fendant's horse bit a woman, and the court held that it was sufficient to allege that the defendant knew his horse was accustomed to bite people, and that no allegation of negligence was necessary. And in Pennsylvania, if a horse is permitted to go at large, in the streets of a city, he is liable for such injuries as it may do whether he had, or had not, notice that it would bite or kick.3

9

In an English case, the rulings, as to the liability of the owner of a horse which kicked a child, is a little remarkable. The child was lawfully on the highway, the horse was there too, unlawfully. The court conceded that his presence, loose and unattended, upon the public highway, was in violation of the Highway Act, but as there was no evidence that he was vicious, or as to how he came to be on the highway, where he kicked the child, nor was there any evidence of specific negligence on the part of the defendant, the owner of the horse, the court held that the action could not be maintained. It seems to us that the fact that the horse was unlawfully on the highway, a trespasser there, was sufficient evidence of negligence to charge the defendant with the direct consequences of his unlawful presence on the highway. If one horse might kick one child, under such circumstances, why might not a drove of horses, being unlawfully on the highway, run over and trample down half a dozen children?

able, but void.1 If, however, her husband is imprisoned for life, or years, or has fled the country, or is exiled,2 or has never visited this country, or has deserted her and has a residence in another State, or has permanently abandoned his wife," or has renounced his marital rights, then the husband is civilly dead, and the wife can contract as a femme sole. Her disability also ceases, when she is permitted to act as a sole trader, as in England by custom of London, and in this country by special legislation. In some States this right is secured by statute without any legal proceedings, while in others there must be a judicial determination of an abandonment.9

When Included under the Mechanic's Lien Law.-Unless the mechanic's lien law expressly mentions married women, they are not subject to its provisions. Where the law authorizes a lien, when the owner of property has made a contract for its improvement, this is not held to be an act removing the disabilities under which certain owners of property, such as married women and minors, are incompetent to contract, but merely as referring to contracts valid under existing laws. 10

Separate Estate of Married Women. Though a married woman can make no executory contract, which will bind her general estate, yet, under the care of courts of equity she has acquired greater control of property, which has been secured to her as her separate

1 Copeland v. Kehoe, 67 Ala. 594; Davis v. Smith, 75 Mo. 219; 2 Bla. Com. 293; Bank v. Partee, 99 U. S. 325. 2 Bank v. Partee, supra; Walford v. Duchess de Pienne, 2 Esp. 554; Newsome v. Bowyer, 3 P. Wms. 37; Rhea v. Rhenner, 1 Pet. 105.

3 Gregory v. Paul, 15 Mass. 31.

4 Phelps v. Walther, 78 Mo. 320.

5 Prescott v. Fisher, 22 III. 390.

6 Ayer v. Warren, 47 Me. 217.

7 Bank v. Partee, supra; 3 Burr. 1776.

8 Black v. Tricker, 59 Pa. St. 13; Conley v. Bentley, 87 Pa. St. 40; Elsey v. McDaniel, 95 Pa. St. 472. 9 Hannon v. Madden, 10 Bush 664.

10 Kirby v. Tead, 10 Metc. 149; Rogers v. Phillips, 8 Ark. 366; O'Neil v. Percival, 20 Fla. 937; Fetter v. Wilson, 12 B. Mon. 90; Gray v. Pope, 35 Miss. 116; Sibley v. Casey, 6 Mo. 164; O'Malley v. Coughlin, 3 Tenn. Ch. 431; Warren v. Smith, 44 Tex. 245; Contra; Shilling v. Templeton, 66 Ind. 585; Stephenson v. Ballard, 82 Ind. 87. Where the consent of the owner to the erection of a building authorized a lien, it was held, that no contract was necessary, and that a married woman could consent. Husted v. Mathes, 77 N. Y. 388; Gilman v. Disbrow, 45 Conn. 563; Flannery v. Rohrmayer, 46 Conn. 558.

property. Different views are held in the various courts as to her power over such estate. The English rule, which is also held by many courts in this country, is, that she can charge such property, or dispose of it, in any way not forbidden by the conveyance through which she obtains her title." Other courts hold, that she has no power to charge her separate estate, except what the conveyance expressly gives her. 12 Under the latter view of her power, it is very doubtful how far her separate estate can be affected by a suit under the mechanic's lien law. It is generally held, that such a claim is valid. against her separate estate, and that by incurring such a debt, she meant to charge such estate-in fact her right to take and hold the property for her separate use authorizes her ex necessitate rei to contract for improvements13-yet as a sale of the property, to satisfy the judgment of a lien, would be an alienation of the property contrary to the provisions of the conveyance, it cannot be resorted to. The rents and profits can be applied from time to time to the satisfaction of the judgment, which is as far as the English courts would, at one time, go in proceedings against the separate estates of married women.14 Though it has been held that in such cases there is no liability whatever." Where the more liberal rule as to her power over her separate estate is followed, no reason is seen why the corpus itself should not be sold to satisfy the indebtedness. 16

