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The Central Law Journal. as it is often popularly called, a contract.”
That it is not a mere popular and vulgar er
ror to call marriage a contract is manifest ST. LOUIS, SEPTEMBER 24, 1886.
from the following remark of Judge Story,
who says: “Marriage is treated by all civilCURRENT EVENTS.
ized nations as a peculiar and favored con
tract." It is not, as the learned judge asIs MARRIAGE A CONTRACT ?-Nobody can
sumes, merely the fulfillment of the ante
cedent contract to marry, but a new and "say an undisputed thing in such a solemn way,” as judges of courts of high degree.
momentous contract, and the very words of And it may be added, that the superb confi
the marriage service of the Church of Engdence with which they often enunciate prop
land, and of every other church, indicates its ositions manifestly disputable will sometimes
nature beyond all controversy. There is the mislead even the very elect of the law. We
essential meeting of minds," each party, in are led into this line of remark by having ob
consideration of the correlative promises and served, in the report of the cause celebre of
undertakings of the other, promises and unMorduant v.Moncrieffe,' a dictum of one of the
dertakes thereafter to do and perform certain judges to this effect: "Marriage is not, as it
succinctly stated things, and the contract is is often popularly called, a contract. If it
complete. Public policy appends to it the were, it could, according to every principle quality of irrevocability, and all churches of the laws of contracts, be rescinded by mu
concur in bestowing upon it their benedic
tion. tual consent, but it cannot. There is a contract before marriage, which is a contract to
Marriage is therefore primarily a contract;
it has, and must needs have, all the essential marry, but marriage is the fulfillment of the contract which is then satisfied and ended,
elements of a contract, the competency of and there is no further contract. Marriage
parties, the consensus, or meeting of minds, imposes a status which was by the law, before
the reciprocal consideration. Judge Story the statute, fixed on the persons forever.”
says: "I have, throughout, treated marriage In this extract, and we say it with appro
as a contract in the common sense of the priate deference, there are, in our opinion, word because that is the light in which it is two errors, It is not true that "according to
ordinarily viewed by jurists, domestic as well every principle of the laws of contracts,” a
as foreign." 3
Besides being intrinsically contract, not of marriage, may be rescinded
and essentially a contract, marriage is a good by mutual consent, or in other words, that
deal more; it is, as Judge Story says, “an rescindability by mutual consent is of the es
institution of society," as the learned Judge sence of u contract. If that were true, con
puts it, it is a status," it is the Holy Estate tracts might be rescinded by mutual consent
of Matrimony, as the clergy reverently call even after the rights of third persons had be
it, and according to the Roman Catholic come involved. The true theory of the re
Church it is a sacrament. scission of contracts is, as we conceive, that
It may be proper to add, that in the case parties competent to contract once, can
of Morduant v. Moncrieffe, 4 the question tract a second, third, or fourth time, as often
whether marriage is a contract was not the indeed as they choose, and as long as they
issue involved, which was whether, under the
Divorce Statute of England, proceedings for continue competent. And as long as they hold
a divorce could be instituted and prosecuted the control of the subject matter of the first contract, they can do with it as they please.
against an insane wife on account of alleged In other words, the rescission of a contract is
antecedent adultery. The case was one of a new contract with the parties reversed, and
the saddest in judicial history. Lady Morthe terms so adjusted as to restore perfectly
duant, upon the return of her husband from the antecedent status.
a pleasure excursion, informed him that, durThe learned judge says; "Marriage is not,
2 Story's Conf. of Laws, $ 108.
3 Story Contl. Laws, $ 108, u. 1 43 L. J. H. of L. Prob. and Matri. 49.
4 Supra. Vol. 23.—No. 13.
ing his absence, she had been guilty of adul- days of Romilly, on
days of Romilly, on the side of mercy, tery with several, named, titled personages. but on that of justice. We want, not more Soon afterwards, and before the institution of severity perhaps, but more certainty and proceedings for divorce, it became manifest more expedition in the punishment of crime. that she was insane, and it was a matter of In the old times, as now, the "genteel prisgreat doubt, at the time, whether her insan
oner” escaped scatheless. "Genteel” peoity did not, in legal phrase, "relate back to," ple slaughtered each other in duels, with and include her confession, whether there even more impunity than they now do in the was any truth whatever in it, and whether the modern street-fight. The evil is undeniable, wreck of her good name was not the result of what is the remedy? incipient insanity.
