The Court, without hearing the plaintiff's counsel, overruled the objection and admitted the evidence, without determining whether the distinction taken by Ward well applied: the C. J. (Dana) observing, that if the defendant used the horse for any purpose other than for safe keeping, such other use would amount to a trespass in him, and that the evidence of it was proper under this issue. The plaintiff's evidence went only to prove, that the defendant had rode the horse to pasture, and to water, but no evidence was given of his using the horse for labor.

The Court stopped the defendant's counsel, and the C. J. directed the jury, that where the creature attached was put to no service, but such as was for the benefit and health of the creature, such as moderate exercise for an horse for its health, milking a milch cow, &c., it did not amount to a trespass; it was convenient and beneficial for the creature, and was included within the legal idea of safe keeping. And the jury found a verdict for the defendant.

Remark. If it had appeared in evidence, that the defendant had rode the horse on journeys, and employed him in labor, then the Court must have decided on the propriety of Ward's distinction. As in this case, the servant was privy to the authority his master had, and received no other authority but what the master could legally give, and as the master's authority was derived from his own writ, and the safe keeping was for his benefit, I should think, that if he exceeded his authority, he must be a trespasser ab initio, and considered as deriving his authority from the law, and not merely from the act of the master. But where the servant is ignorant of the authority of his master, and acts within the powers given him, although those powers could not be legally given him by the master, I greatly doubt, whether the servant can be deemed a trespasser ab initio: although the master might.

But in cases like this, if the creature should be put to labor either by the officer or his bailiff, the damages arising to the owner are the profits of the creature's labor, which ought to have been carried to the credit of its keeping, and also the diminution of the proceeds of the sale, from the creature's fetching less than it would have done if not put to work; but as the

proceeds of the sale were applied to the owner's use, he could not recover in damages the value of the creature: and, therefore, it does not seem material to settle the question, whether there is any trespass by relation, the trespass in fact being the measure of the damages.

ART. III. CODIFICATION AND REFORM OF THE LAW.-No. II.

THE interests, growing out of the relations of Baron and Feme, have been attended with uncertainty, as regards the rights of parties, and the proper tribunal for their adjudication. Many subjects under this head have, hitherto, practically, been almost unknown to the courts of this country. It may be uncertain, how far it is expedient to provide by legislation, for any conventional infraction of a contract, so important as that of marriage. While men, however, are influenced by the known characteristics of human nature, legislators ought to provide for cases, which, because they have happened, may again be expected to occur in the progress of society.

mon.

In England, arguments for a separate maintenance are comThe wife has a certain allowance made to her by the husband, and if she accepts the same, as adequate to her support, he is not liable beyond that amount, even for necessaries. For all other purposes the relation continues. Whenever the wife, thus living separately from her husband, is sued, the husband must be joined, if he is living within the country, and under no civil disability, but when the husband lives abroad, or in another part of the kingdom, then the action may be brought against the wife as a feme sole.

In the case of Corbett v. Poelnitz 1 T. R. 5, the Court of King's Bench decided, that an action might be maintained against the wife, for a contract made by her, while living apart from her husband, upon a separate maintenance, and when an agreement had been made, that she should live separately from her husband.

The reason of this decision seems to be, that the husband had relinquished his marital rights, and that the wife received credit as a feme sole, upon her separate estate, to the extent of which, she ought, therefore, to be liable.

In a subsequent case, Marshall v. Rutton, 8 T. R. 545, the doctrine laid down in the case of Corbet v. Poelnitz, is understood to have been overruled, and the old doctrine restored, that the wife shall not be sued, as a feme sole, except in the known cases of abjuration, exile, and the like.

It has been said, that this case differed from that of Corbett v. Poelnitz, in this respect, that there was no agreement for living separate, and consequently no relinquishment by the husband of his marital rights. There can be no doubt, however, that it is generally understood, that the wife is not liable to the extent of that case.

Most of those, who have opposed the decision in the case of Corbett v. Poelnitz, admit the justice of the principles there advanced, but are dissatisfied with the lax doctrine of Lord Mansfield, that as the times change, new manners and new customs arise, to which the laws must conform. They consider the decision as an innovation on the law, and suggest the propriety of legislative interference, to secure to the persons contracting with the wife a more direct remedy.

