Decision of Conflicting Cases. - In considering the cases which are sometimes cited as authority against our contention, we find but two cases in the books which can be said to conflict with the weight of authority. Other cases which have been cited by lawyers, and sometimes by courts, as being in conflict, can very easily be reconciled, and we think should not be considered as against our proposition, but rather as authority for it. A case which is often cited is that of Brace v. Wehnert.20 If we will but examine this case, we will find that specific performance would have been granted had the contract in terms been certain and definite, and not loose and vague. The court heré refused because there were no plans or specifications by which the court could arrive at the intention of the parties. The court said: "I think the jurisdiction of this court, in cases of specific performance, should not be diminished, and I concur in the cases which lay down that if the the thing contracted to be done can be made reasonably clear, the court is bound to decree a specific performance." In the cases cited in the note, specific performance was denied for the same reason.21 Another case, which is considered as contrary to the general rule, is the Cincinnati, etc. Ry. v. Washburn, 22 but appears from the original report to have turned on a technical point of pleading. In Haisten v. The Savannah G., etc. Ry. Co.,23 the court refused specific performance, but on the ground that to enforce the contract would work a violation of the statute of frauds. The court said: "A court of equity interferes to decree the specific performance of a parol contract, void by the statute of frauds, only and solely because the parties have so far acted upon and by virtue of the contract as that it would be a fraud to permit the defendant to repudiate it." There was no part performance in this case, and the party must go

Law. T. N. S. 409; Jones v. Seligman,1880, 81 N. Y. 190; Willard v. Ford, 1884, 16 Neb. 543; Post v. W., etc. R. R. Co., 1890, 123 N. Y. 580; L. & N. R. R. Co. v. M. & T. R. R. Co., 1893, 92 Tenn. 681, 22 S. W. Rep. 920; Prospect Park R. R. Co. v. Coney Is. R. R. Co., 1894, 144 N. Y. 152, 39 N. E. Rep. 17; S. & N., etc., Ry. Co. v. H., etc. Ry. Co., 1893, 98 Ala. 400.

20 1858, 25 Beavan, 358.

21 Wilson v. North Hampton, etc. R. R. Co., 1871, L. R. 9 Ch. App. 279; Stanton v. Singleton, 1899, 126 Cal. 647.

22 1865, 25 Ind. 259.

23 1875, 51 Ga. 199.

to the law court. In Firth v. Midland Ry.Co.,"4 the court refused specific performance on the ground there had been a substituted agreement, and such agreement was to be approved by one who died before making the approval. The court held there was no definite contract to enforce.

ance.

The two cases cited in the note are in direct opposition to our contention, and, we think, against the overwhelming weight of authority.25 In Kay v. Johnston, 26 the contract was in the shape of a lease of lands, with covenant by lessee to build a house and fence. Lessee failed to perform his covenant, and the lessors ask for specific performance, and cites in support of his claim the well known cases of "City of London v. Nash," and "Penbroke v. Thorpe," both of which are reported above, and have been considered as authorities for specific performCourt held that the two cases cited were opposed to specific performance, and as it was entirely within the discretion of the court, he would direct an inquiry for damages only. In Kendall v. Frey,27 plaintiff conveyed land to defendant, part of the considation being that defendant should build a city hall of certain size and dimensions upon this land. Plaintiff owned land contiguous to the land conveyed, and when he conveyed he had in mind the benefit which he would derive from the new city hall being built there. In a suit for specific performance, the court questions the right of a court of equity to grant specific performance of building contracts, and says the more recent authorities are against it. The court cites Oregonian R. R. Co. v. Oregon, etc. Co., as authority. against the proposition. The case cited is different in some respects. The " "Oregon" case was one of ordinary contract to build, falling within our first division, where the remedy by damages was adequate. This case cannot be reconciled with the many authorities supporting the proposition that specific performance will be granted.

Rule as to the Enforcement of Contracts Involving Continuing Duties.-Some few courts have attempted to restrict the exercise of this

24 1875, L. R. 20 Eq. 100.

