That the Fourteenth Amendment does not deprive the states of
their police power over subjects within their jurisdiction is
elementary, and, in determining the validity of a statute, the
question before the court is not the wisdom of the statute, but
whether it is so beyond the scope of the municipal government as to
amount to a want of due process of law.
The right to regulate concerning the estate or property of
absentees is an attribute which in its very essence belongs to all
governments, to the end that they may be able to perform the
purposes for which government exists, and, in the absence of
restrictions in its own constitution, none of which exists in the
State of Pennsylvania, is within the scope of of a state
government; nor does the exercise of this power violate the
Fourteenth Amendment by depriving the absentee of his property
without due process of law in case he is alive when the proceedings
are initiated.
Where the provisions of a state statute for administration on
the assets of an absentee are reasonable as to the period of
absence necessary to create the presumption of death, and create
proper safeguards for the protection of his interests in case the
absentee should return, it does not violate the due process clause
of the Fourteenth Amendment because it deprives the absentee of his
property without notice.
The Pennsylvania statute of 1885, Public Laws, p. 155, providing
for the administration of the property of persons absent and
unheard of for seven or more years is a valid enactment, and is not
repugnant to the Fourteenth Amendment because it deprives the
absentee of his property without due process of law.
The Legislature of Pennsylvania, in 1885, adopted a law
"relating to the grant of letters of administration upon the
estates of persons presumed to be dead, by reason of long absence
from their former domicil." Briefly, and in substance the act
provided that, upon application made to the register of wills for
letters of administration upon the estate of any person supposed to
be dead on account of absence for
Page 198 U. S. 459
seven or more years from the place of his last domicil within
the state, the register of wills shall certify the application to
the orphans' court, and that said court, if satisfied that the
applicant would be entitled to administration if the absentee were
in fact dead, shall cause the fact of the application to be
advertised in a newspaper published in the county once a week for
four successive weeks, giving notice that, on a day stated, which
must be two weeks after the last publication, evidence would be
heard by the court concerning "the alleged absence of the supposed
decedent, and the circumstances and duration thereof." After
providing for a hearing in the orphans' court, the statute empowers
that court, if satisfied by the proof that the legal presumption of
death is made out, to so decree, and cause a notice to be inserted
for two successive weeks in a newspaper published in the county,
and also, when practicable, in a newspaper published at or near the
place beyond the state where, when last heard from, the supposed
decedent had his residence. This notice requires the absentee, if
alive, or any other person for him, to produce to the court, within
twelve weeks from the date of the last insertion of the notice,
satisfactory evidence of the continuance in life of the absentee.
If, within the period of twelve weeks, evidence is not produced to
the court that the absentee is alive, the statute makes it the duty
of the court to order the register of wills to issue letters of
administration to the party entitled thereto, and such letters,
until revoked, and all acts done in pursuance thereof and in
reliance thereupon, shall be as valid as if the supposed decedent
were really dead. Power is further conferred upon the orphans'
court to revoke the letters at any time on proof that the absentee
is in fact alive, the effect of the revocation being to withdraw
all the powers conferred by the grant of administration. But it is
provided that:
"All receipts or disbursements of assets, and other acts
previously done by him [the administrator] shall remain as valid as
if the said letters were unrevoked, and the administrator shall
settle an account of his administration down to
Page 198 U. S. 460
the time of such revocation, and shall transfer all assets
remaining in his hands to the person as whose administrator he had
acted, or to his duly authorized agent or attorney:
Provided, the said letters were unrevoked, and the
administrator the title of any person to any money or property
received as widow, next of kin, or heir of such supposed decedent,
but the same may be recovered from such person in all cases in
which such recovery would be had if this act had not been
passed."
It is further provided that, before any distribution of the
estate of such supposed decedent shall be made to the persons
entitled to receive it, they shall give security, to be approved by
the orphans' court, in such sum as the court shall direct,
conditioned that, if the absentee
"shall, in fact be at the time alive, they will, respectively,
refund the amounts received by each, on demand, with interest
thereon; but if the person or persons entitled to receive the same
is or are unable to give the security aforesaid, then the money
shall be put at interest on security approved by said court, which
interest is to be paid annually to the person entitled to it, and
the money to remain at interest until the security aforesaid is
given, or the orphans' court, on application, shall order it to be
paid to the person or persons entitled to it."
