money thus paid should be refunded. The superior court is therefore advised that the assignee is entitled to the sum paid for premium, together with the interest thereon from the date of payment, and that the balance of the fund should be paid over to the guardian of the son.

In this opinion the other judges concurred.

ASSIGNMENT BY WIFE OF POLICY OF INSURANCE ON LIFE OF HER HUSBAND: See note to Appeal of Elliott's Ex'rs, 88 Am. Dec. 533; Eadie v. Slimmon, 82 Id. 395. A policy of insurance on the life of a husband, payable to his wife for her sole use, and in case of her death before his, to be paid to her children, is not assignable by her so as to defeat the interest of her children, where such interest has become absolute by the death of the wife before that of her husband: Chapin v. Fellowes, 36 Conn. 134; Continental L. I. Co. v. Palmer, 42 Id. 69; Foster v. Gile, 50 Wis. 612, all citing the principal case.

SHARP'S RIFLE MANUFACTURING Co. v. Rowan.

[84 CONNECTICUT, 829.]

IN QUESTIONS OF Jurisdiction, Parties on RECORD DETERMINE the question which is not affected by the fact, though brought upon the record by the pleadings, that the respondent is a mere nominal party, and that the party having the real interest is beyond the jurisdiction of the court. Therefore, in a suit to compel the conveyance of certain real estate standing in the name of the respondent, his plea to the jurisdiction, that he was, and was known by the petitioners to be, only the agent of the British government, a foreign sovereignty not liable to suit, that he had no personal interest whatever in the matter of the suit, and that the British government was the sole party to be affected by it, is bad on demurrer.

BILL in equity. The opinion states the case.

H. Dutton and Hubbard, in support of the demurrer.

T. C. Perkins, Chamberlin, H. Whittaker, and Hooker, contra. By Court, HINMAN, C. J. This is a bill in chancery to compel a conveyance of certain real estate situated in the state of Connecticut, brought against Henry S. Rowan, the sole respondent, in whom the title stands upon the public records. The respondent denies the jurisdiction of the court over him, and over the subject-matter, on the ground set up in his plea, "that he has not and never has had any personal interest whatever in said property, but holds the same, and originally took and has ever since held the same, solely as the representative of the British government, a foreign sovereignty, and that the British government is, and for all the time aforesaid

has been, the real and sole owner of said property, and is the real and sole party affected by the proceeding before the court, which has from the first been well known to the petitioners." To this plea the petitioners have demurred.

In disposing of the question thus presented, it is not necessary for us to decide whether a foreign sovereign could be sued in our courts upon a contract entered into by such sovereign with our own citizens; nor whether, where such a sovereign is interested in real estate within this state, our courts can entertain a bill in equity to which such sovereign is made a direct party, for the purpose of adjudicating the rights of various parties in the property. The question here is, whether a suit can be maintained for the adjudication of the rights of different parties to real estate situated in this state, where the party in whom the title stands on the public records, and who alone is made respondent in the suit, is a private person, but who is in fact a trustee for a foreign sovereign. On this point, it is our opinion that the jurisdiction of the court is to be determined by the character of the party to the record, and is not affected by the fact, though brought upon the record by the pleadings, that the respondent is a mere nominal party, and the party represented by him and having the real interest is beyond the jurisdiction of the court.

The rule here laid down is well settled in its application to questions of jurisdiction under the constitution of the United States. The second section of article 3 provides that the judicial power of the United States shall extend to controversies "between citizens of different states"; and the eleventh amendment provides that it shall not extend to any suit brought "against one of the United States by citizens of another state."

Under the provision of the original article referred to, it was held very early, and has ever since been held, that the court will not inquire on either side into the residence of those who are not parties, but who may have an equitable interest in the result of the suit. It is enough if the parties on the record are citizens of different states: Chappedelaine v. Dechenaux, 4 Cranch, 306; Childress v. Emory, 8 Wheat. 642. Under the provision of the amendment referred to, that a suit cannot be maintained in the courts of the United States against one of the states by citizens of another state, a case has arisen which bears a strong resemblance to the present one, and we think is decisive of the principle involved. In Osborn v. Bank of United States, 9 Wheat. 738, the plaintiff in error was the state

auditor of the state of Ohio, and the sum was a bill in equity brought by the Bank of the United States to restrain him from collecting a tax on the stock of the bank, claimed by the bank to be illegal. The respondent claimed that the court could not entertain the suit, because he, the respondent, was merely a representative of the state of Ohio, which alone had any real interest in the suit, and which could not be held to respond to the suit. The case was fully argued and much considered by the court, and it was held that the jurisdiction was determined by the actual parties to the record, without reference to those not on the record who might be beneficially interested. Chief Justice Marshall, in giving the opinion of the court, says (page 856): "The judicial power of the Union is also extended to controversies between citizens of different states; and it has been decided that the character of the parties must be shown on the record. Does this provision depend on the character of those whose interest is litigated, or of those who are parties on the record?

