shall not be so admitted. The decision is based on the rule laid down in Morrell v. Jones, 106 U. S. 466, that all an administrative officer can do is to regulate the mode of proceeding to carry into effect what Congress has enacted. The case arose from an attempt to exclude the "Travellers' Official Guide," a publication issued quarterly in large volumes. At second-class rates it was being transmitted for only forty cents per number a year whereas it was costing the government two dollars a year. But it seems that the only remedy to cure this inequality lies in the hands of Congress.

HUSBAND'S LIABILITY FOR WIFE'S TORTS AS AFFECTED BY MARRIED WOMEN'S PROPERTY ACTS.

A recent California case decides that the husband is still liable jointly with his wife for torts committed by her and not connected with her separate property, notwithstanding recent legislation in that State giving the wife the right to sue and be sued, and contract in respect to her own property, as if she were a feme sole. Henley v. Wilson, 70 Pac. 21. This case raises the very interesting question as to how far the marital relation and the common law liabilities accruing from it, have been affected by these Married Women's Property Acts. The question has been decided both ways and even those cases which hold that his liability has been removed assign varying reasons.

In an English case decided in 1900, the court was asked to overrule a previous case (Seroka v. Kattenburg, 17 Q. B. D. 177), in which it was held that the effect of the Married Women's Act was not to change the husband's liability; but the court declined to do this, saying that since those acts did not expressly remove his liability, it still existed. Earle v. Kingscote, I Ch. 203. See also Fowler v. Chichester, 26 Ohio St. 9. The court in these two cases was content with saying that his liability was due to the common law rule which could not be repealed by implication. And the courts taking this view, generally refuse to go behind the common law rule in search of the reason for it.

But the courts (and they are in the minority) which hold that the husband's liability has been removed, da go behind the rule for its reasons, and say that its further application is inconsistent with the spirit of the acts in question. But even these courts disagree as to what the reasons for the rule are. Some find it to be that the husband had possession and control of the wife's property. This view is taken by Martin v. Robson, 65 Ill. 129, and the court proceeds to justify its finding that the common law was abrogated by this legislation, in these words: "A liability which has for its consideration rights conferred, should no longer exist when the consideration has failed [the husband's right to the control and possession of her property is taken away by these acts]. If the relations of husband and wife have been so changed as to deprive him of all right to her property, and to the control of her person and her time,

every principle of right would be violated, to hold him still responsible for her conduct. If she is emancipated, he should no longer be enslaved."

But others of these courts trace his liability to the common law conception of the marriage itself, and especially of the status of the wife during coveture. A reference to a few of the cases will show why, upon this view, the courts hold that the husband is not liable. In the eye of the common law the personal existence of the wife was fused into that of the husband. 1 Bl. Comm. 442-444. Hence it is said that the husband is liable for the ante-nuptial debts of his wife, not because he, through marriage, becomes entitled to her personal property, but because that during coveture the legal existence of the wife is suspended. Alexander v. Morgan, 31 O. St. 548; Com. v. Feeney, 13 Allen 560. And so he is liable at common law for his wife's torts, not because her wrong is imputed to him; nor because the influence he is supposed to exert over her is inseparable from her wrong doing, but for the sole reason that during coveture, the wife is incapable of being sued alone. Capel v. Pow ell, 17 Q. B. (N. S.) 744; Kowing v. Manly, 49 N. Y. 201. From this view of the question-and only from this view-we get the following well established propositions: 1. That if a married woman be divorced, or her husband die, after she had committed a tort, action would lie against her alone and would not abate. Douge v. Pearce, 13 Ala. 127. 2. That if the husband. should die pending an action ex-delicto against both, the action would survive him and be good as against her. Cozens v. Long, 3 N. J. Law 764. 3. But should she die pending the suit, it would not survive as against him. Roberts v. Lisenbee, 86 N. C. 136, 41 Am. Rep. 460.

The legitimate inference to be drawn from these propositions, the soundness of which is not questioned, is that she herself was personally liable-the husband being joined merely to reach her. That this was the case, would seem to be proved by the further fact that formerly in England she could have been imprisoned for failure to satisfy a judgment obtained against her and the husband jointly in an action ex-delicto (on the ground of non-payment of debt-a judgment being in the nature of such), and that too, regardless as to whether the husband was thus imprisoned or not. Newton v. Boodle, 4 C. B. 359. If it then be true that the husband's being joined was merely for the purpose of obtaining procedure against her, one inclines to admit the logic of the view that holds him no longer liable for her acts, now that she may possess and dispose of property, contract, proceed and be proceeded against "as if she were a feme sole."

ORNAMENTS AS FIXTURES.

The decisions in England on the subject of fixtures annexed to the freehold for the purpose of ornament are very conflicting. An early case, Herlakenden's Case, 2 Coke 443, expressly denied the

right to remove fixtures put up for the purpose of ornament, while Squier v. Mayer, 2 Freem. 249, on the other hand, gave to an executor, hangings nailed to the walls, and a furnace fixed to the freehold and purchased with the house. In Cave v. Cave, 2 Vern. 508, (1705), pictures put up as wainscot were held a part of the realty, Lord Keeper saying, "the house ought not to come to the heir maimed and disfigured." Just one year after this decision, Beck v. Rebow, I P. Wms. 94, was decided. This case held that a covenant to convey a house and all things affixed to the freehold did not include hangings and looking glasses fixed to the walls with nails and screws, and which were placed as wainscot, there being no wainscot beneath.