15

Davis v. Smith, 75 Mo. 219; Mauzy v. Mauzy, 79 Va. 537; Radford v. Carwile, 13 W. Va. 572; Racouillet v. Sansevain, 32 Cal. 376; Imlay v. Huntington, 20 Conn. 146; Dale v. Robinson, 51 Vt. 20; Perkins v. Elliott, 23 N. J. Eq. 526; Wadhams v. Am. H. Soc.,12 N. Y. 415; Todd v. Lee, 15 Wis. 365.

12 Conkling v. Doul, 67 Ill. 355; Cooke v. Husbands, 11 Md. 492; Hardy v. Holly, 84 N. C. 667; Maurer's Appeal, 86 Penn. St. 384; Doty v. Mitchell, 9 S. & M. 435.

13 Kuhns v. Turney, 87 Pa. St. 497; Germania Sav. Bk's Appeal, 95 Pa. St. 329; Einstein v. Jameson, 95 Pa. St. 403.

14 Hulme v. Tenant, 1 Bro. C. C. 16; s. c. 1 White & Tudor's Lead. Cas. in Eq. [Hare & Wallace's notes.] Part 2, page 679; Palmer v. Rankins, 30 Ark. 771; Henry v. Blackburn, 32 Ark. 445; Lewis v. Yale, 4 Fla. 418; French v. Waterman, 33 Grat. 617; Charleston L. & M. Co. v. Brockmyer, 18 W. Va. 586; Machir v. Burroughs, 14 Ohio St. 519.

15 Selph v. Howland, 23 Miss. 264; Gray v. Pope, 35 Miss. 116.

Whitesides v. Cannon, 23 Mo. 457; Yale v. Dedever, 21 Barb. 290; Dale v. Robinson, 51 Vt. 20.

22

Husband as Agent.-She can appoint her husband her agent.2 Since agency may be proved by knowledge of, and assent to, or subsequent ratification of, the acts of the alleged agent, the courts differ very much as to the evidence required to prove that the husband was the authorized agent of his wife, relative to her separate property. His agen

cy cannot be inferred from the marital relation alone,23 though in Tennessee, by the settled custom of the country, he is considered to represent her in all matters of business.4 Other courts hold, that the evidence of his agency must be clear, cogent and strong,25 and more satisfactory than would be required between persons occupying different relations. 26

17 Tucker v. Gest, 46 Mo. 339; Davis v. Smith, 75 Mo. 219; Bradley v. Johnson, 46 N. J. Law 271. See as implying the contrary: Swayne v. Lyon, 67 Pa. St. 436.

18 O'Neil v. Percival, 20 Fla. 937.

19 Sexton v. Alberti, 10 Lea (Tenn.) 452.

20 Marshall v. Rutton, 8 Durnf. & E. 345.

21 Parker's Ex. v. Lambert's Adm'r, 31 Ala. 89.

22 Wells v. Smith, 54 Ga. 262; Greenleaf v. Beebe, 80 Ill. 520.

23 Price v. Seydel, 46 Iowa 696.

24 Kendell v. Frazer, 9 Heisk. (Tenn.) 727.

25 Rowell v. Klein, 44 Ind. 290.

26 Eystra v. Capelle, 61 Mo. 578; McLaren v. Hall, 26 Iowa 297.

When is she Estopped to Deny Husband's Agency?-It has often occurred, that after a mechanic had improved property, and had applied to his employer for his compensation, he then learned that the employer's wife owned the place as her separate property. The courts have tried to prevent the husband from improving his wife out of her estate, and on the other hand to prevent wives from using their separate estates as a means for defrauding mechanics and material men. The husband is not the wife's agent, when she dissents from the proceedings, or does nothing showing her approval, 28 or even consents to the work, and appoves of it, and gives some directions about it, if she has no reason to think the work is being done at her expense, but believes her husband is doing it at his own expense.29

27

On the other hand, where the improvements were made with her knowledge and consent, and she took no step to prevent them, did not disclose her title, and was then enjoying the improvements, it was held, she was estopped to deny that her husband was her authorized agent. 30 Where an insolvent husband used his lumber and his labor on his wife's separate estate, it was held, that his creditors were entitled to the lumber, and the rents and profits of her land should be applied to satisfy that claim, but that they could assert no lien on account of his labor.31

Statutory Provisions.-In many States the difficulties on this subject have been removed by statutes expressly subjecting the property of married women to mechanics' liens.

