sustain that portion of the contract we would have to decide that a dead animal is per se a nuisance; that the ownership terminates at death. There is no question here of the exercise of eminent domain for the public good requiring compensation. The only question is the right to exercise the police power vel non. If the property is not a nuisance, the owner should not be prevented from obtaining its value, and should not be denied the right to make any disposition of it (however innocent and useful). It is not possible, under police regulation, to take property from one man and give it to another. The city might, as a sanitary measure, after having given the owner the opportunity to dispose of his dead animals, authorize a contractor to cart them away and appropriate them to his own use. In the case of Rendering Co. v. Behr, 77 Mo. 98, the court said: 'We do not deny that the general assembly may confer upon municipal authorities the power to abate nuisances, and to declare what shall be deemed nuisances, but the latter power cannot be so absolute as to be beyond the cognizance of the courts to determine whether it has been reasonably exercised in a given case or not. Yates v. Milwaukee, 10 Wall. 497. The ordinance in question cannot be maintained as a police regulation. It can never be necessary to take from one man his property and give it to another until the property is in such condition that it is, or is so used that it is likely to become, a nuisance; and even in the latter case, until it has become a nuisance, an opportunity should be given the owner to change the use, or make such disposition of his property as will prevent the apprehended danger; or the city might, as a sanitary measure, by ordinance authorize the seizure and sale of dead animals by its proper officers, in order to prevent an improper sale or disposition of them by the owner, provided it secured to such owner the proceeds of such sale. This might be tolerated, but it would be on the very verge of debatable ground. A dead hog or steer or sheep is not per se a nuisuance. It was so ruled by the New York Court of Appeals in Underwood v. Green, 42 N. Y. 140. It was observed that a dead hog is not per se a nuisance, even though it died of suffocation, and is not necessarily dangerous to public health. The owner may still put it to a useful and innocent purpose.' While a dead animal is not per se a nuisance, it may become so, and the city, under her charter, may pass such ordinances as are necessary to prevent it from becoming a nuisance, but she must in such legislation pay a proper regard to the rights of the owner of such property. The death of a domestic animal does not terminate the owner's property, and, while he may be required to make such use or disposition of the carcass as will prevent a nuisance, stench or other inconvenience to the neighborhood, the municipal authorities cannot arbitrarily deprive him of his property by giving it to another. If not per se a nuisance, it is property, in the broadest sense of the term. "It requires no argument to show that neither a municipal nor any other government can take one man's property and give it to another. An ordinance declaring that the carcasses of all dead animals found in the city, which were not slain for food or to be used in the useful arts, become the property of the public contractor, would be unconstitutional. If the municipality cannot directly take the property of one person and give it to another, should it be permitted to do so indirectly? We think not. The fees which the employers of the appellant are required to pay the contractor before they are permitted to direct where the carcass shall be taken are so high that they cannot afford to pay them. The value of the carcasses will not justify them in paying the fees. It results that the contractor gets the carcasses as compensation for hauling them away, as the fee fixed in the ordinance is greater than the value of the carcass, and the owner cannot realize anything from the rendered product, as the cost of rendering is added to the amount of the fee fixed for the removal. The effect of an ordinance which does not allow the owner of a dead carcass to remove it, but requires him to pay a fee for its removal, which is greater than its value, is precisely the same in effect as an ordinance which takes the carcass from one person and gives it to another. In so far as the ordinance has that effect it is unconstitutional." INNKEEPER-NEGLIGENCE-LIABILITY TO UNLICENSED PEDDLER.