After affording remedies in favor of the absentee in case the
issue of letters should be subsequently revoked, the statute
provides that the costs attending the issue of letters or their
revocation shall be paid out of the estate of the supposed
decedent, and that the costs arising upon the application for
letters which shall not be granted shall be paid by the applicant.
Public Laws 1885, p. 155.
The plaintiff in error, Margaret Cunnius, now Margaret Smith,
whom we shall hereafter refer to as Mrs. Smith, prior to and at the
time of the passage of this act, was domiciled in the State of
Pennsylvania. In virtue of her right of dower in certain real
estate of her husband, which passed to him from his deceased
mother's estate, she became entitled to the annual interest during
her life on the sum of $569.61. This debt was
Page 198 U. S. 461
assumed by john M. Cunnius, who acquired the real estate from
which the right of dower arose, and was in turn assumed by the
Reading School District in consequence of its acquisition from John
M. Cunnius of the property. The school district paid the interest
as it accrued to Mrs. Smith at her domicil in the City of Reading
up to the first of April, 1888. In that year, she left her domicil
in the City of Reading, and for nearly nine years -- up to March,
1897 -- she had not been heard from. At that date, her only son,
who resided in Reading, alleging the absence of his mother for the
period stated, and the fact that she had not been heard from, and
the consequent presumption of her death, made application to the
register of wills, under the statute to which we have just
referred, for letters of administration. After the reference of the
matter to the orphans' court, as required by the statute, and the
making of the publication and compliance with the other requisites
of the statutes, the letters of administration which the statute
authorized were granted. Under the authority thus conferred, the
administrator collected from the Reading School District the
arrears of interest which had accrued on the right of dower of Mrs.
Smith, from the date of the last payment made to her before her
disappearance on April 1, 1888, down to the time of the appointment
of the administrator. The administrator gave the school district a
receipt and discharge. In 1899, Mrs. Smith sued the Reading School
District in the Court of Common Pleas of Berks County to recover
the arrears of interest which had been paid during her absence to
the administrator appointed by the orphans' court. And the proof in
the suit developed that, at the time the proceedings against her as
an absentee were initiated, and when the administrator was
appointed, she was living in Sacramento, California. The school
district relied for its defense upon the payment of the interest
made to the administrator and the discharge which that officer had
given under the law. Mrs. Smith asserted that the proceedings in
the state court and the receipt of the administrator furnished no
protection
Page 198 U. S. 462
to the school district, because, as she was alive when the
proceedings for administration were taken in the state court, those
proceedings and the law which authorized them were repugnant to the
Fourteenth Amendment to the Constitution of the United States. She,
moreover, contended, even although there was power in the state to
provide by law for the administration of the property of an
absentee, the particular law in question was repugnant to the
Fourteenth Amendment to the Constitution, as it did not provide for
adequate notice, and because the law failed to furnish the
necessary safeguards to give it validity. The case went to a jury
upon legal points being reserved.
The trial court decided that Mrs. Smith was entitled to recover,
because the Pennsylvania statute did not provide essential notice,
and was therefore repugnant to the due process clause of the
Fourteenth Amendment. The superior court, to which the case was
taken, affirmed the action of trial court on the ground that, as
Mrs. Smith was alive when the proceedings to administer her estate
as an absentee were had, that administration was void and the
statute authorizing it was repugnant to the Fourteenth Amendment.
21 Pa.Super.Ct. 340. The Supreme Court of Pennsylvania, on appeal,
reversed the judgments of the court below and decided that the
statute was a valid exercise of the police power of the state, and
therefore, both as to form and substance, was not repugnant to the
Fourteenth Amendment. 206 Pa. 469.
Page 198 U. S. 467
MR. JUSTICE WHITE, after making the foregoing statement,
delivered the opinion of the Court.
In their ultimate aspect, the assignments of error and the
propositions based on them all rest on the assumption that the
State of Pennsylvania had no jurisdiction over the person or
property of the absentee, and therefore the proceedings for the
appointment of the administrator and all acts done by him were
void, and subject to collateral attack. But to uphold this
contention, in a broad sense, would be to deny the possession by
the various states of powers which they obviously have the right to
exert. That the debt due the absentee by the school district,
resulting from the establishment of her dower, was within the
jurisdiction of the state authority, is clear. It would undoubtedly
have been subject to administration under the laws of Pennsylvania
had the absentee been in fact dead.
Wyman v. Halstead,
109 U. S. 654,
109 U. S. 656;
Sayre v. Helme, 61 Pa. 299;
Mansfield v.
