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divorce. The legal character of an act of violence by husband upon wife and of the consequences that flow from it, is fixed by the condition of the parties at the time the act is done. If there be no cause of action at the time, there never can be any.

The doctrine advocated by the plaintiff finds no support from any of the principles of the common law. According to the oldest authorities, the being of the wife became, by marriage, merged in the being of the husband. Her disabilities were about complete. By the earliest edicts of courts, he had a right to strike her as a punishment for her misconduct, and her only remedy was, that "she hath retaliation to beat him again if she dare." And Chancellor Kent lays down the doctrine, not contradicted or challenged in any of the editions of his commentaries, that, "as the husband is the guardian of the wife, and bound to protect and main tain her, the law has given him a reasonable superiority and control over her person, and he may even put gentle restraints upon her liberty, if her conduct be such as to require it, unless he renounces that control by articles of separation, or it be taken from him by a qualified divorce." 2 Kent's Com. 180. But there has been for many years a gradual evolution of the law going on, for the amelioration of the married woman's condition, until it is now, undoubtedly, the law of England and of all the American States that the husband has no right to strike his wife, to punish her, under any circumstances or provocation whatever. See, upon this subject, the cases collected in a learned and instructive note to the case of Commonwealth v. Barry, in 2 Green's Cr. L. Reports, 286. Still, the state of the old common law serves to show the basis upon which the marriage relation subsisted; and we do not perceive that there has been, either by legislative enactment or by the growth of the law in adapting itself to the present condition of society, any change in that relation which can afford the plaintiff a remedy. So to speak, marriage acts as a perpetually operating discharge of all wrongs between man and wife, committed by one upon the other. As said by Settle, J., in State v. Oliver, 70 N. C. 60, "it is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive."

We are not convinced that it is desirable to have the law as the plaintiff contends it to be. There is no necessity for it. Practically, the married woman has remedy enough. The criminal courts are open to her. She has the privilege of the writ of habeas corpus, if unlawfully restrained. As a last resort, if need be, she can prosecute at her husband's expense a suit for divorce. If a divorce is decreed to her, she has dower in all his estate, and all her needs and all her causes of complaint, including any cruelties suffered, can be considered by the court, and compensation in the nature of alimony allowed for them. In this way all matters would be settled in one suit as a finality.

It would be a poor policy for the law to grant the remedy asked for in this case. If such a cause of action exists, others do. If the wife can sue the husband, he can sue her. If an assault was actionable, then would slander and libel and other torts be. Instead of settling, a divorce would very much unsettle all matters between married parties. The private matters of the whole period of married existence might be exposed by suits. The statute of limitations could not cut off actions, because during coverture the statute would not run. With divorces as common as they are now-a-days, there would be new harvests of

litigation. If such a precedent was permitted, we do not see why any wife surviving her husband could not maintain a suit against his executors or administrators for defamation, or cruelty, or assaults, or deprivations that she may have wrongfully suffered at the hands of the husband; and this would add a new method by which estates could be plundered. We believe the rule, which forbids all such opportunities for law suits and speculations, to be wise and salutary and to stand on the solid foundations of the law.

The plaintiff invokes the case of Blake v. Blake, 64 Maine, 177, as supporting her right to sue. That was a suit in assumpsit. In matters of contract there may be a cause of action during coverture, not enforceable by the ordinary methods until afterward. The common law has been so far abrogated by the force of various legislative acts as to allow contracts to be made by husband and wife with each other. And, to a certain extent, contracts between man and wife always were upheld in courts of chancery. That case, therefore, differs from this.