25 Kay v. Johnston (1864), 2 H. & M. 118; Kendall v. Frey, (1889) 74 Wis. 26.

26 1864, 2 Hemming and Miller, 118. 27 1869, 74 Wis. 26.

remedy to contracts which can be performed by one act, that is, by one decree of the court, and not to extend it to contracts which call for continuous acts which would require the courts to superintend. But the weight of authority is clearly against this contention, and especially is this so of the later cases. The case of Joy v. St. Louis, 28 is an important leading case, in which the court compelled a railway company to permit another company to use their tracks as per agreement. The defense insisted that the court had no jurisdiction, but such defense was not sustained. The authorities cited in the note are of the same opinion. 29

Conclusion. With this review, we conclude that contracts of the class or division which we have been studying are not to be considered with the class of ordinary agreements to perform certain labor or work. The latter class is not, in the proper sense of the word, one for specific performance, as the court will not decree this remedy where the remedy at law is sufficient, and in the ordinary contract for building the remedy at law for a breach is adequate, as the complaining party may at once hire other workmen to complete the building. But wherever the defendant is in possession of land and has entered into an agreement to build on that land, consideration has been given, plans for the building are definite and certain, and if for any other reasons the remedy of damages is inadequate, the courts of equity may grant relief in their discretion by decreeing specific performance. A. S. THOMPSON.

28 1890, 138 U. S. 1.

29 Lawrence v. Saratoga L. R. R. Co., 1885, 36 Hun (N. Y.), 467; Chicago R. I. & Pac. R. R. Co. v. Un. Pac. R. R. Co., 1891, 47 Fed. Rep. 15; Un. Pac. R. R. Co. v. Chi. R. I. & P. R. R. Co., 1892, 51 Fed. Rep. 309; L. & N. R. R. Co. v. M. & F. R. R. Co., 1893, 92 Tenn. 681, 22 S. W. Rep. 920; Standard Fashion Co. v. Siegel, Cooper & Co., 1898, 157 N. Y. 60.

HUSBAND AND WIFE-LIABILITY FOR WIFE'S TORTS.

HENLEY v. WILSON.

Supreme Court of California, September 13, 1902. 1. The husband's liability for tort of his wife, not done by means of, or in the use of, or in the assertion of some right in reference to, her separate property, is not changed by the fact that under the statutes she may have a separate estate, and may manage it.

TEMPLE, J.: Action for damages caused by a violent assault committed upon the plaintiff by

the defendant, Delphine Wilson, wife of the appellant, J. A. Wilson. It was admitted on the trial that the husband was not present at the time of the assault, and had no knowledge of the occurrence until some time afterwards. An instruction was asked by appellant to the effect "that the husband is not responsible for the wrongful acts of the wife committed out of his presence, and without his knowledge or consent." This was refused, and a verdict for plaintiff was returned, and judgment went against both defendants, from which the husband appeals. Whether this proposed instruction should have been given is the only question involved.

While there is a conflict in the authorities, appellant concedes at the outset that a majority of the cases still hold to the common-law rule which makes the husband liable absolutely for all torts committed by the wife. This statement is too broad. Pom. Rem. & Rem. Rights, §§ 320, 321, states that as to all torts committed by the wife, not done by means of, or in the use of, or in the assertion of some right in reference to, her separate property, the common-law rules remain unchanged. Since she is permitted to manage her separate estate as though she was a feme sole, it follows that in such management she must be responsible as a feme sole. The common-law rule must prevail unless it has been changed by statute. No express change has been made, but it is contended that, since the wife now retains as her own such property as she has at the time of the marriage, and such as she afterwards may acquire by gift, descent, or devise, and may manage her own separate estate, she should now be held solely responsible for her torts, on the principle that the reason for the common-law rule has ceased to exist, and therefore the rule should cease. But what all the reasons for the rule were originally is not now so easy to determine, and accordingly it was said by Mr. Justice Field, in Van Maren v. Johnson, 15 Cal. 312: "It matters not what was the origin of the common-law doctrine; its rule is settled and exists independently of the grounds on which it originally rested." These rules are quite ancient, and cannot be said to have been rested solely upon the fact that the husband may take all the wife's personal property and her earnings, and may control her person, or that she can have no estate from which a judgment against her could be satisfied, added to the supposed merger of her legal personality in his. It was said by the Supreme Court of Texas in Zeliff v. Jennings, 61 Texas, 458, that the doctrine "rests perhaps mainly upon the supposition that her acts are the result of the superior will and influence of the husband. Owing to the intimate relation of husband and wife, and to the nature of the control given him by law and social usage over her conduct and actions, it would be difficult, if not impossible, for the courts to determine when she had acted at her own instance, and when she was guided by his dictation." And it may be added, in a case where the wife has no separate estate, if

