this subject is discussed). So, with regard to the acts of a deputy. Deeds purporting to be executed by a sheriff in discharge of his official duty shall primâ facie be admissible in evidence on proof that they were executed in his name by a person acting as undersheriff. (Sects. 38-41).

Documents are not to be vitiated by alterations, if

made by accident or mistake, or if wrongfully made, without the privity or consent of the party relying upon the instruments, by some person over whom he could not exercise any control." (Sect. 35). What is the meaning of this vague expression, "over whom he could not exercise any control?" We presume the intention is, that the party relying upon the deed should have had no opportunity of preventing the alteration; but the language used is very ambiguous.

Another attack is made on the Statute of Frauds, or rather the doctrine which has arisen out of its construction. It is to be no longer essential that the consideration for a guarantie should appear upon the face of the writing, neither need it appear in the case of a promise by an executor or an administrator to answer damages out of his own estate. (Sect. 37).

The provisions relating to evidence and procedure

will be considered in our next number.

Review.

The Law and Practice in Bankruptcy, as founded on the recent Statutes. By J. F. ARCHBOLD, Esq., Barristerat-Law. The Eleventh Edition, including the Statutes and Cases to the 19 Vict., the General Orders of the Court, New Forms, and Tables of Costs. By JOHN FLATHER, Esq., M. A., of Lincoln's Inn, Barristerat-Law. [Sweet, and Stevens & Norton, 1856.]

face:

THE PROPERTY OF MARRIED WOMEN.

REPORT OF A COMMITTEE OF THE LAW AMENDMENT
SOCIETY.

Marriage Law and Rules as to Property derived from
Rome and Germany.

pro

In order to understand fully the anomalous character perty of married women, it is necessary to take a retroof the common law of England as it bears on the spective view of the history and growth of those rules on the subject which distinguish our law from that of other civilised nations.

The rules which regulate the enjoyment of property by married women in Europe are clearly traceable to two distinct sources-Rome and Germany. Those nations, though under very different conditions of civilisation, were probably the first in the ancient world to place the institution of marriage on its proper basis, namely, the perpetual consort of one man with one woman for life, both parties having common interests and equal rights dealt out to them by law. The Greeks, their wives in harems, and, bringing them up in ignoretaining or imitating the customs of the East, secluded rance, sought the charms and solace of cultivated female companionship in the Aspasias and Phrynes of the day. The Jews, during the historical period, maintained the practice of polygamy till late in the Christian era, when it was abolished by the Emperors Theodosius and Arcadius, who prescribed the Roman system of monogamy; though we learn from Selden's "Uxor Ebraica," that it still prevailed among them during the sixteenth century in Italy and Hungary, as it does even now in India.

The absence of polygamy, and the independent condition or status of a wife, being first duly established among the Romans and Germans, it naturally followed that their rights as to property were fully recognised by law; but the rules adopted by them on this subject were very different.

Roman System.

A NEW edition of this very useful work has been required ever since the passing of the Bankrupt-law Consolidation Act, 1849. The former edition was in In the earliest period of the republic the rights and 1844, and brought the cases and statutes up to the conditions of married women were entirely subordi7 Vict.; the present one includes them to the 19 Vict.nated to the absolute power of the head of the family, The principal alterations are thus stated in the Pre- or pater familias. The wife passed into the husband's possession under the marriage contract, which pursued the forms of a sale. He had absolute powers over her death. She had no dowry; she could not possess proas over a slave, even, as is alleged by some, to life and perty, and whatever came to her hands immediately became the property of the husband. The injustice of these regulations was, however, soon felt by the great legislators of the commonwealth; and the following

"The changes effected by the Bankrupt-law Consolidation Act, 1849, have been principally in the machinery by which bankrupts' estates are administered; the law, with some exceptions, has been re-enacted. These changes have necessarily occasioned corresponding alterations in portions of the following work, but care has been taken to preserve, so far as was practicable, its plan and general features.

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A chapter has been added respecting arrangements between insolvent traders and their creditors, not only because the subject is comprised in the 12 & 13 Vict. c. 106, but also on account of its affinity to and connexion with the law of bankruptcy; thus shewing at once the different modes the statute affords for the

relief of insolvent traders."

The book is too well known for the necessity of any further comment on our part; but we ought not to conclude our brief notice of it without adding, that Mr. Flather has exercised the same laudable industry in

this as he has in his former editions of the same work.

The Right Hon. Sir John Jervis, Knt., Lord Chief Justice of her Majesty's Court of Common Pleas at Westminster, has appointed Edward Allen, Gent., of Manchester, in the county of Lancaster, to be one of the Perpetual Commissioners for taking the acknowledgments of deeds to be executed by married women, in and for the county of Lancaster.

extract from Fraser on "Personal and Domestic Relations" describes the condition of the Roman wife at the best period of their laws:

"The Roman wife was not held to be sunk in the

husband, but after the marriage she remained as capable of independent action as before it. Each could the other could have no participation in. The wife's possess and enjoy property, and whatever one acquired husband's were effectual only against his own person debts could be recovered only from herself, and the and property. But the presumption in any case was in favour of the husband; and unless the wife established by legal evidence that the property was hers, the husband, his heirs, or his creditors could demand it."

