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No. 1. — In re Ross's Trusts. — Notes.
stirpes or per capita. The effect of these restrictive provisions is to qualify the right of representation among collaterals, so that relatives further removed from the intestate take only as next of kin per capita. Davis v. Vanderreer's Adm'r, 23 New Jersey Equity, 558, where the Court said: “It has been well settled by the Courts in England for over a century and a half, and always acted upon, so far as anything to the contrary appears, since the passage of the Act" (22 & 23 Car. II, ch. 10), “ that the effect of it is to limit or qualify the right of representation among collaterals, so that they can take only as next of kin, per capita, except in the one case of children of deceased brothers and sisters, among whom alone of the collaterals the right to take per stirpes by way of representation may exist.” Citing many old English cases, 2 Kent's Commentaries, 425, and the principal case. * This construction of the English statute was well understood when our Act was adopted, and since then it has been recognized in our treatises in common use, and been approved of by the learned of the Bar.” Brown v. Taylor, 62 Indiana, 295; Crump v. Faucett, 70 North Carolina, 345; Odam v. Caruthers, 6 Georgia, 39 ; Cremer's Estate, 156 Pennsylvania State, 40.
Where relatives within the limits prescribed for representation are in equal degree, they take per capita, but when they stand in unequal degree, or claim by representation, they take per stirpes. Kelly's Heirs v. McGuire, 15 Arkansas, 555; Blake v. Blake, 85 Indiana, 65. So when the next of kin are nephews and nieces, children of different brothers or sisters, they take per capita. Baker v. Bourne, 127 Indiana, 466; Snow v. Snow, 111 Massachusetts, 389; Nichols v. Shepard, 63 New Hampshire, 391; Wagner v. Sharp, 33 New Jersey Equity, 520; Miller's Appeal, 40 Pennsylvania State, 387; Stent v. McLeod's Ex'rs, 2 McCord Equity (So. Car.), 354; Pond v. Bergh, 10 Paige (New York Chancery), 140 (otherwise formerly, Jackson v. Thurman, 6 Johnson, 322); Houston v. Davidson, 45 Georgia, 574.
If a collateral claims in his own right by reason of propinquity to the intestate, and other collaterals claim by virtue of representation of a deceased ancestor in the same degree of relationship with the former, the latter take per stirpes and the former per capita. So if the collaterals are nephews and nieces and grand-nephews and grand-nieces, the former take per capita and the latter per stirpes. Garrett v. Bean, 51 Arkansas, 52; Blake v. Blake, 85 Indiana, 65; Balch v. Stone, 149 Massachusetts, 39; Copenhaver v. Copenhater, 9 Missouri Appeals, 200; 78 Missouri, 55; Preston v. Cole, 64 New Hampshire, 459; Ewers v. Follin, 9 Ohio State, 327 ; Krouts' Appeal, 60 Pennsylvania State, 380; Daris v. Rowe, 6 Randolph (Virginia), 355.
In North Carolina and Maryland collateral heirs, even if of equal degree, take per stirpes. Cromartie v. Kemp, 66 North Carolina, 382; McComas v. Amos, 29 Maryland, 132.
Under statutes which deny representation to collaterals after brothers' and sisters' children, grand-nephews and grand-nieces do not take with nephews and nieces. Van Cleve v. Van Fossen, 73 Michigan, 342; Penniman v. Francisco, 1 Heiskell (Tennessee), 311. So uncles and aunts take to the exclusion of children of deceased uncles and aunts. Johnston v. Chesson, 6 Jones Equity (Nor. Car.), 146; Shaffer v. Nail, 2 Brevard (So. Car.), 160;
Elwood v. Lannon's Lessee, 27 Maryland, 200; Parker v. Nims, 2 New Hampshire, 460; Bailey v. Ross, 32 New Jersey Equity, 544; Herr v, Herr, 5 Pennsylvania State, 428; 47 Am. Dec. 416 (formerly). First cousins exclude second cousins. Schenck v. Vail, 24 New Jersey Equity, 538; Adee v. Campbell, 79 New York, 52; Roger's Appeal, 131 Pennsylvania State, 382. Granduncles and grand-aunts, when next of kin, exclude children and grandchildren of such deceased. Clayton v. Drake, 17 Ohio State, 367.
See “ Animal,” Nos. 4 & 6 and notes; 3 R. C. p. 108 et seq. ; p. 138, p. 142; and No. 7 of “Carrier” 5 R. C. 329 et seq.
The rights and wrongs of the American dog are traced to a considerable extent in the former notes. A few questions remain to note.
