haeredis et haberi poterit cui per modum, donationis fit reversio cujusque tenements. And Ockam (who wrote in the raigne of Henry the second) treating of tenures of the king, saith, povro eschaetae vulgò dicuntur, quae decendentibus hüsque de rege tenent, &c. cùm non existit ratione sanquinis haeres, ad fiscum relabunter. So as an escheat doth happen two manner of wayes, aut per defectum sanguinis, i. e. for default of heire; aut per delictum tenentis, i. e. for felonie, and that is by judgment three manner of waies, aut quia suspensus per collum, aut quia abjuravit regnum, aut quia ultegatus est. And therefore, they which are hanged by martial law, in furore belli, forfeit no lands: and so in like cases escheats by the civilians are called caduca.

The father is seised of lands in fee holden of I. S. the son is attainted of high treason, the father dieth, the land shall escheat to I. S. propter defectum sanguinis, for that the father dyed without heire. And the king cannot have the land, because the sonne never had anything to forfeit. But the king shall have the escheat of all the lands whereof the person attainted of high treason was seised, of whomsoever they were holden.

Of this word (eschaeta) here used by our author, commeth eschaetor, an ancient officer so called, because his office is properly to look to escheats, wardships, and other casualties belonging to the crowne. In ancient time there were but two escheators in England, the one on this side of Trent, and the other beyond Trent, at which time they had subescheators. But in the raigne of Edward the second, the offices were divided, and several escheators made in every county for life, &c, and so continued until the raigne of Edward 3. And afterwards by the statute of 14 E. 3. it is enacted by authority of Parliament, that there should be as many escheators assigned, as when king Edward 3, came to the crown, and that was one in every county, and that no escheator should tarry in his office above a yeere, and by another statute to be in office but once in three yeares. The lord treasurer nameth him.

And hereof also commeth eschaetria, which signifieth the eschactorship, or the office of the escheator. But now let us heare what our author will further say unto us.

(To be continued.)

THE POSTAL LAWS are liable to a bad change, if Representative Bingham, succeeds in continuing to influence legislation; his bill purposes to raise the rates on libraries and books published in periodical form, eight times, or from pound rates to book rates. This may be an artful move of the "regular" text-book people, and possibly a shy at the St. Paul reporters, but it will fail if the profession take the time to write to their representatives. The real movement should be the other way, towards cheaper postage, and, in fact, the pound rates should be extended to local delivery.

Kent. Vol. II., 150- 190.

Law Studies.

Husband and Wife.
(Part Two)

1. Wife's capacity at law to act as a feme sole.

May, 1895.

(1) To sell lands.—" The disability of the wife to contract so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connection, by which she is placed under the power and protection of her husband, and because she has not the administration of property, and has given up to him all personal property in possession, and the right to receive all such as may be reduced into possession." As a general rule the husband must be a party with the wife to her conveyance,—she must be privately examined,—husband must show concurrence, and cases where her deed is valid without his concurrence are exceptions to the general rule.

(2) To sue and be sued.-In Corbett v. Poelnitz, 1 Term. Report 5 (1785) the court held that a feme covert living apart from her husband, by a deed of separation, mutually executed, and having a large and competent maintenance settled upon her, beyond the control of her husband, might contract and sue, and be sued at law as feme sole. Lord Mansfield put the action, upon the ground that the wife having an estate settled upon her to her separate use, and acquiring credit, and assuming the character and competency of a feme sole." This decision was considered a dangerous innovation upon the ancient law.

In Marshall v. Sutton the Court of K. B. in 1800 set aside the doctrine of 1785, holding that the only way in which such a separation between husband and wife to allow her to act as a feme sole could exist was through the intervention of trustees. "At law a woman cannot be sued as a feme sole, while the relation of marriage subsists, and she and her husband are living under the same government." Pennsylvania and South Carolina are exceptions to

this rule.

II. Wife's capacity in equity.

(1) Of property in trust for wife." At common law a married woman was not allowed to possess personal property independent of her husband. But in equity she is allowed through the medium of a trustee, to enjoy property as freely as a feme sole." Husband has no interest in the property in such case. Gifts from the husband to the wife may be supported, as her separate property, if not prejudicial to creditors, without the intervention of trustee's. In equity although wife's separate estate is liable for her debts a personal decree will not lie, the court can only follow it into trustees hands. Marriage settlements strictly enforced by the courts. Wife may sell or mortgage her separate property to pay her husband's

debts. Property settled on wife to her separate use, beyond her power of conveyance. Restrain removed at death of her husband. Wife cannot devise her lands, but may dispose of her separate personal estate, settled upon her, or held in trust for her, by will or act in her life-time. Antenuptial contracts, specific performance of, post-nuptial where there are no debts and without fraudulent intent. Law of marriage settlements much the same in Pennsylvania, New York, Virginia, the Carolinas and Kentucky as in England. Husband and wife cannot be witnesses for or against each other; nor give testimony that would criminate the other. Declarations of wife as husband's agent may be used against him.

