in Ohio, where Fowler v. Cleveland," holding a city liable for the negligence of a fireman, was overruled by Aldrich v. Youngstown,i2 which returned to the old rule that the city was not liable for the negligence of a policeman. A learned and experienced bar may do much to improve the law through legislation. It knows the defects of the law, its uncertainties and its complexities. As an organization it should be the leader in law reform. An earnest and united effort for legislative changes will not fail, although the legislative lead-pencil has too often marred the symmetry of statute law and legislative indifference has delayed much needed reforms. Law is the basis of national stability and the lawyer as a specialist should ever be ready to aid the law giver, not merely in the interests of his client but in the interest of the community. A piece of legislation proposed by the bar should be looked on with respect and not suspected as being in aid of particular interests. Much has been done to simplify the law by the Commission on Uniform Laws, yet the changes in the direction of uniformity are often unnoticed until the judicial attention is sharply directed to them.13 The Civil Practice Act is a great piece of work in the simplification of our procedure; but the regulation of procedure should not be subject to annual amendments by the legislature in matters of infinite detail. The bar should stand up for symmetry and certainty in such matters. It is true that of procedure, at least, we have a right to expect certainty and consistency and: "Certainty is a matter of quietness and repose, and uncertainty the cause of variance and contentions." President Coolidge says in his Message to Congress: "As no revision of the laws of the United States has been made since 1878, a commission or committee should be created to undertake this work. *** It is desirable to expedite the hearing and disposal of cases. A commission of Federal judges and lawyers should be created to recommend legislation by which the procedure in the Federal trial courts may be simplified and regulated by rules of court, rather than by statute; such rules to be submitted to the Congress and to be in force until annulled or modified by the Congress. The Supreme Court needs legislation revising and simplifying the laws governing review by that court, and enlarging the classes of cases of too little public importance to be subject to review. Such reforms would 11100 Oh. St. 158 (1919). 12106 Oh. St. 342 (1923). 13 Kelso v. Ellis, 224 N. Y. 528, 536–7 (1918). expedite the transaction of the business of the courts. The administration of justice is likely to fail if it be long delayed." These recommendations are likely to fall to the ground unheeded unless a united bar supports them. May I suggest a single instance where society has a reason to expect a betterment in the administration of justice? The present law of negligence in its practical operation is horribly unjust to everyone concerned. The growing custom of giving judgments for vast sums of money for personal injuries is a burden on industry and on the public. The jury reasons that an insurance company bears the loss and the attorney shares the recovery with the plaintiff. It cheerfuly takes from the strong to give to the weak. Such large potentialities of recovery too often tempt the grafter, the perjurer and the malingerer to leave their track over the courts. On the other hand, the worthy claimant may be the victim of the law's uncertainties and complexities. Kinney succeeded in his action for damages for personal injuries after six trials, five appeals in the Appellate Division, two in the Court of Appeals and one in the United States Supreme Court. What a moil over personal injuries unquestionably sustained, when the only question was whether any one and, if so, who was legally bound to make fair compensation therefor! I recall a case, tried before me in Erie County, of a shop girl who fell down an elevator shaft and sutained serious injuries, who was given a verdict of six cents because some lay lawyer on the jury thought that such a verdict would carry costs against the defendant. In Orleans County two married women were killed in the same crossing accident. On conflicting evidence and the weight given to such evidence by the jury, the husband of one recovered a verdict for a substantial sum which was sustained on appeal, while the husband of the other met with a verdict of no cause of action, which was also sustained on appeal. Horrible examples prove nothing; but on the whole it is time for the bar to consider whether the combination of contingent fee, contributory negligence as an absolute defense, insurance against liability, and trial by jury has not produced inequality and injustice unworthy of a community where personal injuries are of daily occurrence and the carrying cost of liability for such injuries amounts to millions of dollars annually. I might continue to suggest instances wherein the practicing lawyer should aid in the administration of justice; but the task would be endless. He might well turn his attention to the expense entailed in printing voluminous records on appeal, which has undoubtedly stood in the way of a review by the appellate courts in many cases. In the Court of Appeals in cases where the constitutional rule of unanimous affirmance precludes an examination of the facts, the burden of printing the whole record by question and answer is compensated by no advantage. It costs perhaps $150 to print a record of one hundred pages, and we have records of five hundred pages or more. Printed briefs with long and numerous quotations from available reported cases also increase the cost with little compensating benefit. And, to pass to little things, the new practice of inserting in the record illegible photostatic reproductions of exhibits, without accompanying transcripts in plain type as the rule requires, meets my unqualified disapprobation. These, you may say, are ultimately problems for the judges; but it is not with their problems that I am now dealing. The bar is a great and noble profession. Its avowed standards of learning and integrity were never higher than they are to-day. Those who reflect upon the administration of justice in the courts are often animated with no worthier motive than that which springs from impatience with authority and restraint. Law is a slowly progressive