parties and witnessed in the manner required for the acknowledgment of a conveyance of real property, to entitle the same to be recorded. Section 19 of the same act also provided, "That no marriage claimed to have been contracted on or after January 1, 1902, within this State, otherwise than in this article provided, shall be valid for any purpose whatever." Thus the act of 1901 expressly prohibited common-law marriages.

The act of 1901 was amended in part and repealed in part by the laws of 1907, ch 742. Section 11 of the act of 1901 was amended by the act of 1907 to read, after the first word "recorded," "provided, however, that all such contracts of marriage must, in order to be valid, be acknowledged before a judge of a court of record." The act of 1907 repealed all other provisions of the act of 1901, including section 19, which was the express prohibitory clause, and made certain provisions with reference to marriage licenses. Section 18 of the act of 1907 provided that copies of the records of marriage and all other records pertaining thereto, duly certified by the clerk of the county where the same are recorded under his official seal shall be evidence in all courts of record. The act of 1907 was made effective January 1, 1908.

The result of the statutory change was to cast doubt on the validity of common-law marriages contracted after January 1, 1908. In McCullen v. McCullen2 the Appellate Division, First Department, stated that "Since by statute it is now required that a marriage shall be formally solemnized or the contract shall be in writing (Dom. Rel. Law, Section 11,)" no marriage could be inferred from the cohabitation of the parties, apparently on the theory that although the express provision prohibiting common-law marriages had been repealed by the laws of 1907, yet section 11 of the act of 19013 was still in force and its provisions, that "A marriage must be solemnized" in the manner there set forth, were mandatory and by necessary implication prohibited any other form of marriage contract, including common-law marriages. On the other hand it was held by some of the lower courts that by the repeal of the express, prohibitory provision of the act of 1901, common-law marriages were again recognized as valid, and that the provisions of section II of the act of 1901 were merely directory and not mandatory.

The latter view was adopted by the Court of Appeals in the principal case. Hiscock, Ch. J., writing for the Court, said that section II was to be regarded as merely directory, or as prescribing the requirements of a formal solemnization of a marriage such as might be necessary to secure the benefits of registry, etc., and was not to be regarded as invalidating a form of marriage otherwise valid, in the absence of some provision expressly declaring or necessarily implying that result. The Court further said that if this section was in fact mandatory and exclusive and did in fact prohibit common-law marriages, then the enactment of section 19 of the act of 1901 was an

2162 App. Div. (N. Y.) 599 (1914).

Now section II, Dom. Rel. Law.

Matter of Hinman, 147 App. Div. (N. Y.) 452 (1911); Matter of Smith, 74 Misc. (N. Y.) 11 (1911). See also for a discussion in support of this view, I CORNELL LAW QUARTERLY 48 (1915).

entirely futile step on the part of the Legislature; but of such idle action the Legislature should not be suspected unless one were compelled to do so, and that to interpret section 11 as merely directory would give to the Legislature credit for an accurate comprehension of the general rule that such a statute merely provided forms of observance which would be necessary in case of a ceremonial or formal marriage contract, and that it did not invalidate other forms of marriage contract; that in order to do that, it was necessary to adopt an express prohibition of such other forms of marriage contract and, therefore, section 19 was adopted, complying with the rule. It necessarily follows that if section 19 was the only part of the act of 1901 that prohibited a common-law marriage, then upon the repeal of section 19, a common-law marriage again became valid.

As the Court in the principal case remarked, the Legislature, in deciding whether or not a common-law marriage shall be valid, has important questions of policy to consider and potent arguments pro and con to weigh. On the one hand it may be argued that if such marriages are allowed, they are apt to become the basis of fraud, especially after the death of one of the parties. On the other hand, if such marriages are prohibited, innocent children must suffer the disgrace and disabilities of bastardy and the ignominy of an unlawful union will be inflicted upon unsuspicious women who have believed themselves lawfully married.

Since it is the policy of the law to presume morality, marriage and legitimacy and not immorality, concubinage and bastardy, and since marriage has always been a common right and therefore statutes in derogation of that right must be strictly construed and will be regarded as merely directory, in the absence of express provisions to the contrary, it is submitted that the Court of Appeals, in deciding that a common-law marriage is again valid in New York, came to the conclusion that best serves public policy and best accords with the probable intent of the Legislature.

In brief summary, therefore, it will be observed that common-law marriages contracted in New York before January 1, 1902 are valid; that section 19 of the act of 1901 made invalid common-law marriages contracted between January 1, 1902 and January 1, 1908, when the act of 1907, repealing section 19 became effective; and that, by the decision of the Court of Appeals in the principal case, common-law marriages contracted after January 1, 1908 are valid.