The Nation's correspondent suggests the organization of a National Association for Criminal Law Reform ;' that from it should
proceed projects of reform, to be laid before CRIMINAL LAW REFORM.-The New York the State legislatures, and before Congress. Nation, of the 16th inst., publishes a com- Six subjects are suggested on which reform munication from a Kentucky correspondent is deemed essential: entitled, “Agitation against Murder," pro- "1. The mode of empanelling juries, and testing against the laxity with which the law
particularly the admission of ‘bystanders, is administered in cases of murder and other
and the challenge for having ‘formed or crimes of violence. The writer lays the blame pressed an opinion.' less upon “a mawkish sentiment in favor of
2. The continuance of causes on the mere the unhappy prisoner, or a barbarous sym- demand of the accused, based on his own pathy with his crime,” than upon the influence affidavit. over legislation, of lawyers who practice in
3. The definition of insanity, as an excuse the criminal courts,” and in a less degree upon for crime; the proof of such provocation as the undue leniency and over caution in trial
adultery, seduction, etc. and appellate courts, and the too merciful ex- 4. The definition of self-defense in cases of ercise of the pardoning power of the execu
homicide. tive. We think that the Nation's corre
5. The allowance of new trials and writs of spondent ascribes too much influence in this
errors or appeals. matter to criminal court lawyers, indeed, we
6. The pardoning power; its restriction or doubt whether such influence is really exert
regulation. ed to any appreciable extent. The other
On the first point, it is hardly necessary to causes to which he attributes the evil, cer
say that special caution is necessary, lest in tainly exist, and are sufficient of themselves
changing the mode of selecting jurors, the to account for it. There can be no doubt
substantial benefits of the time-honored right that the tardiness and uncertainty of justice,
of trial by jury be diminished, or imperilled. especially in cases of those whom the Na
We think, however, that with due care, great tion's correspondent denominates "genteel improvements may be made on the present criminals,” is a shame and a scandal to our
system. The subject of continuances will bear courts and demands a thorough and speedy
a deal of very thorough reformation. Under remedy. Time was, within a hundred years the existing practice, a regular system of obpast, when criminal law deserved the re
taining continuances may be, and often is, proach of excessive severity. Men, women,
framed by astute lawyers, somewhat like the even children were hanged for petty larceny, infallible combination of the gambler, but uneven for stealing a loaf of bread. The dread
like that combination, it will always win. Beful list of capital crimes included not less
fore the battle of the Boyne, King William said than a hundred offenses.
to Schomberg, his favorite general: "The enIn these latter, more merciful days, we emy is advancing upon us." “That is as he have changed all that, but the pendulum has pleases,” replied the veteran. "He will give swung too far in the other direction. The
us battle to-morrow," added the King. reform now needed is not, as in the "That will be as we please," replied the
strategist. So, under the loose practice in Without more, there seems to be no difficulty most of the States, the experienced criminal in denying the prayer of his petition, and relawyer can, at his pleasure, try or continue manding him to jail. But it seems that, in until all dangerous witnesses have been re- Delaware, the statute prescribes that when a moved by death or expatriation.
defendant is convicted and sentenced to imThe ex post facto insanity, tolerated by prisonment, the sentence must designate not criminal courts, has long been a reproach to only the day when the imprisonment shall bethe administration of the law. A man may gin, but also the day on which it shall termingo through his youth, deep into middle age, McCoy's sentence was in conformity with a head, according to the judgment of all with the statute; it designated the day on his friends and acquaintances, as level as a which, regularly, he would be entitled to demill pond, but if, even late in life, he com- mand his liberation. That day was past, and mits a gross crime, he is adjudged, by the the question for the judge, upon hearing the court, to be, and to have been from his youth petition was, what effect, if any, should be upward, a crank of ths very craziest descrip- given to the clause of the statute which retion. This subject, however, is rather too quired that the day of liberation should be large and too tough to be disposed of at the designated, and what it meant, if anything. end of an article, and we can only adá that
As already stated, there can be no doubt we cannot see much hope of reforming the that when there is no time fixed for the terabuses connected with it without a thorough mination of the imprisonment, the convict revision and reorganization of the whole sys- may be required to serve out the full time for tem of expert evidence. Whatever else the
which he was sentenced, although, during the doctors may be, they are certainly, and al
time, he was illegally at liberty, the term of ways, dissentaneous, two of them can hardly
years for which he was sentenced may have ever agree, and with half a dozen as expert expired. The time fixed for executing a witnesses, it will be a very clear case if one of sentence, or for the commencement of its ex them does not furnish a loop upon which to ecution, is not one of its essential elements, hang the much disiderated reasonable doubt.