Then, if the husband is not liable, the question arises whether the co-defendants are liable in this action. We think it follows from the previous reasoning that they are not. The true test as to their liability is, whether an action could have been maintained against them at the time of the act complained of. It is clear that no action was then maintainable. If the codefendants had been then sued, the action must have been in the name of the husband and wife, and the husband would have sued to recover damages for an injury actually committed by himself. Husband and wife must declare that the injury was ad damnum ipsorum. She cannot, at common law, sue in her own name alone, nor in his without his consent. She cannot appoint an attorney, ordinarily, but he must do it for her. His conduct and admissions cau affect the suit. He can release the cause of action and she cannot. She could do no act to redress an injury to her without his concurrence. Nor has the common law been changed in any of these respects until 1876; which was after this action was commenced. Laws of 1876, ch. 112. The damages recoverable in an action would have belonged to him and not to her. And, at the same time, if she had committed a tort, he would have been civilly liable for it. It is very certain, therefore, that no action could ever have been sustained against them in his name. They merely aided and assisted him. But if there was no injury to him there was none to her. They were one. Without doubt, after the death of the husband, a wife may maintain an action in her own name for a wrong committed upon her while her husband was alive, if no action was instituted nor the cause of action released during his life-time; and undoubtedly the same right follows after a divorce a vinculo matrimonii. But she can only recover for such a wrong as she and her husband could have recovered for in their joint names while the marriage relation subsisted. She succeeds after death or divorce to just such rights as existed before that time. The language of the law is that the right survives to her. But there must be some right in existence to survive. Here there was none. thing cannot continue after an event which does not exist before. It would not be the survival of a claim, but would be one newly created. Norcross v. Stuart, 50 Maine, 87; Marshall v. Oakes, 51 id. 308; Ballard v. Russell, 33 id. 196; Laughlin v. Eaton, 54 id. 156; West v. Jordan, 62 id. 484; Hasbrouck v. Weaver, 10 Johus.

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247; Snyder v. Sponable, 1 Hill (N. Y.), 567: Bacon's Abr., Baron and Feme, K.; Shaddock v. Clifton, 22 Wis. 114.

Plaintiff nonsuit.

Appleton, C. J., Walton, Dickerson and Virgin, JJ., concurred.

Barrows, J., concurred in the result.

LIABILITY OF SHIP-OWNERS-WHEN PERSONAL SERVICE NOT ESSENTIAL TO JURISDICTION.

UNITED STATES CIRCUIT COURT, FOR THE SOUTHERN DISTRICT OF NEW YORK, 1876.

LEVINSON V. THE OCEANIC STEAM NAVIGATION Co. The U. S. Statute of 1851 (9 Stat. at Large, 635), limiting the liability of ship-owners to their interest in the vessel, and her freight, is applicable to foreign vessels. It is a regulation of commerce, and not a municipal regulation. Congress has power to authorize the Supreme Court to fix by rule the manner of serving process. A rule providing for service of process upon an attorney is valid, and jurisdiction of his client can be thus acquired.

THE

HE facts are fully stated in the opinion of the court.

E. F. Shepard and E. Coffin, Jr., for plaintiff. Everett P. Wheeler and Charles E. Souther, for defendant.

SHIPMAN, J. The case now before the court stands in this position: The plaintiff, a resident of the State of New York, and of the Southern District of New York, brought his action in this court against a common carrier by sea (having its domicile in a foreign country), to recover damages for personal injuries to him while a passenger and for the loss of his baggage. The plaintiff has made out his prima facie case. The defendauts pleaded in bar a decree of the District Court of the Southern District of New York, and have offered in evidence the libel, the appraisement by the commissioners, the monition after the appraisement, the payment into court of the amount of the appraisement, and the final decree. The defendants then rested their case.

The plaintiff thereupon moved for a direction to the jury to find for the plaintiff, on the ground that the defense is insufficient in law. The question is, whether the decree of the District Court is a bar to the action of the plaintiff. That decree was based upon the statute passed by Congress in 1851, the first and third sections of which are as follows:

§ 1. No owner or owners of any ship or vessel shall be subject or liable to answer for or make good to any one or more person or persons any loss or damage which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in or put on board any such ship or vessel, by reason or by means of any fire happening to or on board the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners; provided that nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of ship-owners.

