DAMAGES-MENtal Suffering-TELEGRAPH CASES. The Supreme Court of Indiana has affirmed the decision of the Appellate Court and rejected the rule allowing recovery of damages for mental suffering, caused by failure to deliver telegrams, adopted in Reese v. Tel. Co., 123 Ind. 294 (1889), and followed in that state during the past twelve years. Western Union Tel. Co. v. Ferguson, 60 N. E. 675 (May, 1901). The decision of the lower court is noted and commented upon in 1 COLUMBIA LAW REVIEW, 327. SEE NOTES, p. 483.

DOMESTIC RELATIONS-DIVORCE-CONDONATION-REVIVAL. In a suit for absolute divorce brought by the wife it appeared that she had condoned the defendant's adultery. Held, subsequent cruel treatment by the husband, though not in itself ground for divorce, revived the condoned offense. Fisher v. Fisher, 48 Atl. 833 (Md., April, 1901).

In England and in some of our states the question involved in the principal case is dependent upon the construction of statutes. Elsewhere the courts have generally adopted the rule announced here. Johnson v. Johnson, 14 Wend. 637 (N. Y., 1835). If the effect of condonation could be destroyed only by a repetition of the same offense or by an act of equal gravity, the doctrine of revival would be of but small importance. Forgiveness is treated as having been granted upon the implied condition that, in the future, the other party will observe strictly the duties incident to the marital relation. 2 Greenl. Ev., § 53.

DOMESTIC

RELATIONS-DIVORCE--FOREIGN DECREE-Dower. Plaintiff sued alleged widow of plaintiff's first husband to recover dower in his lands in New York. It appeared that after living together for several years in that state, she had been compelled to leave him because of his cruelty. She acquired a bona fide domicile in Massachusetts and procured a decree of absolute divorce on the ground of cruelty. He subsequently remarried in Pennsylvania and died leaving real estate in New York acquired since the time of the judgment for divorce. In this property both women claimed dower rights. Held, the decree of divorce being invalid in New York for want of personal service on, or appearance by, the husband, the plaintiff was entitled to dower. Starbuck v. Starbuck, 64 App. Div. (N. Y. Second Depart., July, 1901). SEE NOTES, p. 485. DOMESTIC RELATIONS DIVORCE FOREIGN DECREE ESTOPPEL. The petitioner prayed for letters of administration upon the estate of her first husband. After living together in New York for some time subsequent to their marriage, the plaintiff left her husband because of his habitual intoxication, went to Illinois and there secured a decree of absolute divorce upon substituted service of process on the ground above named. Later she returned to New York and married a second time. Held, the petition must be dismissed, the plaintiff not being allowed to impeach the judgment which she had herself obtained. In re Swales, 60 App. Div. 599 (N. Y., April, 1901). SEE NOTES, p. 485.

DOMESTIC RELATIONS-HUSBAND AND WIFE-TENANCY BY THE ENTIRETY IN PERSONAL PROPERTY. Money deposited in the K. bank, charged to the joint account of husband and wife, was drawn out by the latter, who paid it over to the F. bank, taking a certificate of deposit payable to herself and husband. Held, the transaction created an estate by the entirety. Brewer v. Bowersox, 48 Atl. 1060 (Md., Feb., 1901).

This decision raises a question which has been touched upon by very few cases. Mr. Bishop says that there can be no such estate in personal property, though he cites only one case in support of this view. I Law Mar. Women, § 212. Mr. Freeman in his work on Cotenancy (68) takes a different position, but his authorities are not convincing. It is difficult to see how such a tenancy could exist at common law, since the husband took title to all his wife's chattels, and had the right to reduce to possession all her choses in action. It is true that several English cases, following the lead of Atcheson v. Atcheson, 11 Beav. 485 (1849), hold to the contrary, but these decisions were in equity, where the inter

ests of married women were jealously guarded. In our country, most of the cases cited as being in accord are those in which the property held was connected with, or derived from, real estate held by the entirety. The importance of distinguishing between such a tenancy and a joint ownership lies in the rule governing the former relation, which forbids each party to alien his interest or to lessen in any way the value of the res during the life of the other party.

Where, as in most jurisdictions, the common law disabilities of married women have been abolished by statute, there would seem to be no impediment in the way of the doctrine laid down in the principal case. The same rule has been adopted in Pennsylvania. In re Parry's Estate, 188 Pa. St. (1898).

EQUITY-JOINDER OF PARTIES-MULTIPLICITY OF SUITS. A number of property owners joined in a bill to restrain the operation of a neighboring mill at night-time, and respondent moved for dismissal on the ground of misjoinder of parties. Held, there was no misjoinder, since all of the parties claimed relief under the same state of facts and the remedy was identical. Whipple v. Guile, 48 Atl. 935 (R. I., April, 1901).

