In Bodurtha v. Goodrich, 3 Gray, 508, it was held that a non-resident defendant, for whom an unauthorized appearance had been made, might reverse the judgment on writ of error, on the ground that the court got no jurisdiction. "The authority of an attorney to appear and answer for him is a fact essential to such jurisdiction."

In Wiley v. Pratt, 23 Ind. 628, where the defendant was within the jurisdiction, when the appearance was made, it was held that he should be let in to defend, if no rights of bona fide purchasers had intervened, staying proceedings but preserving the lien of the judgment meantime.

In Harsbey v. Blackmarr, 20 Iowa, 161, a case where the defendant was a non-resident at the time of the suit and appearance, Dillon, J., said: "It may be doubted whether the above distinction between foreign and domestic judgments is fully settled, and if so, whether it rests on sound principles. Is not the gravamen the same in the one case as in the other, and does it not consist in the unauthorized act of the attorney? We deem the rule properly settled as to foreign judgments. Why should it not equally apply to an action on a domestic judgment? The only reason that occurs to us is, that in the case of a foreign judgment it is impossible, or at least unreasonable, to require the defendant to go to the courts of the State which rendered it, and attack it directly by a bill or motion; hence he is permitted to plead the want of authority in the attorney, defensively and collaterally. Whereas in the case of a domestic judgment it may be deemed better to force the party to assail it directly (thus giving the court an equitable control over the proceedings), by prohibiting him from resorting to a plea of a want of authority in the attorney, collaterally, as a defense to a scire facias, or direct action on the judgment. If the distinction is maintainable, it must be on some such ground. Certain it is, however, as the authorities hereinafter cited will show, that the party is entitled to relief when an unjust judgment, though a domestic one, has been rendered against him by fraud or collusion, or by the appearance of an unauthorized attorney, if the party seeks the relief by bill or motion, promptly, and has been guilty of no laches." Of the New York doctrine, the court said: "The prevailing opinion, were the question in that State res nova, is, that on principle the responsibility or otherwise of the attorney has nothing to do with the question, and that no party, not guilty of negligence, should be bound by the act of another, which was wholly and confessedly unauthorized and unratified."

In Critchfield v. Porter, 3 Ohio, 518, there was a bill in chancery for relief against a judgment at law against a resident. The court, speaking of the argument of policy on which the early English cases (furnishing the basis of Denton v. Noyes) were founded, said: "This reasoning is certainly plausible, and worthy of some consideration, but does not furnish any sufficient ground why one of the most obvious and well-settled principles of law, as well as justice, should be departed from that no person is to be bound by the act of a stranger, in whom

66

he has vested no authority, and reposed no confidence, and over whom he can exercise no control." The court approved Robson v. Eaton, infra, and disapproved Denton v. Noyes, but dismissed the bill on the ground that there was an ample remedy at law, as relief 'may be afforded in the court rendering the judgment with more facility and more certainty of doing justice, than in a distinct tribunal, and the party injured can then obtain all relief he is justly entitled to, without subjecting the other party, against whom there is no complaint but having, as he supposed, in due course of law, obtained a judgment in his favor, to the delay and expense of a chancery proceeding."

In Truett v. Wainwright, 9 Ill. 418, a precisely similar case, the bill was maintained, on the ground that "the setting aside judgments, as well in the case where they were procured by the misconduct of the plaintiff, as where they were obtained by the unauthorized appearance of strangers, rests at last on the ground of fraud. The law looks upon such practices, however far the parties may have been from the thought of actually committing a wrong, as fraudulent, and treats them as such; and it is a well-settled rule, that in case of fraud, chancery has always jurisdiction, though courts of law may exercise it in all cases in which their powers are sufficient for the relief sought concurrently." court so far disapproved Critchfield v. Porter.

The

In McKelway ads. Jones, 2 Harrison, 345, there was a motion to set aside a verdict against a resident. The court granted the motion, observing: "My own opinion of the law on this subject affords not a shadow of an argument in favor of the doctrine now contended for." "I think the proper remedy is by setting aside the whole proceding as coram non judice and void."

