"Necessitas non habet lex," must originally have been the moral maxim which alone could have prevailed, whether immediately following the first creation of man or the subsequent rehabilitation of the race, when the whole earth had to be repeopled through the fecundity of three pairs, after the flood, instead of by one as was originally designed. Here again, the immediate descendants of Shem, Ham and Japhet, by whom "were the nations divided in the earth after the flood” (Genesis 10:32), must have contracted very close consanguineous alliances — in all probability to the extent of brothers marrying with sisters, for the respective family settlements were so far apart, as a glance at a map of ancient sacred geography will show (Gen., chap. 10), that neighborly intercourse and intercommunication must have been out of the question (in a recently submerged world), and courtship or matrimonial negotiation between members of the respective families, who even then could not have been more remotely related than first cousins, must have been hopeless. Indeed it is apparent that it was the perpetuation of the system of intermarriage, after the necessity had ceased, leading doubtless to much family immorality and confusion through the necessary proximity of the sexes, that resulted in the prescription of certain rules and directions for the future. "After the doings of the land of Egypt wherein ye dwell, shall ye not do; and after the doings of the land of Canaan whither I bring you, shall ye not do: neither shall ye walk in their ordinances." (Lev. 18:3.) Then follows the list of prohibited degrees. In fact it is only too evident from the account that the relation of the sexes, and indeed the carnal propensities of the race had hitherto been subjected to no discipline or moral regulation. But how did tho great law-giver deal with the subject? He certainly was not content to limit his regulations to cases of consanguinity. It must be admitted he included many cases of affinity in his prohibitions. Neither did he confine himself to defining lawful and unlawful marriages. He dealt with lusts most unnatural, and indeed every species of impurity. ("For all these abominations have the men of the land done, which wero before you, and the land is defiled." Lev. 18:27.) In the 16th verse of the same chapter we find it decreed that "Thou shalt not uncover the nakedness of thy brother's wife; it is thy brother's nakedness." And again in the 21st verse of the 20th chapter the same prohibition is repeated: "If a man shall take his brother's wife, it is an unclean thing; he hath uncovered his brother's nakedness; they shall be childless." Thero was, however, an exception to this prohibition, that "If brethren dwell together and one of them die and have no child, the wife of the dead shall not marry without unto a stranger; her husband's brother shall go in unto her, and take her to him to wife, and perform the duty of an husband's brother unto her. And it shall be, that the first born which she beareth shall succeed in the name of his brother which is dead, that his name be not put out of Isreal." (Deut. 25:5-6.) Then follows a description of the denunciation to be passed upon him who" will not build up his brother's house." (V. 9.) Thus we see why Christ did not rebuke his questioners for putting to him the problem of the seven times repeated case of a man espousing his brother's widow. (Mark 12:19; Luke 20:29.) In Genesis 38:8-10 we read that the Lord slew Onan because he avoided the obligation of "raising up seed to his brother." It will be observed that the Levitical decrees do not enunciate the converse of the proposition contained in them, but such an e converso conclusion is a logical sequence. The only verse that at first sight appears in so many words to refer to a wife's sister is the 18th verse of the 18th chapter of Genesis: "Neither shalt thou take a wife to her sister, to vex her, to uncover her nakedness, beside the other in her lifetime." This would appear

to imply a permission to marry her if her sister were dead but as is well understood by scholars, and indeed expressed in the Septuagint, the verse should run "Neither shalt thou take a woman to a wife," etc., and is apparently directed against bigamy or polygamy, especially where it provoked jealousy or caused vexation, and this verse may therefore be eliminated from the consideration.

From the Bible history it appears that what Bishop Doane terms "God's Law of Marriage must at one time have sanctioned what is now termed incest, and, at another time must by implication have forbidden marriage between the most remote degrees of affinity. "None of you shall approach to any that is flesh of his flesh," embracing, according to him, the case of a deceased wife's sister and all her blood relations.

But let us now proceed to a consideration of the law of man on this subject, involving, as it does, social interests of vast importance which should once and forever be set at rest.

