Harvard Law Review/Volume 1/Issue 1/The Law School

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Coram Gray, J.

Joseph Fraine v. Matilda Fraine.

A divorce for desertion will not be granted where the libellant has filed, during the continuance of the alleged desertion, another libel for divorce on account of adultery.
The libel for divorce on account of adultery operates as notice to the libellee that a renewal of cohabitation is not desired, so that the libellant becomes thereby a consenting party to the separation.
Cases decided under the English statute distinguished.

LIBEL for divorce on the ground of desertion, filed Feb. 19, 1886. The libel was undefended. At the hearing it appeared that the parties were married in 1879; that on Jan. 10, 1882, the libellee deserted the libellant, and had continued away from him to the time of filing the libel; that in March, 1885, the libellant discovered evidence tending to show adultery on the part of the libellee; that in May, 1885, he filed a libel against her on the ground of adultery, to which she filed an answer, which libel is still pending.

The libellant testified as a witness. He was asked by the judge whether he would have taken the libellee back at any time before the filing of the libel. He said he would have taken her back at any time before he discovered the evidence tending to show her adultery, but that he would not have taken her back after that time. There was no evidence that he had ever said this to the wife.

The judge reserved the case for the determination of this court.

A statute provides that a divorce from the bond of matrimony may be decreed, among other causes, for adultery, and for “desertion continued for three consecutive years next prior to the filing of the libel.”

The Attorney-General appears under a statute providing that he intervene to oppose the granting of any libel undefended by the libellee.

H. M. Williams and J. V. Bonnett for the Libellant.

S. Williston and E. G. Brooks for the Attorney-General.

Gray, J.Whether a secret determination by a husband, whose wife has left him, not to take her back, would, if proved, defeat a libel against her for desertion, or whether a like determination expressed to a third person would have that effect, it is unnecessary in this case to consider; for the filing and service of the libel for adultery was a declaration to the libellee of the most solemn kind that her husband would not take her back. If not absolutely incompatible with a willingness to receive her, it must be deemed so in the absence of countervailing evidence, of which there is none here. Nor does the libellant much dispute this position.

But he contends that if a wife who has deserted ber husband has a fixed intention not to return, whatever her husband’s wishes, the desertion continues, although the husband has declared that he will not take her back; and for this the libellant relies on Hewes v. Hewes, 7 Gray, 279, where, on an undefended libel, it was held that a man had deserted his wife for five years consecutively, although for the greater part of the five years he had been in prison. This case, if it be good law, shows that a deserted wife is not to be deprived of the right which she would have to a divorce, simply because her husband, by his own misconduct, has rendered impossible that return, which, if possible, he would never have attempted. But it is of the essence of her right that she is injured by the continued absence of her husband, and if she consents to this continued absence, she is not injured, and has no right to a divorce.

The libellant, however, further insists that, although it be true, as a general proposition, that the consent of a libellant to a continued desertion is fatal to the libel, yet there is an exception; and he argues that if the consent to the desertion is for a justifiable cause, as in this case, the libel can be maintained. To establish this exception he relies on several English cases, Graves v. Graves, 3 Sw. & T. 350; Gibson v. Gibson, 29 L. J. M. 25; Gatehouse v. Gatehouse 36 L. J. M. 121; some of which, at any rate, support his contention.

But this exception rests on the special terms of the English statute. Desertion was never a cause of divorce in England, until the statute establishing the Divorce Court, 20 and 21 Vict., c. 8 (1857). There it appears for the first time. By that statute a woman cannot have a divorce for adultery alone, as for desertion alone; but for “adultery coupled with desertion, without reasonable excuse, for two years or upwards,” § 27.

Under this provision, if a man deserts his wife for two years, and also commits adultery, but his wife does not discover the adultery until after the expiration of the two years, and has, therefore, during the two years been always desirous for his return, she is clearly entitled to a divorce; but suppose that before the two years have elapsed she discovers that her husband is living in adultery, now, under these circumstances, the law must be either: First, That she is bound to take her husband back; or, Second, That she is not entitled to a divorce; or, Third, That she is entitled to a divorce, although she is not willing to take her husband back.

