IN

NOTES OF CASES.

'N McMahon v. Henning, U. S. Circuit Court, Kansas, July 30, 1880, 3 Fed. Rep. 353, it was held that a master is liable for negligence in permitting the use of defective machinery, whereby his servant was injured, although the negligence of a fellowservant contributed to the injury. The court say: "The common-law rule has never, to my knowledge, been carried so far as to permit the master to exempt himself from the consequence of his own personal negligence by showing that one of his servants (not the party injured) has been likewise negligent." "The true doctrine of the common law is that the master is liable to his servants, as much as to any one else, for the consequence of his own negligence; and it is no defense for him to show that the negligence of a fellow-servant (for which he was not responsible) also contributed to bringing about the injury. Shearman & Redfield on Negligence, § 89; Fifield v. Northern R. Co., 42 N. H. 225; Hough v. Railway Co., 100 U. S. 213; Cayzer v. Taylor, 10 Gray, 274; Paulmier v. Erie R. Co., 5 Vroom, 151, 157. In Cayzer v. Taylor the Supreme Court of Massachusetts state the rule as follows: 'But we are not prepared to say that if one uses a dangerous instrumentality, without the safeguards which science and experience suggest or the positive rules of law require, he is not responsible for an injury resulting from such use because the negligence of one of his servants may have contributed to the result, or because a possible vigilance of the servant might have prevented the injury.' That was a case in which a servant sued his master for injuries from the collapse of a steam boiler used in the defendant's manufactory, in which the plaintiff was employed." This is consistent with Booth v. Boston & Albany Railroad Co., 73 N. Y. 38; S. C., 29 Am. Rep. 97, where the injury was caused by the negligence of the company in not furnishing a sufficient number of brakemen on a train, and the negligence of the engineer in running the train; and with Stetter v. Chicago & N. W. R. Co., 46 Wis. 497; S. C., 29 Am. Rep. 102, note, where the injury was caused by the subsidence of an unsafe track, and the negligence of the conductor in disregarding his instructions to run slowly over it.

In Kuhn v. Jewett, Receiver, 32 N. J. Eq. 647, a railway train laden with petroleum was wrecked, owing to the defendant's negligence, and the petroleum escaping, took fire, ran into a brook, and was floated against and ignited the plaintiff's barn some distance away. It was held by the vice-chancellor that the defendant was liable. The court said: "There can be no doubt, I think, if in this instance the flames of the burning oil had been carried by the wind directly from the point of collision to the petitioner's building, and it had thus been set on fire and destroyed, that the injury would in judgment of law have been the natural and direct or proximate result of the collision. So, too, if the burning oil had descended from the point where it

was first ignited, by the mere force of its own gravity, upon the petitioner's building and destroyed it, the connection between cause and effect would have been so close and direct that the defendant's liability could not have been successfully questioned. So also if the fire had been carried from the place of its origin to the petitioner's building by a train of combustible matter deposited in its track by the operation of the laws of nature, the petitioner's injury, I think it could not have been doubted, would have been esteemed the direct result of the defendant's negligence." Citing Delaware, etc., R. R. Co. v. Salmon, 10 Vroom, 308; S. C., 23 Am. Rep. 214. "These principles Their application is obvious.

must rule this case.

For although water is almost universally used as a means to extinguish fire, and it seems at first blush absurd to say that it can be used for the purpose of extending it, yet it is true, as a matter of fact, that as an agency for the transmission of burning oil, it is just as certain and effectual in its operation as the wind in carrying flame, or a spark, or combustible matter in spreading a fire. In keeping up the continuity between cause and effect, it may be just as certain and effectual in its operation as any other material force." The court noticed and disapproved Hoag v. Lake Shore & Michigan S. R. Co., 85 Penn. St. 293; S. C., 27 Am. Rep. 653, a case exactly like the principal case, and also the Ryan case, 35 N. Y. 210, and the Kerr case, 62 Penn. St. 353; S. C., 1 Am. Rep. 431, as standing opposed to both precedent and principle."

The case of English v. English, Court of Errors and Appeals, 32 N. J. Eq. 738, should be read in connection with Commonwealth ex rel. Drummond v. Ashton, ante, 183, and McKim v. McKim, 12 R. I. 462; 21 Alb. L. J. 343, as affording considerable countenance to seceding wives and mothers. The wife left her husband in 1875, on account of his "abuse of marital rights," taking with her their two children, a boy aged 6, and a girl aged 4 years. She petitioned for a divorce, but this was denied on his promise of amendment. He entreated her to return to him, but she refused. She was able and willing to maintain and educate the children, and they preferred to remain with her. The father was sober, moral, industrious, and of pecuniary ability. The boy was of a delicate constitution. Held, that the wife's acts did not amount to such "misconduct as to deprive her of the custody of the children for the present." The court said: "From every point of view, the cause has given to every member of this court an unusual degree of anxiety and concern in its decision." The decision was based on the supposed welfare of the children, the parents being on an equality. The court strongly intimated that if the boy were of sufficient age and health to enter upon a course of business training, the father would be awarded his custody. J., dissented, and in one sentence expresses the dangerous tendency of this sentimental course of decision: "If a wife may, in the absence of legal

Dixon,

justification, remove herself and her children from their father's domicile, and fix their residence in a place where he may not abide, and still stand before the law upon an equal footing with him as to their custody, then is the headship of the husband and father no longer legally recognized."

