3. Liability of a Municipal Corporation for the acts and defaults of its servants.

In the exercise of private franchises, which are often bestowed upon municipal corporations, those bodies are liable, like any other individual, for the acts and defaults of their servants, even though not appointed by themselves. But whilst it is administering the discretionary governmental power belonging to it, such a corporation enjoys the exemption of government for responsibility for its own acts, and the acts of its corporate officers. Hence a city-corporation is not liable for any defaults of its officers in the management of a small-pox hospital established by the city, (City of Richmond v. Long's Adm'rs, 17 Grat. 379); nor for the non-feasance of a corporate officer, in omitting to take a bond of a party, as required by the ordinance of the corporation, (Fowle v. Alexandria, 3 Pet. 398, 409); nor at common law, for not removing obstructions from streets, &c., (City of Providence v. Clapp, 17 How. 167). But it is liable for the neglect of its agents in connection with gas-works, (Scott v. City of Manchester, 2 Hurlst. & Norm. 204); and by statute, it may be chargeable with defaults in connexion with the repairs of sea-banks and mounds, (Mayor of Lyme Regis v. Henley, 3 B. & Ald. (23 E. C. L.) 77); or of bridges, (Weightman v. City of Washington, 1 Black 39); or of streets, (City of Chicago v. Robbins, 2 Black 418), which its charter obliges it, as an acknowledgment for the privileges conferred, to keep in repair, (1 Am. L. C. 621; Mayor of Lyme Regis v. Henley, 3 B. & Ald. (23 E. C. L.) 77; S. Č., 2 Clark & Fin. 331; Water Co. v. Ware, 16 Wal. 57.)

7. Doctrine touching the Liability of Employer for the default, &c., of a Contractor.

The master is responsible for the acts of his servant, or of a subordinate agent, however remote, done in the course of his employment, because the servant or subagent is under his control. As an independent contractor is not subject to his control, it follows that the employer is not in general responsible for him, not even though the acts of the contractor, or his servants, amount to a public nuisance, provided the work contracted for is not itself a nuisance, nor must necessarily, in the ordinary mode of doing it, occasion an injury, or an obstruction to a right. (1 Pars. Cont. 89 and seq.; Quarman v. Burnett, 6 M & Wels. 499; Rapson v. Cubitt, 9 Id. 710; Milligan v. Wedge, 12 Ad. & El. (40 E. C. L.) 737; Reedie v. Railway Co. 4 Excheq. 244, 257; Knight v. Fox, 5 Excheq. 721; Overton v. Freeman, 11 Com. B. (73 E. C. L.)

867; Chicago city v. Robbins, 2 Black 418, 428; Robbins v. Chicago, 4 Wal. 657, 679; Water Co. v. Ware, 16 Wal. 576-'7; Ellis v. Sheffield Gas Co., 2 El. & Blackb. (75 E. C. L.) 767; Newton v. Ellis, 6 El. & Bl. (85 E. C. L.) 124; Hole v. R'lway Co., 6 H. & Norm. 497). See Virginia Cent. Rl. Rd. Co. v. Sanger, 15 Grat. 241-2.

8. Doctrine touching the Liability of the owner of Real Property for its use for hurtful purposes.

The responsibility of the owner of real property, when used for hurtful purposes, seems to depend on, and be measured by, his power of control. If one let his land with a nuisance upon it, or for a purpose which must result in nuisance, he is liable for the consequences. Indeed, it may be stated generally, that the proprietor of land is bound to see to it that his property is so used and managed, whether by himself and his own immediate servants, or by contractors and their servants, as to produce no injury to others. (Sly v. Edgely, 6 Esp. 7; Laugher v. Pointer, 5 B. & Cr. (12 E. C. L.) 547; Randleson v. Murray, 8 Ad. & El. (35 E. C. L.) 109; Rapson v. bitt, 9 M. & Wels. 713.)

Cu

CHAPTER XV.

OF HUSBAND AND WIFE.

2d. The Relation of Husband and Wife.

In discussing the doctrine connected with the relation. of husband and wife, it will be expedient to observe, (1), The definition and character of marriage; (2), The method of contracting marriage; (3), The modes whereby marriage is dissolved; and (4), The legal consequences of marriage; W. C.

1o. The Definition and Character of Marriage.

Marriage is defined to be a contract in due form of law, whereby a free man and a free woman mutually engage to live with each other during their joint lives, in the union which ought to subsist between husband and wife. (Bac. Abr. Marr. & Div.; Id. (B).)

Husband and wife, in the old law books, are styled, in the law-French dialect, baron and feme, and the wife, in in the same dialect, is called a feme covert (fœmina cooperta), as being under the protection and cover of her husband, or perhaps by analogy to the Latin nupta (a nu

bendo, i. e., tegendo), because she was led to her husband's home covered with a veil. Hence her condition during marriage is called coverture. (1 Bl. Com. 432, 442, & n (38).)

The legal existence of the wife is suspended during marriage, or at least is merged in that of her husband; and upon this principle of an union of persons in husband and wife ("they twain shall be one flesh"), depend most of the legal rights, duties, and disabilities that belong to either of them by the marriage. (1 Bl. Com. 442.)