Whether dogs are property is variously decided. It was held that they are in Mayor, &c. v. Meigs, 1 McArthur (District of Columbia), 53; 29 Am. Rep. 578 (the Court relating the incident of William the Prince of Orange's dog, which saved his life); Harrington v. Miles, 11 Kansas, 480 ; 15 Am. Rep. 355; Heiligman v. Rose, 81 Texas, 222; 26 Am. St. Rep. 804; 13 Lawyers' Rep. Annotated, 272; Woolf v. Chalker, 31 Connecticut, 121; 81 Am. Dec. 175; Wheatley v. Harris, 4 Sneed (Tennessee), 468; 70 Am. Dec. 258; Ten Hopen v. Walker, 96 Michigan, 236; 35 Am. St. Rep. 598; Nehr v. State, 35 Nebraska, 638; 17 Lawyers' Rep. Annotated, 771; Jenkins v. Ballantyne, 8 Utah, 245 ; 16 Lawyers' Rep. Annotated, 689. To the contrary: Blair v. Forehand, 100 Massachusetts, 136 ; 1 Am. Rep. 94; State v. Harriman, 75 Maine, 562; 46 Am. Rep. 423 (killing “domestic animals "). Even if dogs are regarded as property, they do not come within a statute against “injuring or destroying public or private property." Patton v. State, 93 Georgia, 111; 24 Lawyers' Rep. Annotated, 732.
Larceny does not lie for taking a dog. State v. Lymus, 26 Ohio State, 400; 20 Am. Rep. 772; Ward v. State, 48 Alabama, 161; 17 Am. Rep. 31 ; State v. Holder, 81 North Carolina, 527; State v. Doe, 79 Indiana, 9; 41 Am. Rep. 599.
But otherwise, as "goods and chattels.” State v. Brown, 9 Baxter (Tennessee), 53; or a "thing of value," Slate v. Yates, Ohio Common Pleas.
The law looks tenderly on women and children who meddle with dogs. So it was held not conclusively negligent when an infant of thirteen struck a dog, Plumley v. Birge, 124 Massachusetts, 57 ; or meddled with a whip in a vehicle in charge of which the dog was left, Meibus v. Dodge, 38 Wisconsin, 300; 20 Am. Rep. 6; and when a woman spoke to a dog without an introduction, Searles v. Ladd, 123 Massachusetts, 580; or offered one candy, Lynch V. McNally, 73 New York, 347.
As a dernier ressort, one may kill a dog that habitually howls at night and disturbs his slumbers and the peace of his family, Brill v. Flagler, 23 Wendell (New York), 354; the Court observing: “It would be mockery to refer a party to his remedy by action; it is far too dilatory and impotent for the exigency of the case.” So in Hubbard v. Preston, 90 Michigan, 221; 30 Am. St. Rep. 426; 4 Green Bag, 279; 15 Lawyers' Rep. Annotated, 249; Meneley v. Carson, 55 Illinois Appeals, 74. But not so where the dog simply barked, chased cats into trees, got into the hen-house once, and left tracks on a freshly painted porch. Bowers v. Horen, 93 Michigan, 420; 32 Am. St. Rep. 513; 17 Lawyers' Rep. Annotated, 773. One may kill a dog that repeatedly springs at and frightens his horse on the highway. Quigley v. Pudsey, 26 Nova Scotia, 240.
A valuable Irish setter dog may be killed if trespassing and endangering one's chickens, — “ Plymouths.” Anderson v. Smith, 7 Bradwell (Illinois Appellate), 354. The Court admitted it would be unjustifiable to kill a valuable horse in the same circumstances, but saw no reason against exterminating a cat. It is a felony in Texas to kill a dog worth more than twenty dollars.
In Wiley v. Slater, 22 Barbour, 506, the Supreme Court of New York held an action was not maintainable by the owner of a dog for injuries inflicted on it by another dog in a voluntary and fair contest for supremacy in the absence of their masters. The Court said: “ This is the first time I have been called on to administer the law in the case of a pure dog fight, or a fight in which the dogs, instead of the owners, were the principal actors. I have had occasion to preside upon the trial of actions for assaults and batteries, originating in affrays in which the masters of dogs have borne a conspicuous part, and acquitted themselves in a manner which might well have aroused the envy of their canine defendants. . . . I am constrained to admit total ignorance of the code duello among dogs. . . . I have been a firm believer with the poet in the intuitive if not semi-divine right of dogs to fight," quoting Dr. Watts. “The courtesies and hospitalities of dog life cannot well be regulated by the judicial tribunals of the land. ... The owner of the dead dog would, I think, be very clearly entitled to the skin, although some, less liberal, would be disposed to award it as a trophy to the victor; and this rule would ordinarily be a full equivalent for the loss."