the husband cannot be held, the aggrieved person will have no redress, and upon the wife there will be no restraint of pecuniary responsibility. If so disposed, she could with impunity blast the lives of her neighbors by most grievous slanders. Nor is it true, in the absolute sense, that she has no interest in the estate of her husband. She is entitled to a support out of it, and to be maintained in a degree of comfort proportionate to his wealth. To make this fortune liable for her torts may directly affect her. It may diminish her comfort and style of living. As to the community property, if the coverture is ended in any mode during her life without her fault, one-half of it will be hers. Most wives consider themselves equally interested in accumulations, and properly so. At common law, even, they had morally an interest in the fortune made or inherited by the husband. In some circumstances they could secure a separate maintenance from it on a scale proportionate to its amount. We hear much of the power over the wife given to the husband by the common law, which is now thought to have been oppressive. But it had its other side. It was calculated to make a more complete and indissoluble union, in which the wife had rights that could be lost only by her violation of her marriage vow, and, I think, to make the common earnings liable for the torts of each tended in the same direction. Each became the other's "keeper." These earnings are held by the husband, but are liable for the support of the wife. Since the reasons of the common-law rule cannot now be fully known, we are at liberty to suppose that it was founded upon these and many other considerations, as well as upon those usually stated.

But many of the reasons upon which it is commonly supposed the common-law rule depended still subsist, and the express limitations upon the liability of the husband or of the community property for the debts of the wife imply that in other respects the common law still prevails. For instance, the husband is the head of the family, and may choose the residence. Civ. Code, § 156. He is entitled to the custody and control and to the earnings of minor children as against the wife (Id. § 197), unless during separation (Id. § 198). The provisions of the Code giving the wife the power to make contracts with reference to property negative the idea that she has in other respects the power or the responsibility of a feme sole. So section 167 of the Civil Code expressly provides that the community property shall not be liable for the debts of the wife contracted before marriage, leaving it still liable for her debts contracted after marriage. See In re Burdick's Estate, 112 Cal. 398, 44 Pac. Rep. 734, opinion of Mr. Justice Harrison; also Van Maren v. Johnson. 15 Cal. 308; Vlautin v. Bumpus, 35 Cal. 214. Van Maren v. Johnson was a suit against husband and wife for services rendered the wife before marriage. Judgment was against both, but in terms it provided that it could be satisfied from her separate property or from the community

property. The husband appealed, and the only question was as to the liability of the community property. Upon this question Judge Field said: The statute in terms provides that the separate property of the wife shall be liable for her debts contracted previous to the marriage, and at the same time that the separate property of the husband shall not be thus liable. It is silent as to liability of the common property as to such debts, and also as to the liability of that property for the previous debts of the husband." The learned judge then proceeds to show that the common law is the basis of our jurisprudence, and that the statute has modified that law, on this matter, only in two respects: "It renders the separate property of the wife liable and exempts the separate property of the husband. Beyond this exemption of his separate property his liability exists; that is to say, he is liable to the extent of the common property." That is, the common law prevails except as it has been modified by statute. Furthermore, by the express provision of the statute, the wife cannot be sued without her husband for a tort which does not concern her separate estate. She can sue or be sued alone only when: (1) The action concerns her separate property or her claim to the homestead; (2) when the action is between herself and husband; (3) when she is living in separation by his desertion, or under an agreement in writing. Code Civ. Proc., § 370. And it has been held that in an action for damages which accrue for the injury of the wife the husband must be joined; the recovery will be community property. McFadden v. Railroad Co., 87 Cal. 464, 25 Pac. Rep. 681, 11 L. R. A. 252; Neale v. Railroad Co., 94 Cal. 425, 29 Pac. Rep. 954. See, also, Sheldon v. The Uncle Sam, 18 Cal. 527, 79 Am. Dec. 103. I think there would be no profit in discussing the cases cited by appellant from other states. In some the statutes expressly provide against the liability of the husbaud for the torts of the wife. In others all the earnings of the wife during coverture, and all recoveries for personal injuries, are her separate property. In some cases the tort accrues in the management of her separate estate. But whatever the rule may be in other jurisdictions, the principles which are determinative of the case have been settled here, and are in accordance with the rule prevailing in a majority of the states. Some of the cases cited by the respondent are interesting, because they discuss the reason upon which the common-law rule was believed to be based. See Kowing v. Manly, 49 N. Y. 201, 10 Am. Rep. 346; Alexander v. Morgan, 31 Ohio St. 548; Heckle v. Lurvey, 101 Mass. 344, 3 Am. Rep. 366.