In Robson v. Eaton, 1 T. R. 62, Lord Mansfield held that a former judgment, obtained by an unauthorized attorney, upon a forged authority, upon which the money recovered was paid into court and then to the attorney, was no bar to another action for the same cause. He said: "The record of the Common Pleas amounts to no more than this, that the attorney prosecuted the suit in the plaintiff's name, but it does not state the authority given to him by the plaintiff for so doing."

In Bayley v. Buckland, 1 Exch. 1, on a rule to show cause why a judgment should not be vacated, Rolfe, B., said: "The non-responsibility or suspiciousness of the attorney is but a vague sort of criterion of safety to the defendant, and by the hypothesis the defendant is wholly without blame, and may notwithstanding be ruined. It is true that the plaintiff is equally blameless, but then the plaintiff, if the judgment be set aside, has his remedy against the defendant as before, and suffers only the delay and the possible loss of costs." "We are disposed to lay down a different rule, and to confine the liability of the defendant to cases in which the course of proceedings has given him notice of the action being brought against him. When, therefore, a defendant has been served with process, and an attorney without authority appears for

him, we think the court must proceed as if the attorney really had authority, because in that case the defendant having knowledge of the suit being commenced, is guilty of an omission in not appearing and making defense by his own attorney, if he has any defense on the merits. There the plaintiff is without blame, and the defendant is guilty of negligence. But even in that case, if the attorney be not solvent, we should relieve the defendant upon equitable terms, if he had a defense on the merits. If the attorney were solvent, it would not be unjust to leave the defendant to his remedy by summary application against him. On the other hand, if the plaintiff, without serving the defendant, accepts the appearance of an unauthorized attorney for the defendant, he is not wholly free from the imputation of negligence; the law requires him to give notice to the defendant by serving the writ, and he has not done so. The defendant there is wholly free from blame, and the plaintiff not so; and upon the same principle upon which we before proceeded, we must set aside the judgment, as irregular, with costs, and leave the plaintiff to recover those costs and the expense to which he has been put, from the delinquent attorney, by summary proceedings.' This case disapproves the early cases upon which Denton v. Noyes was based. On the other hand, the Common Pleas, in the earlier case of Stanhope v. Firman, 3 Bing. N. C. 302, adhered to the early doctrine.

The reasoning of Bayly v. Buckland seems to us unanswerable, as also that of Grover, J., in Brown v. Nichols, and VanNess, J., in Denton v. Noyes. We should, therefore, feel inclined to lay down the following rules:

1. A judgment of another State or country, rendered upon an unauthorized appearance, without service of process, is void, and may be collaterally attacked.

2. A domestic judgment rendered upon an unauthorized appearance, without service of process, is void, and may be attacked collaterally or through equity, without regard to the responsibility of the attorney making the appearance.

3. A domestic judgment rendered upon an unauthorized appearance, with service of process, is voidable, and may be set aside or relieved against by a direct application, if the attorney is irresponsible, but not otherwise.

W

THE EFFECTS OF MARRIAGE.

BY ISAAC VAN WINKLE.

I.

E have seen what constitutes a valid marriage, and how the same may be legally dissolved. Our next inquiry is as to the effects of marriage-the obligations that it imposes upon man and wife, and their relations toward their offspring. A common right of both man and wife is their mutual claim to fidelity. The husband has also a special claim to reverentia from his wife, and she from him claims support and protection. She also acquires toward her husband a certain status and becomes subject to his judicial status. Husband and wife cannot institute any actio famosa or pœnalis against each other; can

not be compelled to bear witness against each other, nor make any donation to each other during marriage, and they both may avail themselves of the plea of competency. The Roman law proceeded upon tho principle that marriage did not alter the property relation of man and wife; but it did not carry the separation of goods, nor the dotal system, to the utmost linaits, for it only extended the privilege subject to certain limitations as regards the rights of property after marriage. Opposed to this principle is the doctrine of the community of goods, which has been embodied into the judicial systems of France, Holland, the greater portion of the German Empire and some other countries -a principle, no doubt, originating in the customs of the ancient Teutonic races that overran and conquered Europe. The Code Napoleon gives the amplest expression to this law in the six sections contained under the chapter on the laws of marriage. These six sections express the common law of France, the Lois Coutumiers of the Franks. In juxtaposition to this law is that of the Régime Dotal, which has all but literally adopted the rules of the Roman law.

