The Periscope.

MARRIED WOMEN'S RIGHTS IN COMMUNITY PROPERTY UNDER THE LAW OF CALIFORNIA.-William B. Bosley, Waite '94.— Yale Law Journal, April, 1901.

The paper is largely an outline of statutory changes and development. "Community property of husband and wife is all property acquired during the marriage by either husband or wife or both, except such as is acquired by gift, bequest, devise, or descent. . . . The distinction between separate and community property is that the latter is produced by the joint efforts of the husband and wife; the relation between them, in respect of property, being considered as a species of partnership.

"On the question of evidence, the legal presumption is that all property owned by either husband or wife or both is community property, and [the courts] have cast upon the person asserting the contrary the burden of proving, by clear and convincing evidence, its separate character. This presumption is considered not merely a rule of evidence, but a rule of property.

The entire management and control of community property, and the absolute power of its disposition during the marriage, are, with certain exceptions, vested in the husband. Authority is cited for the proposition that the husband may, by his will, empower his executor to sell or otherwise dispose of any portion of the community property to satisfy debts, etc. (for which the community property may, during his lifetime, be taken in execution), but for no other purpose; when the marriage is dissolved by the death of the husband, the whole of the community property becomes assets of his estate, chargeable with all of his debts, and is to be administered by his personal representatives.

On the dissolution of the marriage by the death of the wife, the entire community property vests in the husband immediately and without administration, and the wife has no right to devise or bequeath any of the community property.

The act of May 8, 1861, provides that, in the absence of descendants of the deceased husband, if he failed to exercise his right of testamentary disposition, his half of the community property should

be succeeded to in the same manner as his separate estate; and the wife has always, in California, been entitled to succeed, as heir, to a portion of her deceased husband's separate property. The wife takes title judicially by succession or descent.

In case of dissolution of the marriage, the common property is equally divided between the parties, but when divorced on the ground of adultery or extreme cruelty, the guilty party shall be entitled only to such portion of the common property as the court may deem just, and the injured party is entitled at least to something more than onehalf the whole, or a portion thereof, with a lien upon the residue to secure any payment which the husband may be ordered to make for the support of the wife.

When there are no issues involving the community property, the husband and wife are equal tenants in common, and the parties to a divorce proceedings may bring partition, as may other tenants in

common.

In conclusion, it is noted that the wife may, without the concurrence of her husband, declare a homestead upon either his separate or his community property.

F. B. S.

COMMITTEES OF THE SENATE.-Brainard Avery, Marshall, '95, formerly clerk of the Senate Committee on Agriculture.-Yale Law Journal, April, 1901.

The shaping of legislation takes place in the maze of committee rooms which surround the Senate chamber. The system originated in the House, the Senate not using committees until 1816. The “steering" committee began in 1846. Each senator on the average serves on six committees, in the House, one or two and rarely three committees is the usual allotment. The committees have a clerk, salary $1,800 to $3,000; sometimes an assistant clerk, salary, $1,800 to $2,220 and a messenger with a salary of $1,440-and if an especially important committee, a staff of other assistants. After reading, bills go to the committees. Bills relating to the executive part of the government are referred to the heads of the government, after docketing. In the committee bills are referred to a sub-committee which reports to the committee. The committee on commerce has a sub-committee of a sub-committee. Committees do not originate legislation directly, but may have bills introduced which will be referred to their committees, and they have an unlimited power of amendments, etc., so that indirectly they shape legislation. A committee has no right to kill a bill, but practically does so by reporting adversely. All real business of

the Senate, except perhaps close party questions, are settled in committee in advance of discussion in the Senate chamber, but this is due to necessity, on account of the introducing of so many bills which requires the appointment of standing sub-committees.

F. B. S.

THE ETHICS OF THE LAW OF NEGLIGENCE.-Extracts from an address by Justice Woodward, Field, of the Appellate Division of the Supreme Court of New York, Second Department at the Brooklyn Polytechnic Institute.

The oft-repeated and sneering reference to that branch of the legal profession who gain a livelihood in the prosecution of negligence cases, as "ambulance-chasers," has served to create a popular impression that this line of practice is essentially disreputable, and even the courts, it may be feared, are not free from this prejudice. That there have been abuses in the administration of the law; that witnesses, in the hands of unscrupulous lawyers, have been induced to falsify the facts, and that juries have been swayed by sympathy, prejudice, or other improper considerations, there can be no doubt; but it may be fairly questioned if these evils are present in a greater degree in negligence cases, when the whole number is compared with the number of actions in any other branch of the law, than in actions upon contract, or in any of the great variety of actions which engage the attention of the courts in our complex social organization. Our modern industrial development, involving vast aggregations of population within limited territory, has brought with it the necessity for rapid transit, and as a large percentage of the negligence cases in the great cities grow out of these conditions, there are many who suppose that the law of negligence is a blind legislative groping after an equilibrium between the corporations and individuals tinctured with the demagogism incident to the conflicts between corporate wealth and individual poverty; when, in fact, the principles of the law of negligence are older than our own jurisprudence, and the action for damages due to the injury of an individual in the Borough of Brooklyn to-day is merely an application of old rules in harmony with the suggestion of Lord Holt, that if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense. We are not concerned, however, with the administration of the law, with the conduct of counsel, or with the failure of juries, under all conditions, to nicely adjust the equities as between contending litigants.