In England the prohibition to marriage within the Levitical degrees rests on the canon law which in that respect received the sanction of several statutes passed in the reign of Henry 8th. 2 Kent's Com., part 4, § 83. See the subject of the Levitical degrees discussed in Reg. v. Chadwicke, 12 Eng. Jur., 174; 63 Eng. C. L. 205. But these statutes do not of themselves declare what are the prohibited degrees. The statutes (25 Henry 8, chap. 22, and 32 Henry 8, chap. 38), do not define them, except as "God's Law," and the Levitical degrees," but the table as formulated by Archbishop Parker in 1563 has been accepted as based upon the canon law so far as it has been recognized since the reformation. This table includes among the prohibitions that of a deceased wife's sister. Previous to statute 5 and 6, Wm. 4, chapter 54, all marriages within the prohibited degrees were merely voidable (inter vivos) only by sentence of the ecclesiastical court, but now they are by that statute declared to be absolutely void. In New York until 1830 there was not any statute defining the forbidden degrees. In several of the States of the United States marriages within the Levitical degrees, with some exceptions, are made void by statute, and in New York State "marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as of the whole blood, are incestuous and void from the beginning; whether the relationship is legitimate or illegitimate." Civil Code of New York, § 38, art. 1; Wightman v. Wightman, 4 Johns. Ch. 343. In most of the British Australian colonies acts have been passed legalizing the marriage with a deceased wife's sister, and the veto of the Crown, though for some time it was interposed, has not latterly been exercised to disallow such legislation. Some complications may not improbably arise notwithstanding every precaution, as for instance, unless the enactment were ex post facto (which of itself would be unconstitutional in the United States), the question of the illegitimacy of previous-born issue would remain intact. If the enactment were ex post facto the vested rights of many at present would be divested by such.

Upon the whole it appears that all such prohibitions, whether of consanguinity or affinity, or both, aro simply municipal rules for regulating the morals of society, having especial reference to the sanctity of the domestic hearth. It will be observed that the Levitical prohibitions do not include the degree of first cousins, nor yet, except by implication, that of a deceased wife's sister, unless indeed the transaction with which Bishop Doane favors us is to embrace both one and the other. It is true, that according to the literal interpretation of the Biblical account (and the bishop would doubtless decline to accept an allegorical one), "The Lord God," whilst Adam slept, "took one of his ribs and closed up the flesh instead thereof. And the rib which the

Lord God had taken from man, made he a woman, and brought her unto the man. And Adam said, This is now bone of my bones and flesh of my flesh; she shall be called woman, because she was taken out of man. Therefore shall a man leave his father and his mother and shall cleave unto his wife, and they shall be one flesh." Gen. 2:21-24. This in Adam's case, taken literally, was true, and the sentiment was indorsed by Christ in the self same words, with the addition, "What therefore God hath joined together let not man put asunder." Matt. 19:6. St. Paul, however, gives an interpretation of this figure of speech "one flesh" by adding, "This is a great mystery; but I speak concerning Christ and his church." (Ephes. 5:31-32.) He had just been comparing the state of matrimony with that of the mystical union between Christ and his church, "for," says the apostle, "we are members of his body, of his flesh, and of his bones." (Id. 30.) The two preceding verses (28 and 29) explain the figure thus, "So ought men to love their wives as their own bodies. He that loveth his wife loveth himself. For no man ever yet hated his own flesh; but nourisheth and cherisheth it, even so the Lord the church." Even though in every instance the expression one flesh " were as literally true as we are taught to believe it was in Adam's case, by what process of reasoning such a carnal construction can be extended beyond the individual two thus made one it remains for Bishop Doane to suggest.

The only practical objection to such a union as that between a widower and his deceased wife's sister appears to be that mentioned by the late Mr. Roebuck, Q. C. M. P. where the first wife has left children. He expressed in the House of Commons his fear that a marriage under such circumstances, especially if followed by progeny, would convert the affectionate aunt into the jealous step-mother. So, possibly, the sacred law-giver thought it prudent to provide against the possibility of the affectionate uncle being transformed into the despotic step-father, by permitting a man to marry his deceased brother's widow only in the event of her being childless.

But it seems after all the object of keeping the inheritance in the family and tribe was in that case paramount. All this however tends to prove that such laws were human merely, not divine, except so far as prudence, foresight, family ties and the regulation of the morals of the world may be said to form part of the divine economy.