REMEDY AGAINST JUDGMENT SUFFERED BY UNAUTHORIZED ATTORNEY.

IN

N Everett v. Warner Bank, Supreme Court of New Hampshire, June, 1878, 11 Rep. 275, the plaintiff sued for an injunction to restrain the enforcement of a judgment obtained against him without service of process, or his knowledge of the commencement or pendency of the action, upon the unauthorized appearance of an attorney, and without any cause of action. The answer admitted those allegations, and alleged that the attorney who thus appeared was responsible. The bill was dismissed, upon the authority of Bunton v. Lyford, 37 N. II. 512, and Smyth v. Balch, 40 id. 363. The court said: "We are not unmindful that the weight of authority in the American courts at the present time seems to be against the doctrine of those cases. The rule is not in harmony with the general law of agency, for the reason that the legal presumption as to the authority of an attorney differs from that of other agents." "The opposite party is guilty of no negligence in relying upon the appearance of the attorney as authorized, and is entitled to reasonable protection against such damages as he might suffer, if the appearance, which the law presumes to be by authority, was held void." "To hold the unauthorized appearance void in all cases would not give reasonable protection to the party against whom the appearance is made." "If it is held void, the attorney would be liable to the party against whom he appeared. If it is held valid, he would be liable to the party for whom he assumed to appear. Why should one party, rather than the other, be compelled to seek his remedy against the attorney? It may be suggested whether there is not greater danger of injustice being done by parties falsely denying the authority of attorneys to appear for them, than is to be apprehended from unauthorized appearances by attorneys; and if the danger of a false denial of authority is vastly greater than the danger of an unauthorized appearance, whether justice and sound policy do not require, that when the attorney is responsible, the party for whom he appeared, rather than the other party, should be put to his action against the attorney. The rule as adopted in this State has always been distinctly recognized as an exception founded on the general ideas of justice and policy entertained by the court in this particular class of cases."

It seems a singular idea that a party, not served with process, ignorant of the pendency of the action, and not indebted to the plaintiff, should be bound to pay a judgment, obtained upon the unauthorized appearance of an attorney, because the attorney is responsible, and should have no indemnity except by resort to the attorney. There would

be some semblance of reason in this rule, if there had been service of process, for then the court would have acquired jurisdiction, and it would be impolitic, perhaps, to allow the defendant to escape jurisdiction by denying the authority of a responsible attorney. The danger of a false denial of the attorney's authority, suggested in the principal case, would seem rather small when there never had been service of process, or knowledge by the defendant of the pendency of the action, or any indebtedness, as in that case. But in such a case as this we cannot conceive any reason why the defendant, rather than the plaintiff in the original action, should be put to the trouble and expense of pursuing the attorney, nor can we see any reason for distinguishing between a case where the defendant was within the State and a case where he was non-resident at the time of the suit and appearance. The right of a court to render judgment rests upon the acquiring of jurisdiction, and not upon the mere ability to acquire jurisdiction.

It may be that this holding is put on the ground that this suit was a collateral proceeding, and not a direct application to the court which rendered the judgment. It was held, in Brown v. Nichols, 42 N. Y. 26, that such a judgment could not be collaterally attacked, but Grover, J., dissented, and Foster and Smith, JJ., said they would join him if it were a new question, and in Denton v. Noyes, 6 Johns. 296, it was held, Van Ness, J., dissenting, that such a judgment would not be set aside even upon direct application, if the attorney were responsible. But the court let the defendant in to defend. This case was questioned in Allen v. Stone, 10 Barb. 547, but acquiesced in, in Ellsworth v. Campbell, 31 Barb. 134. In Meacham v. Dudley, 6 Wend. 514, the court say the rule in Denton v. Noyes is hard, and where the attorney is irresponsible, they will let the defendant in to defend. In Ferguson v. Crawford, 70 N. Y. 253; S. C., 26 Am. Rep. 589, it was held that a domestic judgment might be collaterally attacked where the appearance was forged, and Denton v. Noyes and Brown v. Nichols were recognized and distinguished.

The doctrine of the principal case was held in St. Albans v. Bush, 4 Vt. 58; Abbott v. Dutton, 44 id. 546, and Newcomb v. Peck, 17 id. 302, all cases of collateral attack, the latter a suit on a judgment of another State.

In Shelton v. Tiffin, 6 How. 163, it was held that a judgment, obtained by an unauthorized appearance for a non-resident, could be collaterally attacked, and is a nullity. "An appearance by counsel under such circumstances," say the court, "to the prejudice of a party, subjects the counsel to damages; but this would not sufficiently protect the rights of the defendant. He is not bound by the proceedings, and there is no other principle which can afford him adequate protection. The judgment * * * must be considered a nullity." He "was not amenable to the jurisdiction of the court, and did no act to authorize the judgment. He cannot, therefore, be affected by it, or by any proceedings under it."

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

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 marriago, 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 liraits, 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 rita, 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 eutirely subject to her husband, and all her property devolved on him. But at a later period when the consentio was abandoned, marriage 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 inore 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 tho 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 wifo 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 paterual 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 recepticia. 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