As a general rule resulting from the consortium ritæ, the wife followed the domicile of the husband and was entitled to his protection and support. She took his name and rank and retained them even after his death, so long as she remained his widow.

All children born of a lawful marriage fell under the paternal power of the husband, who was always presumed to be the father, unless otherwise established by proof. A child was held to be conceived during the marriage if it was born not more than ten months after the dissolution of such marriage. We have shown in our lecture on marriage that in early times when marriage was entered into with the consentio in manum, the wife became entirely subject to her husband, and all her property devolved on him. But at a later period when the consentio was abandoned, mar

riage had no effect in rendering the property of the spouse common; each was entitled to preserve what was his or her own, and to dispose of it at pleasure. If therefore the wife was sui juris, and had a private fortune, she retained it as her own property, entirely separated from that of her husband. At the celebration of the wedding a contract of marriage was frequently entered into to regulate the pecuniary rights of the spouses. In early times these contracts were unknown and were unnecessary with manus; but when the manus had become obsolete the want of such agreement was felt. It was considered to be the duty of the father to give to his daughter a marriageportion or dowry in proportion to his means. Such dowry was called dos profectitia. When it came from the wife out of her own property, or by any third person, it was called dos adventitia. A dos was not essential to the validity of marriage; it was one of those things which were regulated by special convention. According to the Roman law, as already stated, marriage does not effect a complete change in the relations of the property of husband and wife. The property relationship arising out of marriage is designated the system of separate property on the dotal system. Dos is the property contributed by a wife, or by anyone else on her behalf to her husband, to enable him to support the expenses of the marriage. Parapherna was that part of a woman's property that she reserved from the dos. The husband had no right to interfere with it or to burden it. C. 5, 14, 8. The practice was for the wife to make out an inventory (libellus) of the property she intended to use in her husband's house, and which was not to be in her dos; and to preserve the document after obtaining her husband's signature to it. The husband had no right to such reserved property, and if he retained it the wife could sue him by the same actions that she could bring against any other person. D. 23, 3, 9, 3.

The Dos is an institution of considerable antiquity. It is referred to by Cicero (Top. 4) in a manner that would seem to show that it was better understood than the manus, and it was of such importance that Servius Sulpicius Rufus, who was consul B. C. 49, wrote a book on the subject. Aulus Gellius makes a statement as from the work of Rufus, that securities for the restitution of the dos on the dissolution of the marriage were first required when Sp Carvilius Ruga put away his wife, by command of the censor, for barrenness. There is nothing incredible in the statement that about two hundred years after the Decennial Legislature the dos should have been in existence, as the Twelve Tables contained a provision by which married women were enabled to escape subjection to the manus. The decay of the manus began at an exceedingly early period, or to speak more accurately the manus never within the time covered by written records existed with all the attributes that we must regard as originally inherent in it. The powers of the husband over his wife, at least such powers as he had over his children (and we must remember that under the old Roman law the wife was a daughter), seems to have been reduced almost to nonentity from the earliest dawn of history. It was natural that the emancipation of the wife's person should precede by a considerable interval the emancipation of her property. The interesting feature in the history of the wife's release from the disabilities of the manus is its abruptness, as compared with the liberation of children from the shackles of the potestas. A woman was either wholly in or wholly out of the manus, either in law the daughter of her husband, subjected to his absolute power in regard to contract and property, or free and independent, capable of bargaining with him on equal terms. It seems improbable that the Roman matron could have emerged at once from the condition of slavery to that of an equal with her husband. It is probably safe to assume that a wife ceased to be regarded as property when her husband obtained her from her friends without paying for her. A state of the law that was in perfect harmony with the buying of wives must offend the sense of propriety when marriage was entered into on equal terms.

