result. In Katterhagen v. Meister153 property was purchased partly with separate funds of the husband and partly on credit, a note being given by husband and wife jointly. The court, arguing backward rather than forward, said that that interest in the property purchased which was represented by the credit extended, was community because the note represented a community debt. But the property acquired belonged to the community under the statutes. In Goddard v. Reagan154 the facts are similar save that the part payment was made from the wife's separate funds and the balance with funds borrowed by the spouses on their joint note. The court here said that the money borrowed was community funds and the note given a community debt and, although the note was subsequently paid from the wife's separate funds, yet the property purchased was community to the extent of the borrowed money. Of course, if money is borrowed or purchases on credit are made by both jointly, as in Union Securities Co. v. Smith,155 with an agreement at the time that the acquisitions shall be separate and not community, then the husband's interest is separate as well as that of the wife. The earnings of the spouses are closely intertwined with income arising from rents, issue, and profits of separate property, and with borrowings on credit and credit purchases of either spouse. The possession of separate property invariably involves more or less attention of the owner. If his entire time is devoted to the care of his own property, or to the management of a corporation by which he is paid a salary and of a majority of the stock of which he is the owner, and the prosperity of which is dependent on his intelligent oversight, the courts seem to be unable to work out a plan whereby the community may be credited with a part of the profits in the absence of legislative action. California has worked out a rule whereby the owner of a profitable business at the time of marriage, which continues profitable thereafter, is apportioned a reasonable interest on his investment, the remainder of the subsequent acquisitions being credited to the community. This rule is not applied, however, where the husband received a salary, although the increase in the value of the separate property 153 Supra, n. 99. 154 Supra, n. 99. 155 Supra, n. 99. is due to his intelligence and skill and not to "natural enhancement." Likewise, if the husband applies his whole energy in buying and selling real estate on his own capital, Washington attributes the entire profits to rents, issues and profits of his separate property and nothing to earnings. 156 There is also a noticeable tendency to treat all the credit purchases by the wife, from which profits result, as being her separate property, making a distinction between transactions of the wife and those of the husband. Without going quite so far in that direction as Arizona has gone, still California and Washington speak of acquisitions of the wife "on her separate credit," where there was no pledge of separate property, as separate, where under similar circumstances such acquisitions by the husband would be community. It is believed by the writer that there is no sufficient justification for this distinction and that the statutes should be construed liberally in favor of the community rather than strictly against it. Here is certainly a field for intelligent legislation based upon a thorough understanding of the problems involved. It should also be remembered that although statutes may give the wife full emancipation from common-law contractual disabilities, they cannot make it possible for her to contract exactly as a feme sole may do, because she cannot be a feme covert under the community regime and be exactly like a feme sole. The community statutes contemplate a contribution to the community by each spouse. Law School, University of Idaho, Alvin E. Evans 156 Austin v. Clifford, supra, n. 77. The Good Judge of Château-Thierry and Τ His American Counterpart HE name Château-Thierry awakens in American ears certain quite specific echoes. It is one of the few battlefields of the Great War that are likely to become colorful and stimulating names in future manuals of American history. But it is probable that Frenchmen-especially French lawyers-associate it primarily with an episode of an altogether different nature, namely, with the fact that for fifteen years the tribunal of the first instance at Château-Thierry had as its president M. Magnaud, called "le bon juge," "the good judge."1 M. Magnaud was the president of this tribunal between 1889 and 1904, after which time he entered the Parlement as a deputy and found an occasion to deliver a speech in defense of his judicial career. It is not too much to say that, in the period mentioned, M. Magnaud's decisions excited a wider interest than judicial decisions had ever before aroused in France, and became the subject of a more violent and bitter controversy than any others. This controversy was by no means confined to professional circles. Newspapers and magazines of all sorts-especially those of liberal or radical views-took the matter up. Anatole France extolled "le bon juge" in an article in Le Temps. In general, "advanced" opinion welcomed the innovator, while conservatives of all sorts, whether in law, in politics or in life, denounced him. Few echoes, to be sure, reached England or America, which maintained in this, as in so many other matters, their traditional legal isolation. 3 The book of M. Gény, cited before, permits us to form some accurate notion of what the elements in Magnaud's decisions were which so startled French opinion, and what the nature of this "phenomenon" was which provoked applause or alarm in most of the countries of continental Europe. Nearly all Magnaud's opin 1 It would be impossible in this connection to give any full description of the French judicial system. For the present, it may suffice to note that the Tribunal of First Instance is the court of largest original jurisdiction, that the Court of Appeal (Cours d'Appel) hears appeals from that court, and that the Court of Cassation in Paris, like the United States Supreme Court, is the court of highest appellate jurisdiction in the country. (Cited 2 Débats parlementaires. Sess. extraord. 