desertion. He had declined to live elsewhere than with his parents, although his wife's temperament appeared to clash continually with that of her motherin-law. Held, that the decree will not be granted as the desertion was justified. McCampbell v. McCampbell, 63 Pittsb. Leg. J. 641 (C. P. Allegheny Co., Pa.). Under the Pennsylvania statute, a desertion, to be sufficient ground for a divorce, must be wilful, malicious, and without reasonable cause. See PURDON'S DIG. PA. STAT. (1905), 1230. Although of various forms, nearly all desertion statutes have been construed to allow a divorce for any desertion unless excused by something which would be a ground for granting a divorce to the deserting spouse. Detrick's Appeals, 117 Pa. St. 452, 11 Atl. 882; Craig v. Craig, 90 Ark. 40, 117 S. W. 765. See 1 BISHOP, MARRIAGE, DIVORCE AND SEPARATION, §§ 1664, 1753. Contra, Laing v. Laing, 21 N. J. Eq. 248, 250. Since the husband has the right to determine the locus of the home, the mere election to live with his parents, provided adequate support and a comfortable home are given the wife, can present no ground for divorce. Rodenbaugh v. Rodenbaugh, 17 Pa. Co. Ct. R. 477. See 1 BISHOP, MARRIAGE, DIVORCE AND SEPARATION, §§ 1713, 1716. Under extreme circumstances, however, to compel the wife to live with her mother-in-law may amount to such cruelty as would be ground for divorce; and, accordingly, in such cases the wife's desertion is justified. Shinn v. Shinn, 51 N. J. Eq. 78, 24 Atl. 1022. Cf. Dailey's Appeal, 10 Wkly. Notes Cas. 420. However, the mere existence of an unfriendly spirit between the mother-in-law and the wife, as in the principal case, can hardly be called sufficient cruelty to justify the latter in deserting her husband. Jones v. Jones, 55 Mo. App. 523; Loux v. Loux, 57 N. J. Eq. 561, 41 Atl. 358. Cf. Mossa v. Mossa, 123 N. Y. App. Div. 400, 107 N. Y. Supp. 1044. Contra, Powell v. Powell, 29 Vt. 148; Field v. Field, 79 Misc. (N. Ÿ.) 557, 139 N. Y. Supp. 673.

EMINENT DOMAIN - DAMAGES - VALUE OF FEE UNDER HIGHWAY. - The city took by condemnation the fee to water-covered shore land, already subject to a public easement of passage. Held, that the owner of the fee may recover substantial damages. Matter of City of New York (Main Street), 216 N. Y. 67.

The owner of the fee of a street possesses valuable property in his right to make any use of the land that will not interfere with the public easement of passage. Viliski v. Minneapolis, 40 Minn. 304, 41 N. W. 1050; Appleton v. New York, 163 App. Div. 680, 148 N. Y. Supp. 870; Allen v. Boston, 159 Mass. 324, 34 N. E. 519; Dell Rapids Co. v. Dell Rapids, 11 S. D. 116, 75 N. W. 898. See NICHOLS, EMINENT DOMAIN, §§ 70, 71. It must follow that the condemnation of the fee of a street should be attended by the payment of substantial damages. Buffalo v. Pratt, 131 N. Y. 293, 30 N. E. 233. See 3 DILLON, MUNICIPAL CORPORATIONS, 5 ed., 1805. There can be no valid distinction in principle between the condemnation of the fee of a street and the fee of land under water subject to a right of passage, for here, too, the fee carries with it . valuable rights. Steers v. Brooklyn, 101 N. Y. 51, 4 N. E. 7. See NICHOLS, EMINENT DOMAIN, § 171; FARNHAM, WATERS AND WATER RIGHTS, § 113 b.

EVIDENCE-HEARSAY: IN GENERAL DECLARATIONS OF WIFE ADMISSIBLE AGAINST HUSBAND AS CO-CONSPIRATOR. — On an indictment for assault with intent to murder, evidence was given that the defendant and his wife planned to commit murder. The acts and declarations of the wife during conversations with the intended victim just before and at the time of the alleged assault were offered by the prosecution. Held, that these are admissible. Thompson v. State, 178 S. W. (Tex.) 1192.