Fred S. Reese, Jr., '18.

Evidence: Applicability of the doctrine of res ipsa loquitur to the liability of a sleeping-car company for loss of baggage.-Goldstein v. Pullman Co., 116 N. E. (N. Y.) 376 (1916) contains a very interesting discussion of the liability of a sleeping-car company for the baggage of a passenger, stolen while said passenger was sleeping. It appears that the plaintiff placed his diamond scarf-pin, glasses and tie in his satchel, put the satchel in the aisle next the berth, retired at eleven o'clock and when he arose in the morning, the satchel had disappeared. The Court held that, while mere proof of loss by a

"Meister v. Moore, 96 U. S. 76 (1877).

passenger while occupying a berth in a Pullman does not make a prima facie case, a sleeping-car company is a quasi-bailee for hire, and under the doctrine of res ipsa loquitur, it is not the injury but the circumstances of the injury that justify the inference of negligence, shifting the burden of explanation to the company, although the plaintiff's duty to show negligence still remains.

Under circumstances such as these, the company is under a duty to employ persons to maintain a strict and careful watch during the night,' and the failure so to do constitutes negligence which is the basis of the company's liability in case of loss,2 the liability not being that of the common carrier or of the innkeeper.3

At first blush, Goldstein v. Pullman Co. appears to overrule Carpenter v. N. Y., N. H. & H. Ry. Co.,4 in which it was held that mere proof of loss did not even make a prima facie case. The Court, however, in discussing the Carpenter case distinguishes it from the principal case, saying that it is not loss alone which makes the prima facie case, but loss coupled with the attendant circumstances. That is, when the property is placed in a satchel, the satchel is placed in the aisle beside the berth and the passenger is asleep, a loss would not ordinarily occur in the absence of negligence. Therefore, "the thing itself speaks," and the company must explain the loss.

In accord with the Goldstein case there is a recent District of Columbia case in which it was said, "The presumption thus created is a legal one, arising from the evidence which impels its application. When such a presumption arises, an obligation is imposed upon the defendant of overcoming it by competent evidence."

There is, however, another line of cases in which, on a similar state of facts, an opposite conclusion is reached. Such, for instance, is the case where a passenger left his overcoat hanging over the berth when he went with the rest of the passengers from the sleeping-car to dine. The doors of the car were locked, the windows closed and yet the coat disappeared between the time of his departure and return. The Court held these circumstances, together with proof of loss, insufficient to establish negligence on the part of the company. And in McMurray v. Pullman Co.,' where the passenger's pocketbook was stolen from under his pillow while he was asleep, it was held that this was not sufficient evidence to cast the burden on the defendant company.

In some jurisdictions the character of the baggage appears to have had the effect of limiting the company's liability for the loss thereof, as, where the company was not held to answer for the theft by its porter of jewelry carried merely for purposes of transportation and not for use on the train.8 On the other hand in Pullman Co. v. Vanderhoeven

1Carpenter v. N. Y., N. H. & H. Ry. Co., 124 N. Y. 53 (1891); Morrow v. Pullman Co., 98 Mo. App. 351 (1903).

2Williams v. Webb, 27 Misc. (N. Y.) 508 (1899).

3Pullman Co. v. Adams, 120 Ala. 581 (1898).

Supra, note I.

"Robinson v. Southern Ry. Co., 40 App. D. C. 549 (1913).

"Dings v. Pullman Co., 171 Mo. App. 643 (1913).

786 Ill. App. 619 (1900).

8Bacon v. Pullman Co., 159 Fed. 1 (1908).

948 Tex. App. 414 (1908).

In

the term "baggage" was determined to comprehend a diamond ring carried by a female passenger on her trip, so long as it was necessary for her use, pleasure or enjoyment in traveling, as the law had not placed a limit upon the amount of jewelry which one might carry. the principal case no point was made of the fact that a diamond scarfpin was among the articles stolen, but this might have been deemed so necessary an article of utility as not to need mention in this regard. The Illinois case above is difficult to distinguish on its facts from the Goldstein case. The latter represents the more liberal application of the doctrine of res ipsa loquitur, and one which commends itself to the legal profession.

Olive J. Schmidt, '18.

Evidence: Competency of bloodhound evidence in criminal trials. In the recent case of Ruse v. State, 115 N.E. Ind. 778 (1917), Indiana aligned itself with Illinois1 and Nebraska2 in holding that the actions of bloodhounds in tracing a person accused of crime were not competent evidence against the accused. Of the sixteen jurisdictions that have had occasion to consider this question thirteen have held the evidence competent. The first reported case on the subject seems to be Hodge v. State.1

3

All of the jurisdictions admitting this character of evidence require some preliminary showing that the dogs in question have been trained, tested, and have had experience in trailing human beings It must also appear that they were laid on a trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicate to have been made by him. While it may be shown that the dogs are of pure blood this does not seem to be required.'