If the bishop, as the expounder of "God's law" and God's word, has the privilege of remaining uncontroverted, it must be upon the principle that "God's ways are not as our ways, nor His thoughts as our thoughts."

Although, as has been before remarked, the Levitical prohibitions do not include first cousins, the canon law does embrace them and even at one time extended its prohibition to the seventh degree, thereby showing that it did not consider the Levitical prohibitions in any other light than human ordinances to be expanded or abridged as the church thought desirable. The Levitical decrees were addressed to the Jewish nation, and with the fall of that nation and the advent of Christianity a new era and fresh ordinances were from time to time prescribed. The dispensing power was a source of considerable revenue to the church; we do not say that such was justifiable or even excusable, but the right claimed and exercised of making new regulations from time to time at least shows that the Levitical law was not deemed immutable and sacred as "God's Law," but simply a human law that might be varied as occasion required. If we cannot always assent to the premises assumed by the Roman Catholic Church, or to the wisdom and justness of her legislation, we must at least in this respect give her credit for consistency and for logical conclusions. Protestants,

having thrown off her yoke, might surely exhibit a spirit of moderation, and instead of insisting upon a strained and forced construction of a law enacted many thousands of years ago, addressed to a peculiar people with peculiar institutions relating to tribes and inheritance, might well set an example of liberality in adapting a useful basis of past legislation to the spirit if not the necessities of the present age.

"God's Law of Marriage," surely, can be no other than the law of nature plus any municipal regulations, either of a moral, social or commercial character, that the well being of society may from time to time require. HUGH WEIGHTMAN.

NEW YORK, June 23, 1881.

STATE STATUTE ABOLISHING IMPRISON-
MENT FOR DEBT CONSTITUTIONAL
AS TO EXISTING DEBTS.

UNITED STATES SUPREME COURT.

VIALL V. PENNIMAN.

A State statute abolishing imprisonment for debt, applicable to judgments in force at the time of its passage, is not invalid under the Federal Constitution, as impairing the obligation of a contract.

N error to the Supreme Court of the State of Rhode

Nord. Suficient facts appear in the opinion.

WOODS, J. The general statutes of Rhode Island, chapter 142, contain the following provisions:

"SEC. 11. Every manufacturing corporation included within the provisions of this chapter shall file in the town clerk's office of the town where the manufactory is established, annually on or before the 15th day of February, a certificate, signed by a majority of the directors, truly stating the amount of its capital stock actually paid in, the value, as last assessed for a town tax, of its real estate; the balance of its personal assets, and the amount of its debts.

"§ 12. If any of said companies shall fail to do so, all the stockholders of said company shall be jointly and severally liable for all the debts of the company then existing, and for all that shall be contracted before such notice shall be given, unless such company shall have been insolvent and assigned its property in trust for the benefit of its creditors, in which case the obligation to give notice by the filing of such certificate shall

cease.

"§ 20. Whenever the stockholders of any manufacturing company shall be liable, by the provisions of this chapter, to pay the debts of such company, or any part thereof, their persons and property may be taken therefor on any writ of attachment or execution issued against the company for such debt, in the same manner as on writs and executions issued against them for their individual debts.

"§ 21. The person to whom such officers or stockholders may render themselves liable as aforesaid, may, instead of the proceedings aforementioned, have his remedy against said officers or stockholders by bill in equity in the Supreme Court."

While these provisions of the statute law were in force William Tweedle, of Providence, one of the plaintiffs in error, recovered judgment against the American Steam & Gas-pipe Company, a manufacturing corporation created by the general assembly of Rhode Island, which was subject to the provisions above recited.

The defendant in error was a stockholder in that corporation. The certificate required by section 11 had not been filed. He was consequently individually

liable in person and property for the satisfaction of the judgment above mentioned. Therefore the sheriff, to whose hands the execution issued on the judgment of Tweedle against the corporation, came, for want of goods and chattels of the corporation, or of Penniman, the defendant in error, arrested Penniman and committed him to jail. While he was in jail, under the commitment, the general assembly of Rhode Island, on March 27, 1877, passed an act "defining and limiting the mode of enforcing the liability of stockholders for the debts of corporations." It was as fellows:

"SEC. 1. No person shall hereafter be imprisoned, or be continued in prison, nor shall the property of any such person be attached, upon an execution issued upon a judgment obtained against a corporation of which such person is or was a stockholder.