At common law husband and wife, standing alone, cannot be conspirators. I Hawk. P. C., 8 ed., 448, § 8; People v. Miller, 82 Cal. 107, 22 Pac. 934.

Texas courts have said that the rule has been changed by statute in that state. See Smith v. State, 48 Tex. App. 233, 89 S. W. 817, 821; TEXAS PENAL CODE, 1895, §§ 36, 76, 86, 87, 958. But even at common law it is submitted that the principal case is correct. It cannot, it is true, be supported by the rule of evidence that the acts and declarations of one conspirator in furtherance of the common purpose are admissible against any other conspirator. See WIGMORE, EVIDENCE, § 1079; WHARTON, EVIDENCE, § 1205. This rule, however, does not depend on any notion peculiar to conspiracy, but on the fundamental conception that so far as a defendant's liability under the substantive law may be affected by the acts and declarations of another, those acts and declarations are admissible. See United States v. Gooding, 12 Wheat. (U. S.) 460, 469; State v. Moeller, 20 N. Dak. 114, 120, 126 N. W. 568, 571. See WIGMORE, EviDENCE, 1077. The relationship of principal and accessory, joint principals, or principal and agent between the defendant and his wife may entail such liability. State v. Vertrees, 33 Nev. 509, 112 Pac. 42; State v. Dickerhoff, 127 Ia. 404, 103 N. W. 350. See Jones v. Monson, 137 Wis. 478, 484, 119 N. W. 179, 182; Price v. Price, 91 Ia. 693, 696, 60 N. W. 202, 205; BISHOP, CRIMINAL LAW, § 631. There was evidence in the principal case to justify a jury finding that one of these relationships existed and that the declarations admitted were made in furtherance of the purpose for which it existed. But at common law one spouse may not testify against the other and this rule extends to declarations proved by third persons. See Ray v. State, 43 Tex. Cr. R. 234, 236, 64 S. W. 1057, 1058; WIGMORE, EVIDENCE, § 2232. But the rule does not apply in civil suits when there is an agency between the spouses. See WIGMORE, EVIDENCE, § 2232. There is no reason to distinguish criminal from civil cases in applying rules of evidence. See United States v. Gooding, supra. It is submitted, therefore, that where in a criminal case a relationship exists between the spouses that is fundamentally one of agency, the acts and declarations of one may be used against the other.

ADMINISTRATION BONDS - SURETY'S
An administrator was entitled

EXECUTORS AND ADMINISTRATORS LIABILITY TO ASSIGNEE OF ADMINISTRATOR. to a share of the estate. He assigned this interest, and later committed a devastavit. The assignee now sues the surety on the administration bond. Held, that he may recover. Muller v. National Surety Co., 154 N. Y. Supp. 1096.

An assignee is not subject to cross claims which arise between the assignor and the obligor after the assignment. But an exceptional doctrine is applied where a trustee who is also a cestui assigns his beneficial interest, or an executor and trustee who is given a legacy assigns that legacy. It is then held, on the ground that the executor is only intended to get a deferred interest, that the assigned share must bear in full the loss even from a devastavit committed after the assignment. Morris v. Livie, 1 Y. & C. Ch. 380; Doering v. Doering, 42 Ch. Div. 203; Hart's Estate, 203 Pa. St. 503, 53 Atl. 373. The fact that there is no trust in the principal case offers no ground for distinction. But it is submitted that the rule is only for the protection of the other cestuis or legatees, and that there is no reason to treat the assignable interest as deferred to cross claims of the surety. Thus, though the administrator cannot recover in his capacity as legatee, for he is liable to a counterclaim for indemnification on the bond, the right of the assignee is unimpaired. Indeed, it seems that the administrator himself may recover for the benefit of the estate. See Wolfinger v. Forsman, 6 Pa. St. 294, 295.