The bill of peace in the principal case was granted to avoid a multiplicity of suits. All of the parties suffered by the running of the mill and sought the same relief. No question as to misjoinder of parties would have arisen had it not been for the case of Jones v. Del Rio, 1 Turn. and R. 297 (Eng. 1823), where the parties besides seeking one identical remedy each sought special relief, and so no common decree could be given. In Hudson v. Maddison, 12 Lim. 416 (Eng., 1841), a case on all fours with the principal case, the decision of the Jones case, supra, was wrongly followed. These two decisions were upheld in Hinchman v. R. R. Co., 17 N. J. Eq. 75 (1865), although the bill there might have been dismissed on the ground that each plaintiff, in addition to one common remedy, prayed for special relief. Fogg v. R. R. Co., 20 Nev. 429 (1890), was decided on similar grounds. In accord with the principal case are: Gillespie v. Forest, 18 Hun 110 (N. Y. 1879); Sullivan v. Phillips, 110 Ind. 320 (1887), and Rowbotham v. Jones, 47 N. J. Eq. 337 (1890).

EQUITY-THE RIGHT OF PRIVACY. The defendants, without authority, used the likeness of the plaintiff in an advertisement and posted 25,000 copies of it in various stores, warehouses and saloons throughout the county, but particularly in the neighborhood of her residence, causing her great humiliation, and ultimately severe nervous illness. Held, she is entitled to an injunction and damages. Robeson v. Rochester Folding Box Co., et al., 64 App. Div. 30 (N. Y., July, 1901).

Mr. Justice R UMSEY, who wrote the opinion of the Court in this case, supports the conclusion reached by a very able argument: The jurisdiction of equity to protect one from injury is not dependent upon the existence of any right of property; but even if that were not true, there is a right of property in one's own body which the courts will guard, though physical beauty or peculiarity may not in the given case have been used for pecuniary profit.

Whatever may be thought of the attempt made in the second part of this argument to sustain the present holding on grounds well recognized in the older authorities-and certainly the case bears some analogy from this point of view to Gee v. Pritchard, 2 Swanst. 402 (1818)-the first proposition, that equity will protect rights other than those of property, represents, it is believed, a distinct advance in equitable doctrine, and one which must ultimately win general recognition. The existence of this right of privacy was admitted in Schuyler v. Curtis, 147 N. Y. 434 (1895), and the Court, in its adverse decision, merely held that there was in fact nothing that could be reasonably called an injury to the plaintiff's feelings. That case is also well distinguished, together with Atkinson v. Doherty, 121 Mich. 372 (1899), on the ground that the right dies with the person.

The authorities are collected in Atkinson v. Doherty, supra. See

also the article by Samuel D. Warren and Louis D. Brandeis in 4 Harv. L. Rev. 193, and The N. Y. Law Journal, Sept. 23 and 24, 1901.

INSURANCE WAIVER OF CONDITION. A warranty in a policy that a continuous clear space of 100 feet should be maintained between lumber insured and any dry kiln was violated to the alleged knowledge of the company's agent. Held, the property being easily movable, if the agent had knowledge of conditions, there was a waiver of the clause only to the extent of allowing a reasonable time to comply with the provisions of the policy. Hartford Ins. Co. v. Post et al., 62 S. W. 140 (Texas, 1901).

Under the New York rule, which is generally adopted, the knowledge of an agent to obtain information is the knowledge of the insurer, and facts known at the inception of a policy, which are violations of warranties, the insurer is presumed to waive. Otherwise fraud would be imputed to the insurer. Van Schoick v. Niagara Fire Ins. Co., 68 N. Y. 434 (1877). This equitable doctrine imposed by the courts has, so far as is known, never been limited as in the principal case. In warranties looking to the maintenance of certain conditions this introduces a new element which does not seem to be logically involved. The same principle might clearly have been applied in McGuik v. Hartford Fire Ins. Co., 56 Conn. 528 (1888), and Short v. Home Ins. Co., 90 N. Y. 16 (1883).

PLEADING AND PRACTICE-REMOVAL OF CASES-PREJUDICE. In an action by a citizen of Indiana against a citizen of Indiana and a citizen of Ohio, the defendant, a citizen of Ohio, filed a petition for removal to the Circuit Court. Held, there must be diversity of citizenship between all parties, plaintiff and defendant, sufficient to give the Circuit Court original jurisdiction under Section 1 of the Removal Statute. City of Terre Haute v. Evansville, etc., Ry. Co., 106 Fed. 545, Feb., 1901. (SEE NOTES b. 484).