McFarland, 202, Pa. 173, 174. The debt was certainly subject
to taxation, and, being so subject, had it been taxed, the state
would have had power to provide remedial process for the collection
of the tax.
Savings Society v. Multnomah County,
169 U. S. 421,
169 U. S. 428;
Bristol v. Washington County, 177 U.
S. 133. Moreover, it would have been in the power of the
state to subject the debt to attachment at the instance of a
creditor of the absentee.
Harris v. Balk, 198 U.
S. 215. And that the law
Page 198 U. S. 468
of Pennsylvania would have authorized such an attachment is also
clear.
Furness v. Smith, 30 Pa. 520, 522. It may not also
be doubted that the State of Pennsylvania had authority to enact an
applicable statute of limitations.
Shrinking from the conclusion to which the assertion of the want
of jurisdiction in the state over the debt logically leads, the
foregoing propositions are not seriously disputed. It is, however,
insisted that they are not determinative of the power of the state
to provide for the administration of the property of a person who,
having been domiciled in the state, has absented himself for an
unreasonable time, leaving no trace of his whereabouts. The
contentions on this subject are thus stated in the brief of
counsel:
"In a word, the case before the court is one in which the
private property of one person was, without her knowledge or
consent, transferred to another who, in reality, had no shadow of a
right to it, by virtue of an
ex parte proceeding of which
the owner had no lawful notice. Is it possible that such a manifest
infringement of the fundamental and inherent rights which belong to
every person in the use and enjoyment of his private property can
be construed to be due process of law?"
Again:
"If the plaintiff's departure from Pennsylvania and her omission
to demand her arrearages for the period of eleven years work an
injury to anyone, it was to herself alone, and not to any public
right such as would bring this case within the police power of the
state. Plaintiff was under no legal obligation to remain in
Reading."
It will be observed that the propositions challenge the
authority of the state to enact the statute which formed the basis
of the proceedings, not only because it is insisted that there was
a complete want of power to do so, but also because, even if the
state had power, the method of procedure which the statute
authorized was so wanting in notice as not to constitute due
process of law. We shall consider these objections separately:
Page 198 U. S. 469
1st. Was the state statute providing for the administration of
the property of an absentee under the circumstances contemplated by
the statute so beyond the scope of the state's authority as to
constitute a want of due process of law within the intendment of
the Fourteenth Amendment? That the amendment does not deprive the
states of their police power over subjects within their
jurisdiction is elementary. The question, then, is not the wisdom
of the statute, but whether it was so beyond the scope of municipal
government as to amount to a want of due process of law. The
solution of this inquiry leads us, therefore, to consider the
general power of government to provide for the administration of
the estates of absentees under the conditions enumerated in the
Pennsylvania law. We do not pause to demonstrate, by original
reasoning, that the right to regulate concerning the estate or
property of absentees is an attribute which, in its very essence,
must belong to all governments, to the end that they may be able to
perform the purposes for which government exists. This is not done,
because we propose rather to test the question by ascertaining how
far such authority has been deemed a proper governmental attribute
in all times and under all conditions. If it be found that an
authority of that character has ever been treated as belonging to
government and embraced in the right to protect and foster the
wellbeing and order of society, it must follow that that which has
at all times been conceded to be within the power of government
cannot, in reason, be said to be so beyond scope of governmental
authority that the exertion of such a power must be held to be a
want of due process of law, even although there is no
constitutional limitation affecting the exercise of the power.
Whilst it may be that, under the Roman law, there was no complete
and coherent system provided for the administration of the estate
of an absentee, Toullier, title 1, No. 379; Duranton, title 1, No.
384, it is nevertheless certain that absence, without being heard
from for a given length of time, authorized the appointment of a
curator to protect and administer an
Page 198 U. S. 470
estate.
