law, and is not estopped if she later survives her husband.82 The reason of the court is that her property in realty owned by herself and her husband by the entireties is not in the nature of a separate estate and, therefore, not within the statute. The mortgage being void in its inception, she is not estopped when she later survives her husband. It is submitted, however, that there is no distinction between this situation and a joint mortgage with her husband on lands owned by them by the entireties as far as the question of her separate estate is concerned. Yet the Michigan court has reached opposite results in the two cases.

(h) Personal Services of the Wife.

83

The Statute of 1855 did not change the common law rule that the husband was entitled to the labor and services of his wife. In the absence of any agreement relinquishing his claim to her services the husband was entitled to recover therefor-not the wife. The bare fact of separation did not alter this rule. The wife could not engage in any business, in competition with her husband or otherwise, without his consent.85 If the husband had emancipated the wife and such emancipation was known and assented to by the party receiving her services, she could recover therefor in her own name.88

When the wife is suing in a tort action for damages due to the negligence of another she may recover for the services of a physician who has been employed on her sole credit and promise to pay and for other medical treatment furnished on her sole credit,8 even if they have not been paid for as yet. She may also recover as an

82 Naylor v. Minock, 96 Mich. 182.

88

87

83 Barnes v. Moore's Estate, 86 Mich. 585; In re Reidy's Estate, 162 Mich. 154; Heral v. McCabe, 171 Mich. 530; In re Shaw's Estate, 201 Mich. 574. 84 In re Mayer's Estate, 210 Mich. 188.

85 Root v. Root, 164 Mich. 638.

86 Mason v. Dunbar, 43 Mich. 407; Benson v. Morgan et al, 50 Mich. 77; In re Scully's Estate, 199 Mich. 181; In re Burnham's Estate, 199 Mich. 326, 207 Id. 361; In re Barclay's Estate, 146 Mich. 650, the court held contra as to necessity of deceased's knowledge of wife's emancipation. In that case evidence of a contract between the wife and deceased was admitted over defendant's objection that the deceased must know of the agreement between husband and wife and assent to it.

87 Carstens v. Hanselman, 61 Mich. 426; Vergin v. City of Saginaw, 125 Mich. 499.

ss Lacas v. Ry. Co., 92 Mich. 412.

item of damages the loss of her services where it appears she is entitled thereto under the theory set forth above.89

In 1911 an Act was passed giving a married woman absolute control and right to her earnings and the right to sell or otherwise dispose of such earnings and to make contracts in relation thereto as if unmarried.90 However, if the contract was made before the passage of this Act, even though performance continued after the Act, unless a new contract was made, the wife cannot recover unless emancipated according to the rule existing before 1911.91 Regardless of the Act of 1911 the husband is considered to be entitled to recover for personal services of the wife rendered around the house.92

(i) Incidental effects of the Statute of 1855.

1. Since 1855 the disabilities of married women have been removed so that adverse possession may run against them.93 2. She is a competent person to be appointed guardian of a minor child and may become principal on the required statutory bond.94

3. A husband may not recover in trespass for personal property of the wife removed at her request.95

4. The wife's property is not liable for her husband's debts.96 5. A married woman can carry on any lawful business with her husband's consent.97 (The Act of 1911 did away with the necessity of the consent of the husband.)

6. The wife's property is not subject to control by the husband and is not effected by anything he may do.98

In 1917 married women were given the power to bind themselves jointly with their husbands upon any written instrument concerning real estate owned by husband and wife as tenants by the

89 Boyle v. City of Saginaw, 124 Mich. 348; Gilson v. City of Cadillac, 134 Mich. 189; Green v. Company, 171 Mich. 18.

90 C. L. 1915 § 11478, Act 196, 1911.

91 Sorensen v. Sorensen, 211 Mich. 429.

92 Gregory v. Oakland Motor Car Co., 181 Mich. 101; Blair v. Dry Goods Co., 184 Mich. 304.

93 Carbay v.

Bellemer, 70 Mich. 106.

94 Goss v. Stone, 63 Mich. 319.

95 Stockweather v. Smith, 6 Mich. 377.

96 Rankin v. West, 25 Mich. 195.

97 Amperse v. City of Kalamazoo, 59 Mich. 78.

98 Moore v. Foote, 34 Mich. 443; Osborn v. Osborn et al, 36 Mich. 48.

entirety or the real estate acquired by either as survivor of the other. "Such instrument shall contain a statement that no undue influence or constraint has been exerted against the wife in the execution thereof."99 It is submitted from a practical point of view this statute is of no particular value to the ordinary layman, because he would not know of the proviso contained in the statute for a statement of undue influence. No case has come to the writer's attention which has been decided under this act.