One whose sheep have been killed by dogs may spread poisoned meat for them, but is liable in damages if he thereby kills an innocent dog. Gillum v. Sisson, 53 Missouri Appeals, 516.
On the whole, the dog is much less tenderly treated by the judiciary of this country than in England. Very hostile sentiments were uttered against him in Godeau v. Blood, 52 Vermont, 251 ; 36 Am. Rep. 751, and in Cranston v. Mayor, 61 Georgia, 578, Judge BLECKLEY says, They “have not had their exact legal relations adjusted in this state, and they and their owners are destined perhaps to a career of trouble for some years to come.”
No 1. — Whicker v. Hume, 7 H. L. Cas. 124, 125. — Rule.
(NOTE. — Questions as to the effect of domicil are treated under the head of “Conflict of Laws,” 5 R. C. 747 et seq. The following cases are selected as showing the facts which are evidence of domicil.)
No. 1. - WHICKER v. HUME.
(H. L. 1858.)
DOMICIL means “permanent home.”
Whicker v. Hume.
7 H. L. Cas. 124–167 (s. C. 28 L. J. Ch. 396 ; 4 Jur. n. s. 933). A native of Scotland, after being in India for twenty years in the service of the East India Company, came to England and subsequently returned to Scotland, where he took a house and married. After about eleven years' residence in Scotland, be quitted that country, with the intention as shown by bis declarations and acts of not resuming any permanent residence there; and subsequently he removed his books and household goods to London. On first coming to London he lived in furnished lodgings, but subsequently took a furnished house, where he lived with his wife for about twelve years. He went with his wife on several visits to the Continent, and on the last occasion remained on the Continent, with the exception of a short interval for about seven years, until his death. But it was found that during all these times of visiting or staying on the Continent, he regarded London as his home, and considered himself to be only absent from London on account of his health and pecuniary circumstances, and contemplated returning there as soon as his health and circumstances would permit. And that he always left his library, furniture, and moveable property in London and made his arrangements so as to show that he intended to be absent for a short time only. Held, that he was domiciled in London at the time of his death.
John Hay Gilchrist was born in Edinburgh, in June,  1759. In 1775 he went to the West Indies, remained there two years, and then returned to Edinburgh. In 1782 he went to the East Indies and entered into the company's service. He acted at first as a surgeon ; but afterwards devoted himself to the study of the Hindostanee and Persian languages, and was appointed to give lessons in them to the junior civil servants of the company.
On the establishment of the College of Fort WilVOL. IX. — 44
No. 1. - Whicker v. Hume, 7 H. L. Cas. 125, 126.
liam in Calcutta, he was appointed Professor of Hindostanee there, and held that appointment till 1804, when he resigned it and came to England, his then intention being merely to recruit his health. He never returned to India. He received a pension from the company for past services. In 1804 he presented to George Heriot's Hospital, Edinburgh, the sum of £100 “ as a small testimony of gratitude for his education there."
He got himself admitted a burgess and guild brother of the city, had his armorial bearings recorded in the office of Lyon King of Arms, obtained a diploma of the company of James VI., and in 1804 embarked in the wholesale linen trade at Edinburgh. During all this time, however, his principal actual residence was in the neighbourhood of London. He busied himself about literature, and on the 22d February, 1806, was appointed Professor of Oriental
Languages at Hailey bury, but resigned that appointment a [*126] few * months afterwards. Claiming to be connected with
the noble Scotch family of Borthwick, he obtained a licence under the sign-manual to use the name of Borthwick, in addition to his own, and procured a grant of arms from the Herald's College, in which he was described as “ John Borthwick Gilchrist, of Camberwell, in the county of Surrey, Doctor of Laws, late Professor of the Hindostanee language in the College of Fort William, at Calcutta.” In the latter end of 1806 he went to Edinburgh, enrolled his name on the books of the munici. pality, and entered into business as a banker, with James Inglis, for 14 years, to commence from 1 January, 1807, with a proviso, that either party might dissolve the partnership at the end of the seventh year.
In 1808, he married a Scotch lady, and had a residence in Nicholson Square, and became a member of several societies established in Edinburgh. In 1815, the banking partnership, which was not successful, was dissolved, as from the 30th June of that year. In June, 1817, on account of some real or supposed affront, he quitted Edinburgh and came to London. In 1818, he again obtained from the East India Company the appointment of professor and lecturer in Hindostanee. These labours in teaching Oriental languages had for their chief object to sell his books on that subject, which had always remained in London. This continued till the 20th June, 1825, during the course of which time he wrote letters declaring his intention rever to see “ Auld Reekie again," and, speaking on occasion of a