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a tiger is in the street, the main question is not the degree of his freedom of will or guilt. Every man who is dangerous to property or life, whether insane, criminal, or feeble-minded, should be confined, but not necessarily punished. 5. The publication in the newspapers of criminal details and photographs is a positive evil to society, on account of the law of imitation; and, in addition, it makes the criminal proud of his record, and develops the morbid curiosity of the people; and it is especially the mentally and morally weak who are affected. 6. It is admitted by some of the most intelligent criminals, and by prison officers in general, that the criminal is a fool; for he is opposing himself to the best, the largest, and the strongest portion of society, and is almost sure to fail.

The late catastrophe that befell our country in the violent death of our beloved President at the hands of an assassin has awakened into controversy important questions relating to the treatment and suppression of crime, which have never been satisfactorily answered. Prof. Arthur McDonald, specialist in the United States Bureau of Education, who has made a most extensive study of criminals and criminalogy and who is now engaged in promoting the establishment by the United States government of a Psycho-Physical Laboratory for the study of criminal, pauper and defective classes, recently stated several conclusions as to the origin and proper treatment of the criminal man based upon the experience of those who have studied criminals directly or who have had practical control of large numbers in prisons or reformatories. These suggestions are very pertinent at this crisis and are earnestly commended to lawyers and law-makers as a basis for a sound, practical advance in the treatment of criminals and the suppression of crime. These conclusions are as follows: 1. The prison should be a reformatory and the reformatory a school. The principal object of both should be to teach good, mental, moral, and physical habits. Both should be distinctly educational. 2. It is detrimental financially, as well as socially and morally, to release prisoners when there is probability of their returning to crime; for in this case the convict is much less expensive than the ex-convict. 3. The determinate sentence permits many prisoners to be released who are morally certain to return to crime. The indeterminate sentence is the best method of affording the prisoner an opportunity to reform without exposing society to unnecessary dangers. 4. The ground for the imprisonment of the criminal is, first of all, because he is danger-Baker, ous to society. This principle avoids the uncertainty that may rest upon the decision as to the degree of freedom of will; for upon this last principle some of the most brutal crimes would receive a light punishment. If

One of the most unfortunate aspects of the work of the Supreme Court of the United States during the last few years has been the more than ordinary lack of harmony and concurrence between the different members of the court on many very important questions of law. In addition to the Income Tax and Insular Tariff decisions, which were attended with so many embarrassing circumstances and which cannot be said to evidence that clear grasp of the law which is to be expected from members of the highest court in the land, we are compelled to add to this list the decisions of the court on the constitutionality of the "front-foot" rule of assessment in apportioning the cost of street improvements. This decision was handed down April 29, 1901, in the now celebrated case of French v. Barber Asphalt Paving Co.,-celebrated, however, more because of the importance of the subject under consideration than for the brilliancy or correctness of the argument extended in support of the decision. In a very unsatisfactory opinion, in that it leaves the important question it attempts to discuss still undecided, Justice Shiras, representing a majority of the court, practically overrules the case of Norwood v.

although expressly denying any such intention, and holding that the apportionment of the entire cost of a street improvement upon the abutting lots according to their frontage, without any preliminary hearing as to benefits, may be authorized by the

legislature, and this will not constitute a taking of property without due process of law. Aside from the unbecoming attitude of the court in overruling itself in so short a time on such an important rule of property, the decision offers further evidence of the dangerous tendency toward the subversion of private and property rights of the individual in the large cities of the country. Quite often of late has attention been called to the fact that our large cities were becoming hot-beds of anarchy and socialism, due to the fact that the freedom of the individual was being sacrificed in favor of what are known as "municipal conveniences." Indeed, one of the arguments used so often in the persistent attempts to overrule the case of Norwood v. Baker, was that street improvements must stop unless the expense of their construction could be taxed upon the abutting property owner. The sufficient answer to such an argument is that all such enterprises ought to stop and the people compelled to use God's green earth in the condition in which he left it without any of man's "improvements" rather than sacrifice one iota of individual right. The words of Church, C. J., as expressed in Guest v. Brooklyn, 69 N. Y. 506, are very pertinent in this connection: "The right to make a public street is based upon public necessity, and the public should pay for it. To force an expensive improvement upon a few property owners against their consent, and compel them to pay the entire expense, under the delusive pretense of a corresponding specific benefit conferred upon their property, is a species of despotism that ought not to be perpetuated under a government which claims to protect property equally with life and liberty."

NOTES OF IMPORTANT DECISIONS.