The judgment is affirmed.

NOTE.-Liability of Husband for Wife's Torts ut Common Law and Under Statute.-It was well settled at common law that the husband, was liable for the torts of his wife. While this proposition is agreed upon by all the modern decisions, yet there seems to be a diversity of opinion as to the causes for the rule,

and from this fact has resulted a different line of decisions as to the effect the modern statutes, giving the wife the right to sue and be sued and the use of her separate property, should have upon the common-law rule. The principal case adopts the rule that the husband's liability did not rest alone on the fact that he was entitled to the possession and control of the wife's property, but also upon other marital duties and relations. And, consequently, using that for a basis, upon which to found its argument, very justly arrives at the conclusions announced in the case; and therefore all decisions founded upon a like basis would support the rule, that although the statute gave to the wife the right to sue and be sued, and to have full control of her property, yet unless the statute further provided, that the husband should not be liable for the torts of his wife, the liability of the husband would still exist as at common law. In the state of Illinois in which the basis of the common law was given to be the fact that the husband had the right to use and control the wife's property, it was held that for that reason he was liable for her torts and that if these property rights were removed, that therefore, without any further statutory provision, the husband could not be held liable for the wife's torts. Martin v. Robson, 65 Ill. 129. To the same effect are the holdings of the Kansas Supreme Court. Norris v. Corkhill, 32 Kansas, 409. However, as a general rule, I think it may be said, that the courts are inclined to follow the rule in the principal case and hold that unless the statute expressly states that the husband shall not be liable for his wife's torts that the mere giving to the wife the right to use and control her own property will not relieve the husband of his common-law liability. See MacElfresh v. Kirkendal, 36 Iowa, 224; Hill v. Duncan, 110 Mass. 238; Fitzgerald v. Quann, 109 N. Y. 441. Thus, in Ohio, under a former statute of that state, it was held, that the husband was not reheved from his common-law liability for torts committed by his wife during coverture, and there was nothing in the act which evinced in any degree that it was intended to change or abrogate the common-law rules; and that such matter could not be inferenced by implication. Fowler v. Chicester, 26 Ohio St. 9. This state has by recent statute, expressly provided, that the husband should not be liable for the torts of his wife. Under the English married woman's act, which provided "that a married woman shall be capable of suing and being sued, either in contract or in tort or otherwise, in all respects as if she were the feme sole, and her husband need not be joined with her as plaintiff or defendant or made a party in action or other legal proceeding," etc., it was held that the husband might be joined with his wife in a suit for her tort. Seroka v. Kattenburg, L. R. 17 Q. B. Div. 177,55 L. J. B. 375, 34 Week. Reps. 542, 54 L. T. N. S. 649. These cases, however, are applied to torts which do not arise out of the use of a wife's separate property, such as slander, assault and battery, etc. Where they arise from some use or misuse of the wife's separate property, then the husband is not liable. This is well illustrated in the case of Quilty v. Battie, 135 N. Y. 201, where an action was brought for damages, resulting from an injury caused by a vicious dog which was harbored on the wife's property. It was held that the husband was not liable by reason of his marital relations, although he owned the dog. It was not sought to make him liable for the reason, that he was the owner of the animal, but by reason of his marital relations.