and strictly speaking, is not a part of the For want of space we must defer, to a more sentence at all.? But when the statute reconvenient season, what we have to say as to quires, as in this case, that the sentence shall self defense, new trials and pardons.
designate the beginning and the end of the term of imprisonment, the case is not so clear. It always requires a little nerve to so
construe a penal statute as to decide, in efNOTES OF RECENT DECISIONS.
fect, that it practically means nothing at all,
so far at least as the case under consideraHABEAS CORPUS—ESCAPE-TERM OF IMPRIS
tion is concerned. In this case, unlike the ONMENT.-In Delaware a case of the first im
Kansas case, the designation of the time when pression in that State, and in some respects
the punishment shall end, does form a part of equally unprecedented elsewhere, has recent
the sentence, and was included in it in obely been decided upon an application for dis
dience to an express statutory enactment. charge from imprisonment made upon habeas
It is true, as the court sets forth in its corpus. It seems that Frank McCoy, a noted
opinion, that the modern tendency is to conmalefactor was, a number of years ago, sen
strue penal statutes less strictly than in tenced to imprisonment in the county jail,
former time, when capital punishment folfor a term of ten years. After suffering a
lowed every conviction, yet we are strongly portion of his imprisonment he made his es
inclined to think that it is too free a concape, and remained at large for nine years,
struction to say that the provision in question seven month and ten days. Having been re
means just nothing at all, or what amounts to captured, he was consigned to jail to serve
the same thing, that it was prescribed as a out his term of ten years. He sued out a writ of habeas corpus and asked to be dis
1 Ex parte Clifford, 29 Ind. 101; See also, Hollon v. charged upon the ground that his term of im
Hopkins, 21 kans. 638. prisonment had expired by lapse of time. 2 Hollon v. IIopkins, supra.
"rule of mathematical convenience, as a mat- ty or fraud on the part of the seller. A sound ter of descriptive detail.”
price is not tantamount to a warranty of the The court in this case remanded the pris- quality of the thing sold.5 In Hall y. Cononer to jail, where he will suffer the pre- der, it is said the law is quite firmly estabscribed punishment; justice will be satisfied, lished that, on the sale of a known ascerand the result is not absurd. If the tained article, there is no implied warranty decision had been otherwise, the result of its quality.' It is true that in some cases would have been absurd, as it would have there may be what is termed falsa demonreleased a notorious malefactor, because he stratio, as in the sale of goods by samples; was adroit as a jail-breaker, and expert as a
and it has been held that under a contract to fugitive froni justice. The absurdity is prop-supply goods of a specified description which erly chargeable to the legislature of Dela- the buyer has had no opportunity of inspectware, in incorporating so useless and mis- ing, the goods must not only, in fact, correchievous a provision in its criminal code. spond to the specific description, but must be
salable or merchantable under that description. But no such case is presented by this
record. The contract was for Keystone coal, SALE—WARRANTY_BREACH-ORAL TESTI- fine and the run of the mine, and the plaintMONY TO VARY WRITING—CAVEAT EMPTOR.- iff's evidence shows that it received coal, corIn a recent case the Maryland Court of Ap-responding to this particular description. The peals found it necessary to reiterate the well
contract specifies Keystone coal, fine and the known doctrine that oral testimony cannot be run of the mine,' and there is nothing else in admitted to vary the terms of a written con- its terms to indicate the quality contracted tract. 3
for. When delivered at the place designated, The proof offered was a conversation be
the plaintiff certainly had ample opportunity tween the parties on the day before the writ- to ascertain the quality by an inspection. ing of the first of the two letters which con- There is, therefore, no foundation for an imstituted the written contract.
plied warranty and the authority of Jones v. The attempt seems to have been made to
Just, is inapplicable to the case presented by secure the admission of the testimony on the this record. ground that the conversation having been re- It is true that at least in two of the States ferred to in both letters was a part of the the doctrine of the civil law, that a sale for a contract. The court however said: “It is
sound price implies a warranty of the thing in vain to reduce a contract to writing, if : you sold, was at one time recognized and adopted. 8 may afterward refer to all that passed, by But in most of the States this doctrine has
been repudiated. In Seixas v. Woods, Kent, It seems that the contract related to coal
J., adopting the language of Sir Edward sold for the use of the glass-works the de- Coke, says that ‘by the civil law every man scription specified was “fine and the run of is bound to warrant the thing he selleth, althe mine.” The complaint was that the coal beit there be no express warranty ; but the was inferior, and that the plaintiff was there- common law bindeth him not, unless there be by damaged. On this subject and the doc
a warranty in deed or law. And in a later trine of caveat emptor.