"In a suit, for example, brought by or against an executor, the creditors or legatees of his testator are the persons really concerned in interest; but it has never been suspected that if the executor be a resident of another state the jurisdiction of the federal courts could be ousted by the fact that the creditors or legatees were citizens of the same state with the opposite party. The universally received construction in the case is, that jurisdiction is neither given nor ousted by the relative situation of the parties named on the record. Why is this construction. universal? No case can be imagined in which the existence of an interest out of the party on the record is more unequivocal than in that which has just been stated. Why, then, is it universally admitted that this interest in no manner affects the jurisdiction of the court? The plain and ob vious answer is, Because the jurisdiction of the court depends, not upon this interest, but upon the actual party to the record." After some further discussion of the subject, the chief justice concludes his remarks upon it as follows: "But the principle seems too well established to require that more time should be devoted to it. It may, we think, be laid down as a rule that admits of no exception, that in all cases where jurisdiction depends on the party it is the party named in the record."

The same question was again before the court and decided in the same way in Governor of Georgia v. Madrazo, 1 Pet. 122, and Judge Marshall in giving the opinion of the court refers to and repeats his former language in the case of Osborn

v. Bank of United States, 9 Wheat. 738. See also the cases of Irvine v. Lowry, 14 Pet. 293, and Bonnafee v. Williams, 3 How. 574.

We think the principle here established to be entirely applicable to and decisive of the present case. The British government is not a party to the record, and there can be no violation of the rules of comity, nor any infringement of its dignity, in holding the respondent, a private person, and entitled in his own right to no immunity, to answer to the suit before the court. No decree can be made in the case directly against the British government, and no execution for costs can issue against it. Every order of the court against the respondent must necessarily be only against him personally.

It is difficult to see what other rule could be safely applied in such a case as this. It is but a short time since a foreigner could hold real estate in this state only upon permission granted by the superior court upon his petition; and now, by statute, a foreigner to hold real estate here must be a resident of this state or of one of the United States. This statute would be successfully evaded if a foreigner could hold real estate through a trustee, and then assert all the rights of a legal owner in any proceeding that might be instituted against the trustee. Especially would this be so in the case of a foreign state. The reasons which induced the legislature to withhold from foreigners the unlimited right to acquire a legal interest in the soil of the state apply with special force to foreign sovereignties, which are political bodies, and which it may be dangerous to admit as owners of our soil; and yet, if the views of the respondent be correct, such foreign sovereignties may not only become through their trustees or agents the owners of extensive lands within the state, but when their title is brought before our courts, may interpose the very fact that they are foreign sovereigns against the jurisdiction of the courts. This is against all reason, and could not for a moment be tolerated.

For these reasons, we advise that the demurrer to the jurisdiction of the superior court be overruled.

In this opinion the other judges concurred.

IN QUESTIONS OF JURISDICTION, PARTIES ON RECORD, that is, the nominal parties, determine the question, and not the parties equitably interested: Beach v. Fairbanks, 52 Conn. 173, citing the principal case.

FOREIGN SOVEREIGN MAY SUE IN COURTS OF MISSOURI: King of Prussia . Kuepper's Adm'r, 66 Am. Dec. 639.

MCNARY V. CHAMBERLAIN.

134 CONNECTICUT, 384.]

PRIVITY MUST EXIST BETWEEN ACT OF WRONG-DOER AND INJURY COMPLAINED OF, in order to lay the foundation for a recovery.

DECLARATION ALLEGING THAT PLAINTIFF HAD CONTRACTED WITH TOWN TO KEEP CERTAIN HIGHWAY IN REPAIR for three years, and that the defendant, intending to injure the plaintiff, deposited stone and rubbish on the road, and obstructed a drain so that the water ran over and injured the road, by means of which the plaintiff was subjected to greater expense in keeping the road in repair, is sufficient on demurrer. The allegation that the act was done with intent to injure the plaintiff is not to be taken as merely formal, but as an averment of an actual intent.

TRESPASS, and trespass on the case. The facts

the syllabus and from the opinion.

Bacon, in support of the demurrer.

Clark and Tyler, contra.

appear from

By Court, PARK, J. A majority of the court are of the opinion that the plaintiff has set forth a good cause of action in his declaration.

We all hold that a privity must exist between the act of a wrong-doer and the injury complained of, in order to lay the foundation for a recovery: Connecticut Mutual Life Ins. Co. v. New York & N. H. R. R. Co., 25 Conn. 265 [65 Am. Dec. 571]; Miller v. East School District, 29 Id. 529; Lamb v. Stone, 11 Pick. 527; Anthony v. Slaid, 11 Met. 290; Rockingham Mutual Fire Ins. Co. v. Bosher, 39 Me. 253 [63 Am. Dec. 618]. The court are not divided as to the law, but are divided as to the nature and character of the case itself.

The declaration alleges that the defendant intended to injure the plaintiff in doing the act complained of, and we all agree that if the allegation means in fact what it purports to mean, such relation did exist, and the declaration is sufficient. In the case of Connecticut Mutual Life Ins. Co. v. New York & N. H. R. R. Co., supra, Judge Storrs says: "Had the life of Dr. Beach been taken with intent to injure the plaintiffs through their contract liability, a different question would arise, inasmuch as every man owes a duty to every other not intentionally to injure him."

It is said in the case at bar, that the intent to injure the plaintiff was stated by the pleader as mere matter of form, like the allegation in common counts in assumpsit, where it is sometimes stated that the defendant, contriving and intending to