3. The liability of the owner or owners of any ship or vessel for any embezzlement, loss or destruction by the master, officers, mariners, passengers or any other person or persons, of any property, goods or merchandise shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any

act, matter or thing, loss, damage or forfeiture, done, occasioned or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively in such ship or vessel and her freight then pending. 92 U. S. Stat. 635.

The motion of plaintiffs for a direction to the jury notwithstanding the decree of the District Court is founded substantially upon two points.

First. That the District Court never had jurisdiction of the subject-matter of the libel; and

Second. It had no jurisdiction of the person who is now plaintiff in this suit, and who was named as one of the defendants in that libel.

All the objections resolve themselves into these two questions, whether the District Court had jurisdiction of the subject-matter or jurisdiction of the person. This statute of 1851 has been discussed at length by the counsel. It seems to me to have been a limitation of the common-law liability of common carriers by sea. It is well understood that at common law there was no limitation upon the liabilities of such common carriers, but that the amount which they were liable to pay was limited only by the judgments which might be rendered against them. Congress, in 1851, saw fit by statute to limit that liability, and the statute seems to have been a modification or alteration of the common law in regard to the extent of liability of ship-owners for the negligence of their officers and crew. Congress also saw fit to adopt the same limitation which had previously existed in the several maritime countries of Europe.

The statute which was passed was the adoption by legislative authority of a new principle of law so far as this country is concerned, but one which has been the rule in the Admiralty Courts of foreign countries.

The question, then, is whether this limitation of the liability of common carriers by sea applies only to American vessels, and was merely a municipal regulation, or whether it was the adoption of a general principle.

Now, neither from the language of the statute of 1851, nor upon principle, can I see that this limitation of liability was local, or that the legislation was municipal.

There was nothing local or municipal in its character. The statute was not in terms confined to American vessels. It had a wider scope and was a modification by legislative enactment of the common-law, in regard to a subject over which Congress had jurisdiction.

If a modification of the common-law liabilities of carriers by land was provided by the statute of the State, which had jurisdiction over such corporations, it would have been binding upon all courts of the State; it would have been the lex fori, the modification would have been a general one, and when an action was brought before a court of the State, the court would have been prohibited from exceeding the liabilities which the legislature of the State had limited. So, this statute being a modification of the common law of a general and universal character, it is binding upon all courts in this country, and they are limited or restrained from proceeding to give judgment beyond the limit of liability, which the legislature had prescribed in 1851. In other words, the adoption of a principle of admiralty law cannot be considered as merely local or municipal legislation.

Second. Whether the District Court had jurisdiction of the person, is next to be considered. At common

law personal service, or its equivalent, is in all cases to be made upon the defendant, so that he may have an opportunity to appear and make defense. The common law prescribes that "*** personal service is in all cases necessary to enable the court to acquire jurisdiction, unless some other mode of service is authorized by the laws of the State."

This action in admiralty was both a proceeding in rem, and a proceeding in personam. In so far as it is a proceeding in personam, the principles of common law in regard to actions in personam are applicable; that is, that personal service of process or that service which is authorized by statute as an equivalent, is to be made upon the party who is to be affected by the judgment that may be rendered in the suit.

In this admiralty proceeding the Supreme Court has announced the rules which are applicable to the service, and the rule of the Supreme Court corresponds to and has the same effect as the rules prescribed by the statutes as to common law service.

The Statute of 1851 (section 4) provides that the owner "may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto." It announced no rule by which service shall be made.

The Supreme Court has jurisdiction of the rules which govern the proceeding.

*

The general rule of the Supreme Court, adopted in 1871 (13 Wallace, p. xiii) provides that * : "Public notice of such monition shall be given as in other cases, and such further notice served through the post-office or otherwise, as the court in its discretion may direct."

They point out one method of service: through the post-office. That is not, strictly speaking, personal service; it is merely constructive. One mode of constructive service then is designated, and they declare that the District Court, in its discretion, may direct how such other and further notice may be given as it chooses.

