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In Bodurtha v. Goodrich, 3 Gray, 508, it was held he has vested no authority, and reposed no confithat a non-resident defendant, for whom an unau- dence, and over whom he can exercise no control.” thorized appearance had been made, might reverse The court approved Robson v. Eaton, infra, and disthe judgment on writ of error, on the ground that approved Denton v. Noyes, but dismissed the bill on the court got no jurisdiction. “The authority of the ground that there was an ample remedy at law, an attorney to appear and answer for him is a fact as relief “may be afforded in the court rendering essential to such jurisdiction.”
the judgment with more facility and more certainty In Wiley v. Pratt, 23 Ind. 628, where the defend- of doing justice, than in a distinct tribunal, and the ant was within the jurisdiction, when the appear-party injured can then obtain all relief he is justly ance was made, it was held that he should be let in entitled to, without subjecting the other party, to defend, if no rights of bona fide purchasers had against whom there is no complaint but having, as intervened, staying proceedings but preserving the he supposed, in due course of law, obtained a judglien of the judgment meantime.
ment in his favor, to the delay and expense of a In Harsbey v. Blackmarr, 20 Iowa, 161, a case chancery proceeding." where the defendant was a non-resident at the time In Truett v. Wainwright, 9 Ill. 418, a precisely of the suit and appearance, Dillon, J., said: “It similar case, the bill was maintained, on the ground may be doubted whether the above distinction be- that “the setting aside judgments, as well in the tween foreign and domestic judgments is fully set- case where they were procured by the misconduct of tled, and if so, whether it rests on sound principles. the plaintiff, as where they were obtained by the Is not the gravamen the same in the one case as in unauthorized appearance of strangers, rests at last the other, and does it not consist in the unauthor on the ground of fraud. The law looks upon such ized act of the attorney? We deem the rule prop- practices, however far the parties may have been erly settled as to foreign judgments. Why should from the thought of actually committing a wrong, it not equally apply to an action on a domestic judg- as fraudulent, and treats them as such; and it is a ment? The only reason that occurs to us is, that well-settled rule, that in case of fraud, chancery has in the case of a foreign judgment it is impossible, always jurisdiction, though courts of law may exeror at least unreasonable, to require the defendant cise it in all cases in which their powers are suffito go to the courts of the State which rendered it, cient for the relief sought concurrently.” The and attack it directly by a bill or motion; hence he court so far disapproved Critchfield v. Porter, is permitted to plead the want of authority in the In McKelway ads. Jones, 2 Harrison, 345, there was attorney, defensively and collaterally. Whereas in a motion to set aside a verdict against a resident. the case of a domestic judgment it may be deemed The court granted the motion, observing: “My better to force the party to assail it directly (thus own opinion of the law on this subject affords not giving the court an equitable control over the pro- a shadow of an argument in favor of the doctrine ceedings), by prohibiting him from resorting to a now contended for." “I think the proper remedy plea of a want of authority in the attorney, collat- is by setting aside the whole proceding as coram non erally, as a defense to a scire facias, or direct action judice and void.” on the judgment. If the distinction is maintaina- In Robson v. Eaton, 1 T. R. 62, Lord Mansfield ble, it must be on some such ground. Certain it is, held that a former judgment, obtained by an unauhowever, as the authorities hereinafter cited will thorized attorney, upon a forged authority, upon show, that the party is entitled to relief when an which the money recovered was paid into court and unjust judgment, though a domestic one, has been then to the attorney, was no bar to another action rendered against him by fraud or collusion, or by for the same cause. He said: “The record of the the appearance of an unauthorized attorney, if the Common Pleas amounts to no more than this, that party seeks the relief by bill or motion, promptly, the attorney prosecuted the suit in the plaintiff's and has been guilty of no laches.” Of the New name, but it does not state the authority given to York doctrine, the court said: “The prevailing him by the plaintiff for so doing.” opinion, were the question in that State res nova, is, In Bayley v. Buckland, 1 Exch. 1, on a rule to that on principle the responsibility or otherwise of show cause why a judgment should not be vacated, the attorney has nothing to do with the question, Rolfe, B., said: “The non-responsibility or suspiand that no party, not guilty of negligence, should ciousness of the attorney is but a vague sort of cribe bound by the act of another, which was wholly terion of safety to the defendant, and by the hyand confessedly unauthorized and unratified.” pothesis the defendant is wholly without blame,