—It is held by the Supreme Judicial Court of Maine in Cohen v. Manuel that the want of a license to peddle does not bar a peddler from recovering against an innkeeper for the value of goods lost while in the keeping of the innkeeper, though the goods were intended for sale without license, and that when an innkeeper directed his guest to take his horse and cart to a livery stable which belonged to the innkeeper, but was not connected with the inn, and the guest did so, and put the horse and cart into the care of the innkeeper's hostler, held, that this constituted a delivery to the innkeeper for safe custody, and that the property was infra hospitium. The court said in part: "We think that the plaintiff is not debarred from maintaining this action, though he may have had no license as a peddler. The defendant relies upon the principles stated in Lord 'v. Chadbourne, 42 Me. 429; Mohney v. Cook, 26 Pa. St. 342, and other cases. It is true, in the language of Lord v. Chadbourne, supra, that 'the common law will afford no aid to a party whose claims can be successfully enforced only by a violation of its principles, or in direct contravention of a statutory enactment.' It is true, in the language of Mohney v. Cook, supra, that there are cases wherein an injured party will be remediless, because of his own fault, even when the fault does not contribute to the accident. A vessel engaged in the slave trade, piracy, or smuggling, and injured by another, or the keeper of a gambling house injured in his business by a neighboring nuisance, could have no remedy. Not, however, because the persons are out of the protection of the law for these offenses, nor because their illegal business brought them to the place of danger, but because their business itself, with all its instruments, is outlawed. Prohibited contracts, prohibited trades, prohibited things, receive no protection.' Among such prohibited contracts is the sale of intoxicating liquor intended for illegal sale in this State; Wasserboehr v. Boulier, 84 Me. 165, 24 Atl. Rep. 808; the sale of hay pressed and baled, and not branded; Buxton v. Hamblen, 32 Me. 448; the sale of lumber not surveyed and marked; Richmond v. Foss, 77 Me. 590, 1 Atl. Rep. 830; the sale of hoops not culled; Durgin v. Dyer, 68 Me. 143. "All such sales are expressly or by implication forbidden by law. So a party has been held remediless who seeks to enforce a contract made on Sunday. Towle v. Larrabee, 26 Me. 464. And he who suffers an injury arising from his violation of the Sunday law, so-called, is equally without remedy. Wheelden v. Lyford, 84 Me. 114, 24 Atl. Rep. 793. cases. "The language in Lord v. Chadbourne and in Mohney v. Cook, above cited, is a correct statement of a general proposition. How inapplicable it is to the case at bar can easily be seen when we look at the questions which were decided in these In the former, the precise question decided was that under the provisions of the statute of 1851. ch. 211, § 16, no action whatever could be maintained for intoxicating liquors or their value. Intoxicating liquors were thus practically outlawed. Trespass against a wrongdoer, even, could not be maintained. But when the statute was modified the rule was modified accordingly, and it was thereafter held that trespass would lie for the unauthorized conversion of intoxicating liquors, even though they were intended for illegal sale in this State. Hamilton v. Goding, 55 Me. 419; Bliss v. Winslow, 80 Me. 274, 13 Atl. Rep. 899; Adams v. McGlinchy, 66 Me. 474. In Mohney v. Cook, supra, the question actually decided was that a party who erects an obstruction in a navigable stream, and thereby occasions an injury to another, cannot, in an action for such injury, set up as a defense that the plaintiff was unlawfully engaged in worldly employment on Sunday, when the injury occurred. "It will be seen in the illustrations which we have given that a remedy has been refused because the plaintiff's right of action was directly connected with, or grew out of, a violation of law. But it is not unlawful for a peddler, with or without license, to put up at an inn. The plaintiff did not lodge at the defendant's inn as a peddler, but as an individual. As a property owner, merely, he intrusted his property to the defendant's safekeeping. It was not unlawful for him to eat, drink, and be sheltered in an inn, nor to deliver, or offer to deliver, his money and other property to the innkeeper for safe custody. If his property consisted of merchandise carried by him for the pur pose of sale without a license, in