case the same court decided that "there is no The court says: “It will be perceived that
implied warranty in a general sale, that the that by the terms of the contract there is no quality shall be equal to the price." 10 In express warranty with respect to the quality Mixer v. Coburn, Chief Justice Shaw says: of the coal. In England the older decisions enunciate the general principle that the seller
5 Harvey v. Young, Yelv. 21; Parkinson v. Lee, 2 is not liable for defects of any kind in the East. 3:22. thing sold, unless there is an express warran
62 C. B. (X. S.) 40.
8 Bailey v. Nichols, 2 Root, 407; Whiteford v. Mc3 Warren Glass Works v. Keyston Coal Co., 6 East. Leod, 2 Bay, 380. Rep. 562.
9 2 Caines, 48. 4 Pickering v. Dorsen, 4 Taunt. 784; Gardner v. Gray, 10 Hart v. Wright, 17 Wend. 269. 4 Camp. 144.
11 11 Metc. 561.
*The defendant contends that there was an full liberty to contract, to hold and convey implied warranty on the sale, that the goods property, and to sue and be sued, the same were merchantable and sound. But we think as if sole.
In others, their powers in these this position cannot be maintained. The respects are still bounded by defined limits. rule of the common law is well established, But it is now generally held that a married that upon a sale of goods, if there is no ex- woman, owning separate real property in her press warranty of the quality of the goods own right, may make valid contracts for sold, and no actual fraud, the maxim caveat work and labor to be performed, or materials emptor applies, and the goods are at the risk to be furnished, in and about the repair and of the buyer.
improvement of such property, and that The citation of authorities supplied by the debts contracted in this manner will constidecisions in other States would seem to be tute either a valid obligation at law or an unnecessary, as in Barnard v. Kellogg, 12 the equitable charge upon the land, according to Supreme Court of the United States says: the practice in the particular State. But in "Of such universal acceptance is the doctrine Pennsylvania it is held that in order to charge caveat emptor in this country that the courts a married woman for work done upon her of all the States in the Union where the com- separate estate, it must appear that the work mon law prevails, with one exception, sanc- was necessary for its improvement or presertion it.'
vation.? And, indeed, in any State where And the court disposes of the question in the power to bind her property for such purthe following words: “The rule caveat emp- poses, is drawn by implication from the stattor has always received the sanction of the ute, rather than granted by its express terms, courts of this State.' 13
it may well be a question how far a wife can And in one of the latest cases in which contract for extensive and costly improvethis question was presented, the court said: ments or additions to her realty, which are “The law is well settled that when a known, merely designed to enhance its convenience described and defined article is ordered even or contribute to its ornamentation, instead of of a manufacturer, although it is stated to be being necessary to its enjoyment or repair. required by the purchaser for a particular Such is the diversity of the statutes relating purpose, and if the known, described and to married women, that no universal rule can defined thing be actually supplied, there is be established. In Vermont it is provided no implied warranty that it shall answer the by statute that the products of the real estate particular purpose intended by the buyer; of a married woman may be attached or levin such case the purchaser takes upon
him- ied upon for labor or materials furnished upself the risk of its effecting its purpose.” ” 14 on, or for the cultivation or improvement of
such estate. It is also held that her contract 12 10 Wall. 383.
for the services of counsel to protect her
separate property is binding, and that the
diana, a married woman has whatever power THE LIABILITY OF A MARRIED WO.
is incident to a complete holding and full enMAN FOR IMPROVEMENTS TO HER
joyment of her separate real estate, but with SEPARATE REAL ESTATE.
1. Her Liability for Improvements in General.—The enabling statutes, in force in most of the States, have gone far to emancipate married women from the disabilities and restraints imposed upon them by the rigorous doctrines of the common law. In some jurisdictions this process of enfranchisement has been carried to the extent of giving them
1 Owen v. Cawley, 36 N. Y. 600; Dickerman v. Abra-
2 Needham v. Woolens, 14 Weekly Notes, 525.