When we come to the Decennial Legislation we find no clear evidence of the real purchase of wives, although the form of marriage by sale continued long to exist. The time had therefore come when the relations of husband and wife in regard to property should be determined by the existing moral standard and not by any ancient theory surviving merely in a legal formality. The manus must yield to the dos. The dos was at first perhaps scarcely distinguishable from the manus. When a wife married without the form of confirmatio or coemptio her husband had no legal right to her property; but if she remained with him a year, and did not stay away from him three nights during that time, she passed under his manus. Perhaps the first bargains were that the husband should havo certain property in place of the manus. Whether this ever existed or not we have no knowledge; but another step in advance and we are on sure ground. The father gives certain property to the husband to support the wife on condition that if he (the father) survives the wife he shall recover from the husband as much as he gave him on the marriage. During the Republic the husband was absolute owner of all the wife's property given to him, subject to an obligation to return the property if the wife should die, leaving her father to claim it. It was not until the Empire that the process was effectually begun that ended in depriving the husband of the character of owner, making him in substance trustee, with the privilege of taking the annual produce of the property during the continuance of the marriage. The dos comprises every thing which the wife has contributed, or which has been contributed on her behalf

to the husband. The dos must be an addition to the husband's property. The marriage outfit, that is to say, the things necessary for the household, may constitute the entire dos, or only a part of it. It may consist in the creation of a real right, or in the remission of one; or in the renunciation of a claim. It matters not in what form it is made provided the estate of the husband has become enriched. If follows from the very nature of the dos that the use of the things constituting it must be permitted to the husband, and further, that sine matrimonio nulla dos, there can be no marriage without the dos. The dos is created from the moment that the estate of the husband has been increased dotis nomine. There exist two modes of constituting a dowry. The Donatio dotis, as for instance when a thing is made over in ownership or a right is assigned, etc. The Promissio dotis to the husband. Since the promissio founds a right of action and an action in itself benefits the estate of the husband, the promissio is regarded as constituting a dotal gift. Thus the subsequent numeratio, as it is termed, is only the fulfillment or carrying out of the gift. No action however can be brought before the celebration of the marriage; and the claim for the fruits and for interest arises only after the expiration of the second year. When the father or grandfather on the paternal side has promised a dower, it is not necessary, in order to give to this paternal promise a legal validity, that a particular detailed specification of the dotal goods should have been rendered. In the case of an extraneus (a person not related to the family), such a promise would not be binding Generally the constituting of a dos is a voluntary act, when it is termed dos voluntaria. Exceptionally, however, certain persons are obliged to furnish a dower, in which case it is termed dos necessaria; the father, the grandfather, and sometimes the mother and the stuptator (seducer, etc.), of a woman. The dos, which has been furnished out of the estate of the father, or other ascendants on the male side to the husband for the support of the wife, is termed the profecticia; the dos which an extraneus furnishes, under the condition of its being repaid by the husband, is designated receptícia. A further classification of the dos is that into the dos venditionis causa æstimata, and dos taxationis causa æstimata. The first arises where the dos has been given in such a manner that the husband is required to restore only the estimated value, and not the goods. The husband is said to possess in this case, pro emptore; he must bear the risk and he may claim what is termed eviction. It is only when he becomes insolvent that the things themselves, not their value, are to be regarded as the dotal property. The dos taxationis causa arises when the husband is required to return the property itself given as a dos in natura. Euripides makes Medea complain that independent of other misfortunes to which women are subject, they were obliged to buy their husbands by great sums of money. The poet wrote as if Medea had been his contemporary and not a character of the heroic ages in which it was customary for the husband to purchase his wife from his relations. The same practice prevailed in the East during the patriarchal ages; Tacitus says of the ancient Germans, "Dotem non uxor marito, sed uxori maritus offert." The wife does not bring the dowry to the husband, but the husband to the wife. Homer speaks of the many gifts by which wives were purchased. Müller observes that we know for certainty that daughters in Sparta had originally no dower, but were married with a gift of clothes only; afterward they were provided with money and other personal property. In the time of Aristotle so great were the dowers given that nearly two-fifths of the whole territory of Sparta had come into the possession of females. During the continuance of the marriage the husband is regarded as the owner of the dotal property so fully and completely