The English statute cannot have intended to declare either of the first two of these propositions. It cannot mean that she is bound to take back her husband; it cannot mean that she is entitled to a divorce from a secret adultery, but not from an open one. The third proposition must, therefore, express the intention of the statute, and the word “desertion,” as used therein, cannot have its ordinary meaning of going and staying away without consent, but must include a going and staying away with justifiable consent.

This novel and exceptional meaning of the word desertion is the result simply of the dilemma brought about by the English statute coupling adultery and desertion as a cause for divorce; but under the statute in this case, where either offence is alone a sufficient cause for divorce, the dilemma does not arise, and there is, therefore, no occasion to give an artificial meaning to the term desertion, or to use it in any other than its natural sense. This result is in accordance with the American authorities. Porritt v. Porritt, 18 Mich. 420; Salorgne v. Salorgne, 6 Mo. Ap. 602.

If the libellant wants a divorce from his wife he must prosecute the libel for adultery.

Libel for desertion dismissed.


Supreme Court of the Ames–Gray.

Contract implied in law. Improvement of another’s property under mistake, in good faith.

The facts were the same as in Mining Co. v. Hertin, 37 Mich. 332. The plaintiff, under a bona-fide mistake as to boundaries, cut trees on the defendant’s adjoining land, converted them into cord-wood, and hauled them to the shore of the lake. The wood there was worth three times as much as it was in its original condition. The defendant, then finding out for the first time what had been done, took possession of the wood, and received the benefit of all the plaintiff’s labor, for which indebitatus assumpsit is brought.

The plaintiff contended that the defendant had enriched himself at the plaintiff’s expense, that the plaintiff was not officious in his conduct, so the common counts would lie. Ambrose v. Kerrison, 10 C. B. 776; Chase v. Corcoran, 106 Mass. 286. That there is an equity in favor of the plaintiff is shown by the fact that a bill in equity would lie for the value of the improvements, in the analogous case of realty improved under a mistake. Bright v. Boyd, 1 Story, 478; Thomas v. Thomas, 16 B. Mon. 420.

The defendant argued that the law would not imply a consent to a trespass. As he had no knowledge of the plaintiff’s labor there was no implied assent to it.

The court decided in favor of the defendant. A trespasser at common law is a wrong-doer; no wrong can give the wrong-doer a right of action. The cases in equity do not apply, for equity can probe the plaintiff’s conscience; they rather show there is no remedy at law. In the cases cited, where recovery was allowed, the plaintiff had not exceeded his legal rights.

Superior Court of the Pow–Wow.

Tort for injury to horse from a barbed-wire fence.

The ground of action in this case consisted of two facts, viz., the erection of the fence by the defendant and consequent injury to the plaintiff’s horse.

The defendant demurred, maintaining that he was not liable unless the plaintiff also declared and proved that the fence was erected in an improper place, where the injury complained of would be the natural result. In support of this defence the defendant cited Polak v. Hudson, New Jersey Law Journal, Feb., 1887, p. 43, a case directly in point, in which the defendant’s liability, according to the charge to the jury, seems to turn on the fact that the defendant placed the fence between his land and the plaintiff’s pasture, knowing that the plaintiff was accustomed to turn a young colt into the pasture, and that, therefore, injury would naturally follow.

But the court held that a barbed-wire fence, per se, was so dangerous, that in case of resulting injury the plaintiff should be allowed to recover, unless the defendant, confessing the plaintiff’s cause of action to be good, could also show that, from the nature of the ground as, for example, a thick woodland, or from public policy, as fencing with barbed wire tracts of prairie land to prevent stampede, the maintenance of the fence was justifiable.

A barbed-wire fence, therefore, was deemed to come within that class of sources of injury as to which no averment of negligence or of knowledge of probable injury is necessary, as the following: a poisonous yew-tree, Crowhurst v. Amersham Burial Board, 4 Ex. D. 5; a filthy drain, Ball v. Nye, 99 Mass. 582; an open pit, Growcott v. Williams, 32 L. J., 2 B. 237; a rusty wire-cable fence, Firth v. Bowling Iron Co., 3 C.P.D. 254; a reservoir, Ryland v. Fletcher, L.R., 3 H.L. 330.