The rule does not say "such further notice shall be served through the post-office, and otherwise;" but it is optional with the District Court whether notice shall be served on the known claimants through the post-office or otherwise in the exercise of its judgment. The Supreme Court provides an equivalent for personal service, and has in effect declared that constructive service shall be sufficient.

In other words, they direct that the District Court may elect, in its discretion, whether one or another mode of constructive service may be adopted, and have not limited them to personal service.

The District Court, in its discretion, selected one mode of constructive notice, and that was by service upon the attorneys for the claimants, and it was not necessary that service upon them should be made otherwise than by delivering a copy of the monition to their attorneys.

It is not material, in my judgment, whether the attorneys admitted or did not admit service, for the important question is whether the service which the court directed to be made on the defendant was sufficient service or not.

If the rule had provided that "such other notice shall be served through the post-office, or actually served upon the defendants," and the monition has not been served, either by mail or personally, the District Court would have had no jurisdiction.

But the rule having left the method of service to the discretion of the court, which had the jurisdiction of the libel, and the court, having exercised its discretion, and determined what in its judgment should be a valid constructive service to bring the defendant into court, and service having been made accordingly, no valid objection can be taken to the jurisdiction of the court over the action in personam.

The motion to direct a verdict for the plaintiff is denied.

The court, at the conclusion of the evidence, directed a verdict for the defendant.

Judgment was entered on the verdict. No writ of error has been brought to review this judgment.

NOTE.

By the common consent of nations going back to a period before the Christian era, maritime usages and customs have been recognized as constituting a law merchant differing in many respects from the local laws of each particular country, and applicable to all maritime causes. Chancellor Kent says in his Commentaries, vol. 3, p. 1: "The marine law of the United States is the same as the marine law of Europe. It is not the law of a particular country, but the general law of nations." Blackstone, vol. 1, p. 273.

"No municipal laws can be sufficient to order and adjust the new, extensive, and complicated affairs of traffic and merchandise. In this case they have a proper authority for this purpose. For, as there are transactions carried on between subjects of independent states, the municipal laws of one will not be regarded by the other. For which reason the affairs of commerce are regulated by a law of their own, called the law merchant, or lex mercatoria, which all nations agree in, and take notice of."

So in vol. 4, p. 67: "In all marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature, the law merchant, which is a branch of the law of nations, is regulated and constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hostages and ransom bilis, there is no other rule of decision, but this great universal law, collected from history and usage, and such writers of all nations and languages, as are generally approved and allowed of."

So Malyne," Lex Mercatoria," pp. 87, 88: "All controversies of seafaring actions and maritime causes ought to be decided according to the sea laws, which took their beginning from custom and observations, and from them is the interpretation of the said law to be taken."

Among the authorities in reference to the law merchant, there are none entitled to more weight than the Consolato del Mare, and the ordinance of Louis XIV. Chancellor Kent says, quoting from Casaregis, vol. 3, p. 11, n.: "The Consolato had in maritime matters by universal custom, the force of law among all provinces and nations."

Boucher, in the preface to his Consulat de la mer, p. III: "The Consolato had the same authority among maritime nations that the pandects had among all nations in general."

In reference to the ordinance of Louis XIV, Chancellor Kent says, vol. 3, pp. 16, 17: "The whole law of navigation, shipping, insurance and bottomry was systematically collected and arranged. *** Every commercial nation has rendered homage to the wisdom and integrity of the French ordinance of the marine, and they have regarded it as a digest of the maritime laws of civilized Europe."

As long ago as 1759, Lord Mansfield, in Luke v. Lyde, 2 Burrows, 882, cites it as an authority and says: "It was collected and compiled under the authority of M. Colbert."

Emerigon says in his preface to his Treatise on Insurance, p. II: "The ancient maritime laws are the sources which were open to the compilers of the ordinance (les redacteurs de l'ordonnance), and from which those must draw who would go to the fountain head." He then gives a sketch of the different compilations before the ordi nance, and adds p. XV.