In Critchfield v. Porter, 3 Ohio, 518, there was a and may notwithstanding be ruined. It is true that bill in chancery for relief against a judgment at law the plaintiff is equally blameless, but then the plaintagainst a resident. The court, speaking of the ar- iff, if the judgment be set aside, has his remedy gument of policy on which the early English cases against the defendant as before, and suffers only (furnishing the basis of Denton v. Noyes) were the delay and the possible loss of costs.” “We are founded, said: “This reasoning is certainly plausi- disposed to lay down a different rule, and to conble, and worthy of some consideration, but does not fine the liability of the defendant to cases in which furnish
any sufficient ground why one of the most the course of proceedings has given him notice of obvious and well-settled principles of law, as well the action being brought against him. When, as justice, should be departed from — that no per- therefore, a defendant has been served with proson is to be bound by the act of a stranger, in whom cess, and an attorney without authority appears for him, we think the court must proceed as if the at- not be compelled to bear witness against each other, torney really had authority, because in that case
nor make any donation to each other during marriage, the defendant having knowledge of the suit being competency. The Roman law proceeded upon tho
and they both may avail themselves of the plea of commenced, is guilty of an omission in not appear- principle that marriage did not alter the property relaing and making defense by his own attorney, if he tion of man and wife; but it did not carry the separahas any defense on the merits. There the plaintiff tiou of goods, nor the dotal system, to the utmost linis without blame, and the defendant is guilty of
its, for it only extended the privilege subject to certain
limitations as regards the rights of property after marnegligence. But even in that case, if the attorney
riage. Opposed to this principle is the doctrine of the be not solvent, we should relieve the defendant upon community of goods, which has been embodied into equitable terms, if he had a defense on the merits. the judicial systems of France, Holland, the greater If the attorney were solvent, it would not be unjust portion of the German Empire and some other counto leave the defendant to liis remedy by summary
tries - a principle, no doubt, originating in the cuis
toms of the ancient Teutonic races that overran and application against him. On the other hand, if the
conquered Europe. The Code Napoleon gives the plaintiff, without serving the defendant, accepts the amplest expression to this law in the six sections couappearance of an unauthorized attorney for the de- tained under the chapter on the laws of marriage. fendant, he is not wholly free from the imputation These six sections express the common law of France, of negligence; the law requires him to give notice
the Lois Coutumiers of the Franks. In juxtaposition
to this law is that of the Régime Dotal, wbich has all to the defendant by serving the writ, and he has not
but literally adopted the rules of the Roman law. done so. The defendant there is wholly free from
As a general rule resulting from tho consortium ritæ, blame, and the plaintiff not so; and upon the same tho wife followed the domicile of the husband and principle upon which we before proceeded, we must was entitled to his protection and support. She took set aside the judgment, as irregular, with costs, and
his name and rank and retained them even after his
death, so long as she remained his widow. leave the plaintiff to recover those costs and the
All children born of a lawful marriage fell under the expense to which he has been put, from the de
paternal power of the husband, who was always prelinquent attorney, by summary proceedings.” This sumed to be tho father, unless otherwise established case disapproves the early cases upon which Denton by proof. A child was held to be conceived during tho v. Noyes was based. On the other hand, the Com- marriage if it was born not more than ten months
after the dissolution of such marriage. We have mon Pleas, in the earlier case of Stanhope v. Firman,
shown in our lecture on marriage that in early times 3 Bing. N. C. 302, adhered to the early doctrine.