PROPERTY-CONVERTING REALTY INTO PERSONALTY. Defendant purchased from plaintiff land on which there lay bricks and lumber, which were the remains of a building recently destroyed by fire, and which the plaintiff had evinced no intention to remove. Held, the bricks and lumber passed with the land, so that plaintiff could neither remove them from the land after the sale, nor hold the vendee accountable for them. Guernsey v. Phinzy, 39 S. E. 402 (Ga., July, 1901).

This decision is sound, and illustrates well the fact that intention plays an important part in determining, not only the validity of contracts, but the character of property as well. Whatever has once been realty remains realty until the owner shows an intention, not only to sever it from the land, but also to convert it into personalty. Brackett v. Goddard, 54 Me. 309 (1866).

PROPERTY-TRESPASS-DAMAGES. Where defendant erected a viaduct 24 feet high and 59 feet wide, and was sued by an abutting owner for damages to the fee of the street as well as injury to easements of light and air, held, although defendant owned 24 feet in fee, and had acquired a prescriptive right to maintain a tunnel 61 feet in width, there was a trespass, and plaintiff was entitled to damages caused by the whole structure. Siegel v. N. Y. & H. R. Co., 70 N. Y. Sup. 1088 (App. Div., June, 1901). The majority of the Court based its decision on the ground that the partial trespass rendered the whole structure illegal, and that there was a practical difficulty in apportioning damages. MCLOUGHLIN, J., dissenting, pointed out the fact that, even if there were a trespass in part, that would be no reason for awarding damages as to the whole, as in Birrell v. R. R. Co., 41 App. Div. 506 (1899), a case involving similar features. The case of Conabeer v. R. R. Co., 156 N. Y. 474 (1898), cited in the principal case, would seem to be controlling. On a similar state of facts, the holding of the Court was that the lands of the abutting owner were burdened by the easements of defendant, and that the increase in the width

of the structure was an incident in the running of the railroad, hence contemplated in the original dealings between the parties.

QUASI CONTRActs—Plaintiff Willfully in Default Under Contract. Where the plaintiff abandoned without sufficient cause an oral contract to clear lands, held, he could recover the value of his services on quantum meruit, leaving the defendant to recover damages for the plaintiff's default. Wanhscaffe v. Pontoja, 63 S. W. 663 (Texas, May, 1901).

On principle, in cases of this kind the plaintiff's willful default should preclude any recovery whatever. Stark v. Parker, 2 Pick. 267 (Mass., 1824); Lantry v. Parks, 8 Cow. 63 (N. Y., 1827) cf. Forbes v. Watkins, 62 S. W. 36 (Tenn., Jan., 1901). But, assuming the right to recover, the proper measure of recovery was not adopted. The true basis, it would seem, is a quantum meruit, not to exceed the contract price, less the defendant's damage. Atkins v. Barnstable, 97 Mass. 428 (1867); Blood v. Wilson, 141 Mass. 25 (1886). In the principal case the defendant was left to recover his damages from the plaintiff. In this respect the decision is against the great weight of authority, for in almost all jurisdictions, whether a quantum meruit or the contract price is adopted as a basis of recovery, the defendant's damage is deducted. Standard Gaslight Co. v. Wood, 61 Fed. 74 (C. C. A., 1894); Bedow v. Tonkin, 59 N. W. 222 (S. D., 1894); Yeats v. Ballentine, 50 Mo. 530 (1874); Kane v. Stone Co., 39 Ohio State 1 (1883); Dermott v. Jones, 2 Wall. 1 (1864).

SALES-CONTRACT TO SELL-REFUSAL TO PURCHASE-RESALE-VALIDITYDAMAGES. Plaintiff contracted to sell certain personalty to defendant. The latter refused to complete the purchase; whereupon plaintiff gave defendant written notice, and advertised sufficiently that the property was open to inspection, and would be sold at public auction. At the auction the plaintiff, who acted throughout in good faith, bought in the property as highest bidder. In a suit by plaintiff against defendant for the difference between the contract price and the market value, held, the sale was valid, the amount obtained by it was lawful evidence of the market value of the property, showing substantial loss by the plaintiff, and, therefore, the direction of a verdict for nominal damages only was error. Ackerman v. Rubens, 60 N. E. 750 (N. Y., June, 1901).

This decision establishes the doctrine in New York that an unpaid vendor, as agent of his vendee, may, under the circumstances given above, sell to himself. A majority of the Court considered itself forced to this conclusion by Moore v. Potter, 155 N. Y. 481; but, as pointed out in the dissenting opinion of the present case, the sale in that case was to a third person; at least, the allegation of the plaintiff charging collusion was not sufficiently supported by the evidence on that issue to take the question to the jury.