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Azuni on Maritime Law, vol. 1, p. 393 (Am. Ed. of 1806), Bays: "The ordinance has become in some sort the common law of all the neighboring nations." See, also, Bedarride, du Commerce Maritime, tome 1, §§ 10, 18, pp. 14, 21.

It is to be especially noticed that the authorities just cited uniformly speak of the ordinance, not merely as a statute or a decree of Louis XIV, which on its face it purports to be, but as a code or digest of the existing maritime law.

What then are the provisions of the ordinance on this subject?

Book 4, title 4, article 4, provides that the liability of the ship-owner for the negligence of the master is discharged by the abandonment of the ship and freight. Valin Comm. sur. l'Ord., vol. 1, p. 490; Bedarride, du Commerce Maritime, vol. 1, §§ 273, 276, 279, 287. In section 279, he says: In no case can the ship-owner be made liable by any consequence of the voyage beyond his interest in the ship itself. In section 287, he says: The right to abandon the ship and freight exists where the negligence or willful tort or quasi tort (quasi delit) is imputable to the crew or to the captain himself.

The Consolato contains a provision to the same effect, as to the liability of the owner, although it did not undertake to provide a remedy by which this limitation of liability could be enforced. Chap. 33.

The courts of Holland recognize the same right on the part of the owner (Grotius on Peace and War, book 2, chap. 11, § 13), and the same law is recognized throughout the continent of Europe.

There does, at first blush, seem to be serious difficulty in maintaining that the statutes of a country should operate upon foreigners and regulate their liability for a loss occurring on the high seas. But when this statute is considered as the promulgation and adoption of a rule existing among most other commercial nations, the difficulty vanishes.

The confusion which seems to arise as to the effect and scope of the United States statute is owing to several

causes.

The sea laws were originally promulgated by some maritime power and under its authority. This is notably true of the ordinance of Louis XIV, yet, as has been shown, they have always been treated, not as local or municipal statutes, but as a public and official recognition of the general maritime law; not as adopting new rules, but as giving definiteness and precision to a rule already existing.

The remedy in question in this particular case is one which could not be obtained through the machinery of a court of common law. In other words, it does not constitute an absolute defense.

Before it could be made available, some steps must be taken by the owner in an appropriate tribunal, by which his interest in the vessel and freight should be abandoned, and all persons having claims by reason of the disaster, be summoned before the court, and bound by the decree.

Until this is done the liability remains absolute, and could not be contested in any court. This was held in the case of the Norwich Co. v. Wright, 13 Wallace, 104. The Dis trict Court for the Eastern District of New York had previously held (1 Benedict, 89) that the admiralty jurisdiction was not sufficiently broad to include a proceeding of this character, which it treated as one in personam.

This was decided on the authority of the English decisions, which do show that in the absence of a special statute, the English admiralty could not furnish the relief now sought, and that until the English statute on the subject was passed, there was no court in England capable of affording this relief. But when the United States Supreme Court held that the proceeding was in rem for the ascertainment of the claims to a fund within the jurisdiction of the court, and its distribution among the persons entitled thereto, the difficulty vanished. It is to be observed that jurisdiction over this description of causes was at first conferred in England upon a court of chancery. Merchant Shipping Act of 1854, 17 and 18 Vict., chap. 104, 8 514.

The language of that section is significant; it provides: "It shall be lawful in England or Ireland for the High Court of Chancery * ** to entertain proceedings at the suit of any owner for the purpose of determining the amount of such liability."

Section 13, chap. 10, 24 and 25 Victoria, confers a similar power upon the admiralty: "When any ship or vessel or the proceeds thereof are under arrest of that court." The language of the Merchant Shipping Amendment Act of 1862, 25 and 26 Vict., chapter 63, section 54, is also significant : "The owners of any ship, whether British or foreign, shall not, in cases where all or any of the following events occur, without their actual fault or privity (here follows an enumeration of the cases) be answerable in damages for loss of life or personal injury, either alone or together with loss or damage to ships, boats, goods, merchandise or other things to an aggregate amount exceeding £15 for each ton of their ship's tonnage."

