this case and the attempted acquisition of an easement by prescription, where successive users of a way, without right, are merely successive trespassers, except in those cases where, by the doctrine of privity, the later wrongdoer can add the time of his predecessor's adverse use to his own.

"A more subtle argument than those which we have dealt with may be suggested. It may be said that as a tax sale, if valid, gives a good title as against all the world, it is like prescription, and really begins a new title, which can be barred only by twenty years of adverse holding after the new title begins. But we are not driven to consider this argument; because, if it prevailed, it could do the demandant no good. The tax purchaser was disseised by the tenant's continued adverse possession, and his deed to the demandant before St. 1891, ch. 354, conveyed no title as against the tenant. Faxon v. Wallace, 98 Mass. 44, 45; McMahon v. Bowe, 114 Mass. 140. In Daveis v.Collins, 43 Fed. Rep. 31, 33, where the jury were instructed that a sale for taxes would break the running of time in favor of the disseisor, it seems to have been assumed that the conveyance of the tax title to the demandant was good. It is stated that the plaintiff was 'clothed with whatever title passed by these tax deeds.' Id. 34. If

the conveyance of the tax title to the plaintiff was bad, then, since the very meaning of the statute of limitations is to bar liability for a wrong, and as the disseisin was a wrong to the demandant before the sale for taxes as much as, if not more than, afterwards, and was the same wrong, we do not perceive any ground in the tax sale, taken by itself, to prolong the demandant's right of action.

"If the conveyance of the tax title to the demandant were good as against the tenant, it might be necessary to consider whether a tax sale is adverse, and, as in the case of a title by disseisin or prescription, creates no privity with former owners, or whether, although it takes all titles, it conveys them in privity like a sale on execution. Pub. St., ch. 12, sec. 38. The question is not decided by Langley v. Chapin, 134 Mass. 82. Even if the former view were taken, it still possibly might be held that no mere change of title, except one which puts it where it is above the statute, as in the sovereign apart from statute, can prevent the gaining of a later title, which also is adverse to all the world, and is the result of an adverse holding, uninterrupted in fact for twenty years. Upon these points we express no opinion."

WHAT IS A VALID LIMITATION TO CEASE UPON MARRIAGE OR A CONDITION VOID AS BEING IN RESTRAINT OF MARRIAGE?

Scarcely a branch of the old common law abounded with so much conflict and such subtle distinctions, as that of this question when does and when does not a devise or conveyance cease upon the marriage of the donee or devisee, or, in other words, what is a condition in restraint of marriage, and, therefore, void, and what a limitation to cease upon marriage, and, therefore, valid. The American courts have evolved some leading principles, out of the contradictory mess of the English decisions, and, thereby cleared away much of the fog of the ancient learning, so that the conclusion of Mr. Redfield1 is no longer true, when he says, that beyond certain general rules, "the cases seem to resolve themselves into the mere judgment of the court upon the circumstances of each particular case." The uncertainty of the authorities and refined distinctions laid down in the decisions led Lord Loughborough to say "that such was the state of the authorities, a judge could not be considered to act too boldly, whichever side of the proposi

1 Redf. Wills (2d. Ed.), p. 297.

2 Stackpole v. Beaumont, 3 Ves. 98.