However this may be, this decision is open to the metaphysical objection that a person cannot contract with himself, and in a violation of the almost universal rule that, for reasons of public policy, "a trustee or agent to sell shall not become himself a purchaser." Jackson v. Van Dalfen, 5 Johns. 43 (N. Y. 1809); Michond v. Girod, 4 How. 503 (U. S. 1846); Eldridge v. Walker, 60 Ïll. 230 (1871).

STATUTES-NEW YORK CIVIL CODE-RIGHT TO INTERVENE IN ACTION FOR MONEY JUDGMENT. Under $ 452 of the Code of Civil Procedure, providing that one having an interest in the subject-matter of a suit may have himself made a party by proper amendment," one D, in a suit in which a money judgment was sought, applied to be brought in as a defendant. Held, that the Court has no power to compel the plaintiff to bring in a third party as a defendant, the suit being one for a money judgment only, and title to property not being involved. Bauer v. Dewey, 60 N. E. 30 (N. Y., April, 1901).

The principal case follows the decision of Chapman v. Forbes, 123 N. Y. 532 (1890), where the Court interpreted $ 452 of the Code as being applicable only in cases of an equitable nature, and refused to allow a third party to intervene, as the suit was for a money judgment only.

A

The part of that section quoted above was held not to apply, as the intervener could not be said to have an interest in the subject-matter, a debt. It had been supposed that the later cases of Rosenberg v. Solomon, 144 N. Y. 92 (1894), and Hilton Bridge Co. v. N. Y. C. R. R. Co., 145 N. Y. 390 (1895), had modified the ruling in the Chapman Case, supra. In the Rosenberg Case plaintiff brought an action of replevin, and the intervener claimed title to the subject-matter. His petition was granted on a strict interpretation of § 452, as title to specific property was involved. The Bridge Ĉar Co. Case was an action to foreclose a mechanic's lien, an equitable action; hence, by granting the petition, the Court merely followed the Chapman Case.

TAXATION-PERSONALTY-SEAT IN THE NEW YORK STOCK EXCHANGE. N. Y. Laws of 1896, c. 908, § 7, reads as follows: "Non-residents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such business as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state." Construing this statute, the Court held a seat in the New York Stock Exchange is not taxable as personal property held by a non-resident, either (1) because it is neither capital invested in business nor personal property within the restricted definition of the tax law, Laws of 1896, c. 908, § 2 (BARTLETT, GRAY and WERNER, J.J.); or (2) because, while it is capital invested in business, it does not come within the definition aforesaid (PARKER, C.J., VANN, MARTIN and CULLEN, JJ.). People ex rel. Lemmon v. Feitner et al., 60 N. E. 265 (Apr., 1901).

TORTS-MASTER AND SERVANT-ASSUMPTION OF RISK OF EMPLOYMENT. The plaintiff was employed to run a machine in the defendant's factory. Noticing a defect, he informed the defendant that he would do no more work till repairs were made. The defendant promised to have the defect remedied, and directed the plaintiff to resume work and run the machine as carefully as possible. Plaintiff did so and was injured. Held, whether or not the plaintiff reassumed the risk of the employment was a question of fact, and a verdict in his favor will not be disturbed merely because the facts might warrant a contrary inference. Dempsey v. Sawyer, 49 Atl. 1035 (Me., May, 1901).

When a servant enters into an employment, he is held to assume the risks incidental to such employment. But when, as in the principal case, the servant has notified the master of the increased risk, he has expressly refused to assume such risk. The difficulty arises in determining the intention of the parties on the servant's returning to work at the dangerous machine. The rule would seem to be that within a reasonable time for the repair of the defect the servant has not reassumed the risk, but is acting in reliance on the master's promise to remove the danger; Illinois Steel Co. v. Mann, 48 N. E. 417 (Ill., 1897); but, if such reasonable time has elapsed and the servant continues to work, although no repairs have been made, it shows an intention to assume the risk. Counsell v. Hall, 145 Mass. 468 (1888).

TORTS-MASTER AND SERVANT-SAFE PLACE FOR WORK. Where the defendant telephone company, under a license, strung its wires upon the poles of another company, he, the defendant, was under a duty to servants to use reasonable care in inspecting the poles, and this notwithstanding the fact that the licensor was under a similar duty to its servants. McGuire v. Bell Tel. Co. of Buffalo, 60 N. E. 433 (N. Y., May, 1901); 167 N. Y. 208.

The Court held that the telephone poles were, as a matter of fact, and in spite of the peculiar circumstances of the case, a place of employment which the defendant was bound to use reasonable care to keep in a safe condition. Pioneer Fireproof Const. Co. v. Howell, 59 N. Ê. 537 (Ill., 1901). The reporters' head notes to this case, to the effect that the defendant was liable notwithstanding it had no right under its license to inspect the poles, are misleading. A minority of the Court, it is true, did