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IN

NOTES OF CASES.

was first ignited, by the mere force of its own gravity,

upon the petitioner's building and destroyed it, the N McMahon v. Henning, U. S. Circuit Court, Kan

connection between cause and effect would have sas, July 30, 1880, 3 Fed. Rep. 353, it was held

been so close and direct that the defendant's that a master is liable for negligence in permitting liability could not have been successfully questhe use of defective machinery, whereby his servant

tioned. So also if the fire had been carried from was injured, although the negligence of a fellow- the place of its origin to the petitioner's building servant contributed to the injury. The court say: by a train of combustible matter deposited in " The common-law rule has never, to my knowl

its track by the operation of the laws of nature, edge, been carried so far as to permit the master to the petitioner's injury, I think it could not have exempt himself from the consequence of his own been doubted, would have been esteemed the personal negligence by showing that one of his

direct result of the defendant's negligence.” Citservants (not the party injured) has been likewise ing Delaware, etc., R. R. Co. v. Salmon, 10 Vroom, negligent.” "The true doctrine of the common 308; S. C., 23 Am. Rep. 214. 6. These principles law is that the master is liable to his servants, as

must rule this case. Their application is obvious. much as to any one else, for the consequence of his For although water is almost universally used as a oun negligence; and it is no defense for him to means to extinguish fire, and it seems at first blush show that the negligence of a fellow-servant (for absurd to say that it can be used for the purpose of which he was not responsible) also contributed to extending it, yet it is true, as a matter of fact, that bringing about the injury. Shearman & Redfield as an agency for the transmission of burning oil, it on Negligence, 89; Fifield v. Northern R. Co., 42 is just as certain and effectual in its operation as N. H. 225; Hough v. Railway Co., 100 U. S. 213; the wind in carrying flame, or a spark, or combustiCayzer v. Taylor, 10 Gray, 274; Paulmier v. Erie R. ble matter in spreading a fire. In keeping up the Co., 5 Vroom, 151, 157. In Cayzer v. Taylor the continuity between cause and effect, it may be just Supreme Court of Massachusetts state the rule as as certain and effectual in its operation as any other follows: 'But we are not prepared to say that if material force.” The court noticed and disapproved one uses a dangerous instrumentality, without the Hoag v. Lake Shore & Michigan S. R. Co., 85 Penn. safeguards which science and experience suggest or St. 293; S. C., 27 Am. Rep. 653, a case exactly like the positive rules of law require, he is not responsi- the principal case, and also the Ryan case, 35 N. Y. ble for an injury resulting from such use because the 210, and the Kerr case, 62 Penn. St. 353; S. C., 1 negligence of one of his servants may have con- Am. Rep. 431, as “standing opposed to both pretributed to the result, or because a possible vigilance cedent and principle.” of the servant might have prevented the injury.' That was a case in which a servant sued his master

The case of English v. English, Court of Errors for injuries from the collapse of a steam boiler used

and Appeals, 32 N. J. Eq. 738, should be read in in the defendant's manufactory, in which the plaint-connection with Commonwealth ex rel. Drummond v. iff was employed.” This is consistent with Booth v.

Ashton, ante, 183, and Mckim v. Mckim, 12 R. I. Boston & Albany Railroad Co., 73 N. Y. 38; S. C., 462; 21 Alb. L. J. 343, as affording considerable 29 Am. Rep. 97, where the injury was caused by the

countenance to seceding wives and mothers. The negligence of the company in not furnishing a suffi-wife left her husband in 1875, on account of his cient number of brakemen on a train, and the neg

"abuse of marital rights," taking with her their ligence of the engineer in running the train; and

two children, a boy aged 6, and a girl aged 4 years. with Stetter v. Chicago & N. W. R. Co., 46 Wis. 497; She petitioned for a divorce, but this was denied on S. C., 29 Am. Rep. 102, note, where the injury was

his promise of amendment. He entreated her to caused by the subsidence of an unsafe track, and

return to him, but she refused. She was able and the negligence of the conductor in disregarding his willing to maintain and educate the children, and instructions to run slowly over it.