This language, it is believed, shows by necessary implication: First, that in the absence of the statute no English court had the power to give the relief sought, and second that the question before the English legislature was not whether a liability existing by the law merchant should be extended, but whether the unlimited liability existing at common law should be limited. Nothing better illustrates the divergence between the jurisprudence of the two countries than a comparison between the decisions upon the English statute and those under that of this country. The English cases hold that the value of the vessel for which her owners are liable is her value before the accident. Gale v. Laurie, 15 Mees. & Wels. 390; Norwich Co. v. Wright, 13 Wallace, 104, holds just the reverse.

The early English cases corroborate the view of the Eng lish statute previously stated.

In the Carl Johan reported in note to 3 Haggard Adm. 186, it was held by Lord Stowell, that a court of admiralty enforced the general maritime law; that the English statute was a purely municipal regulation, and it is assumed that by the general law merchant no such right to limit the owner's liability existed. See also the Dundee, 3 Haggard Adm. 113. These decisions are based upon an assumption which has been shown to be erroneous, and which undoubtedly grew out of that want of acquaintance with continental law, which has so often been noticed in English jurists of the last century, and which Lord Mansfield (who it will be remembered was educated in Scotland) was the first to dispel. The more recent English cases simply follow these decisions of Lord Stowell. The jurisprudence of the two countries in relation to the subject in hand is esentially different. EVERETT P. WHEELER.

PROOF OF MARRIAGE STATUTES OF LIMITATION AS TO DOWER.

SUPREME COURT OF MICHIGAN, JANUARY, 1878. SAMUEL PROCTOR V. NANCY BIGELOW. WILLIAM H. SCOTT V. NANCY BIGELOW. Where property rights only are involved, general reputation is sufficient proof of marriage. In Michigan the statute of limitations runs against a claim for dower. CTION for dower. The opinion states the case.

Prentis & Fox, for plaintiffs in error.

Pendleton & Radford, for defendant in error. CAMPBELL, C. J. Nancy Bigelow sued for dower in lands aliened by her husband in 1838. He died in 1851. These suits were brought in 1876.

The two principal questions presented are, 1. Whether her marriage was proven by legal evidence; and, 2. Whether dower is governed by the statutes of limitation.

The marriage was proved by her son's testimony, showing that she and his father lived together and brought up a large family, treated each other on all

occasions as husband and wife, were so reputed in the family and by others, addressed each other as such, and jointly signed papers in that relation.

We know of no authority which requires any better proof of marriage, unless in criminal prosecution and cases of seduction. There is no rule of law making marriage records the best evidence in any case, and even where they exist, some parol evidence is usually necessary to identify the parties, in case of any controversy. In most cases where the right of property is to be made out by proof of a marriage, the witnesses who were present are not living or attainable. One or both of the married persons must die before any inheritance or dower can exist. It would be impossible in a majority of such cases to prove a marriage by any better testimony than conduct and reputation. The general presumption in favor of legality has led to more liberal rules instead of stricter ones in modern times, as more just and reasonable. 1 Starkie's Ev. 45; Hutchins v. Kimmell, 31 Mich. 126; 2 Greenl. Ev., § 462; 3 Edwards' Edition of Phillips' Ev. 599 and cases.

The question whether the statute of limitations applies to rights of dower is supposed to be decided in the negative by the case of May v. Rumney, 1 Mich. 1.

In that case the facts showed that James May, the husband of the defendant, died in January, 1829, having aliened the land in dispute in 1807. On the 5th of November, 1829, a law was passed providing a short period of limitations of ten years for all real and possessory actions where the right of action had then accrued; and it was held Mrs. May's right did not come within the statute.