See the references to the Roman law on that
subject in Domat, liv. 2, title 2, section 1, No. 13. That in the
ancient law of France, under varying conditions, the same
governmental right was recognized is also undoubted. Journal du
Palais Rep. Verbo Absence, p. 20, from No. 9 to 25. In the Code
Napoleon, the subject is especially provided for under a title
treating of absence, in which ample provision is made for the
administration of the property of the absentee, the law providing
for, first, the provisional, and ultimately the final, distribution
of such property in accordance with the restrictions and
regulations which the title provides. Code Napoleon, bk. 1, title
4, art. 112
et seq. Demolombe, in generally treating upon
the subject, thus expounds the fundamental conceptions from which
the power of government on the subject is derived:
"Three characters of interest invoke a necessity for legislation
concerning this difficult and important subject. First. The
interest of the person himself who has disappeared. If it is true
that, generally speaking, every person is held at his own peril to
watch over his own property, nevertheless the law owes a duty to
protect those who, from incapacity, are unable to direct their
affairs. It is upon this principle of public order that the
appointment of tutors to minors or curators to the insane rests. It
is indeed natural to presume that a person who has disappeared, if
he continues to exist, is prevented from returning by some obstacle
stronger than his own will, and which therefore places him in the
category of an incapable person, whose interest it is the duty of
the law to protect. And it is for this reason that the provisions
as to absence in the Code are placed in the chapter treating of the
status of persons, because the absentee, in the legal sense, is a
person occupying a peculiar legal status. Second. The duty of the
lawmaker to consider the rights of third parties against the
absentee, especially those who have rights which would depend upon
the death of the absentee. Third. Finally, the general interest of
society which may require that property
Page 198 U. S. 471
does not remain abandoned without some one representing it, and
without an owner. . . ."
And it may not be doubted that the power to deal with the estate
of an absentee was recognized and exerted not only by the common
law of Germany, but also by the codes of the various states of the
continent of Europe. De Saint Joseph Concordance entre les Codes
Civils Etrangers et le Code Napoleon, vol. 1, page 11.
Provisions similar in character to those of the Code Napoleon
were incorporated in the Civil Code of Louisiana of 1808, under the
head of absentees, in book 1 of that code, defining the status of
persons, and such provisions have been in force from that day to
the present time. Louisiana Civil Code, article 47
et seq.
The provisions of that code on the subject were referred to by this
Court in
Scott v. McNeal, 154 U. S.
34,
154 U. S. 41.
Under the law of England, as stated in that case, a presumption of
death arose from an absence of seven years without being heard
from, and whilst it is true, as we shall hereafter have occasion to
say, that such presumption was not conclusive, and was rebuttable,
nevertheless the very fact of the presumption occasioned by
absence, irrespective of the force of the presumption, was a
manifestation of the power to give legal effect to the status
arising from absence.
As the preceding statement shows that the right to regulate the
estates of absentees, both in the common and civil law, has ever
been recognized as being within the scope of governmental
authority, it must follow that the proposition that the State of
Pennsylvania was wholly without power to legislate concerning the
property of an absentee is without merit, unless it be that the
authority of a state over the subject is restrained by some
constitutional limitation. That the Constitution of Pennsylvania
does not put such a restriction is foreclosed by the decision of
the Supreme Court of Pennsylvania in this case. But it is insisted,
conceding that the State of Pennsylvania had power to provide for
the administration of the property of an absentee, yet that
authority could not
Page 198 U. S. 472
be exerted without violating the due process clause of the
Fourteenth Amendment if the administrative proceeding, brought into
play under the exercise of the authority, is made binding upon the
absentee if it should subsequently develop that he was alive when
the administration was initiated. To sustain this proposition,
numerous decisions of state courts of last resort are relied upon,
which are enumerated in the margin,
*
and special reliance is placed upon the decision of this Court in
Scott v. McNeal, 154 U. S. 34,
154 U. S. 41. We
are of opinion, however, that the cases relied upon, with one or
two exceptions hereafter to be noticed, are inapposite to this
case. The leading cases were reviewed in
Scott v. McNeal,
and their inapplicability to the present case will therefore be
demonstrated by a brief consideration of
Scott v.
McNeal.
In that case, a probate court in the State of Washington had
issued letters of administration upon the estate of a person who
had disappeared, and proceeded to administer his estate as that of
a dead person upon the presumption of death which the court assumed
had arisen from his absence. There was no statute of the State of
Washington providing for an administration of the estate of an
absentee as such and creating rights and safeguards applicable to
that situation, as distinct from the general law of the state
conferring upon courts of probate power to administer the estates
of deceased persons. Referring to the presumption under the law of
England of
Page 198 U. S. 473
death arising from absence, it was held that such presumption
was not conclusive, and was absolutely rebutted by proof that the
person who was presumed from the fact of absence to be dead was in
fact alive. Having established this proposition, it was then held,
as death was essential to confer jurisdiction on a probate court to
administer an estate as such, the fact of life at the time the
administration was initiated conclusively rebutted the presumption,
and caused the court to be wholly without jurisdiction to
administer the estate of a person who was alive. This conclusion
was abundantly sustained by a citation of the English and American
adjudications, in none of which was the doctrine upon which the
case proceeded more cogently stated than in the opinion of this
Court, speaking through Chief Justice Marshall, in
Griffith v.