that he is legally entitled to its full control and use and is neither bound to render accounts nor find security. He was entitled to employ the Vindicatio (an action to vindicate title to real property) against every possessor of the dotal property. He likewise possessed the amplest right of alienation, with the exception of the fundus dotalis, or dotal land. This he could not alienate or mortgage, not even with the consent of the wife. Again, he could not effect any alteration in the legal relations of her real rights. Any alienation was void, and the wife may declare it to be void from and after the time she became entitled to demand the restitution. Von Vangerow is of the opinion that the husband may even vindicate the alienated fundus upon giving indemnity to the defendant. Puchta and others differ from him on this point. There are exceptions to the general rule which must be noted. 1. In the case of a fundus æstimatus.

2. Where it is certain that the dos does not revert to the wife or her heirs.

3. When by a valid permutatio dotis (an exchange of the dos) something else is given in lieu of the fundus.

To these cases the prohibition does not apply. A strict responsibility is imposed upon the husband in relation to the future operative rights of the wife. The wife, however, is not without a remedy as regards the dos, even during her marriage. She may claim that the dos shall be applied according to the object. She is exempt from providing real security when she expects to receive a piece of ground as a dotal gift; she may adopt precautionary measures for the preservation of her dos, and in case of Eviction, and even during marriage, look to the Auctor of the dos, and she may claim half the treasure-trove found on the fundus dotalis. If her husband becomes poor or a bankrupt, the wife is entitled to reclaim her dower. The right of the husband to the dos is extinguished by the termination of the marriage, and in such a case he must return the dower. He is only allowed to retain it when it has been secured to him by agreement. In case of the death of the husband, the wife and her heirs are entitled to the dos, unless it has been constituted by a third party, and its return has been stipulated for under this condition. On the death of the wife, the heirs are entitled to claim the dos adventitia, except when the extraneus, who has constituted the dos, has reserved this right to himself (dos receptitia). In case of the dos profecticia, the person who has constituted it takes precedence of the heirs. The father, the heirs and the wife have also a claim for restitution, though it may not have been promised to them. In respect to land, restitution must take place immediately upon the dissolution of the marriage; in case of movable property, within a year. The subjectmatter for restitution is what the husband has received dolis nomine. To this, however, must be added all fruits and accessions before and after the marriage. Fruits acquired during marriage accrue to the husband. The husband can claim compensation for necessary outlays (impensæ necessaria) on the dotal property, if made to prevent the deterioration or loss of the property. Ulp. Frag. 6, 15; D. 50, 16, 79. Paul's definition throws a clearer light on it. He says it is such outlay, as if not made by the husband would render him liable in damages to the wife to the extent of the loss caused by his neglect (D. 25, 1, 4,) e. g., repairing a house, planting new trees in place of those decayed; medical attendance on slaves, etc. I take it to be such expenditure for the permanent improvement of the property. The husband has no right for impensæ utiles and voluptuariæ (beneficial improvement), beautifying it. For, says Paul, it would be very hard that a woman should be compelled to sell her property to pay for the improvements that had been made upon it. Justinian allowed the estate to be charged with all beneficial expenditure, unless the wife had forbidden it. He