"For any cause of action, either in contract or tort arising during coverture the husband only can be taken in execution." Dis tinction between the Roman or Civil law, and the Common law on this question.

Questions.

1. Upon what is the wife's disability to contract based?

2. What is the general rule as to conveyance of her land?

3. What is the general rule of American law on the subject?

4. When are gifts from hus. band to wife good as against third parties?

5. At common law can the wife devise her lands by will?

6. Can she by will or otherwise dispose of her separate personal estate?

7. What effect has marriage where a feme sole had made a will?

8. Can husband and wife be witnesses for or against each other?

9. What of wife's declarations when acting as her husband's agent?

10. Can husband be bound to keep the peace as against his wife?

II. What innovation was made on the old law by Lord Mansfield in 1785?

12. What is the estimate of property held in trust in England?

13. What consideration was given this subject under the Roman law, and also by the civil lawyers?

14. What were some of the provisions of the Roman law un. der Justinian?

15. What has been the effect of Christianity on the nations of Europe and their descendants on his subject?

Notes, Readings and References.

Note. In the appendix to the II. Volume of Kent,-Blackstone Series, there is a very full and valuable note given on the statute law of the different States on the rights of married women.

made with her; goes on to show that the disability of a married woman to contract arose purely from the marriage relation and not from any presumed want of judgment and discretion. It was reasoned, (1) that her husband was entitled to the undisputed possession of her person and society, and that if allowed to contract, her body might be taken on execution and the husband deprived of his right; and (2) that such was the presumed influence of the husband over the wife that

she might be led to make contracts greatly to her disadvantage."

Note.-By the Married Persons Property Act of Pennsylvania, of June 3, 1887, a wife is given in her own name all the rights of action necessarily incident to her rights of ownership. In Mr. Rumsey's annotation of Small v. Small, page 748 of American Law RegISTER for 1889, the statutes and decisions of the States have been collected at length upon this one question of power of wife to sue her husband. T. E. P.

Note.-Current Events: At page 476 of Vol. I of CURRENT COMMENT reference was made to the Pan-American Congress. Within the past few days (April 19, 1890) their conference closed, after a sevenmonth session, having opened Oct. 2, 1889. The following principles or leading features on Arbitration, from the report of the committee on "General Welfare," are among the expressed results of the Congress :

First, That the principle of conquest shall not, during the continuance of the Treaty of Arbitration, be recognized as admissible under American public law.

Second, That all cessions of territory made during the continuance of the Treaty of Arbitration shall be void if made under threats of war or the presence of an armed force.

Third, Any nation from which such cessions shall be exacted may demand that the validity of the cessions made shall be submitted to arbitration.

Fourth, Any renunciation of the right of arbitration, made under the conditions named in the second section, shall be null and void.

Those conditions are, under threats of war or the presence of an armed force.

From the report of the committee on "International Law the following principles of American international law, were adopted:

First, Foreigners are entitled to enjoy all the civil rights enjoyed by natives; and they shall be accorded all the benefits of said rights in all that is essential, as well as in the form or precedure and the legal remedies incident thereto, absolutely in like manner as said natives.

Second, A nation has not, nor recognizes in favor of foreigners, any other obligations or responsibilities than those which in favor of the natives are established in like cases by the Constitution and the laws.

Third, Rivers which separate several States, or which bathe their territory, shall be open to the free navigation of the merchant marine or ships of war of the riparian nations.

Fourth, This declaration shall not affect the jurisdiction nor the sovereignty of any of the riparian nations, either in time of peace or war. On the question of adopting this report the United States and Nicaragua voted no.

It is the hope and earnest expectation of all thoughtful citizens of the Governments represented in the conference, that great good may result from the labors of this first International American Congress. T. ELLIOTT PATTERSON.

and

Legal Miscellany.

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Copyrighted 1890. Entered at the Post Office at Philadelphia as second-class matter.

Vol. II.

June 15, 1890.

CONTENTS.

No. 6.

BUSHROD WASHINGTON, of the U. S. Supreme Court, with portrait, 321

The True Federalist (from H. B. Dawson's Autobiography),

Law Book Making, by Hon. Ira T. McGinnis,

The City Lawyer and the Mortgage, by W. A. Caldwell,

The Original Package Case, by P. A. Rohrbaugh
Precedent in Trespass, with transcript of the Docket,

Unanimity of the Jury in Civil Cases, by Gen. Thomas Ewing
Matrimony and Divorce in the P. E. Church, by W. S. Price,
The Personal Equation, (reprinted)

Dakota Taxes, an opinion by the Attorney General,
Obituaries, of Hon. James B. Beck and others,

Title Companies, (reprinted)

Taxation of Church Property, by R. B. Westbrook.

326

331

333, 335, 349, 353, 369, viii

381

373

340, iv

iv

i