violation of law, it was none the less property. A peddler may lawfully care for and protect his property. If he exposes it for sale, or sells it, without a license, he may be fined. No penalty attaches to the merchandise itself. It cannot be seized or forfeited. It is neither contraband nor outlawed. The rights and liabilities which exist between the innkeeper and his guest, who is a peddler, are created by law, and grow out of the relation between them. and are in no degree dependent upon the purpose of the owner to sell the goods at some future time without license. It is therefore the opinion of the court that, even if the plaintiff had no license to peddle, that fact would not constitute a defense to this action, and that the requested instruction was properly refused. 2. The evidence tended to show that the defendant's stable, where the plaintiff's peddle cart was kept, was a livery stable, unconnected with the inn, and known by the plaintiff to be so. The defendant directed the plaintiff to take his horse and cart to the stable. The plaintiff did so, and there put them into the care of defendant's hostler. The defendant requested that the jury be instructed that 'an innholder is not liable for the loss of merchandise carried by a peddler who stops with said innholder, which is left by such peddler in a livery stable known by said peddler to be a livery stable, and not connected with said inn.' This request was refused, and we think correctly refused. "The defendant does not claim that an innkeeper may not be liable for the loss of the merchandise of his guest, under some circumstances: but he insists that when the plaintiff left his cart in the livery stable, 'not connected' with the inn, the defendant's liability, at the most, was that of bailee, and not that of innkeeper. As the stable belonged to the defendant, and was used by him for putting up the team of his guest, we understand the expression 'not connected,' as applied to the stable, to mean that the stable was not physically attached to the inn,-that it stood in a different place. "By the statute law of this State (Rev. St. ch. 27, § 7) an innkeeper is not liable for goods such as it is claimed were lost in this case, except upon delivery, or offer of delivery, by the guest to the innholder, his agents or servants, for safe custody. The plaintiff put up at the defendant's inn. He thereby became a guest. He had a horse and peddle cart. He was directed by the defendant to take them to the stable. He did so. He put them into the care of the defendant's hostler. This constituted a statutory delivery to the defendant. It is clear that the delivery was 'for safe custody,' and in this respect this case is unlike the cases cited by the defendant, where a peddler took his merchandise to a separate room to show and sell (Neal v. Wilcox, 49 N. C. 146), or where one procured from the landlord a lot in which to keep his hogs and horses for the purpose of showing and selling them (Burgess v. Clements, 4 Maule & S. 306), or where one had a room especially for the purpose of keeping or selling his goods. Carter v. Hobbs, 12 Mich. 52. "When the plaintiff's goods were thus delivered to the defendant for safe custody, they were infra hospitium. Though the defendant directed them to be placed in a stable 'not connected' with his inn, his liability was not modified or discharged. It was his stable. It was the place he selected in which to keep the goods safely. That the place was not connected with the inn does not control. Hilton v. Adams, 71 Me. 19. It was a single transaction, the putting up at the inn, and the delivery of the goods to the defendant. We cannot doubt but that the defendant received the plaintiff's goods as an innkeeper. Norcross v. Norcross, 53 Me. 163, and cases cited; Clute v. Wiggins, 14 Johns. 175, and note to same case, 7 Am. Dec. 449." THE EFFECT OF STATE LEGISLATION UPON THE LIABILITY OF THE HUSBAND FOR THE TORTS OF THE WIFE. The old common law doctrine, with respect to the liability of a husband for his wife's torts, has been abrogated to a considerable extent by recent State legislation, and it is interesting to know the extent of such change in the principles of the lex non scripta in relation thereto. Briefly stated, the ancient common law doctrine was, that the husband was liable for the torts and frauds of the wife committed during coverture, the only difference being in the degree of such liability. If the tort was committed in his company, or by his order, he alone was liable, but if the tort was