"§ 2. All proceedings to enforce the liability of a stockholder for the debts of a corporation shall be either by suit in equity, conducted according to the practice and course of equity, or by an action of debt upon the judgment obtained against such corporation; and in any such suit or action such stockholder may contest the validity of the claim upon which the judgment against such corporation was obtained upon any ground upon which such corporation could have contested the same in the action in which such judgment was recovered.

"§ 3. All acts and parts of acts inconsistent herewith are hereby repealed.

"§ 4. This act shall take effect from and after the date of the passage thereof."

Penniman did not take or offer to take the poor debtor's oath, on the taking of which he would have been entitled to discharge from imprisonment, but while he was still in jail under said commitment, applied to the Supreme Court of the State for his release by virtue of the provisions of the act just recited. His discharge was opposed by Tweedle, the committing creditor, on the ground that the first section of the act, by virtue and force of which he claimed to be discharged from imprisonment, was repugnant to and in violation of section 10, article I, of the Constitution of the United States, and was therefore null and void, because it impaired the obligation of the judgment upon which said commitment had been made, and of the contract on which the judgment was founded.

It was adjudged by the Supreme Court that said section was constitutional and valid, and that by virtue thereof Penniman was entitled to be discharged from further custody under said commitment, and the court discharged him accordingly.

This judgment of the Supreme Court is brought here on error for review. It is only necessary to consider that part of section one of the act above recited which relieves a party from imprisonment upon an execution issued on a judgment obtained against a corporation in which he is a stockholder. The defendant in error invokes that provision of the statute and no other. He was merely relieved from imprisonment, and it is that and that only of which the plaintiff in error complains. "Statutes that are constitutional in part only will be upheld, so far as they are not in conflict with the Constitution, provided the allowed and prohibited parts are severable." Packet Co. v. Keokuk, 95 U. S. 80. So that if so much of the section under consideration as relieves a debtor from imprisonment for debt is constitutional and can be severed from the other parts of the enactment, the judgment of the Supreme Court of Rhode Island should be affirmed.

That part of the section of the law assailed by plaintiff in error, which relates to imprisonment of the debtor, and that which relates to the seizure of his property, are entirely distinct and independent, and either one can stand and be operative, though the other should be declared void. We may, then, in deciding this case, consider section one as if it read: "No

person shall hereafter be imprisoned, or be continued in prison, * * * upon an execution issued upon a judgment obtained against a corporation of which such person is or was a stockholder."

The only question, therefore, which we are called on to decide is whether this provision of the law, which was enacted after the recovery of the judgment against the corporation, by virtue of which the defendant in error was imprisoned, is a law which impairs the obligation of contracts. In other words, can a State Legislature pass a law abolishing imprisonment for debt on contracts made or judgments rendered when imprisonment of the debtor was one of the remedies to which his creditor was by law entitled to resort? This court has repeatedly and pointedly answered this question in the affirmative, holding such an enactment not to impair the obligation of the contract.

In Sturgis v. Crowninshield, 4 Wheat. 122, this court, speaking by Chief Justice Marshall, said: "The distinction between the obligation of a contract and the remedy given by the Legislature to enforce that obligation, has been taken at the bar and exists in the nature of things. Without impairing the obligation of the contract the remedy may certainly be modified, as the wisdom of the nation shall direct. Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punishment, or may withhold this means and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation."

The precise question raised in this case came before this court in Mason v. Haile, 12 Wheat. 370. The case was an action of debt, brought in the Circuit Court of Rhode Island, upon two several bonds given by the defendant Haile to the plaintiff Mason and one Bates, whom the plaintiff survived; one of which was executed on the 14th and the other on the 29th of March, 1814. The condition of both bonds was the same, and was as follows:

"The condition of the above obligation is such that if the above-bounden Nathan Haile, now a prisoner in this State's jail in Providence, within the county of Providence, at the suit of Mason and Bates, do and from henceforth continues to be a true prisoner in the custody, guard and safe-keeping of Andrew Waterman, keeper of said prison, within the limits of said prison, until he shall be lawfully discharged, without committing any manner of escape or escapes during the time of restraint, then this obligation to be void, or else to remain in full force and virtue."