they preferred to remain with her. The father was

sober, moral, industrious, and of pecuniary ability. In Kuhn v. Jewett, Receiver, 32 N. J. Eq. 647, a The boy was of a delicate constitution. Held, that railway train laden with petroleum was wrecked, the wife's acts did not amount to such “misconowing to the defendant's negligence, and the petro- duct as to deprive her of the custody of the chilleum escaping, took fire, ran into a brook, and was dren for the present.” The court said: “From floated against and ignited the plaintiff's barn some every point of view, the cause has given to every distance away. It was held by the vice-chancellor member of this court an unusual degree of anxiety that the defendant was liable. The court said: and concern in its decision.” The decision was “There can be no doubt, I think, if in this instance based on the supposed welfare of the children, the the flames of the burning oil had been carried by parents being on an equality. The court strongly the wind directly from the point of collision to the intimated that if the boy were of sufficient age and petitioner's building, and it had thus been set on health to enter upon a course of business training, fire and destroyed, that the injury would in judg- the father would be awarded his custody. Dixon, ment of law have been the natural and direct or J., dissented, and in one sentence expresses the danproximate result of the collision. So, too, if the gerous tendency of this sentimental course of deburning oil had descended from the point where it cision: “If a wife may, in the absence of legal

IN

justification, remove herself and her children from be some semblance of reason in this rule, if there their father's domicile, and fix their residence in a had been service of process, for then the court would place where he may not abide, and still stand before have acquired jurisdiction, and it would be impolithe law upon an equal footing with him as to their tic, perhaps, to allow the defendant to escape juriscustody, then is the headship of the husband and diction by denying the authority of a responsible father no longer legally recognized."

attorney. The danger of a false denial of the at

torney's authority, suggested in the principal case, REMEDY AGAINST JUDGMENT SUFFERED

would seem rather small when there never had been BY UNAUTHORIZED ATTORNEY. service of process, or knowledge by the defendant

of the pendency of the action, or any indebtedness, N Everett v. Warner Bank, Supreme Court of New as in that case. But in such a case as this we can

Hampshire, June, 1878, 11 Rep. 275, the plaint- not conceive any reason why the defendant, rather iff sued for an injunction to restrain the enforce- than the plaintiff in the original action, should be ment of a judgment obtained against him without ser- put to the trouble and expense of pursuing the atvice of process, or his knowledge of the commence- torney, nor can we see any reason for distinguishing ment or pendency of the action, upon the unauthor- between a case where the defendant was within the ized appearance of an attorney, and without any State and a case where he was non-resident at the cause of action. The answer admitted those alle- time of the suit and appearance. The right of a gations, and alleged that the attorney who thus ap- court to render judgment rests upon the acquiring peared was responsible. The bill was dismissed, of jurisdiction, and not upon the mere ability to acupon the authority of Bunton v. Lyford, 37 N. II. quire jurisdiction. 512, and Smyth v. Balch, 40 id. 363. The court said: It may be that this holding is put on the ground “We are not unmindful that the weight of author- that this suit was a collateral proceeding, and not ity in the American courts at the present time seems a direct application to the court which rendered the to be against the doctrine of those cases. The rule judgment. It was held, in Broron v. Nichols, 42 N. is not in harmony with the general law of agency, Y. 26, that such a judgment could not be collaterfor the reason that the legal presumption as to the ally attacked, but Grover, J., dissented, and Foster authority of an attorney differs from that of other and Smith, JJ., said they would join him if it were agents.” “ The opposite party is guilty of no neg- a new question, and in Denton v. Noyes, 6 Johns. ligence in relying upon the appearance of the attor- 296, it was held, Van Ness, J., dissenting, that such ney as authorized, and is entitled to reasonable pro- a judgment would not be set aside even upon direct tection against such damages as he might suffer, if application, if the attorney were responsible. But the appearance, which the law presumes to be by the court let the defendant in to defend.