If the subject is worthy of attention in this country, it may be observed, that it is in the highest degree reasonable, that the wife should be permitted to contract, to the extent of the property left to her separate management, and to give full effect to her contracts, by rendering her liable as a feme sole.

Personal property of the wife becomes the property of the husband, on the marriage, but choses in action, at the death of the wife, do not belong to the husband. They go to the executor, or administrator of the wife. The husband is entitled to administer on the estate of his wife, and by the statute of 29 Charles II., in England, the husband is permitted to hold all his wife's choses in action, not reduced into possession, at the time of her death, without accounting for them. That statute does not exist in this country, and it is presumed, that the husband who administers is accountable to the next of kin. This has,

however, been questioned, and ought, therefore, to be provided for by statute, and choses in action should be made devisable by the wife.

Chattels real of the wife are held jointly by the husband and wife. The estate is quasi a joint tenancy. It is joint because of the nature of their relation. They are one person in the law. It is not like a joint tenancy vested in other persons, because the husband and wife do not hold in the same right. The wife holds in fee in her own right. The husband holds during coverture in her right. Still, the estate is jointly vested in them, and is described in 2 Bl. Comm. 180, as partaking of the qualities of a joint tenancy, and a tenancy in common. It is not held per my et per tout, but per tout by each; and it is understood in this country, as well as in England, that the jus accrescendi, or right of survivorship attaches.

As in this country, estates are no longer held in joint tenancy, with this exception, it is certainly anomalous to permit the doctrine of survivorship to apply to this species of estates, especially as its effect is to deprive the representatives of the wife of her property.

The rule is even more inequitable than that which gives the choses in action on her death to her husband, without requiring him to account, because he, as administrator, is liable to the creditors of the wife, so far as he has assets, whereas, for the property which accrues to him by survivorship, he is not accountable to her creditors,, his liability terminating with cover

ture.

It would seem to be just, that chattels real should be put upon the same footing as other real property of the wife, so far as it regards the duration of his interest therein, and that on the termination thereof, the estate should go to the next of kin of the wife.

The property of the wife, if personal, vests absolutely in the husband on the marriage, and he is rendered liable for her debts, contracted whilst she was a feme sole; but as he is liable only during the coverture, it may happen that the creditor is deprived of the opportunity of collecting the debt, by the death of the wife, and that the husband has appropriated the whole of the

fund upon which he relied, when the debt was contracted. To remedy this evil, the husband ought to be rendered liable for the debts of the wife, even after coverture, to the extent of the property received by him.

If an annuity is granted to a feme sole, and she marries, and during the coverture arrears accrue, on her death, the arrears belong to him by survivorship, and not as administrator, the annuity being an incorporeal hereditament, and the interest of husband and wife being joint. There can be no good reason why annuities, whether chargeable upon land or not, should be disposed of in a different manner from choses in action. They should be subject to the debts of the wife, and go to her next of kin.

When a judgment has been recovered in the name of husband and wife, for a debt due to the wife, it is settled by the common law, that if the wife dies before the husband and before collection of the judgment, it belongs to the husband. It would seem highly reasonable, that such a judgment should follow the course of her other choses in action, and go to her representatives, and be liable for her debts, but the jus accrescendi intervenes, and because of their joint interest in the judgment, it survives to the husband. The law, relative to this matter, should be placed upon the same footing, as that of choses in action.

If a bond or note is given to a woman after her marriage, the analogy of the existing law would seem to require, that on the death of the husband, such property should go to his executor, and, to this effect, have been some of the decisions; but it has been decided in equity, that these choses in action survive to the wife. These decisions in equity are conformable to the principles we advocate, and we think they should be enacted as the rule of law.

It has been made a question, whether a married woman in this country can, during the coverture, devise her lands. It has been said that at common law she has this power, and that she is only restrained by the statute of Henry VIII. 34. Her acknowledged power to make a testamentary disposition of her personal property, and her right by the custom of London to