To the declaration upon these bonds the defendant pleaded, in substance, that in June, 1814, after giving the bonds, he presented a petition to the Legislature of Rhode Island, praying for relief and the benefit of an act passed in June, 1756, entitled "An act for the relief of insolvent debtors." That in February, 1816, the Legislature, upon due hearing, granted the prayer of his petition and passed the following resolution:

"On petition of Nathan Haile, of Foster, praying for the relief therein stated, that the benefit of an act passed in June, 1756, for the relief of insolvent debtors, may be extended to him. Voted, that the prayer of the petition be, and the same is, hereby granted."

That the defendant afterward, in pursuance of said resolution and of the laws of the State, received, in due form, from the proper court, a judgment that he should be, and was thereby, fully discharged from all the debts, duties, contracts, and demands, * * and from all imprisonment, arrest and restraint of his person therefor."

To this plea a demurrer was filed, and the judges of the Circuit Court being divided in opinion as to the suppressing of the plea, the question was certified to this court for final decision.

The case was argued by Mr. Webster for the plaintiff. He urged that the act of Legislature of Rhode Island of February, 1816, liberating the person of defendant from imprisonment and reviving in his favor an obsolete insolvent act of the colonial Legislature passed in 1756, and which was no longer in force, was in the strictest sense a law impairing the obligation of contracts; that it interfered with an actually vested right of the creditor acquired under the existing laws and entitling him to a particular remedy against the person of his debtor; that upon the narrowest construction which had ever been given to the prohibition in the Constitution of the United States, it impaired the obligation of the bonds; that the obligation of these bonds was entirely destroyed by the legislative act, which was not a general law but a private act professedly intended for the relief of the party in the particular case. But this court held the plea good, and the resolution of the Legislature of Rhode Island, by which the defendant was discharged from imprisonment, a valid and constitutional enactment.

The court said: "Can it be doubted but the Legislatures of the States, so far as relates to their own process, have a right to abolish imprisonment for debt altogether, and that such law might extend to present as well as future imprisonment? We are not aware that such a power in the States has ever been questioned. And if such a general law would be valid under the Constitution of the United States, where is the prohibition to be found that denies to the State of Rhode Island the right of applying the same remedy to individual cases? Such laws merely act on the remedy, and that in part only. They do not take away the entire remedy but only so far as imprisonment forms a part of such remedy. The doctrine of this court in the case of Sturgis v. Crowninshield, 4 What. 200, applies with full force to the present case."

Mr. Justico Washington dissented from the opinion in the case but concurred in so much as related to the discharge of the defendant from imprisonment. He remarked: "It was stated in Sturgis v. Crowninshield, that imprisonment of the debtor forms no part of the contract, and consequently that a law which discharges his person from imprisonment does not impair its obligation. This I admit, and the principle was strictly applicable to a contract for money. *** I admit the rights of a State to put an end to imprisonment for debt altogether."

So in Burr v. Houghton, 9 Pet. 359, this court said: "There is no doubt that the Legislature of Ohio possessed full constitutional authority to pass laws whereby insolvent debtors should be released or protected from arrest or imprisonment of their persons on any action for any debt or demand due by them. The right to imprison constitutes no part of the contract, and the discharge of the person of the party from imprisonment does not impair the obligation of the contract but leaves it in full force against his property and effects." See, also, Von Hoffman v. Quincy, 4 Wall. 553, and Tennessee v. Sneed, 96 U. S. 69.

The general doctrine of this court on this subject may be thus stated: In modes of proceeding and forms to enforce the contract the Legislature has the control and may enlarge, limit or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right. Bronson v. McKenzie, 1 How. 31; Von Hoffman v. Quincy, 4 Wall. supra; Tennessee v. Sneed, 96 U. S. supra.

The result of the decisions of this court above quoted is that abolition of imprisonment for debt is not of itself such a change in the remedy as impairs the obligation of the contract.

Our conclusion is therefore that the judgment of the Circuit Court must be affirmed.

ADVANCEMENT OF MONEY FOR NECESSARIES TO DESERTED WIFE. CONNECTICUT SUPREME COURT OF ERRORS.*

KENYON V. FARRIS.