A great many of the statutes of the various states have a provision that the husband is relieved from

the liability for his wife's torts, unless they were committed by the authority, direction or encouragement of the husband. Austin V. Cox, 118 Mass. 58; McCarty v. DeBest, 120 Mass. 89; Burt v. McBain, 29 Mich. 260; Ricci v. Mueller, 41 Mich. 214; Weber v. Weber, 47 Mich. 569: Mason v. Mason, 66 Hun (N. Y.), 386; Vocht v. Kuklence, 119 Pa. St. 365; Storey v. Downey, 62 Vt. 243. See, also, Hill v. Duncan 110 Mass. 238; Arthurs v. Chatfield, 9 Pa. Co. Ct. 34; Quick v. Miller, 102 Pa. St. 67; Lee v. Kopkins, 20 Ont. 666. In a recent case in Louisiana in an opinion, in which it is not shown whether there is a statute on the subject or not, the husband was held not to be liable for a slanderous utterance of his wife, when it was not shown that he was cognizant of the utterance. McClure v. Martin, 104 La. 496, 29 so. Rep. 227. In a recent case in Vermont (Russell v. Phelps, 50 Atl. Rep. 1101, 73 Vt. 390), it was held that under the statute providing that a married man shall not be liable for the torts of his wife unless committed by his authority or direction, that a married man is not liable for a tortious act of his wife committed by his direction when the substantive basis of such tort is the direct tort of the wife regarding her separate estate, since the statute merely leaves the torts of the wife committed by direction of the husband as they were by common law. In the same state in an earlier case, Story v. Downey, 62 Vt. 243, 20 Atl. Rep. 321, under a statute which provided that a husband shall not be liable for the torts of his wife unless committed by his authority or direction, that it was improper to join the husband as defendant, unless it was alleged that the slander was uttered under the direction or authority of the husband. In Nebraska, where it was sought to charge the husband with a letter written by a defendant's wife containing a libelous charge it was held, that, in order to render the husband liable, it must be shown that he assisted in or authorized the composition of the libelous letter. Mills v. State, 18 Neb. 575. So it was held in New York that a husband was not liable for the act of the wife in causing a dog to bite a child when there is no evidence that the act was done under his coercion or instigation. Strubing v. Mahar, 61 N. Y. Supp. 799.

The following cases are suggestive where the act was done in the husband's presence or by his coercion: Kosminsky v. Goldberg, 44 Ark. 401; Storey v. Downey, 62 Vt. 243; O'Connor v. Welsh, 29 W. N. C. 92; Quick v. Miller, 103 Pa. 67, Gantt's Ark. Dig. 1233; Mills v. State, 18 Neb. 575; McNicholl v. Kane, 2 City Ct. Rep. 57. A wife, however, is not exempt from liability for her tortious acts by reason of the mere presence of her husband. It must be shown that her acts were committed by his coercion. O'Brien v. Walsh, 43 Atl. Rep. 664. See, also, in this connection: 23 Cent. L. J. 364, 42 Cent. L. J. 151, 35 Cent. L. J. 483.

Springfield, Ohio.

WM. ROCKEL.

JETSAM AND FLOTSAM.

THE ADOPTION OF THE REFERENDUM IN OREGON. The first state in the Union to have an out-and-out popular referendum is Oregon. That state has now adopted an amendment to the state constitution which establishes completely the direct power of the people over legislation. It is provided that whenever eight per cent. of the legal voters petition for any specific legislation, this must be sub

mitted to popular judgment at the polls, and if a majority approve of it, it is made law without the intervention of the legislature. Also, if five per cent. of the voters demand the popular judgment on any bill which the legislature passes, it must be submitted to the people, who may ratify or reject it. It is further provided that the governor shall not have the power to veto a bill which the people have adopted by direct ballot. There ought to be no objection on the part of sister states to watching the progress of this referendum principle in Oregon, to see how it eventuates. For our own part, we fail to discern how it can be made, in all cases, to establish the public weal (though it may in some cases), because it is quite within the bounds of probability that certain measures which are wholly for the public good shall be repudiated by a majority vote at the polls, notwithstanding all the more thoughtful elements of society might discern that the law is good and needful. It is conceded that it may put a veto upon certain measures of the legislature that ought not to become laws and thus break up legislation inimical to public interests, but, at the same time, puts it into the hand of a small body of men to set in operation expensive machinery, and then to call in as judges those who are not qualified by education along legislative lines to pronounce upon it, besides opening the door to corruption. Probably it will be said that it is less difficult to corrupt a large body of voters than a small body of legislators, and this may be true. At all events, the referendum scheme, which seems to have proven a reasonable success in Switzerland, and which has many intelligent advocates in this country, will now have a trial in Oregon, and the result of that trial will be watched for with unusual interest.-New Jersey Law Journal.