Control of Property by Married WomenPresent Status of the Question.—The whole question of the power of married women over property, has been well characterized as a Babel of confusion. While in one place she is the powerless femme coverte of a century ago, in another she is as independent of her husband, in all matters relating to her property, as though he were a stranger and she a

27 Getty v. Framel, [Iowa, filed Oct. 23 1885].

28 Copeland v. Kehoe, 67 Ala. 594; Myer v Broadwell, 83 Mo. 571.

29 Copp v. Stewart, 38 Ind. 479; Bickford v. Dane, 58 N. H. 185; Murphy v. Murphy, 15 Mo. Ap. 600.

30 Schwarts v. Saunders, 46 Ill. 18; Schmidt v. Joseph, 65 Ala. 475.

31 Hoot v. Sorrell, 11 Ala. 386.

$.

femme sole.32 It may be said that her liability to mechanics' liens advances pari passu with her increasing control of her property. St. Louis, Mo. S. S. MERRILL.

32 Wells v. Caywood, 3 Colo. 487.

ARE JUDGES ABOVE CRITICISM?

It is a well understood fact, that in this country at least, the just criticism of public officers and servants, is not only the privilege, but the duty, of those who are served. It is claimed by some that the judges of courts, are, or should be, an exception to this rule. That the official acts of the members of Congress, Governors, Legislators, and other officers, are justly subject to review, and comment at the hands of the public press and the individual citizen there can be no question. That these criticisms should be made with sense, decency and propriety, is equally true. That the official acts of the judges of our courts should be exempt from reasonable criticism, we are not prepared to admit, either upon principle or policy. It is claimed that the nature of the judicial office is such, that the decisions of the judges, however erroneous should not only be received with respect, but acquiesed in with good grace, and without comment. It is also said, that the peculiar character of the administration of the law is, such, and its technical rules are of such a nature, as to preclude the possibility of intelligent criticism, upon the part of the people, or the public press. While it is true, that the final judgments of courts should be acquiesed in with due regard for the authorities promulgating them, yet we deny that there is anything, either in the judicial office, or in the nature of the subject matter with which it deals, that should exempt it from just and fair criticism at the hands of the people, whose rights and interests are daily submitted to the decisions of these tribunals. We deny that there is anything in the administration of justice with which judges have to do, which is above criticism. It is their duty to declare the equities between man and man, and to secure the parties who are suitors in the courts the just rights to which they are entitled; to see that

crime is punished, and that the innocent are acquitted. These are the objects for which courts were instituted and are maintained. There is nothing in these subjects, which is beyond the comprehension of the intelligent citizen. In fact he is as good a judge as a rule, of what is right, what is equitable, or what is criminal, as the court itself. The rules by which these questions of equity, criminality, and innocence are determined, in courts of justice, it is true, are somewhat technical, and within the peculiar knowledge of the legal profession. That this is so, by no means relieves the courts from accountability, or criticism; if the people and the press, are not able to fully understand the rules by which judicial decisions are reached, they are fully able to understand the justice and wisdom, or injustice and ignorance of the decisions themselves. The editor may not be able to construct a modern Hoe press, but both he and the reader, are competent to criticise the work of that press, whether it is good or bad, although they do not understand the rules, complications, and mechanical devices by which the work was performed.

If

Legislators reflect, or should reflect the immediate will of the people. Judges declare the sense of mankind on questions before them as understood during a series of years. they fail to do this, the people and press detect it at once, and it is not only their privilege, but their duty to publicly criticise the judge, and the decision which has thus failed in its purpose. Once admit the doctrine that the decisions of judges, right or wrong, good or bad, are to be received by the public humbly and without comment, and there is at once an end, not only to justice, but to the law itself. The decisions of the judges would speedily degenerate into individual, dogmatic and tyrannical decrees. No human being can safely be trusted to dispose of the most important interests of mankind, under cover of an office which is admitted to be beyond criticism, comment or question.

If there is any office, if there is any work of an officer, which, should always be open to the full light of day, and subject at all times to a fair, just, and open criticism, it is the judicial office, and the judicial decision. In this alone is there safety, by this alone, can we hope for justice, and to even

maintain correct rules of law. It is a principle to which there is no exception, that the highest perfection in all the departments of life is only attainable when the results are subject to the criticism, and suggestions of those for whom the work is performed.

When we subject the work of judges to a just, and fair criticism, we not only strengthen and purify the administration of justice, but supply the stimulus upon which alone, improvement is possible.

TREATIES OF EXTRADITION.