The contract of marriage is regarded by the common law as a purely civil contract, but as one peculiarly and most intimately affecting the interest of society. Sir James Mackintosh, with great elegance and force, insists that the chief supports of social order are the two institutions of property and marriage;-property, whereby man securely enjoys the fruits of his pains-taking labor; and marriage, whereby the society of the sexes is so wisely ordered as to make it "a school of the kind affections, and a fit nursery for the Commonwealth." "Almost all the relative duties of human life," says he, "will be found more immediately or remotely to arise out of these two great institutions. They constitute, preserve, and improve society. Upon their gradual improvement depends the progressive civilization of mankind; on them rests the whole order of social life." (Mackintosh's Essays, 36; see also 2 Kent's Com. 75; Montesq. Sp. Laws, B. xxvi. c. 13.)

2o. Method of Contracting Marriage.

The law, whilst it regards the contract of marriage with reverence, yet treats it as it does all other contracts; holding it to be valid in all cases where the parties are willing and able, and actually do contract with the forms and solemnities required by law, and in those cases only. (1 Bl. Com. 433.)

W. C.

1. Willingness of the Parties to contract: W. C. 18. The General Doctrine.

The controlling maxim is, "Consensus non concubitus nuptias facit." (1 Bl. Com. 434.)

25. Marriage-brocage Contracts.

Marriage-brocage contracts are contracts entered into with a view to bring about or forward a marriage, for a reward, to be therefor paid to the broker who undertakes to negotiate it; and of such consequence is it deemed that marriages should proceed always from free choice, that all such contracts, whether the security were executed before or after the marriage, are utterly void, as being against public policy, (and so incapable

of confirmation); and a court of equity will decree any bond or other security founded on such a transaction, to be given up and cancelled; and in some cases has decreed money actually paid to be refunded. (Bac. Abr. Marr. & Div. (E), 3; 1 Stor. Eq. § 263, &c.) 2. Capacity of the parties to Contract.

In general, all persons are able to contract themselves in marriage, unless they labor under certain disabilities, partial or entire. (1 Bl. Com. 434.) Let us consider: (1), The doctrine in England as to disabilities to contract marriage; and (2), The doctrine in Virginia;

W. C.

15. Doctrine in England as to disabilities to contract Marriage.

Disabilities to contract marriage are in England either (1), Canonical impediments, rendering the marriage voidable; or (2), Legal disabilities, rendering it ipso facto void;

W. C.

11. Canonical impediments.

Let us consider, (1), Why they are called canonical impediments; (2), The classes of canonical impediments; and (3), The effect of canonical impediments; W. C.

1. Why they are called Canonical impediments.

Because they are derived from, and determined by the canon law. They are styled also ecclesiastical impediments, because they were long cognizable in England in the ecclesiastical courts. They make the marriage voidable only, and not void, so that they are properly denominated impediments, rather than disabilities. The cognizance of the ecclesiastical or church courts in such cases, at common law, is founded partly upon the Romish idea that marriage is a sacrament, but chiefly upon the imputed sinfulness of the connection, which it is the duty of the church, through its tribunals, pro salute animarum (for the safety of the souls of the parties), to dissolve and put an end to. (1 Bl. Com. 434.)

Since January 11, 1858, the jurisdiction anciently possessed by the ecclesiastical courts exclusively, over matrimonial causes, has (by the Stat. 20 & 21 Vict., c. 85, and some amendatory acts), been transferred to a new court, called the "Court for divorce and matrimonial causes." (Wms. Pers. Prop. 492.) 2. Classes of Canonical impediments; W. C.

The several classes of canonical impediments are (1), Pre-contract; (2), Consanguinity, or relationship

by blood; (3), Affinity, or connexion by marriage; and (4), Incurable impotency of body;

W. C.

1. Pre-contract.

By pre-contract is signified a previous contract of marriage, per verba de presenti, without consummation; (e. g., "I do now marry you," or "You and I are now man and wife," &c.); or per verba de futuro, (e. g., "I will marry you"), accompanied or followed by consummation. In both these cases at common law the ecclesiastical courts were accustomed to compel a celebration of the marriage in the face of the church, even though meanwhile one of the parties had contracted a marriage with some one else. If, however, the contract were per verba de futuro, without consummation, it seems that the ecclesiastical courts never went further towards coercing the parties to celebrate the marriage in the face of the church than to admonish them so to do, but without invalidating any intervening marriage. (1 Bl. Com. 439; Bac. Abr. Marr. & Div. (B); Jac. L. Dict. Marriage; Bunting v. Lepingwell, 4 Co. 29 a, n (A); Holt v. Ward, 2 Str. 937.)

But a private contract of marriage, though per verba de presenti, and accompanied by consummation, whilst indissoluble by the parties themselves, and at common law affording to either the power of compelling an actual marriage, never in itself constituted a full and complete marriage for all purposes, unless solemnized by a person in holy orders; at least not since about the year 1200, when Pope Innocent III issued a bull requiring it. Thus, without the priest's blessing, the wife, by the common law, is not entitled to dower, the husband to curtesy, nor the issue to inherit. (Bac. Abr. Marr. & Div. (C); 2 Bright H. & Wife, 370 & seq. 397-'8, App'x; Dalrymple v. Dalrymple, 2 Hagg. 64 & seq.; Queen v. Millis, 10 Cl. & Fin. 534; Catherwood v. Caslon, 13 Mees. & W. 263.)

The common law, however, upon this subject of pre-contract, has been materially changed in England by statute. Thus, by 32 Hen. VIII, c. 38, it is provided that all marriages solemnized in the face of the church, and consummated, shall be indissoluble, notwithstanding any pre-contract not consummated; and although this branch of that statute was repealed by 2 and 3 Edw. VI, c. 23, it was in effect restored again by 26 Geo. II, c. 33, and 4