These are matters outside of the range of this discussion, which seeks only to present the principles of the law of negligence, and to

show its harmony, if not with the modern ethical ideals, at least with the most advanced ideals of the times in which the principles involved were advanced, and applied in the long pilgrimage of the race to its present proud position. The germinal principles of the law of negligence, as administered to-day, are found in all branches and in each era of the Aryan race since its first great unconscious ethnic dispersion on the southeast coast of the Caspian Sea; and even among the Mongolians, whom we are taught to look upon with aversion, we find Confucius saying to his followers: "What do you say concerning the principle that injury should be recompensed with kindness?" The Master said: "With what, then, will you recompense kindness? Recompense injury with justice, and recompense kindness with kindness." It would be difficult to condense in fewer words more of the principles of ethics and of the law of negligence than are to be found in this admonition of Confucius, and an analysis of the law as we find it to-day will show to what extent the doctrine has been accepted in modern jurisprudence.

As the killing or maiming of an individual is an ethical crime, increasing the pain and decreasing the pleasure, not alone of the individual, but of the community at large, there are few higher duties than that of the attorney who appears in court in the advocacy of a cause involving negligence. His labors are at once egoistic and altruistic ; he is seeking the amelioration of the pain and suffering of his client, land of those depending upon him for their support and maintenance at the same time that he is building a barrier against future pain and suffering on the part of those who must fall victims to the carelessness of those entrusted with duties to the public unless they are held to a rigid accountability for their aggressions upon individuals. By the rules that have been established for the adjustment of these controversies, by which the plaintiff is called upon to bear the burden of proof, not alone of the negligence of the person or corporation working the injury, but lack of negligence on his part contributing to the result, and by the energy, zeal and skill with which the many cases have been presented to the courts, the public service of great corporations has been vastly improved and the safety of persons has been promoted, until to-day there are many managers and representatives of these important corporations who recognize in the law the working out of the highest and best interests of the State. Of course, in actions for negligence, as in other branches of the law, there are lapses on the part of counselors from the high ideals of ethics, but in general it may be said that the law, both in its principles and in its adminis

tration, is in harmony with the principles of ethics, and has for its object the lessening of pain and the increase of pleasure, both for individuals and for society.-Law Notes (Am.).

LIABILITY FOR NEGLIGENT LANGUAGE.-Prof. Jeremiah Smith, Choate.-Harvard Law Review, Nov., 1900.

His text is found Peek v. Derry, House of Lords, L. R. 14 App. Cas. 337, where the plaintiff sued in deceit the directors of a company who stated in a prospectus that the company had certain absolute rights, when these were in reality only contingent. On faith of these statements stock was bought which diminished in value when true state of facts became known.

It was held that the action would not lie, and the case has been regarded ever since as an authority. But it decided only that an action for deceit would not lie. Professor Smith thinks that one so injured should have damages for negligent use of language and makes these distinctions: (1) In Peek v. Derry, the statement was voluntarily; in deceit, action lies though statement is made in answer to an inquiry; (2) The motive was pecuniary interest; in deceit, motive is unnecessary. (3) The plaintiff acted reasonably in his reliance; in deceit, one's foolishness in so relying is not considered. (4) Contributory negligence would here be a defense; in deceit, it is not. So much for the distinctions between the two theories.

The possible objections to granting redress for negligent language are: (1) There is no moral blame as in deceit. But is this strictly true? A disregard of possible consequences of one's words is sufficient moral turpitude to make one liable should injury result. (2) Language by itself is not a "dangerous instrument." But to a certain extent, it is. "If in handling a pen I carelessly scratch my neighbor's face, I am liable to him for the damage thus done. If with the same pen, I write a letter to my neighbor making statements not true in fact, whose untruth would have been known to me, if I had used reasonable care, and my neighbor is induced (as I had intended) to peril his fortune in reliance on my statements, why should he be denied a remedy against me in case of his financial ruin? Must a man take care as to the use of his arm, but not as to the use of his tongue? (3) Novelty. The reason that this phase of the question has seldom if ever arisen is because there has been an almost universal belief that these cases were included under deceit; and the varied history of Peek v. Derry shows how deep-rooted is this idea. The same result has also been attained in many cases on the theories of "implied representa