could not charge for impensæ voluptuariæ, or ornamental improvements, but he was permitted to avail himself of the actio mandati, the usual action to enforce agency, when the wife consented to the outfit; and the actio negotiorum gestorum, when she did not, C. 5, 13, 1, 5. and had also a jus tollendi. The action which lies for the restitution of the dos is actio ex stipulata. This action was given by the ancient law only when restitution was stipulated for, otherwise the action given was that of the actio rei uxoria, which never passed to the heirs. The plaintiff is the party entitled to obtain restitution; the defendant, the husband and his heirs. In addition to the above, the wife has the actio hypothecaria, by virtue of her legal marriage, and also the actio in rem, against every possessor of the dotal property. The Donatio Propter Nuptias (or to employ the Byzantine name, the Antipherna), was an arrangement corresponding to the dos but of far less antiquity. The first notion we have of it is in a Constitution of Theodosius & Valentinius, where forfeiture of the donation is taken along with forfeiture of the dos, as a punishment for causeless divorce. Justinian says it is in name and really the same as dos, being a correlative contribution by the husband to the wife. Justinian gave the wife a real action to recover the property included in the gift. He says in his Institutes, that there is also another kind of donation inter vivos, unknown to the old jurists. It was called the donatio ante nuptias prenuptial gift), and implied as a tacit condition that it should not be binding till followed up by the marriage. It was called ante nuptias because it was accomplished before the marriage and after the celebration of the nuptials no such gift was bestowed. The Emperor Justinus, his father, seeing that the increase of doweries after marriage was allowed, was the first to permit by his Constitution that in such events the donatio ante nuptias might be increased also, even though the marriage had already taken place. But the name remained, though now unsuitable, for it was called prenuptial, while it thus received a post-nuptial increase. Justinian carefully suiting names to things, called it not ante nuptias, but propter nuptias, and put them on the same footing as dowries in this respect, that as dowries are not only increased but come into being when the marriage has already taken place, so too those gifts brought in | propter nuptias may not only precede inarriage, but may, even after it is contracted, be both increased and settled. The wife has a legal right of mortgage to the same, and if the marriage be dissolved by fraud of the husband, the donation reverts to her. The custom has now, however, become obsolete. The children of the marriage had no interest in the donation any more than in the dos. C. 5, 318. The relations of property subsisting between husband and wife may be the subject of mutual contracts. The agreements by which this is effected are termed Pacta Dotalia; they do not require any particular form and may be concluded upon, before, at the time, or after the marriage; must not retain any thing repugnant to the aim and object of the marriage contract, nor be opposed to good morals, nor be contrary to the purport of the dos, so as to diminish or endanger the rights of either the husband or the wife in regard to it. The pacta must not exclude the right to competency, nor the claim for compensation, nor the right to the enjoyment of the fruits, nor the liability incurred for culpa, nor the deferring the legal period of restitution. All donations between husband and wife are void, and if made to any other person who is connected with husband by the bond of the patria potestas. Gifts only are void, not other acts of liberality. Donations are allowed that do not impoverish the donor, nor enrich the donee. Neither husband nor wife can institute against each other the Actio furti. Both husband and wife must strike out the element of theft and choose an action

proper and suitable to the circumstances of the case. To this important rule there are only two exceptions. Where the purloinment takes place at the very moment of a contemplated separation; in this case the Actio rerum amotarum is given. Where it occurred before marriage, and divorce subsequently takes place, the action of condictio furtiva revives. When husband or wife gives to the other a just cause of separation, the guilty party suffers a pecuniary penalty. The guilty wife loses her dos, so far as she might have reclaimed it after the dissolution of the marriage; where no dos has been constituted, she loses one-fourth of her property, the ownership of which goes to the children, the usufruct to the father. In case of the wife's adultery the penalty is increased to a third. The guilty husband loses the donatio propter nuptias, and when none has been constituted, he forfeits one-fourth of his property, in favor of his children, the mother having the enjoyment of the usufruct. When there are no children the property goes in both cases to the innocent husband or the innocent wife, as the case may be.

The penalty of a second marriage, or as it is termed, "Pœnæ secundarum nuptiarum," on the part of the husband or wife, he or she sacrifices whatever he or she has received by virtue of the first marriage, whether by inheritance or some other beneficial source. The party of the second marriage loses also all property in that which he or she has inherited, or which he may inherit from a child ab intestatio, so far as it has been derived from the property of the deceased husband or wife. The property goes, in these cases, to the children of the first marriage, according to the principle regulating succession by intestacy. The party marrying a second time retains, however, the usufruct. The husband or wife entering upon a second marriage cannot give to the second spouse more than the minimum amount (inter vivos or mortis causa) reserved to a child of the first marriage. Whatever has been given in excess of this is divisible amongst the children of the first marriage. The Binubus or Binuba cannot revoke any gift made to the children of the first marriage, except when the child has made an attempt upon the life of the parent, or has actually outraged the parent, or caused the parent loss of property. The Binuba loses the guardianship and right of bringing up the child.