Frazier, 8 Cranch 9,
12 U. S. 23. That
the opinion, however, in
Scott v. McNeal was not intended
to and did not imply that the states were wholly devoid of power to
endow their courts with jurisdiction, under proper conditions, to
administer upon the estates of absentees, even though they might be
alive, by special and appropriate proceedings applicable to that
condition, as distinct from the general power to administer the
estates of deceased persons, is conclusively shown by the opinion
in
Scott v. McNeal. Thus, the law of Louisiana, providing
for the administration of the property of absentees, as distinct
from the authority conferred to administer the estates of deceased
persons, was approvingly referred to. And, moreover, as showing
that it was deemed that the absence of legislation by the State of
Washington of a similar character was the determinative factor in
the case, the Court said (p.
12 U. S. 47):
"The local law on the subject, contained in the Code of 1881 of
the Territory of Washington, in force at the time of the
proceedings now in question, and since continued in force by
article 27, section 2, of the constitution of the state, does not
appear to us to warrant the conclusion that the probate court is
authorized to conclusively decide, as against a living person, that
he is dead, and his estate therefore
Page 198 U. S. 474
subject to be administered and disposed of by the probate
court."
"On the contrary, that law, in its very terms, appears to us to
recognize and assume the death of the owner to be a fundamental
condition and prerequisite to the exercise by the probate court of
jurisdiction to grant letters testamentary or of administration
upon his estate, or to license anyone to sell his lands for the
payment of his debts."
After copiously reviewing the Washington statutes and pointing
out that they dealt with the estates of deceased persons as such,
the case was summed up in the following language:
"Under such a statute, according to the overwhelming weight of
authority, as shown by the cases cited in the earlier part of this
opinion, the jurisdiction of the court to which is committed the
control and management of the estates of deceased persons, by
whatever name it is called -- ecclesiastical court, probate court,
orphans' court, or court of the ordinary or the surrogate -- does
not exist or take effect before death. All proceedings of such
courts in the probate of wills and the granting of administrations
depend upon the fact that a person is dead, and are null and void
if he is alive. Their jurisdiction in this respect being limited to
the estate of deceased persons, they have no jurisdiction whatever
to administer and dispose of the estates of living persons of full
age and sound mind, or to determine that a living man is dead, and
thereupon undertake to dispose of his estate."
True it is that there are some general expressions found in the
opinion (p.
12 U. S. 50) which,
if separated from the context of the opinion, might lead to the
conclusion that it was held that a state was absolutely without
power to provide by a special proceeding for the administration and
care of the property of an absentee, and to confer jurisdiction on
its courts to do so irrespective of the fact of death. But these
general expressions are necessarily controlled by the case which
was before the Court, and by the context of the opinion, which
makes it
Page 198 U. S. 475
clear that it was alone decided that, under a law giving
jurisdiction to probate courts to administer the estates of
deceased persons, even although a rebuttable presumption existed as
to death after a certain time, that, if such presumption was
subsequently rebutted by the proof of the fact of life, the court,
whose authority depended upon death, was devoid of
jurisdiction.
We have said that two of the cases relied upon would be
separately noticed. Those cases are
Carr v. Brown, 20 R.I.
217, and
Clapp v. Houg, 12 N.D. 600. In the first case,
there was a statute of Rhode Island providing for administration
under the presumption of death after an absence of seven years, and
it was decided that the statute was void. The opinion leads to the
view that the conclusion of the court was primarily based upon the
construction that the statute did not create a conclusive
presumption conferring jurisdiction in the event the absentee was
alive, and not dead. In the second case, there was also a statute
of the State of North Dakota, but the court held it to be void
because of the inadequacy of the notice for which it provided.
There are in both of the cases expressions tending to the view that
the state was without power to provide by special legislation for
the administration of the property of an absentee. Insofar, of
course, as these views were rested upon the state constitution, we
are not concerned with them. Insofar, however, as they intimate
that, by the operation of the Fourteenth Amendment, the states are
deprived of power to legislate concerning the estates of absentees,
we do not approve them.