In the jurisdictions receiving the evidence it is admitted that all dogs are not equally unerring, and that each may fail at times in being truthful. It is also admitted that the ability to follow a given human scent is one acquired by training, and that the accuracy of the dog depends largely upon the skill used in training it. Personal attendants and surrounding conditions, such as time and weather conditions, 'People v. Pfanschmidt, 262 Ill. 411 (1914).

2Brott v. State, 70 Neb. 395 (1903).

'McDonald v. State, 165 Ala. 85 (1910); Padgett v. State, 125 Ark. 471 (1916); Davis v. State, 46 Fla. 137 (1903); Harris v. State, 17 Ga. App. 723 (1916); State v. Adams, 85 Kan. 435 (1911); Pedigo v. Commonwealth, 103 Ky. 41 (1898); Carter v. State, 106 Miss. 507 (1913); State v. Rasco, 239 Mo. 535 (1912); State v. Dickerson, 77 Ohio St. 34 (1907); State v. Wiggins, 171 N. Car. 813 (1916); Commonwealth v. Hoffman, 52 Pa. Super. Ct. 272 (1913); State v. Brown, 103 S. Car. 437 (1915); Parker v. State, 46 Tex. Cr. R. 461 (1904). 498 Ala. 10 (1893).

Supra, note 3.

"Pedigo v .Commonwealth, 103 Ky. 41, 50 (1898); State v. Dickerson, supra, note 3; Parker v. State, supra, note 3; Commonwealth v. Hoffman, 52 Pa. Super. Ct. 272, 277 (1913).

Spears v. State, 92 Miss. 613, 619 (1908); Denham v. Commonwealth, 119 Ky. 508 (1905).

Pedigo v. Commonwealth, supra, note 3; Commonwealth v. Hoffman, supra,

note 3.

Supra, note 7.

may modify the certainty of such evidence.10 It is held, however, that these are considerations going to the weight rather than to the admissibility of the evidence.11 In most of the cases where the evidence was admitted there were strong corroborating circumstances pointing to the accused as the guilty party. None has been found where a conviction was upheld in the absence of corroborating evidence, and in one case it was held a conviction could not be upheld unless so supported.12 In several of the decisions the evidence was admitted "for what it was worth," leaving the inference that its worth was not great.13

It is generally conceded that juries are likely to attach an importance to this character of evidence out of proportion to its true value; that the mysterious power of the dogs frequently begets in the minds of some people a superstitious awe, and that they see in such an exhibition a direct interposition of divine providence in aid of human justice.1 In the majority jurisdictions, however, these dangers are thought to be sufficiently guarded against by the preliminary proof required, although such evidence has elements of uncertainty. The minority view is that the value of the evidence is so slight as compared with its dangers that it should not be received in any criminal case. Mr. Wigmore, supporting the minority view, cites with approval the analysis of the detective in "The Singing Bone," by Freeman.15 The detective is made to say that the tracking of a known slave is not analogous to discovering the identity of an unknown individual. In the one case the problem is location, while in the other it is identity. The location is proved when the bloodhound finds the slave, but when the bloodhound finds an individual not previously known, identification of this individual as the criminal still remains uncertain, dependent upon an odorous relation between a track and a man, the evidential value or bearing of which cannot be estimated. 16

Professor O. L. McCaskill.

Interstate Commerce: Interpretation of White Slave Traffic Act. -A considerable number of cases have recently dealt with the proper interpretation to be placed upon the White Slave Traffic Act', commonly known as the Mann Act, which provides in substance that any person, who shall knowingly transport or cause to be transported in interstate or foreign commerce, any woman or girl, for the purpose of prostitution or debauchery and for any other immoral purpose, shall be deemed guilty of a felony. In the well known case of Caminetti v. United States this statute was strictly construed. Here the defendant had transported a woman from Sacramento, California, to Reno,

10 Supra, note 7.

"State v. Rasco, supra, note 3; and cases there cited.

12Carter v. State, supra, note 3.

13 Pedigo v. Commonwealth, 103 Ky. 41, 50 (1898); Commonwealth v. Hoffman, supra, note 3.

14 Supra, note 12; and State v. Moore, 129 N. Car. 494, 500 (1901); Carter v. State, 106 Miss. 507, 512 (1913).

15Wigmore, Evidence, sec. 177; 9 Ill. L. Rev. 192.