committed out of his presence and without his direction or knowledge they were jointly liable, the wife being joined as a codefendant. If the remedy for the tort was only damages by suit, or a fine, the husband was liable with the wife; but if the remedy sought was by imprisonment the husband. alone was liable, for the reason that at law they were considered as one person, and, consequently, one could not be sued without the other. In an action for conversion by the 12 Kent's Com. (Blacks. Ser. Ed.) 270* 150; 3 Blk. Com. 414; Tobey v. Smith, 15 Gray, 535; Hickle v. Lurvey, 101 Mass. 344; Handy v. Foley, 121 Mass. 259; Prentiss v. Paisley (Fla.), 7 L. R. A. 640; Ball v. Ben. nett, 21 Ind. 427; Marshall v. Oakes, 51 Me. 308; Estill V. Fort, 2 Dana, 237; Brazil v. Moran, 8 Minn. 236; Meegan v. Gunsollis, 19 Mo. 419; Dailey v. Houston, 58 Mo. 361; Ferguson v. Brooks, 67 Me. 251; Wagner v. Bills, 19 Barb. 321; Rowe v. Smith, 45 N. Y. 230; Lansing v. Holdridge, 58 How. Pr. 449; Knowing v. Manby, 49 N. Y. 192; Sisco v. Cheeney, Wright (Ohio), wife alone, in which they were jointly sued and held liable, the husband's liability followed from the existence of the marital relation, the guilt of the wife disposing of the whole issue. So where the wife destroyed the plaintiff's geese during the husband's absence.3 When a tort or felony of any inferior degree was committed by the wife, in the presence and by the direction of the husband, she was not personally liable, but in order to exempt her from liability two concurrent circumstances must exist, namely, the presence and command of the husband, and such an action will not survive against the wife. So the husband has been held liable for her torts committed dum sola, if it was proved that she was his wife de jure. 4 8 The theory upon which the courts based their conclusion was that the woman was subject to the power of the man, potestate viri, her acts being looked upon as those of his servant or agent; in other words, she acted under his coercion, especially when it was shown that he was present directing her actions. But the mere fact of his presence was not always conclusive evidence of coercion, especially where the evidence negatived such presumption, in which case each was considered a wrongdoer in the same manner as though they were not married.10 The view of the matter has been thus stated, when the husband was present during 9; Holtz v. Dick, 42 Ohio St. 23; Wheeler & Wilson Manufacturing Co. v. Heil, 115 Pa. 487; Franklin's Appeal, 115 Pa. 534; Vocht v. Kuklence, 119 Pa. 365; Hawks v. Hamar, 5 Binn. 43; Crawford v. Doggett, 82 Tex. 139; Woodward v. Barnes, 46 Vt. 336; Barnes v. Harris, Busbee L. (N. C.) 15; Keyworth v. Hill, 3 B. & Ald. 685; Head v. Briscow, 5 Car. & P. 484; McKeown v. Johnson, 1 McCord, 578, 10 Am. Dec. 698. 2 Ferguson v. Brooks, 67 Me. 251. 3 Matthews v. Fiestel, 2 E. D. Smith, 80. 4 Cassin v. Delaney, 38 N. Y. 178, where they were sued for malicious arrest and false imprisonment. 5 Barnes v. Harris, Busbee L. (N. C.) 15, where it was sought to continue the action against the wife for the loss of a horse borrowed by her as the agent of her husband, but the action was considered as one for negligence or want of skill rather than tort. 6 Cox v. Hoffman, 4 Dev. & Bat. 180; Hawkes v. Hamer, 5 Binn. 43; Knox v. Pickett, 4 Dessau. 92. 7 Durkelt v. Ellswell, 1 Ashm. 200. 8 Vanneman v. Powers, 56 N. Y. 39; Lansing v. Holdridge, 58 How. Pr. 449. 9 Wheeler & Wilson Manfg. Co. v. Heil, 115 Pa. 487; Marshall v. Oakes, 51 Me. 308. 10 Cassin v. Delaney, 38 N. Y. 178; Franklin's App., 115 Pa. 534; Wheeler & Wilson Manfg. Co. v. Heil, 115 Pa. 487; Nolan v. Traber, 49 Me. 460; Heckle v. Lurvey, 101 Mass. 344; Marshall v. Oakes, 51 Me. 308. the commission of the tort by the wife, whether himself actively participating in it or not, prima facie, the wrong should be deemed his alone both in criminal and civil cases, but that this prima facie case might be rebutted, and each of them might in law be deemed the doer of the wrong, the same as though they were not married." The coercion, however, must have been at the time of the act done. 12 The doctrine of the common law has, however, been greatly affected by State legisla- | tion, which has given power to married women to act as if dum sola, and to sue and be sued as if unmarried, but yet such statutes do not seem to have entirely freed the husband from liability in cases where the tort has not been committed with reference to her separate property, the courts in some cases still holding