The mode in which the independence of a Roman wife, as to property, was maintained, was as follows: Previous to marriage a portion of the wife's property, called "dos" or "dower," was set apart for the expenses of the wedded state. The administration of this settled property was committed to the husband, and, if it were of a perishable nature, (res fungibiles),

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he became absolute owner of it; but if of land, he had no power of alienation, not even with the wife's consent, except under very special circumstances. All her other property, moveable or immoveable, whether acquired before marriage or after, was entirely under her own authority and control, and was called "paraphernalia,” (bona parapherna). Even with respect to the personal property of the wife, though it was always alienable, the husband was obliged to restore it to the wife in case of a dissolution of the marriage. In order to secure this restitution, he had to make a gift (donatio) to his wife antecedent to the marriage; and if by the provision of the marriage settlement the husband had any benefit by survivorship out of the dos, the wife had a proportionate benefit out of the donatio.

German System.

Under the German system a community of goods was created on marriage between husband and wife, by which the survivor succeeded either to the whole for life, or to one clear half absolutely, the custom varying among different tribes. Blackstone cites two remarkable passages from Tacitus and Cæsar on this subject, which clearly shew the antiquity of the custom, as we still find it prevailing among the Teutonic races of Europe, in Scotland, Germany, Scandinavia, and even in France.

Anglo-Saxon and Old English System. There can be no doubt that the old English law cognised the same principles in early times.

personal estate absolutely, and her real estate during coverture, are her husband's." She has, indeed, a species of property in the jewels and trinkets which her husband or friends may give to her, and which, by a limited use of the original meaning of the word, are called paraphernalia; but even these the husband may sell or dispose of, and they are liable to seizure by creditors for his debts. The wife's being during marriage is absolutely absorbed into that of her husband, and the legal fiction has been created, that husband and wife formed but one person in law. It follows from this fiction, that a married woman can make no contract-that she can neither sue nor be sued; and although she may be legally separated from her husband, and have, in fact, an ample separate maintenance, she is not liable, on her contracts, even for the necessaries of life. Nor, by the law of England, is the husband liable in such case; and thus, by this whimsical ruling of the law, the butcher, baker, and other tradesmen, who may have given credit to a married woman with a separate maintenance of 1000l. a year, have no one against whom they can resort in law to recover their just demands.

The unreasonableness of the common law of England on this head, and its unfitness for the relations of modern civilised life, are so self-evident, that the Legislature would have been called upon long ago to enact more liberal and larger provisions, had not Courts of re-equity stepped in to correct the antiquated rules and harshness of Courts of law. Equity has long ago rejected the legal fiction of a married woman having no personality-has recognised that a married woman may possess separate property without disturbing the harmony of the married state; that, having property, she may dispose of it at her own pleasure; that she may make contracts respecting it; and, as a necessary consequence, that she may be sued on her own contracts. Indeed, it may safely be predicted, that if a succession of judges like Lord Mansfield had sat on the common-law bench, the discrepance between law and equity, which is now so startling, would have disappeared, and that the necessity for an appeal to the Legislature a century after that great magistrate graced the judgment-seat would probably not have arisen.

Selden (Uxor Ebraica, b. 2, c. 18) records a law of King Edmund, (A.D. 940), by which the wife took half the property if the husband died childless, and the whole if he left children, so long as she continued a widow. So also by the common law, which, according to Sir Henry Finch, prevailed as late as the reign of Charles I, a man's goods on his death were divided into three parts, one of which went to his heirs, another to his wife, and a third was at his own disposal; if there were no children, a clear moiety went to his wife. A clear reflex of this German principle in our law may also be seen in the marriage service of the Church of England, as we may be sure that the solemn statement at the altar by the husband to his wife, "With all my worldly goods I thee endow," was not originally an unmeaning formula. As Blackstone, however, states, "This law is at present altered by imperceptible degrees, and the deceased may now by will bequeath the whole of his goods and chattels, though we cannot trace out when first this alteration began." It would be interesting if we could discover in our law reports any trace of those imperceptible degrees by which learned judges ruled in favour of the husband's power to disinherit his wife, for it was not the Legislature who made any alteration in the law. We may, however, fairly conclude that wives were not heard or consulted on the subject, and that the legal maxim prevailed, "De non apparentibus et non existentibus eadem est ratio."

Present State of English Law on the Subject. The common law of England as to the property of married women may be stated in a few words:

In the language of Lord Coke," Marriage is an absolute gift to the husband of the goods, personal chattels, and effects and estate of which the wife was actually and beneficially possessed at the time of marriage in her own right, and of such other goods and chattels as come to her during the marriage." If the husband survive his wife, he will, as her administrator, be entitled to all her personal estate which continued in action or unrecovered at her death. He is also entitled to all her landed property during the marriage, and, if there is a child born, to the enjoyment of such property after her death. In the words of Lord Mansfield, "By the common law a wife has no property of her own; her

In order to place the direct conflict between law and equity in its rulings as to the property of married women in a clear light, we subjoin in separate columns a few of the antinomi on the subject:

her own;

Conflict between Law and Equity.

LAW.

1. "By the common law the wife has no property of absolutely, and her real estate her personal estate during coverture, are her husband's." Per Lord Mansfield.

2. "By the common law the wife has no separate power of contracting. She can neither sue nor be sued."-Per Lord Mansfield.

3. "Marriage is an absolute gift to the husband of the

EQUITY.

1. "Every kind of property, including estates in feesimple and chattels personal, may be subject to a trust for the wife's separate use, which will be supported in equity."

"She may dispose of such property as if she were a feme sole."

"She may dispose of her savings as of the principal." 2. Equity allows a married woman to sue wherever she

has a clear right. She may even sue her husband, when "there is no other way of asserting her right against him." Per Lord Loughborough.

Being considered a feme sole in respect of her property, she may be sued on her own contract with respect to such property.

3. "If land or personalty is left to a married woman,