science, and always has been, within it own sphere and its own methods. The practicing lawyer may maintain that it is his right,-nay more, his duty, while engaged in the discharge of his duty to his client, to protect his client within the rules, and that he should not be rebuked for his activities, though the result reached after days of contest is more complexity, more uncertainty. But humanity changes and grows; and to be as good as our fathers were in their day, the bench and bar must grow also. And as Mr. Justice Holmes has said: "For most of the things that properly can be called evils in the present state of the law I think the main remedy, as for the evils of public opinion, is for us to grow more civilized." Reforms in our legal methods should be the outward and visible sign of an inward and spiritual grace, not a mere oiling of the machinery when its creaking is a public nuisance. I see no cause for despair over the administration of justice, either in the tendencies of the courts or the general attitude of the leaders of the bar. Great hope for systematic revision is justified by their efforts. But consciousness of our own rectitude is not enough. We must command the respect and support of the good and the wise, and assume some responsibility for the general improvement of the law. Otherwise our usefulness may be curtailed. We must labor in this "field of profitable activity" with sufficient diligence to demonstrate our own desire to better the condition of society. Property Interests Arising From ALVIN E. EVANS† The two types of quasi-marital relations with which this paper is concerned, are de facto or so-called putative marriage, and concubinage. They are classed together as quasi-marital for want of a more appropriate term. As a social relation between the sexes, the one is of course altogether different from the other; yet at common law there was little difference in the consequences. The children which may have been born in either case were illegitimate. Neither the de facto wife nor the concubine acquired an interest in the property accumulated and standing in the man's name. Strangely too, though the common law said the parties were not husband and wife in either relation, and the reciprocal interests of husband and wife did not arise, yet as to the woman the disadvantages of coverture were largely enforced while the advantages of coverture were denied. If law is to be an expression of social values and is to keep pace with the changing views of private and social interests, some attention should be directed toward this anomaly. For several generations now the law has been constantly evolving, partly by legislation, toward the amelioration of the economic position of the married woman. The general tendency is clearly toward the equality of the spouses and along certain broad lines such equality has been attained. The equality of the spouses, however, in the proprietary interest in their joint acquisitions is not generally recognized. As to the rights and interests of the de facto wife, it can hardly be said that there is an unanimity of thought; and it seems to be desirable to point out what the general lines of cleavage are. Thereafter an attempt will be made to indicate some of the salient features with reference to the rights of the woman who cohabits with a man while knowing that she is not his wife. I. THE SO-CALLED PUTATIVE MARRIAGE Putative marriage has been said to be "a marriage which, being null on account of some dissolving impediment, is held, notwithstanding, for a true marriage, because of its having been contracted †Professor of Law, George Washington University, Washington, D. C. in good faith, by both or one of the spouses being ignorant of the impediment." We may find then, (a) that both spouses acted in good faith, (b) that only the wife acted in good faith, and (c) that only the husband acted in good faith. Practically, however, the first and third situations seldom occur; but the second occurs with great frequency. We may accordingly direct our attention to the second situation almost exclusively. It is of course to be remembered that putative marriage is not a conception of the common law. It seems clear that the rights of a legal wife are not extended to a putative wife, for that would be wholly to confuse the two relations. At common law there is a very clear distinction between legal marriage and that which is marriage in form only. Thus, for example, it would scarcely be possible for either putative spouse to have dower or curtesy in the land of the other;2 nor could the survivor have the right to administer upon the estate of the other; nor could a putative wife have a homestead right; nor any claim to property acquired after the relationship had ended; nor could the survivor have an action for death by wrongful act under a wrongful death statute.5 Clearly in rem rights cannot arise in the husband's property by a void marriage. One position sometimes taken is that though the marriage is in fact void yet the husband is estopped, as well as those claiming under him, to deny the validity of it. Under the doctrine of estoppel, perhaps a right to dower might be worked out, (in many jurisdictions a vested interest), and perhaps a claim to alimony (a personal claim arising only from the duty to support). In Donnelly v. Donnelly's Heirs, the widow claimed in the alternative, either that she was entitled to a share in the estate acquired by their joint efforts as partner; or that she was entitled to compensation for services; or at any rate that she should receive the value of the estate she had brought to the marriage. It was held that she was 'Smith v. Smith, 1 Tex. 261 (1846) quoting from Escriche, El Diccionario de Legislacion. The writer is not responsible for the English. See 3 Bouvier's Law Dictionary 2774. 2Barfield v. Barfield, 139 Ala. 290 (1904); Tiffany, Real Property (2nd ed.— 1920), sec. 209, note 37; note in Ann. Cas. 1913 A 240. Chapman v. Chapman, II Tex. Civ. App. 392: 32 S. W. 564 (1895). 68 B. Mon. (Ky.) 113 (1847). It was also held in Strode v. Strode, 3 Bush (Ky.) 227 (1867), and in Methvin v. Methvin, 15 Ga. 97 (1854) that on the annulment of the marriage there might be alimony arising from estoppel of the husband to deny the marriage. See a long note in 60 Am. Dec. 664 on the question of the necessity of a valid marriage as a condition precedent to the granting of alimony. |