Where a person has advanced money to a wife deserted by her husband, for the purchase of necessaries, and the money has been so applied, he can maintain a bill in equity against the husband for the recovery of the money so advanced.

And it seems that it is not necessary that the petitioner should stand upon the rights of any particular person of whom the necessaries were purchased, but may maintain a single suit for the recovery of the whole amount so advanced, even though applied to the purchase of necessaries from various persons.

BILL

LL in equity to recover money advanced to the wife of the respondent for the purchase of necessaries by her while deserted by her husband; brought to the Supreme Court in Hartford county. The suit was brought by the petitioner Kenyon as trustee, for money advanced by his wife from her separate estate. Other facts appear in the opinion. The respondent demurred to the petition. The court below sustained the demurrer and petitioner took a writ of error. A. D. Smith, for plaintiff in error.

H. Willey, for defendant in error.

PARDEE, J. This is a bill in equity. The petitioner alleges that on or about the 1st day of March, 1876, the respondent willfully deserted his wife, she being without fault; that thereafter he neglected and refused to furnish means necessary for her support; that she was without means of support and was in need of the necessaries of life; that at her request during the time of such need, the wife of the petitioner advanced from her separate estate from time to time sums of money aggregating $800, to the respondent's wife, for the purpose of enabling her to procure the necessaries of life; and that she expended the money in the purchase for herself of such necessaries as her husband was legally bound to furnish. And the petitioner alleges that he brings this bill as trustee for his wife; and that he is without adequate remedy at law. He prays to be subrogated to the rights of the several persons who sold these necessaries to the respondent's wife; and that the respondent be ordered to pay said amount to him as such trustee; or that relief should be granted in some other manner.

The following cases are precedents for this bill. In Harris v. Lee, 1 P. Wms. 482, the petitioner had loaned £30 to the respondent's wife who had left him for cause, to enable her to pay doctors and for necessaries. The court said: “Admitting that the wife cannot at law borrow money, though for necessaries, so as to bind the husband, yet this money being applied to the use of the wife for her use and for necessaries, the plaintiff that lent this money must in equity stand in the place of the persons who found and provided such necessaries for the wife. And therefore, as such persons could be creditors of the husband, so the plaintiff shall stand in their place and be a creditor also; and let the trustees pay him his money and likewise his costs." And in Marlow v. Pitfield, 1 P. Wms. 559, the court said: "If one lends money to an infant to pay a debt for necessaries and in consequence thereof the infant does pay the debt, here although he may not be liable at law, he must nevertheless be so in equity." In Dean v. Soutten, L. R., 9 Eq. Cas. 151 (1869), the marginal note is as follows: "A person who has advanced money to a married woman deserted by her husband for the purpose of, and which has been actually applied towards her support, is entitled in equity

* Appearing in 46 Connecticut Reports.

though not at law, to recover such sums from the husband." In giving the decision Lord Romilly, M. R., said: "I am of opinion that this is a proper suit and that the plaintiff is entitled to a decree. The cases cited on behalf of the defendant have no application, and May v. Shey, 16 Sim. 588, is overruled by Jenner v. Morris, supra."

Jenner v. Morris, 3 De G., F. & J. 45, was a bill to compel the payment of money advanced to a deserted wife. In giving the opinion the Lord Chancellor said: "An action at law could not be maintained for such a claim. Those who supply the necessaries to the deserted wife may sue the husband at law, she being considered his agent with uncountermandable authority to order the necessaries on his credit. But courts at law will not recognize any privity between the husband and a person who has supplied his wife with money to purchase necessaries or pays the trades-people who have furnished them. Nevertheless, it has been laid down from ancient times that a court of equity will allow the party who has advanced the money which is proved to have been actually employed in paying for necessaries furnished to the deserted wife, to stand in the shoes of the trades-people who furnished the necessaries, and to have a remedy for the amount against the husband. I do not find any technical reason for this; but it may be possible that equity considers that the trades-people have for valuable consideration assigned to the party who advanced the money the legal debt which would be due to them from the husband on furnishing the necessaries, and that although a chose in action cannot be assigned at law, a court of equity recognizes the right of an assignee. Whatever may be the reason, the doctrine is explicitly laid down in Harris v. Lee, 1 P. Wms. 482, and the other cases referred to. Objection has been made to these authorities that they are very old, and that they do not appear to have been acted upon in modern times. But it may be said, on the other hand, that they have been acted upon without ever having been questioned, and that they are entitled to more respect from their antiquity. I find that they are cited and treated as good law by subsequent text writers on this subject. Considering that to establish the equitable liability of the husband, proof is required that the money has been actually applied to the payment of the debt for which the husband would be liable at law, no hardship or inconvenience can arise from adhering to this doctrine."