INDICTMENT AND INFORMATION CONSTITUTIONALITY OF STATUTE DISPENSING WITH GRAND JURY ON PLEA OF GUILTY. - On prosecution for breaking and entering, and larceny, the prisoner filed a plea of guilty, under a statute dispensing with the necessity of indictment by grand jury in such

case, and was at once sentenced. The state constitution provided that "no person shall, for any indictable offense, be proceeded against criminally by information," with certain exceptions. Held, that the relator was properly sentenced. Commonwealth ex rel. Stanton v. Francies, 95 Atl. 527 (Pa.). For a discussion of this case, see NOTES, p. 326.

JOINT INTwo defend

INDICTMENT AND INFORMATION -JOINDER OF DEFENDANTS DICTMENT FOR PRACTISING MEDICINE WITHOUT A LICENSE. ants were indicted jointly for "assuming the duties of a physician, and . . . treating persons afflicted with disease without first having obtained from the state" the certificate required by Section 2580, Code of Iowa. Held, that the indictment was good. State v. McAninch, 154 N. W. 399 (Ia.).

The traditional view has been that there can be no joint indictment for a crime which from its nature cannot be jointly committed. WHARTON, CRIMINAL PLEADING AND PRACTICE, 8 ed., § 302. Thus it was held there could be no joint indictment for exercising a trade without apprenticeship. Rex v. Weston, 1 Strange 623. Nor for perjury. 2 Strange 920. Early American cases accepted this notion without analysis. Vaughn v. State, 4 Mo. 530; United States v. Kazinski, 26 Fed. Cas. 682. And it persists in some jurisdictions. Walker v. Commonwealth, 172 S. W. (Ky.) 109; State v. Wilson, 115 Tenn. 725, 91 S. W. 195. It has even been held that two persons cannot be jointly drunk. State v. Deaton, 92 N. C. 788. The rule seems to have been purely formal, however, for the mere insertion of the word "separaliter" rendered a joint indictment for a crime of this nature valid. I STARKIE, CRIMINAL PLEADING, 43. This being so, it is a short step to hold that the word "several" can be implied where from the nature of the act the crime is several. See State v. Mills, 39 N. J. L. 587, 588. It is now recognized that the test should be practical, rather than analytical, turning on substantial fairness to the parties rather than the nature of the crime. State v. Winstandley, 151 Ind. 316, 51 N. E. 92. Cf. Rex v. Philips, 2 Strange 920. In the principal case a joint indictment can work no hardship, as the court may nevertheless order separate trials, if justice or convenience requires. MCLAIN'S ANN. Code of IOWA, § 5375.

INSURANCE CONSTRUCTION OF PARTICULAR WORDS AND PHRASES IN STANDARD FORMS STANDARD MORTGAGE CLAUSE AS PROTECTION AGAINST OWNER'S ACTS. · A mortgagee of certain property sued on the owner's policy. The policy contained standard clauses making the loss, if any, payable to the mortgagee as his interest might appear and stipulating that the conditions contained therein should apply to the mortgagees in the manner written on, attached, or appended thereto. No conditions were appended to the mortgagee clause. The insurance company set up the defense that the owner had burned the property. Held, that in the absence of appended conditions the mortgagee's right was unaffected by the owner's acts. Stamey v. Royal Exchange Assur. Co., 150 Pac. 227 (Kan.).

Courts generally regard the above mentioned clauses as constituting, between the insurer and the mortgagee, a separate contract whereby the former agrees to pay the latter irrespective of invalidating acts by the owner. Queen Ins. Co. v. Dearborn Savings etc. Ass'n, 175 Ill. 115, 51 N. E. 717; Oakland Home Fire Ins. Co. v. Bank of Commerce etc., 47 Neb. 717, 66 N. W. 646; ↑ Christensen v. Fidelity Ins. Co., 117 Ia. 77, 90 N. W. 495. Reasons for this bi-contractual theory are not forthcoming, except that it is a method of reaching a desired result. See Hartford Fire Ins. Co. v. Olcott, 97 Ill. 439. Though it is arguable, it does not seem desirable to stretch the mere agreement by the owner to insure for the mortgagee's benefit into a delegation of power to the former to enter a contract in the latter's behalf. This speculation aside, the