Extradition is one of those peculiar subjects, upon which there exists, not only a vast amount of ignorance, but also a vast amount of that which is far more dangerous than ignorance-misconception. In conversation with men of more than average intelligence, and sometimes with men who have enjoyed the advantage of sufficient legal training to render them chary in dogmatic assertion, it will be discovered, in nine cases out of ten, that the views expressed are tinged by a fatal fallacy. In the same way as equity will assume that the thing which ought to be done has been done-this, by the way, is a maxim more honored in the text books than in the Chancery Division, or in the Lincoln's-inndisputants upon the constantly recurring problems of extradition will constantly assume that there is but one law of extradition obeyed by all the nations which have submitted themselves to it in the view of benefits is to be received and in the interests of the cosmopolitan community. More common still the belief that Spain is a safe asylum for fugitive criminals from this country, and the delusion that there exists no treaty of extradition between the English and Spanish Governments. Both the above-mentioned views are encouraged by the tradition of novelists and of the writers ofeuilletons, who will hardly be grateful for the suggestion that it is safer to omit all allusions to the idea that there exists a general law of extradition, and, when speaking of safe asylums, open to villains proper and to rascally heroes, to transfer the mise-enscene to Portugal.

That there ought to be an international law of extradition, co-extensive with the civilzed

globe, is beyond reasonable question. It would be difficult, indeed, to conceive the mental attitude of the man who would hesitate to accept the dictum of M. Georges Lachaud, a well-known advocate in the Court of Appeal at Paris, that "tous les honnetes gens doivent, par toute la terre, s'unir pour s'entr' aider et se defendre contre les coquins." Differences will probably continue to exist upon the exact significance of the word "coquin" in relation to extradition, and these differences will be examined later, but there exists

a general consensus of opinion with regard to. criminals belonging to certain and distinct classes and the desirability of bringing such offenders within the power of justice. That consensus of opinion tends to become wider and stronger as the pains of exile become weaker, and as the means of travel from place to place become more easy. The world is gradually coming to the belief that "tout pays gui devient un lieu d'asile pour les criminels se place, par cela seul, au rang des contrees sauvages." Commissions have sat and have arrived firmly at the conclusion stated above, which is in truth an inference of the most obvious and simple character; but those who had a clear view of the universal benefit which might be secured by the exercise of mutual consideration on the part of nations, have been prevented from carrying their views into effect by difficulties involved in changes of government, and in the diplomatic relations between various countries. Nowhere in the history of civilization have the perils of delay been more strongly exemplified. For many years the necessity of an international code of extradition has been accepted, but the code has not been introduced; in the meanwhile the critical question concerning the extradition of political offenders has been forced upon the public mind by a series of hideous crimes, quasi-political in design, but vulgarly brutal in execution, upon which it cannot but happen that a vast difference of opinion will arise.

Plain facts alone will suffice to demonstrate the absurdity of the relations between different governments on this subject of extradition. Let us take a perjurer for example, and imagine that, foreseeing an imminent prosecution he prefers exile to imprisonment, and sets to work with the view of calculating

his chances. He may take it for granted that the comity of nations is a phantom, a fiction of international law of which O'Donovan Rossa, and more particulary Sheridan, are the living contradictions. Portugal is safe, having no treaty of extradition with this country; but Portugal, it may be, offers too narrow a field to his ambition, or he may not like the climate. But the United States of America offer to him a wide territory, an infinite selection of climates, and absolute immunity from justice so long as he obeys the local laws. He has committed neither murder, piracy, arson, robbery, nor forgery; the government of the United States will not allow a finger to be laid upon his person. Austria, under the comprehensive treaty ratified in 1874, will have none of the perjurer; nor, under the treaty of 1876, will Belgium refuse to deliver him to the justice which he has outraged. He may go to Brazil if he pleases, or to Denmark, failing a special arrangement between Her Britannic Majesty and His Majesty the King of Denmark. France, by the treaty ratified in 1878, refuses to protect the perjurer, but he may find a safe asylum within the confines of the German Empire. It will be safer for him to avoid Hayti, but he may wander through the Italian picture galleries at will. He must avoid the Duchy of Luxemburg and the Low Countries, and restrain any fanciful desire to visit the Republic of Salvador, Spain is closed to him, Scandinavia is open; Switzerland alone remains, and refuses to protect the perjurer. A more rational tissue of absurdities it would be impossible to conceive. A perjurer is a criminal of varying degrees of baseness, inasmuch as his false swearing may have brought an innocent man to the gallows, or have saved a friend from punishment which may have been unmerited, but there is not a particle of doubt that a perjurer is, above all others, the most dangerous enemy of justice and the most undesirable of immigrants. His presence is as detrimental to the public morality of America as to that of Spain, and it is in the last degree difficult to realise the fact that, there is a difference of practice upon such a matter where there can be no difference of opinion. The case of perjury is extreme and can hardly be called typical; but it is scarcely less ridiculous than that of other crimes, and there can be no question that when men of the future