when marriage was entered into with the consentio in The reasoning of Bayly v. Buckland seems to us manum, the wife became entirely subject to her husunanswerable, as also that of Grover, J., in Broron band, and all her property devolved on him. But at a v. Nichols, and Van Ness, J., in Denton v. Noyes. We
later period when the consentio was abandoned, marshould, therefore, feel inclined to lay down the fol- riage had no effect in rendering the property of the
spouse common; each was entitled to preserve what lowing rules:
was his or her own, and to dispose of it at pleasure. 1. A judgment of another State or country, ren- If therefore the wife was sui juris, and had a private dered upon an unauthorized appearance, without fortune, she retained it as her own property, entirely service of process, is voi and may be collaterally separated from that of her husband. At the celebraattacked.
tion of the wedding a contract of marriage was fre
quently entered into to regulate the pecuniary rights 2. A domestic judgment rendered upon an unau
of the spouses. In early times these contracts were thorized appearance, without service of process, is
unknown and were unnecessary with manus; but void, and may be attacked collaterally or through when the manus had become obsolete the want of equity, without regard to the responsibility of the such agreement was felt. It was considered to be the attorney making the appearance.
duty of the father to give to his daughter a marriage3. A domestic judgment rendered upon an unau
portion or dowry in proportion to his means. Such
dowry was called dos profectitia. When it came from thorized appearance, with service of process, is
the wife out of her own property, or by any third pervoidable, and may be set aside or relieved against son, it was called dos adventilia. A dos was not essenby a direct application, if the attorney is irresponsi- tial to the validity of marriage; it was one of those ble, but not otherwise.
things which were regulated by special convention. According to the Roman law, as already stated, mar
riage does not effect a complete change in the relations THE EFFECTS OF MARRIAGE.
of the property of husband and wife. The property re
lationship arising out of marriage is designated the BY ISAAC VAN WINKLE.
system of separate property on the dotal system. Dos I.
is the property contributed by a wife, or by anyone
else on her behalf to her husbaud, to euable him to E have seen what constitutes a valid marriago, support the expenses of tho marriage. Parapherna
and how the same may be legally dissolved. was that part of a woman's property that she reserved Our next inquiry is as to the effects of marriage - the from the dos. The husband had no right to interfero obligations that it imposes upon man and wife, and with it or to burden it. C. 5, 14, 8. The practice was their relations toward their offspring. A common for the wife to make out an inventory (libellus) of the right of both man and wife is their mutual claim to property she intended to use in her husband's house, fidelity. The husband has also a special claim to and which was not to be in her dos; aud to preservo reverentia from his wife, and she from him claims sup- the document after obtaining her husband's signature port and protection. She also acquires toward her to it. The husband had no right to such reserved husband a certain status and becomes subject to his property, and if he retained it the wife could sue him judicial status. Husband and wife cannot institute by the same actions that she could bring against any any actio famosa or pænalis against each other; can- other person. D. 23, 3, 9, 3.