1906, p. 3431, col. 3. in Gény, Méthode d'interpretation en droit privé positif. (1919) ii, 302, n. 8.) 3 Now found in La Vie Litteraire. 4 Supra, n. 2. 5 Of the great importance of Gény's book, this is not the place to speak. It can only be hoped that in the very near future, both his Méthode d'inter ions were published in two separate volumes by H. Leyret: Les jugements du Président Magnaud (1900) and Les nouveaux jugements du Président Magnaud (1904). Unfortunately both of these books are already out of print. However, we find in Gény a fairly detailed account of them, and most of the information in the following pages is derived from this account. The majority of the "good judge's" decisions were in no sense revolutionary. Generally, they were determinations of fact, which in civil matters wholly, and in criminal matters largely, are within the province of a French judge. Now, M. Magnaud leaned in favor of the weaker party-weaker, that is, because of poverty or social status-and if his sincerity be conceded, his opponents could scarcely quarrel with him, any more than with many another judge of his time, for exercising his discretion in accordance with his conscience. If one must decide as a matter of fact whether certain circumstances justified an assault or the discharge of an employee, it is difficult to see how a judge can really disregard his sympathies. in estimating the justification. M. Magnaud sympathized with workmen and it was hard to convince him that a discharge was justified. He was indignant at the crime of seduction and it was easy to convince him that an assault on the seducer was justified. Juries in England and America, despite learned instruction, have human susceptibilities of a similar kind. Secondly, wherever there were opposing legal theories, M. Magnaud selected the conclusion most in harmony with his liberal political and social views. To take a striking example, until the French Workmen's Compensation Law of 1898, there had been a division of opinion in French law as to the responsibility for industrial accidents. Under section 1382 of the Code Civil, the general principle was stated which made responsibility depend upon fault. The administrative court in the case of Cames' declared the state responsible for an accident occurring in a public work, without proof of fault. The civil tribunals, with certain vacillations, clung to the theory of culpability as a basis of damages. M. Magnaud, one might well suppose, gave damages without proof of fault, making the obligation to compensate an implied term of the contract, under sec. 1135 and 1156 of the Code Civil-an interpreta pretation and his Science et Technique will be available in an English translation. 6 Supra, n. 2 (op. cit., ii, 287-307). 7 Sirey, 1897, 3, 33, with the note of M. Hauriou. 8 An admirable history of the controversy is given in Charmont's brilliant and fascinating little book, Les Transformations du Droit Civil, pp. 232-254. tion which, as Saleilles showed, was dangerous to the theory he meant to advocate. In the same way, after the Workmen's Compensation Act, he extended the principle of responsibility without fault to cases in which passengers of railroads sued the carrier, although French courts had uniformly refused to do so until 1911.10 Again, he allowed good faith to be pleaded when damages were sought for statutory trespasses, such as hunting on another's land. These and similar decisions, however bold, were not without support either in precedent, which French jurists term jurisprudence, or in authoritative discussion, la doctrine, but there was a group of his decisions which deliberately and defiantly set out on new courses. Among the most striking of the decisions in this class were the following. He acquitted a self-confessed vagrant and mendicant, although the French law gives the judge no power to omit or suspend sentence when guilt is proved. He acquitted a woman who justified her theft of bread by a plea of hunger.11 In spite of Section 1385 of the Code which makes the owner of every animal absolutely liable for damage done by it,12 he refused to hold the owner of cattle found in the wrong pasture. Perhaps even more startling was his awarding a divorce on mutual consent, in explicit disregard of the fact that in 1884 this was abolished as a cause of divorce.13 Again, in France, when the communal regime is adopted by husband and wife, a legacy to either is, with certain exceptions, community property unless expressly made separate property. None the less, M. Magnaud refused a husband who had failed to perform his duties of support and administration any share in an annuity bequeathed to his wife. And no doubt commercial circles were 9 Saleilles, Les accidents du travail et la responsabilité civile. p. 20. 10 Gény, op. cit., ii, 295, n. 9. Sirey, 1913, 1, 177. 11 Thomas Aquinas had like views on crimes justified by urgent necessity (Summa Theol. 22, q. 66, 7, 8). M. Magnaud, whose anti-clerical bias was only too apparent (Gény, p. 306, n. 1), would doubtless have rejected St. Thomas as an authority, but he could not have deprived him of his claim to priority. 12 The liability extends both to domestic animals and those ferae naturae. It is not quite absolute, but the only exculpation is vis maior or some similar wholly unavoidable contingency. 13 Divorce by mutual consent was permitted by Sec. 233 of the Code Civil, a section forced by Napoleon_himself on an unwilling commission. All the divorce provisions of the Code were abrogated at the Bourbon restoration in 1816, and despite the virtual disestablishment of the church in 1848, these sections were not re-enacted till 1884, after a popular agitation of which Sardou's Divorçons is an amusing memorial. When they were restored, the section permitting divorce by mutual consent was designedly omitted. It is interesting to note that, in the twelve years in which Sec. 233 was in force, it was applied only once, in the divorce of Napoleon and Josephine. |