At the time of Judge May's death there had been no new remedy for the recovery of dower adopted, and it was left to the common-law remedies. The opinion in May v. Rumney discusses these fully, and points out that the remedy by writ of dower was not a possessory action, but only determined the right, which, when determined, could afterward be enforced by ejectment. Of course under these circumstances, it would, if the views of the court were correct, preclude the operation of the short law of 1829, and no other statute was in question under the issue. The first statute passed, providing a speedier remedy for dower, was "An act for the speedy assignment of dower, and for the preventing of strip and waste by tenants therein," approved October 29, 1829. This act was passed six days before the short statute of limitations. It provided for proceedings by writ of dower, but also gave a writ of seizin, which rendered a supplemental ejectment unnecessary. But this statute required a demand of one month before any action could be brought, and thus rendered it impossible for Mrs. May to sue before the 5th of November.

The Revised Statutes of 1838 seem to have made provision for two remedies. One was the writ of dower, which might be brought after one month and within one year from demand; under which she could recover possession and damages for detention. R. S. of 1838, part 3, title 3, chapter 3. The other was the new statutory action of ejectment, in substance like our present statutes and superseding the ancient action of ejectment previously used. R. S., part 3, title 3, chapter 2. This new action of ejectment differed from the old one in making the judgment conclusive after a certain period, but allowing two new trials. No provision was made for any new trial in the action of writ of dower, which seems to have been an action of

right with some of the remedies belonging to possessory actions.

This anomalous state of things was ended by the revision of 1846, still in force, which abolished all other actions but ejectment, and imposes no conditions on its commencement to recover dower.

There is no reason that we can discover, why a stale claim of dower in lands aliened by the husband deserves any more consideration than any other claim. Every principle of justice and policy is against favoring ancient and dormant claims. These dower claims are often, if not generally, unknown until presented, and it is very difficult in many cases to find out whether they exist or not. The courts under the common law system of procedure appear to have felt themselves bound, for reasons which we do not altogether appreciate, to give to statutes of repose a technical construction whereby they excluded writs of dower because not mentioned, and not in all respects identical with any other form of action. But under our statutes, inasmuch as we have but one form of action, which is statutory ejectment, to reach dower in the same way with other landed interests, we should be obliged, in order to except rights of dower from the operation of the limitation acts, to disregard their language altogether. The words of the statute in force in 1851 are that "no person shall commence an action for the recovery of any lands, nor make any entry thereupon, unless within twenty years after the right to make such entry or bring such action first accrued." R. S., ch. 139, § 1. These terms are free from ambiguity. If Mrs. Bigelow could have brought an action of ejectment in 1851 (and it is not pretended she could not have done so) she comes within the plain terms of the statute. We are not called upon to discuss the propriety of the old decisions, which certainly strained the law very much to favor dower. The forms of remedy under which that over-nice casuistry was adopted have been changed into a single and universal remedy, which will not permit any different treatment of suitors. All must be governed by the same regulations.

We think, therefore, that the plaintiff in error in each of these cases is entitled to have judgment reversed, and a new judgment rendered in hls favor with costs of both courts.

LIABILITY OF SAFE DEPOSIT COMPANIES
FOR LOSS OF DEPOSITS.
SUPREME COURT OF PENNSYLVANIA, JANU-
ARY 7, 1878..

SAFE DEPOSIT COMPANY, Plaintiff in Error, v.
POLLOCK.

In an action to recover the amount of certain bonds which were lost from a safe hired by plaintiff below from defendant below, a safe deposit company, and which was situated in defendant's fire-proof vault, it appeared that the hiring was subject to these rules: Wherever a party rents a safe, and deposits therein at pleasure contents not made known to the company, its liability is limited (1) to the keeping of constant and adequate guard and watch over the safe; (2) to the prevention of access by any renter to the safe of any other renter; (3) to the protection of safes and contents from any dishonesty on the part of any of the company's employees." Plaintiff had exclusive possession of the key to the safe. He placed in the safe certain government bonds and locked it. At a subsequent time he opened the safe and discovered that the bonds were missing. There was no evidence that the safe had been broken or the lock tampered with, but the safe must have been opened with a key fitted thereto. Held, that there was evidence of negligence on the part of the company sufficient to go to the jury, and a verdict for plaintiff was sustained.

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