The Dos is an institution of considerable antiquity. to the husband. The dos must be an addition to the It is referred to by Cicero (Top. 4) in a manner that husband's property. The marriage outfit, that is to would seem to show that it was better understood say, the things necessary for the household, may conthan the manus, and it was of such importance that stitute the entire dos, or only a part of it. It may conServius Sulpicius Rufus, who was consul B. C. 19, sist in the creation of a real right, or in the remission wrote a book on the subject. Aulus Gellius makes a of one; or in the renunciation of a claim. It matters statement as from the work of Rufus, that securities not in what form it is made provided the estate of the for the restitution of the dos on the dissolution of husband has become enriched. If follows from the the marriage were first required when Sp Carvilius very nature of the dos that the use of the things conRuga put away his wife, by command of the censor, stituting it must be permitted to the husband, and for barrenness. There is nothing incredible in the further, that sine matrimonio nulla dlos, there can be statement that about two hundred years after the De- no marriage without the dos. The dos is created from cennial Legislature the dos should have been in exist- the moment that the estate of the husband has been ence, as the Twelve Tables contained a provision by increased dotis nomine. There exist two modes of which married women were enabled to escape subjec- constituting a dowry. The Donatio dotis, as for intion to the manus. The decay of the manus began at stance when a thing is made over in ownership or a an exceedingly early period, or to speak inore accur- right is assigned, etc. The Promissio dotis to the husately the manus never within the time covered by band. Since the promissio founds a right of action written records existed with all the attributes that we and an action in itself benefits the estate of the husmust regard as originally inherent in it. The powers band, the promissio is regarded as constituting a dotal of the husband over his wife, at least such powers as gift. Thus the subsequent numeratio, as it is termed, he had over his children (and we must remember that is only the fulfillment or carrying out of the gift. No under the old Roman law the wife was a daughter), action however can be brought before the celebration seems to have been reduced almost to ponentity from of the marriage; and the claim for the fruits and for the earliest dawn of history. It was natural that the interest arises only after the expiration of the second emancipation of tho wife's person should precede by a year. When the father or grandfather on the paternal considerable interval tho emancipation of her prop- side has promised a dower, it is not necessary, in order erty. The interesting feature in the history of the to give to this paternal promise a legal validity, that a wife's release from the disabilities of the manus is particular detailed specification of the dotal goods its abruptness, as compared with the liberation of should have been rendered. In the case of an extraneus children from the shackles of tho potestas. A woman (a person not related to the family), such a promise was either wholly in or wholly out of the manus, would not be binding Generally the constituting of either in law the daughter of her husband, subjected to a dos is a voluntary act, when it is termed dos volunhis absolute power in regard to contract and property, taria. Exceptionally, however, certain persons are or free and independent, capable of bargaining with obliged to furnish a dower, in which case it is termed him on equal terms. It seems improbable that the dos necessaria; the father, the grandfather, and someRoman matron could have emerged at once from the times the mother and the stuptator (seducer, etc.), of a condition of slavery to that of an equal with her hus- woman. The dos, which has been furnished out of the band. It is probably safe to assume that a wife ceased estate of the father,or other ascendants on the male side to be regarded as property when her husband obtained to the husband for the support of the wife, is termed the her from her friends without paying for her. A state profecticiu; the dos which an extraneus furnishes, unof the law that was in perfect harmony with the buy- der the condition of its being repaid by the husband, ing of wives must offend the sense of propriety when is designated recepticia. A further classification of marriage was entered into on equal terms.