These notes were taken by students from lectures delivered as art of the regular course of instruction in the school. They represent, therefore, no carefully formulated statement of doctrine, but only such informal expressions of opinion as are usually put forward in the class room. For the form of these notes the lecturers are not responsible.

Transfers of Choses in Action. (From Professor Ames’ Lectures.)—In England, by the Statute 36 and 37 Vic., c. 66, § 25, rule 6, the legal right to a chose in action is transferable. Before the passage of this act, however, and in jurisdictions where it is not in force, conflicting decisions have been reached in cases where the obligee of a chose in action has attempted to make a gift of it to another.

In Fortescue v. Barnett (3 M. & K. 36) the obligee of a life-insurance policy by deed assigned and transferred the policy to F. It was held that the gift of the policy was complete without delivery; F. had a perfect title. This case has been followed by later English cases. 14 Ch. D. 179.

In the case of Edwards v. Jones (1 M. & C. 226) the obligee of a bond indorsed upon it an assignment to E., “with full power for said E. to sue thereon,” and delivered the bond to E. It was held that this was an imperfect gift, and the donee took nothing. Edwards v. Jones has been followed in England, Milroy v. Lord (4 DeG., F., & J. 264). Thus, in that jurisdiction a distinction is made between an insurance policy and other choses in action.

On the other hand, in the United States generally no such distinction has been made. The rule is that a gift accompanied by a delivery of the instrument passes the legal title; while without delivery no interest passes. (Grover v. Grover, 24 Pick. 261; and note to same in Ames, Cases on Trusts, 110.) The American rule, therefore, is directly opposed to the rule of Edwards v. Jones.

It is suggested that the true solution of this question is the following: when the donor gives the instrument to the donee, intending to make a complete gift, there is a valid transfer by way of an implied execution of an irrevocable power of attorney to sue in the name of the donor. Thus the right of the donee is not equitable, but is legal.

This suggestion has not been adopted by the courts; but it seems to have the merit of carrying out the intention of the parties, and reaching a highly desirable result (as is shown by the English statute and the American decisions, which reach the same end by another course of reasoning) without doing violence to any legal principles.

It is by no means a new idea. A power of attorney executed for a consideration gives a right to sue in the name of the transferrer of the chose in action.

1 Lilly Abr. 103; 2 Bl. Com. 442; 2 Story Eq. Juris. § 1056; Co. Lit. 232 B, Butler’s note; 8 T.R. 571 ; L.R. 2 C.P. 308, 309.

Equity, Specific Performance, Equitable Convension and Ownership. (From Professor Langdell’s Lectures.)—Equity has deduced from specific performance two important and far-reaching principles which affect the substantive rights of parties. One principle is that of equitable conversion; the other is, that the party entitled to a thing under a contract is regarded as owner of it in equity. Equitable conversion takes place when the result of the contract will be an actual conversion of property into realty or personalty; equitable ownership takes place when the performance of the contract will change the ownership.

The establishment of these principles is not a necessary consequence of enforcing specific performance. If the principle of equitable ownership had not been recognized, specific performance might easily have been prevented by conveying the property; yet the principles are entirely independent. The question of equitable conversion ought to stand and be decided by itself, without reference to the question whether the agreement will be specifically enforced. This distinction is not recognized or acted on in the authorities, which decide as if the question rested on enforcing specific performance.

The foundation on which these principles are established is the equitable principle of treating as done what ought to have been done, from the time when it should have been done. Equity adopted this as a principle of fundamental justice, and the justice of it had to be made clear before it was adopted. It should clearly extend only so far as it would do justice, and should not stop at the point where equity refuses to enforce specific performance.

Suppose, for instance, a contract for the sale of a vessel; the purchase-money has all been paid, but title to the vessel has not been conveyed. After the time for conveyance arrives the vendor becomes bankrupt. Even if equity will not enforce specific performance of the contract it should treat as done what ought to have been done, and should enforce the vendee’s right to the vessel against the assignee, as it would enforce the right of any other cestui que trust. If the vendor remained solvent there would be no reason for invoking the jurisdiction of equity.

This rule is recognized and acted upon in a leading case in Massachusetts, Clark v. Flint (22 Pick. 231), where the facts were substantially those stated above.