that the husband is a necessary party to the action, the only difference being with reference to the enforcement of the judgment. In Alabama, for all torts committed by a married woman, she must be sued as if sole, and the husband is not liable if he did not participate therein,13 and in Arizona they are subject to the same legal liabilities as men of the age of twenty-one and upwards,14 but the Arkansas laws do not seem to create any such liability.15 Under the California Practice Act, it has been held that, in the case mentioned therein, they are on a common level with all other parties to actions, although the Code of Civil Procedure only provides for their rights in cases mentioned therein. 16 In Colorado, they may be sued in all matters as if sole,17 while the Connecticut statute has been looked upon as abolishing the presumption of the husband's coercion, and as requiring her to prove that fact in order to justify her actions.18 The Dakota statutes give her the same legal existence and legal personalty as before marriage, the joinder of any other person being governed by the same rules as if single,19 while in Florida she has been expressly held liable for her wrongful acts or actual torts in11 Wheeler & Wilson Manfg. Co. v. Heil, 115 Pa. 487. 12 Marshall v. Oakes, 51 Me. 308. 18 Ala. Stat. Feb. 28, 1887, and secs. 2347, 2345 of the Code, vol. 1, p. 526 (Ed. 1886). 14 Rev. Stat. Arizona (Ed. 1887), sec. 2104. 16 Arkansas Dig. of Stat. (Ed. 1884), ch. 119, p. 975. 16 California Prac. Act, sec. 7, tit. 1; Code of Civil Proc. (Ed. 1885), p. 110; Leonard v. Townsend, 26 Cal. 435; Alderson v. Ball, 9 Cal. 321. 17 Colorado Civil Code (Ed. 1887), ch. 1, sec. 6. 18 Blakeslee v. Tyler, 55 Conn. 397. 19 Dakota Gen. Stat. 1887, ch. 98, secs. 2600, 4873. cluding frauds, the right of action dying with her.2 20 In Georgia, if the tort was not com. mitted in the presence or under the coercion of the husband, they must be sued jointly, the wife's separate estate being taken in execution, both being arrestable on final process, the wife being personally served, her appear ance, however, waiving the latter right and making the judgment binding, and the suit will survive against her. Under the Penal Code of that State, a feme covert or married woman acting under the threats, command or coercion of her husband is not to be found guilty of any crime or misdemeanor not punishable by death or perpetual imprisonment. but with this exception the husband is to be prosecuted as principal, and, if convicted, is to receive the punishment otherwise inflictable upon the wife if she had been found guilty. provided the facts and circumstances show violent threats, command and coercion; there fore, where the wife was indicted for keeping a gambling house, she was discharged, the husband residing with her and being the head of the family it was his duty to prevent the offense, the wife's action being merely pas sive and not active.22 Under the Illinois stat ute it has been held that the husband is not liable where he is neither present nor a participant in the wrong; and this, even though the legislature did not expressly repeal the common law rule, the modifications being so great as wholly to remove the reason of his liability, the court considering every principle of right violated by holding him still responsible for her conduct.28 In that State, therefore, in such cases the wife is held solely liable. 24 The Indiana statute gives the same remedies and creates the same liabilities against them as if they were unmarried, where the tort relates to the use or management of their separate estate or when it is committed in violation of a duty imposed by law in respect thereof, the joint liability of husband and wife relating merely to personal torts. 20 Prentiss v. Paisley (Fla.), 7 L. R. A. 640. 21 Smith v. Taylor, 11 Ga. 21. 22 Georgia Penal Code, sec. 4300; Bell v. State (Ga.), Ápril 10, 1893. 23 Illinois Acts of 1861, 1869, par. 4, sec. 4 of the Code; Martin v. Robson, 65 Ill. 129; Haight V. McVeagh, 69 Ill. 627. 24 Hagebush v. Ragland, 78 Ill. 40, where a horse was loaned to the wife and injured. 