the dos is that into the dos venditionis causa astimata, When we come to the Decennial Legislation we find and dos taxationis causa æstimata. The first arises no clear evidence of the real purchase of wives, al- where the dos has been given in such a manner that though tho form of marriage by sale continued long to the husband is required to restore only the estimated exist. The time had therefore come when the relations | value, and not the goods. The husband is said to posof husband and wife in regard to property should be sess in this case, pro emptore; he must bear the risk determined by the existing moral standard and not hy and he may claim what is termed eviction. It is only any ancient theory surviving merely in a legal formal- when he becomes insolvent that tho things themselves, ity. The manus must yield to the dos. The dos was not their value, are to be regarded as the dotal propat first perhaps scarcely distinguishable from the manus. erty. The dos taxationis causa arises when the husWhen a wifo married without the form of confirmatio band is required to return tho property itself given as or coemptio her husband had no legal right to her a dos in natura. Euripides makes Medea complain property; but if she remained with him a year, and did that independent of other misfortunes to which not stay away from him three nights during that time, women are subject, they were obliged to buy their she passed under his manus. Perhaps the first bar- husbands by great sums of money. The poet wrote as gains were that the husband should havo certain prop- if Medea had been his contemporary and not a characerty in place of the manus. Whether this ever existed ter of the heroic ages in which it was customary for or not we have no knowledge; but another step in ad- the husband to purchase his wife from his relations. vance and we are on sure ground. The father gives The same practice prevailed in the East during the certain property to the husband to support the wife on patriarchal ages; Tacitus says of the ancient Germans, condition that if he (the father) survives the wife he “Dotem non uxor marito, sed ucori maritus offert." shall recover from the husband as much as he gave him The wife does not bring the dowry to the husband, but on the marriage. During the Republic the husband the husband to the wife. Homer speaks of the many was absolute owner of all the wife's property given to gifts by wbich wives were purchased. Müller observes him, subject to an obligation to return the property if that we know for certainty that daughters in Sparta the wifo should die, leaving her father to claim it. It had originally no dower, but were married with a gift was not until the Empire that the process was effect- of clothes only; afterward they were provided with ually begun that ended in depriving the busband of money and other personal property. In the time of the character of owner, making him in substance trus- Aristotle so great were the dowers given that nearly tee, with the privilege of taking the annual produce of two-fifths of the whole territory of Sparta had come the property during the continuance of the marriage. into the possession of females. During the continuThe dos comprises every thing which the wife has con- ance of the marriage the husband is regarded as the tributed, or which has been contributed on her behalf owner of the dotal property so fully and completely that he is legally entitled to its full control and use could not charge for impensæ voluptuariæ, or ornaand is neither bound to render accounts nor find secur- mental improvements, but he was permitted to avail ity. He was entitled to employ the Vindicatio (an ac- himself of the actio mandati, the usual action to tion to viudicate title to real property) against every enforce agency, when the wife consented to the outfit; possessor of the dotal property. He likewise possessed and the actio negotiorum gestorum, when she did not, the amplest right of alienation, with the exception of C. 5, 13, 1, 5. and had also a jus tollendi. The action the fundus dotalis, or dotal land. This he could not which lies for the restitution of the dog is actio ex alienate or mortgage, not even with the consent of the stipulata. This action was given by the ancient law wife. Again, he could not effect any alteration in the only when restitution was stipulated for, otherwise the legal relations of her real rights. Any alienation was action given was that of the actio rei uxorice, which void, and the wife may declare it to be void from and never passed to the heirs. The plaintiff is the party after the time she became entitled to demand the res- entitled to obtain restitution; the defendant, the hustitution. Von Vaugerow is of the opinion that the band and his heirs. In addition to the above, the wife husband may even vindicate the alienated fundus has the actio hypothecaria, by virtue of her legal marupon giving indemnity to the defendant. Puchta and riage, and also the actio in rem, against every possessor others differ from him on this point. There are ex- of the dotal property. The Donatio Propter Nuptias ceptions to the general rule which must be noted. (or to employ the Byzantine name, the Antipherna), 1. In the case of a fundus æstimatus.
was an arrangement corresponding to the dos but of 2. Where it is certain that the dos does not revert to far less antiquity. The first notion we have of it is in the wife or her heirs.
a Constitution of Theodosius & Valentinius, where for3. When by a valid permutatio dotis (an exchange of feiture of the donation is taken along with forfeiture the dos) something else is given in lieu of the fundus. of the dos, as a punishment for causeless divorce.