Except for the Acts of 1911 and 1917, the Statute of 1855 is the law in Michigan today. That these Acts have changed or added to the Statute of 1855 in minor details only is quite obvious. The common law disabilities of married women with reference to their capacity to make valid contracts have been insufficiently removed by the Michigan statutes. The Michigan law, as set forth by the statutes and the decisions of the court thereunder, is in many, if not most, cases ridiculous in the light of present day social, economic and political conditions. Women for the last few years have been endeavoring to get on an equal footing with men, both in business and in politics, and have succeeded, especially in the last decade, in so doing to a remarkable degree. In the writer's opinion women as a whole in Michigan are today capable of sound business judgment in making and meeting their obligations and are entitled to equality with men in all respects in the field of contracts. If women consider themselves capable of meeting their business obligations, they should expect to meet them under the same conditions which confront men.

Therefore, it is submitted that a statute, similar in substance to that in force in Ohio,100 should be passed giving married women the same status as men regarding their contracts-married women should be entitled to the same privileges and have the same burdens. This change is desirable, not only as a step forward for women in their struggle for equality of the sexes, but also to give legislative sanction to the extensions the Michigan court has made in its decisions, either intentionally or unintentionally, to the scope of the Statutes of 1855, 1911 and 1917.

99 Public Acts 1917, No. 158.

100 "A husband or wife may enter into any engagement or transaction with the other, or with any other person, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other." Ohio General Code 1921 § 7999.

SOLICITOR GENERAL BECK ON THE CONSTITUTION A REVIEW BY CHARLES WARREN*

THE CONSTITUTION OF THE UNITED STATES-YESTERDAY, TODAY AND TOMORROW, BY JAMES M. BECK, LL.D., PP. 19-317, APPENDICES PP. 321-356, INDEX PP. 357-362,

(GEORGE H. DORAN COMPANY, N. Y., 1924.)

Few men are in a position not only to enforce, expound and develop the Constitution in the Courts, but also to write its history. Mr. Beck's law-briefs as Solicitor General have always had an unusual and delightful literary flavor. His present book presents the same combination. It is literature as well as history. There are two methods of historical writing. One is to narrate events in which certain men, as historical charactres, take part. The other is to depict men in action, from which events result. By following the second method, Mr. Beck has reproduced the framing of the Constitution as a much more vivid episode in our history than it appeared in the older and more conventional books on the subject by George Bancroft and George Ticknor Curtis. Mr. Beck has wisely relied on contemporaneous sources, rather than on the imaginative descriptions or theorizings of later historians, however graphic or plausible. He has thus humanized, or (as a brilliant reviewer has said) dramatized the Constitution. We of today must realize that the framers were human beings, with prejudices, jealousies and limitations, and that not every member of the Federal Convention was a statesman of the highest order, or so regarded at the time. The appreciation of the fact that they did not all wear halos makes the result of their efforts the more remarkable and worthy of veneration.

Beginning, naturally, with the "genesis" of the Constitution, the book describes the conditions in the Colonies and under the Confederation which made a stronger union not only necessary and inevitable but in accordance with ancestral traditions. A chapter entitled "Franklin Gives a Dinner", vividly depicts the chief members of the Convention in 1787. Chapters follow with the picturesque titles—

* Formerly Assistant Atorney General of the United States and author of "The Supreme Court in United States History."

"The Opening of the Battle," "Mr. Hamilton takes the Floor," "The Crisis," "The Dawn," "The Great Experiment," "Nearing the End," "The Curtain Falls."

Four further chapters set forth the philosophy and basic principles of the Constitution. Mr. Beck's commentaries on these fundamental doctrines, in their relation to the problems and conditions of the present day, are informing and suggestive. They are also generally free from partisan bias; although some of his reference to political events and foreign affairs of the last decade may not be agreeable to all readers.

Fifty pages, in conclusion, are devoted to the author's personal apprehensions as to modern tendencies, social, economic and governmental. Here, he invites controversy. Certainly one may be amazed to find an era that has produced a Cleveland, a Roosevelt and a Wilson, termed an era of "decay of leadership". One may suspect also that if Mr. Beck had extended the perspective of his comparisons over a longer term of years, he would not find that the present compared so unfavorably with the past. It was a wise father who said to his son: "Never forget, my boy, that today is the 'good old times' you will tell your grandchildren about."

Mr. Beck's comments on the part played by the leading members of the Convention are always vivid and interesting. He rightly emphasizes the immense influence of the veteran, common sense, tactful, Franklin-which has been underestimated by many writers. Every statesman and every politician ought always to have nailed in front of him on his desk, Franklin's words, on signing the Constitution, when he said that, "on the whole, sir, I cannot help expressing a wish that every member of the Convention, who may still have objections to it, would with me, on this occasion, doubt a little of his own infallibility."

"I confess that there are several parts of this Constitution which I do not at present approve, but I am not sure I shall never approve them. For having lived long, I have experienced many instances of being obliged by better information or fuller consideration to change opinions even on important subjects. ✶✶✶ The older I grow the more apt I am to doubt my own judgment and to pay more respect to the judgment of others. *** I consent, sir, to this Constitution, because I expect no better, and because I am not sure it is not the best. The opinions I have had of its errors, I sacrifice to the public good."