In Walker v. Simpson, 7 Watts & S. 83, the court said: Although the husband is to blame for having caused the separation, yet he is only chargeable at law for necessaries supplied to his wife at her request, and not with money lent or advanced to her, because money cannot be considered necessaries, which consist of food, lodging, and raiment. But where the money lent or advanced has been applied to the payment of necessaries furnished to her, equity will put the party lending or advancing the money in the place of the party who supplied the necessaries."

We willingly follow the leading of these authorities, because we think that the line of separation between necessaries and money loaned for the purpose of purchasing them may well be obliterated. So far as the husband is concerned they are practically convertible terms. His burden will not be increased if he is made liable for money; the scope of the word necessaries will not thereby be broadened; the lender will be compelled to prove an actual expenditure for them; the law has discharged its duty to the husband in protecting him from liability for any thing beyond them; it only discharges its duty to the wife by making it impossible for him to escape liability for these irrespective of the method by which he forces her to obtain them. If he has any preference as to that method the law will secure it to him; if he refuses to adopt any,

he is not to be heard to complain if she is permitted to elect, providing always that she is kept within the small circle of necessity. It is not certain that credit will, under all circumstances, supply necessaries to the wife; at times they may not be had without money, and accidents of time, place or distance may bring about such a state of things as that a friend may be able and willing to place money in her hands upon her husband's credit, who cannot personally attend to its disbursement.

There is error in the judgment complained of.

In this opinion the other judges concurred; except Carpenter, J., who having tried the case in the court below did not sit.

PATENT RIGHT LIABLE FOR DEBTS OF OWNER.

CALIFORNIA SUPREME COURT, APRIL 19, 1881.

PACIFIC BANK V. ROBINSON.

The interest which a judgment debtor has in a patent right may be reached by his creditor in proceedings supplementary to execution, in a State court, and such court may order the assignment and sale of such patent right for the benefit of the debtor's creditors.

PPEAL from an order of the court below directing an assignment of a patent right. The opinion states the case.

Wheaton & Scrivner, for appellant.

Winans, Belknap & Godoy, for respondent.

MCKEE, J. Appeal from an order made after judgment upon proceedings supplementary to execution, requiring the defendants to transfer and assign, by a proper instrument in writing, as required by the laws of the United States, all their right, title and interest in a patent right for broom-sockets, which they hold under United States letters patent, dated October 27, 1874, to a receiver appointed to sell the same, and apply the proceeds in satisfaction of a judgment which the plaintiff had recovered against the defendant in July, 1879.

It is objected that the order is erroneous, because United States letters patent issued to inventors and discoverers under the patent laws of the United States are not the subject of levy and sale, and cannot be applied to the satisfaction of a judgment.

By the law of this State, all goods, chattels, money and other property, both real and personal, or any interest therein, of the judgment debtor are liable to execution. Section 688, C. C. P. And if there be property which cannot be reached by execution, and which the judgment debtor refuses to apply to the satisfaction of the judgment, he may be compelled, upon examination, in proceeding supplementary to execution, to deliver it in satisfaction of the judgment (sections 714 to 721, C. C. P.), or to a receiver appointed to dispose of it in aid of the execution. Section 564, id. The principle, as well as the policy of the law is, therefore, to subject every species of property of a judgment debtor to the payment of his debts. No species of property would seem to be exempt, except such as is especially exempted by law; and any property not directly liable to execution may be reached for the satisfaction of the judgments. This was effected, under the old system of practice, by a proceeding in equity known as the Creditor's Bill. After a judgment creditor had exhausted his remedy at law, by the issuance of a fi. fa., which was returned nulla bona, he had the right to invoke the jurisdiction of a court of equity to aid him, upon the principle of compelling a discovery of assets, tangible or intangible, and applying them to satisfying his execution. Brin