AMENDMENT OF THE FEDERAL CONSTITUTION.

A hearing was recently had before the judiciary committee of the House of Representatives upon the proposition to amend the constitution of the United States so as to provide that the term of office of the president shall commence on the last Thursday in April, instead of the 4th day of March. If the proposition comprehends merely a change of inauguration day, we are not surprised at the report that the sentiment in the House of Representatives in its favor is decidedly lukewarm. Undoubtedly such a change would be desirable, but there are more important proposed amendments which may well engage earlier attention. A proposed amendment has been favorably passed on by the Senate, changing not only the date of the inauguration of the president and vicepresident, but of the commencement and termination of Congress, from the 4th day of March to the last Thursday in April. The anomaly of the present law, by which members of a house of representatives elected in November do not take their seats until a year from the following December is generally conceded. It would increase such anomaly to extend for two months the term of a congress whose majority possibly had been discredited at the polls. In an artiele in The Forum for April, 1902, Mr. H. L. West, discussing "Proposed Amendments to the Constitution," said: "I am inclined to agree with the opinion that it would be better to have the new congress assemble, and the president sworn in on the 1st day of January. This would bring the members of the house to their duties almost immediately after their election. They would be fresh from the people and in a position to enact into legislation the issues upon which the campaign had been fought." This suggestion is certainly entitled to careful consideration.

Another amendment which has been favorably reported by the Senate is as follows:

"In all cases not provided for by article 2, clause 5 of the constitution, where there is no person entitled to discharge the duties of the office of the president, the same shall devolve upon the vice-president. The congress may by law provide for the case where there is no person entitled to hold the office of president or vice-president, declaring what officer shall then act as president, and such officer shall act accordingly until the disability shall be removed or a president shall be elected."

This certainly covers a matter of great importance, as the constitution in its present form "absolutely fails to provide for an emergency where there is no person entitled to hold the office of president or vice-president, although it might arise through the death or disability of the newly elected officials between the election day in November and inauguration day in March."

Some readers may be surprised to learn that the legislatures of seven states have applied for the calling of a constitutional convention for the purpose of proposing amendments. In certain other legislatures resolutions of similar import have been introduced. This movement is primarily inspired with a view to altering the present law so that United States Senators may be elected by direct vote of the people instead of by the various legislatures. As to the wisdom of such change opinions differ,and we do not propose to express an opinion on it at the present time. It certainly seems to have taken more serious hold upon popular sentiment than any other amendment which has been proposed during recent years. As to the scheme of calling a convention we entirely concur in the following language from Mr. West's article:

"It would seem as if a constitutional convention, for whatever purpose called, would be unwise. It would be a most disturbing element in the national serenity. It is true that the legislatures which have already acted have specified only one desirable change; but all authorities agree that if the convention assembled it would not and could not be restricted to this single consideration. Every proposition, no matter how radical, which might be conceived in the fertile minds of would-be statesmen, would be offered for discussion. The convention would, in all probability, be in session for a year, during which time the business interests of the country would pass through a period of uncertainty that would be almost disastrous. Besides this, the spectacle of such a revered document lying helpless in the hands of those who would possess the power to mar its beautiful symmetry, to alter its familiar and oft-construed sentences, to introduce new and possibly dangerous phrases, wonld be a shock to the moral sense of the nation. After all, the American people are conservative. Their Anglo-Saxon blood teaches them to revere tradition and precedent. The document which has been almost untouched during the nation's evolution has become sacred. Those who believe, with the late Mr. Gladstone, that our constitution is the greatest instrument ever struck off by the hand of man could hardly view with equanimity any effort to alter materially its stately form."

We hope, however, that the increasing discussion upon all the proposed amendments will tend to familiarize the people with the idea of amendment and gradually develop the policy of occasional special amendment. through the alternative method of proposal by two-thirds of the members of both houses of congress, and ratification