requisites of a contract relation are lacking. The mortgagee is not a party to the agreement, and gave no consideration, either executed or promissory. In truth there are not two contracts, and thus the mortgagee must be regarded as a beneficiary with an independent vested right, if, as the court contends, he may recover irrespective of the owner's act. See 23 HARV. L. REV. 311; 27 ibid. 763. It is wrong, however, to place this construction on the absence of conditions appended to the mortgagee clause, which is better construed to give the mortgagee only a vicarious right. Delaware Ins. Co. v. Greer, 120 Fed. 916.

LANDLORD AND TENANT-RENT - DISTRESS: MAY TENANT'S RECEIVER ENJOIN DISTRESS FOR ADVANCE RENT? - The defendant leased premises to a company which agreed to pay rent yearly in advance. At the beginning of the second year it failed to pay as agreed and the defendant distrained for the rent. Later the company went into the hands of a liquidator, who seeks to enjoin the defendant from proceeding further with the distress. Held, that the injunction will not issue. Venner's Electrical Cooking & Heating Appliances v. Thorpe, 60 Sol. J. 27 (C. A.).

It is well settled that a receiver takes property subject to all claims against it, legal or equitable, in the hands of the person or corporation from whom he takes. Chicago Title and Trust Co. v. Smith, 158 Ill. 417, 41 N. E. 1076; Commercial Pub. Co. v. Beckwith, 167 N. Y. 329, 60 N. E. 642. Again it has been explicitly held that a distress previously levied for rent in arrears is valid against the receiver. In re Roundwood Colliery Co., [1897] 1 Ch. 373. The fact, moreover, that a distress is levied immediately for rent due in advance, when the agreed time of payment is past, in no way impairs its validity. Atkins v. Byrnes, 71 Ill. 326; London, etc. Discount Co. v. London, etc. Ry. Co., [1893] 2 Q. B. 49. The defendant, therefore, was quite within his legal rights in proceeding with the distress in the principal case. Where this is so, equity will interpose only where it appears necessary to restrain an unconscionable abuse of the right. See In re Roundwood Colliery Co., supra, 380. No sufficient evidence of inequitable conduct on the part of the defendant appearing, for he clearly was not acting inequitably in endeavoring to collect his due advance rent, the court seems properly to have denied the plaintiff's motion.

LIBEL AND SLANDER - DAMAGES - AGGRAVATION OF DAMAGES BY PLEA OF JUSTIFICATION. - In an action of libel the defendant pleaded truth in justification. Held, that the plea may be considered in aggravation of damages. O'Malley v. Illinois Publishing and Printing Co., 51 Nat. Corp. Rep. 475 (App. Ct. of Ill., 1st Dist.).

It is well settled that "actual malice" in the publication of a defamation opens the defendant to exemplary damages. Paxton v. Woodward, 31 Mont. 195, 78 Pac. 215; Lee v. Crump, 146 Ala. 655, 40 So. 609. See ODGERS, SLANDER AND LIBEL, 5 ed., 389. By malice is meant not necessarily the defendant's knowledge of the falsity of the statement, but also his recklessness as to its truth, or his intent to injure the plaintiff. Palmer v. Mahin, 120 Fed. 737. See ODGERS, SLANDER AND LIBEL, 5 ed., 390. The weight of authority, including the principal case, holds that a plea of justification, if not proved, is evidence of malice in the original publication and hence aggravates damages. Gorman v. Sutton, 32 Pa. St. 247; Krulic v. Petcoff, 122 Minn. 517, 142 N. W. 897. See Coffin v. Brown, 94 Md. 190, 199, 50 Atl. 567, 570. Many courts, however, hold that the plea must be found to have been introduced in bad faith to be given this effect. Fodor v. Fuchs, 79 N. J. L. 529, 76 Atl. 1081; Henderson v. Fox, 83 Ga. 233, 9 S. E. 839. It is submitted that only if so introduced is the plea logically probative of either a carelessness of truth or an intent to injure. Of course no action itself could be brought on the plea, because it is absolutely

privileged. McGehee v. Ins. Co. of North America, 112 Fed. 853. See ODGERS, SLANDER AND LIBEL, 5 ed., 242. And it might well be urged that the reason back of this privilege, i. e., the freedom of a party to an action to make a defense, demands that the plea should not aggravate damages.