25 Indiana Rev. Stat. 1881, secs. 5120, 5121; Maybew v. Burns, 103 Ind. 328. See also Gee v. Lewis, 20 Ind 149. So the Iowa statute gives them the right to sue and be sued in all cases, as if unmarried, but yet there would seem to be a doubt even under those statutes as to whether they could be held liable otherwise than according to the old common law doctrine,26 and a similar provision is to be found in the Kansas laws, but in that State the courts have rendered a decision holding the separate estate of the wife liable upon the same grounds as the Illinois courts have based their opinions.27 A wife has been held civilly responsible for her torts in Louisiana,28 and her separate estate has also been charged with her frauds,29 but under the Code of that State, the wife cannot appear in court without the authority of her husband, although the court has power, if the husband refuses to empower her to appear, to give her authority, and so when the husband is under interdiction or is absent.30 In Maine, the position of married women has undergone a radical change, so much so that the courts hold that it would be a hardship to hold the husband responsible for her torts, and look upon her responsibility in respect to them as a necessary consequence of her enlarged powers, so that when her act is independent of her husband and without his coercion she is liable for her acts.31 The position of the wife is considered as greatly elevated by the provisions of acts passed for her benefit by the legislature in Maryland, for it has been said that she has thereby become the peer of the husband, and is raised above all suspicions of moral restraint, her position being so elevated as to protect her from all necessity of compliance with his will in matters mala in se; her present position, however subservient in the past, no longer making her the slave of her husband,32 and, therefore, in that State her separate estate has been held liable for her torts.33 The doctrine established by the courts in Massachusetts upon the construction of the statutes of that State, which give her the 26 Iowa Rev. Code, 1888, sec. 2562; McElfresh v. Kirkendall, 36 Iowa, 223; Luse v. Oaks, 36 Iowa, 562. 27 Kansas Comp. Laws, 1885, ch. 62, sec. 3349, p. 536; Norris v. Corkill, 32 Kan. 409, 49 Am. Rep. 489. 28 Clements v. Wafer, 12 La. Ann. 599. 29 Chauviere v. Fleige, 6 La. Ann. 56. 30 Louisiana Rev. Code, 1889, ch. 5, arts. 121, 124, 132. 31 Ferguson v. Brooks, 67 Me. 251; Maine Rev. Stat. 1883, ch. 112, p. 524. 32 Nolan v. Traber, 49 Md. 460. 33 Brown v. Kemper, 27 Md. 675. 34 power to sue and be sued as if sole has been stated to be that for torts relating to the use of her separate property, such as converting it into a house of ill fame, the husband's liability depends upon his relation to the household as, although the statutes give her a separate and independent property, yet he still retains his power as the head of the family, and as such has a right and duty to perform in seeing that such property is not used for an illegitimate purpose. Therefore, where the wife rented a hotel and carried on an illegal liquor traffic, the court stated that the husband would be liable if he aided or assisted her, and that the fact that he lived with her in the house, with a knowledge of her illegal actions, raised the presumption of coercion, to be rebutted only by strong proof that she acted without his interference or control.35 With respect to other torts, however, such as the obstruction of an easement, the husband is held not to be liable therefor unless he in some way encouraged the act,86 but the statutes must not, in the absence of express provision, be taken as having any retroactive effect.37 The Michigan courts hold that the husband is no longer liable for her torts, 38 yet evidence of her actions in his presence, is admissible, even though her acts, not performed in his presence or by his directions, will not bind him;59 and in Minnesota it is expressly provided that a married woman shall be responsible for her torts to the same extent as if unmarried, and that she may sue and be sued as if unmarried.40 So the Mississippi Code entirely abrogates the ancient common law doctrine and gives the wife power to sue and be sued as if unmarried, and similar provisions are to be found in the Montana and Nebraska statutes. In Missouri, it has been expressly held that a general judgment against a husband and wife for a tort of the latter not 34 Massachusetts Pub. Stat. 1882, ch. 147, sec. 7; Com. v. Wood. 97 Mass. 225; Com. v. Carroll, 124 Mass. 30; Com. v. Barry, 115 Mass. 146. 85 Com. v. Pratt, 126 Mass. 463. 38 Ricci v. Muelier, 41 Mich. 214; Baumier v. Austin, 65 Mich. 31; Burt v. McBain, 29 Mich. 260. 39 Baumier v. Austin, 65 Mich. 31. 40 Minnesota Gen. Stat. (Ed. 1878), vol. 1, ch. 69 sec. 2, ch. 66, sec. 29. 4! Rev. Code, Mississippi, 1880, sec. 1167; Montana Com. Stat. 1888, sec. 7; Com Stat. Nebraska, 1891, ch. 53, sec. 3. |