A woman who remarries within a year of the dissolution of her previous marriage, either by the death of her husband or by divorce, sacrifices in favor of the nearest relatives of her husband all she may have received from him. She cannot give more than onethird of her fortune to her second husband; she cannot acquire property either by gift or legacy, and can only inherit from relatives ab intestatio, as far as the third degree. Should there be children of the first marriage, in addition to those penalties, the general consequences of a second marriage take place.

In most of the barbarian nations the intended husband was bound to bestow on, or secure to his wife, a certain portion of property by way of dower. When there was no contract as to the amount, it was fixed, in some nations, at a certain sum. The wife, in general, was entitled to the enjoyment of her dower from the time of her marriage. By the early laws, the wife had absolute dominion over it; latterly she was restricted in the disposal of it by certain laws in favor of her children. Justinian by Novellae, 97, C. 1, and 127, C. 3, restricted the right which the widow had enjoyed by the old Roman laws, and this has been followed in the Code Napoleon, art. 1554. The dos or dower of the Germans differed from that of the Romans in this, that it was given by the husband to the

among the Franks was a species of partnership, in which each had their separate rights. The wife might sue or be sued in her own name, though it was usual for her to give to her husband a mandate authorizing him to conduct her affairs; but without such authority he could not interfere. All these regulations are Roman, and are continued with modifications in the Code Napoleon, art. 1984. In some nations every thing which the husband and wife jointly acquire during marriage was divided between them or their representatives, at its dissolution. The Ripuarians gave the wife or her representatives one-third, the Saxons the half. The Alemans allowed the widow to retain, besides her dower, all gifts made to her by her own family, and whatsoever she had brought from her father's house. Among the barbarians the widow, if she continued unmarried, might retain all gifts made to her by her deceased husband. The Visigoths seem to have allowed the husband and wife each to retain ownership of their whole property, but bringing the whole into community. Whatever they acquired, living together, they divided between each other.

The French law binds the husband and wife to be faithful, and help and support each other. A husband is bound to protect his wife, and the wife to obey her husband. The wife is bound to live with her husband and to accompany him wherever he may think proper to reside; and the husband must provide for his wife according to his means and station, with all the necessaries of life. A wife cannot sue in a civil action without the authority of her husband, even if she should carry on a business in her own name, or when she has property settled upon her, or when separate estates exist between the man and wife; nor can she give or receive gratuitously, sell, or mortgage, or purchase property without the consent of her husband; but the court of first instance has the power of overruling the husband if he should not consent. If the wife carries on a business distinct from her husband, she may, without his authority, bind herself for things which appertain to the business. The husband is bound also by her acts, unless their estates are separate. If a husband is convicted of felony, interdicted, or disappears, the wife cannot maintain an action nor contract, without the authority of the court of first instance. All general powers given by a husband to a wife, even by marriage settlement, are void, except those which relate to the administration of her own property. If the husband is a minor the authority of the court of first instance is required to enable the wife to contract or to maintain an action. A wife can make her will without the authority of her husband. By the Roman law a wife could not make her will if in the power of her father or in manum (as long as it existed) of her husband.

CUSTOM AS TO THE USE OF STREAMS.
PENNSYLVANIA SUPREME COURT MAY 3, 1880.
PENNSYLVANIA COAL Co. v. SANDERSON.

A coal mining company pumped from its mines water which polluted a previously pure stream into which it found its way. In an action for damages against the company by a riparian owner on the stream, held, that the fact that coal mining is an important industry would not relieve defendants from liability and that they could not justify their action upon the ground that it was the customary mode of disposing of water pumped from mines in that region to allow it to flow into the streams, there being a lack of the necessary age to establish a general custom, and such a custom would be unreasonable and unlawful.

the mundum of the wife was transferred from the parents or relations to the husband; and the woman became subject to the law of her husband. Marriage

the Pennsylvania Coal Company to recover for the injury done to a stream of water running through plaintiffs (Sanderson's) grounds by the working of de