LIMITATION OF ACTION - NATURE AND CONSTRUCTION OF STATUTE — INABILITY TO DISCOVER BREACH OF WARRANTY PREVENTING RUNNING OF STATUTE. - A defendant pleaded a set-off based on a breach of warranty of goods sold. The breach was not discovered for a considerable time after delivery. The period prescribed by the Statute of Limitations had run since the delivery, but not since the discovery of the breach. Held, that the Statute runs only from the expiration of a reasonable length of time within which the defendant could have discovered the breach. Sheehy Co. v. Eastern Importing & Mfg. Co., 43 Wash. L. R. 708 (D. C. App.).

When goods are sold under a warranty, the warranty is broken on delivery of inferior goods, and a right of action at once accrues to the buyer. Vogel v. Osborne, 34 Minn. 454, 26 N. W. 453. Ordinarily the Statute of Limitations begins to run simultaneously. But where the defect is revealed only after a lapse of time, an injured party may have his right of action barred before he is aware that he has such a right. Likewise, in warranties of title, the buyer may have to sue before being disturbed in possession in order to have his right of action, when his damages are purely speculative. These considerations have led some courts to adopt the view of the principal case. Felt v. Reynolds Rotary, etc. Co., 52 Mich. 602, 18 N. W. 378; Gross v. Kierski, 41 Cal. 111. The weight of authority is, however, that the statutory period runs from the breach of the warranty. Allen v. Todd, 6 Lans. (N. Y.) 222; Perkins v. Whelan, 116 Mass. 542. See Battley v. Faulkner, 3 B. & Ald. 288. See 2 GREENLEAF, EVIDENCE, $435. But where a defendant has fraudulently concealed the right of action the rule is usually lightened, although this result was not reached without some difficulty. Gibbs v. Guild, 9 Q. B. D. 59; Sherwood v. Sutton, 5 Mason (U. S.) 143. See 29 HARV. L. REV. 226. The basis of these cases is apparently an unwillingness to allow the defendant to profit by his own wrong. This would not, therefore, include the principal case, the result of which, though just, seems difficult to reach in view of the express wording of the Statute.

MASTER AND SERVANT-WORKMEN'S COMPENSATION ACTS - COMMONLAW ALTERNATIVE CLAUSE EFFECT OF ABROGATION OF ASSUMPTION OF RISK. - An employee of the defendant railroad, who was hired for the purpose of repairing electrical apparatus, was killed by a shock sustained while at work on a defective insulator. The defendant, who was free from any fault in the accident, had not subscribed to the insurance clause of a Workmen's Compensation Act. By the Massachusetts Act (1911, Mass. Acts and Resolves, ch. 751, § 1), an employer who is not a subscriber loses the right to plead the "defense" of assumption of risk. The defendant is sued by the estate of the deceased. Held, that the plaintiff cannot recover. Ashton v. Boston & M. R. Co., 109 N. E. 820 (Mass.).

There is a clear distinction between the assumption of the risks incident to the inherent dangers of a business and the assumption of those risks created by the evident negligence of the employer. Rigsby v. Oil Well Supply Co., 115 Mo. App. 297, 91 S. W. 460. See Note, 28 L. R. A. N. S. 1215; Buford, "Federal Employers' Liability Act," 28 HARV. L. REV. 163, 177. For in its first sense assumption of risk is simply indicative of the fact that the status of master and servant has not put the master in the position of an insurer by creating a relational liability without fault. See Duffey v. Consolidated Block Coal Co., 147 Ia. 225, 228, 124 N. W. 609, 610. But in its second meaning the phrase indicates an affirmative defense protecting the employer in spite of his