This case authority, was held void.” “To hold the unau- was questioned in Allen v. Stone, 10 Barb. 547, but thorized appearance void in all cases would not give acquiesced in, in Ellsworth v. Campbell, 31 Barb. reasonable protection to the party against whom the 134. In Meacham v. Dudley, 6 Wend. 514, the court appearance is made.” “If it is held void, the at- say the rule in Denton v. Noyes is hard, and where torney would be liable to the party against whom the attorney is irresponsible, they will let the defendhe appeared. If it is held valid, he would be liable ant in to defend. In Ferguson v. Crawford, 70 N. to the party for whom he assumed to appear. Why Y. 253; 8. C., 26 Am. Rep. 589, it was held that a should one party, rather than the other, be compelled domestic judgment might be collaterally attacked to seek his remedy against the attorney ? It may where the appearance was forged, and Denton v. be suggested whether there is not greater danger of Noyes and Brown v. Nichols were recognized and injustice being done by parties falsely denying the distinguished. authority of attorneys to appear for them, than is The doctrine of the principal case was held in St. to be apprehended from unauthorized appearances Albans v. Bush, 4 Vt. 58; Abbott v. Dutton, 44 id. by attorneys; and if the danger of a false denial 546, and Newcomb v. Peck, 17 id. 302, all cases of of authority is vastly greater than the danger of an collateral attack, the latter a suit on a judgment of unauthorized appearance, whether justice and sound another State. policy do not require, that when the attorney is re- In Shelton v. Tiffin, 6 How. 163, it was held that sponsible, the party for whom he appeared, rather a judgment, obtained by an unauthorized appearthan the other party, should be put to his action ance for a non-resident, could be collaterally atagainst the attorney. The rule as adopted in this tacked, and is a nullity. “An appearance by counState has always been distinctly recognized as an sel under such circumstances,” say the court, “to exception founded on the general ideas of justice the prejudice of a party, subjects the counsel to and policy entertained by the court in this particu- damages; but this would not sufficiently protect the lar class of cases."

rights of the defendant. He is not bound by the It seems a singular idea that a party, not served proceedings, and there is no other principle which with process, ignorant of the pendency of the ac- can afford him adequate protection. The judgment tion, and not indebted to the plaintiff, should be

must be considered a nullity." He “was bound to pay a judgment, obtained upon the unau- not amenable to the jurisdiction of the court, and thorized appearance of an attorney, because the at- did no act to authorize the judgment. He cannot, torney is responsible, and should have no indem- therefore, be affected by it, or by any proceedings nity except by resort to the attorney. There would under it."

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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. Euton, 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 McKeluay 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." 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 fo:

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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

uor make any donation to each other during marriage,

and they both may avail themselves of the plea of the defendant having knowledge of the suit being

competency. The Roman law proceeded upon tho 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 mau and wife; but it did not carry the separahas any defense on the merits. There the plaintiff tion of goods, nor the dotal system, to the utmost line is 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 his remedy by summary

tries - a principle, no doubt, originating in the cus

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 conappearance 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, which 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 rito, blame, and the plaintiff not so; and upon the same the 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 tho 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 the father, unless otherwise established case disapproves the early cases upon which Denton by proof. A child was held to be couceived during the v. Noyes was based. On the other hand, the Com

marriage if it was born not more than ten months mon Pleas, in the earlier case of Stanhope v. Firman,

after the dissolution of such marriage. We have

shown in our lecture ou 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 busunanswerable, as also that of Grover, J., in Brown 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,

void, and may be collaterally separated from that of her husband. At the celebraattacked.

tion of the wedding a contract of marriage was fre2. A domestic judgment rendered upon an unau

quently entered into to regulate the pecuniary rights

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 becoine 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,

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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 adventitia. 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

is the property contributed by a wife, or by anyone I.

else on her behalf to her husband, to enable him to WE 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 etfects of marriage — the from the dos. The husband had no right to interfere 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; and to preserve 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 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 dos, 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 stauce 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 gist. 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 nonentity from of tho 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 paterual 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 furuish 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 æstimata, 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 cume when tho 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 the things themselves, ity. The manus must yield to the dos. The dog 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 urori 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. IIomer speaks of the many was absolute owner of all the wife's property given to gifts by which wives were purchased. Müller observes bim, 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 husband 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

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