In D'Eyencourt v. Gregory, L. R., 3 Eq. 382 (1866), it was held that tapestries and pictures in panels, which were essentially a part of the house, attached to the walls by a tenant for life, however fastened, were fixtures and could not be removed. To the same effect was Norton v. Dashwood, (1896) 2 Ch. 497.

Leigh v. Taylor, 86 Law Times Reports, 239, brings up this question once more. A tenant for life, for the purpose of decorating the walls of a mansion-house, fixed small strips of wood by means of nails and screws to the walls and nailed canvass to them. He then fastened tapestries to the canvass by very small tacks and fixed mouldings around the strips of wood by thin nails and screws, some of which penetrated the face of the wall. The tapestries became an essential feature to the general scheme of decoration. The House of Lords, however, held that these tapestries, being fixed for the purpose of ornament in the only way in which it was possible to use and enjoy them as such, remained part of the personal estate, and did not pass to the remainder-man.

The true criterion of an immovable fixture consists in the united application of several tests: 1. Real or constructive annexation to the realty. 2. Adaptation to the use or purpose of that part of the realty with which it is connected. 3. Intention to make the article a permanent accession to the freehold. Ewell on Fixtures, p. 23. The tendency of modern authority seems to be to give pre-eminence to the question of intention, the other tests deriving their chief value as evidence of such intention.

The House of Lords did not hesitate to follow this tendency. It maintained that whether or not a chattel is so annexed to the freehold as to be intended as an improvement to it and to pass with it, or is annexed only for the purpose of temporary ornament, is to be derived from the facts of each particular case. No rule can be laid down which will in itself solve the question. Yet the law as to ornamental fixtures does not change. It is the same now as it was in former times. The apparent change of law is due to the change in the mode of living, the increase of luxury making things matter of ornament which were not so in earlier days.

That the tapestry was never intended to remain a part of the house is evident from the nature of the attachment, the extent and degree of which was as slight as the nature of the thing would

admit. Since the intention was to put up the tapestry for ornamentation, and for the enjoyment of the person while occupying the house, it is not under these circumstances a part of the house.

There are American cases very similar to Leigh v. Taylor, although they are not identical, which hold that ornamental fixtures constitute a part of the realty. In Columbia Insurance Co. v. Kneisley, 9 Ohio Dec. 432, bookcases and a hatrack built into a room of a house, and which if removed would also remove a part of the base-boards around the floor of the room, were held a part of the realty. Mirrors set in the wall of a dwelling house, the removal of which would leave the walls unfinished, can not be removed. Ward v. Kilpatrick, 85 N. Y. 413, 39 Am. Rep. 674.

RECENT CASES.

ASSIGNMENTS-FOREIGN CREDITORS' RIGHTS.-BLOOMINGDALE V. WEIL, 70 PAC. 94 (WASH.).—Foreign creditors, through proceedings in the local courts, attached property covered by a foreign voluntary assignment to another party. Held, that foreign creditors do not, by virtue of entering suit in the local courts, acquire the right of local creditors to have the assignment set aside.

There has been frequent discussion as to the operation of voluntary assignments in other States, and the weight of authority seems to be that such assignments will be respected, except when in conflict with the rights of local creditors. Barnett v. Kinney, 147 U. S. 476; May v. Wannemacher, III Mass. 202; Lowry v. Hall, 2 W. & S. (Pa.) 131; Woodward v. Brooks, 128 Ill. 222. In Palmer v. Mason, 42 Mich. 146, the assignee's title to real property is held to be superior to that of attaching creditors. The New York doctrine is more liberal towards the foreign creditor, allowing him to pursue his remedy in the local courts with the same rights to priority as a local creditor would have. Bank v. Lacombe, 84 N. Y. 367; 3 Am. & Eng. Enc. Law 51. Ex parte Dickinson, 29 S. Car. 453, holds that a preferential foreign assignment is void, and that another foreign creditor may acquire a lien by subsequently attaching realty. See also Exchange Bank v. Stelling, 31 S. Car. 360.

BANKRUPTCY-INVOLUNTARY PETITION-PROVABLE CLAIMS.-IN RE STERN, 116 FED. 604-A company which was furnishing its customers ice, under contracts covering a period of several years, broke such contracts and became unable to continue them in the future. Held, that claims of customers for damages sustained by reason of the company's inability to fulfill the executory portion of such contracts were "provable claims," under section 63 of the Bankruptcy Act of 1898, defining provable claims as those founded on

contract.

Though the question as to what constitutes a provable claim has been much discussed, it seems clear that no debt can be proved unless it exists at the time of filing the petition; Collier on Bankruptcy 351; In re Crawford, Fed. Cas., No. 3363; or, following the same authorities, at the time of the adjudication. In re Hennocksburgh, Fed. Cas., No. 6367. The question then remains, is an unliquidated claim, founded on an executory contract, which the bankrupt has repudiated, such an existing debt before the time for fulfillment of the agreement. Though on this point the cases disagree, the decision in the present case, holding that a right of action accrues immediately, plainly follows the weight of authority, both in England, Hochster v. De La Tour, 2 El. & Bl. 678, and in this country; Burtis v. Thompson, 42 N. Y. 246; even though the contract be divisible. Roehm v. Horst, 178 U. S. 1. Even in Massachusetts, where the contrary view is most strongly held, Daniels v. Newton, 114 Mass. 530, the decisions are not uniform. Newcomb v. Brackett, 16 Mass. 161.