To these cases the probibition does not apply. A Justinian says it is in name and really the same as dos, strict responsibility is imposed upon the husband in being a correlative contribution by the husband to the relation to the future operative rights of the wife. The wife. Justinian gave the wife a real action to recover wife, however, is not without a remedy as regards the the property included in the gift. He says in his Indos, even during her marriage. She may claim that stitutes, that there is also another kind of donation the dos shall be applied according to the object. She inter vivos, unknown to the old jurists. It was called is exempt from providing real security when she ex- the donatio arıte nuptias prenuptial gift), and implied pects to receive a piece of ground as a dotal gift; she as a tacit condition that it should not be binding till may adopt precautionary measures for the preservation followed up by the marriage. It was called ante nupof her dos, and in case of Eviction, and even during tias because it was accomplished before the marriage marriage, look to the Auctor of the dos, and she may and after the celebration of the nuptials no such gift claim half the treasure-trove found on the fundus was bestowed. The Emperor Justinus, his father, dotalis. If her husband becomes poor or a bankrupt, seeing that the increase of doweries after marriage was the wife is entitled to reclaim her dower. The right | allowed, was the first to permit by his Constitution of the husband to the dos is extinguished by the ter- that in such events the donatio ante nuptias might be mination of the marriage, and in such a case he must increased also, even though the marriage had already return the dower. He is only allowed to retain it taken place. But the name remained, though now when it has been secured to him by agreement. In unsuitable, for it was called prenuptial, while it thus case of the death of tho husband, the wife and her received a post-nuptial increase. Justinian carefully heirs are entitled to the dos, unless it has been suiting names to things, called it not ante nuptius, but constituted by a third party, and its return has been propter nuptias, and put them on the same footing as stipulated for under this condition. On the death of dowries in this respect, that as dowries are not only the wife, the heirs are entitled to claim the dos adven- increased but come into being when the marriage has titia, except when the extraneus, who has constituted already taken place, so too those gifts brought in the dos, has reserved this right to himself (dos recep- propter nuptias may not only precede inarriage, but titia). In case of the dos profecticia, the person who may, even after it is contracted, be both increased bas constituted it takes precedence of the heirs. The and settled. The wife has a legal right of mortgage to father, the heirs and the wife have also a claim for the same, and if the marriage be dissolved by fraud of restitution, though it may not have been promised to the husbaud, the donation reverts to her. The custom them. In respect to land, restitution must take place has now, however, become obsolete. The children of immediately upon the dissolution of the marriage; in the marriage had no interest in the donation any more case of movable property, within a year. The subject- than in the dos. C. 5, 318. The relations of property matter for restitution is what the husband has received subsisting between husband and wife may be the subdolis nomine. To this, however, must be added all ject of mutual contracts. The agreements by which fruits and accessions before and after the marriage. this is effected are termed Pacta Dotalia; they do not Fruits acquired during marriage accrue to the husband. require any particular form and may be concluded The husband can claim compensation for necessary upon, before, at the time, or after the marriage; must outlays (impense necessariæ) on the dotal property, if not retain any thing repugnant to the aim and object made to prevent the deterioration or loss of the prop- of the marriage contract, nor be opposed to good erty. Ulp. Frag. 6, 15; D. 50, 16, 79. Paul's definition morals, nor be contrary to the purport of the dos, so throws a clearer light on it. He says it is such outlay, as to diminish or endanger the rights of either the as if not made by the husband would render him liable husband or the wife in regard to it. The pacta must in damages to the wife to the extent of the loss caused not exclude the right to competency, nor the claim for by his neglect (D. 25, 1, 4,) e. g., repairing a house, compensation, nor the right to the enjoyment of the planting new trees in place of those decayed; medical fruits, nor the liability incurred for culpa, nor the deattendance on slaves, etc. I take it to be such ex- ferring the legal period of restitution. All donations penditure for tho permanent improvement of the prop- between husband and wife are void, and if made to erty. The husband has no right for impensæ utiles and any other person who is connected with husband by voluptuarice (beneficial improvement), beautifying it. the bond of the patria potestas. Gifts only are void, For, says Paul, it would be very hard that a woman not other acts of liberality. Donations are allowed that should be compelled to sell her property to pay for the do not impoverish the donor, nor enrich the donee. improvements that had been made upon it. Justinian Neither husband nor wife can institute against each allowed the estate to be charged with all beneficial other the Actio furti. Both husband and wife must expenditure, unless the wife had forbidden it. He 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. Iu 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 haying 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, “Panæ 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 hus. band 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 wife, not by the wife to the husband. By marriage 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
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, hell, 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. CTION by J. Gardiner Sanderson and wife against
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