The error underlying the argument of the plaintiff in error
consists in treating as one two distinct things -- the want of
power in a state to administer the property of a person who is
alive, under its general authority to provide for the settlement of
the estates of deceased persons, and the power of the state to
provide for the administration of the estates of persons who are
absent for an unreasonable time, and to enact reasonable
regulations on that subject. The distinction between the
Page 198 U. S. 476
two is well illustrated in Pennsylvania, for in that state,
prior to the enactment of the statute in question, it had been
expressly decided that a court of probate, as such, was absolutely
wanting in jurisdiction to administer the estate of a person who
was alive simply because there existed a presumption which was
rebuttable as to the fact of death. This is also aptly illustrated
by the law of Louisiana. In that state, as we have seen, provisions
have existed from the beginning for the administration of the
estates of absentees, as distinct from the power conferred upon the
courts of probate to administer the estates of deceased persons. In
this condition of the law, under an averment of death, an estate
was opened in a probate court of Louisiana, and administered upon.
A question as to the validity of that administration subsequently
arose in
Burns v. Van Loan, 29 La.Ann. 560, 563. As the
proceedings were probate proceedings not taken under the statute
providing for the administration of the estates of absentees, the
Supreme Court of the State of Louisiana declared them to be
absolutely void. As it cannot be denied that, in substance, the
Pennsylvania statute is a special proceeding for the administration
of the estates of absentees, distinct from the general law of that
state providing for the settlement of the estates of deceased
persons, and as, by the express terms of the statute, jurisdiction
was conferred upon the proper court to grant the administration, it
follows that the Supreme Court of Pennsylvania did not deprive the
plaintiff in error of due process of law within the intendment of
the Fourteenth Amendment.
2d. It remains only to consider the contention that, even
although there was power to enact the statute, it is nevertheless
repugnant to the Fourteenth Amendment because it fails to provide
notice as a prerequisite to the administration which the statute
authorizes, and because of the absence from the statute of
essential safeguards for the protection of the property of the
absentee which is to be administered. Let it be conceded, as we
think it must be, that the creation by a state law of an arbitrary
and unreasonable presumption of death
Page 198 U. S. 477
resulting from absence for a brief period, would be a want of
due process of law, and therefore repugnant to the Fourteenth
Amendment. Let it be further conceded, as we also think is
essential, that a state law which did not provide adequate notice
as prerequisite to the proceedings for the administration of the
estate of an absentee would also be repugnant to the Fourteenth
Amendment. Again, let it be conceded that, if a state law, in
providing for the administration of the estate of an absentee,
contained no adequate safeguards concerning property, and amounted
therefore simply to authorizing the transfer of the property of the
absentee to others, that such a law would be repugnant to the
Fourteenth Amendment. We think none of these concessions are
controlling in this case. So far as the period of absence provided
by the statute in question, it certainly cannot be said to be
unreasonable. So far as the notices which it directs to be issued,
we think they were reasonable. As concerns the safeguards which the
statute creates for the protection of the interest of the absentee
in case he should return, we content ourselves with saying that we
think, as construed by the Supreme Court of Pennsylvania, the
provisions of the statute do not conflict with the Fourteenth
Amendment.
Affirmed.
*
French v. Frazier (1832), 7 J. J. Marsh. 425, 432;
State v. White (1846) 7 Ired. 116;
Duncan v.
Stewart (1854), 25 Ala. 408, 414;
Moore v. Smith
(1858), 11 Rich.L. 569;
Jochumsen v. Suffolk Savings Bank
(1861), 3 Alle 87;
Morgan v. Dodge (1862), 44 N.H. 255,
259;
Withers v. Patterson (1864), 27 Tex. 491, 498;
Quidort v. Pergeaux (1867), 18 N.J.Eq. 472, 477;
Melia
v. Simmons (1878), 45 Wis. 334, 337;
D'Arusment v.
Jones (1880), 4 Lea 251;
Devlin v. Commonwealth
(1882), 101 Pa. 273;
Stevenson v. Superior Court (1882),
62 Cal. 60, 65;
Thomas v. People (1883), 107 Ill. 517;
Perry v. St. Joseph & W. R. Co. (1883), 29 Kan. 420,
423;
Epping v. Robinson (1884), 21 Fla. 36, 49;
Martin
v. Robinson (1887), 67 Tex. 368;
Springer v.
Shavender (1895), 116 N.C. 12, 118 N.C. 33;
Carr v.
Brown (1897), 20 R.I. 217;
Clapp v. Houg (1904), 12
N.D. 600.