TRUSTS-MERGER OF LEGAL AND EQUITABLE ESTATE. With all the favor which courts of equity show to trust estates, it seems impossible to keep such an estate alive when the person in whom the absolute equitable interest is vested is also entitled to exactly the same interest at law. In other words, a man who is absolute owner is not allowed to be a trustee for himself, and accordingly "by whatever means, whether by conveyance or otherwise, a person obtains the absolute ownership at law of the estate, though he acquired that by an equitable title, and both

either come together or are afterwards united in him, the legal will prevail, the equitable is totally gone for the purpose of being acted on by any person in this court." Selby v. Alston, 3 Ves.. p. 342. The principle has recently been applied by Farwell, J., in Re Selous, 49 W. R. 440 under somewhat curious circumstances to the case of two owners. A testator who died in 1890 bequeathed leasehold property to a trustee, in trust for his two daughters in equal shares as tenants in common. By a deed made in 1895 between the trustee and the daughters, the trustee, at the request and by the direction of the daughters, assigned the property to the daughters as joint tenants, the daughters giving him a joint covenant of indemnity against liability under the lease. The death of one of the daughters in 1900 raised the question whether this conveyance had put an end to the equitable tenancy in common and had substituted a joint tenancy at law free from any equitable interest, so that the surviving daughter was entitled to the whole! This was the view taken by the learned judge. The rule that one person cannot be trustee for himself applies, he held, equally to the case of two absolute owners, and the daughters, by taking the conveyance, had lost their previous interests. The difference between a tenancy in common and a joint tenancy was not sufficient to avoid this result. It would seem to be clear also, on the form of the conveyance, that the daughters had no idea of keeping alive their former estates.

MASTER AND SERVANT-LIABILITY OF MASTER FOR ACTS OF ILL-TEMPERED OVERSEER. -Man's inhumanity to man has recently been the subject of many sad and theoretical observations and discourses as well as the outlet of much useless sentiment, useless in this, that a man very often consents in theory to that which he indifferently disregards in practice. The law, however, is always practical and regards with more favor the actual illustration of the principle than the principle itself. In the relation of master and servant the temptation is very strong for the one in authority to gratify his sense of power by ill-treating and insulting those who have submitted themselves to his control. But this practice of maltreatment and insolence is not so often found in the master himself as in some narrow gauged hireling whom he has raised to a position of authority over his other servants. The principle which the law announces in such cases is that a master owes an obligation to his servants not to place incompetent, ill-tempered or unskilled overseers or foreman over them. The practical application of this principle was well illustrated by the recent case of Lamb v. Littmann, 38 S. E. Rep. 911, when the Supreme Court of North Carolina held that where a mill owner places a man generally reputed to be ill-tempered and mean to children and other help over a 10 year old boy, he will be liable for his violent handling

of the boy in urging him to the proper performance of his work. The court said:

Had the master committed the assault his liability would not be questioned. Then why not be responsible for his representative, whom he knew, or ought to have known, to have been of such nature and character that the like result would follow? Under the contractual relations existing between plaintiff and defendant, it was the duty of plaintiff to render proper service and obey the commands and directions of his superiors in the service. It was likewise the duty of defendant, under those relations, to appoint as his representative a fit and competent person, not one of a cruel and mean nature, who would use violent means in urging the performance of duty. We do not wish to be understood as holding that the master is generally an insurer of the good conduct of his representative, or an insurer against his violence resulting from his own malice or ill will or sudden outbursts of temper, although in charge of the master's business but only when he puts in such representative as is by him known, or ought to have been known, to be violent and mean, and the injury is the natural result of such character.”

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AGAINST DIRECTORS.-"No wrong without a remedy" is one of those flattering illusions with which law-or equity-beguiles the unwary into litigation. The fallacy lies in the ambiguity of the word "wrong." In the maxim sense it is injuria—a legal wrong—and so read, the proposition becomes little more than a truism; but to the plain man a wrong means a grievance, and a grievance may or may not be cognizable by the law. The plain man cannot, therefore, be too careful in ascertaining, or having it ascertained for him, whether his particular grievance falls within the category of legal grievances-is, in other words, an actionable wrong. Shareholders are peculiarly prone to neglect this. They have been led to invest their money in an enterprise which has turned out disastrously; they have lost it, and a retaliatory instinct urges them to seek redress from the directors, the supposed authors of the wrong. Now, in this matter of redress against directors the law is highly technical, not to be invoked, as a recent case in the court of appeals shows, without great care and circumspection. To begin with, a personal action by a shareholder against directors is quite another thing from an action by a shareholder against the company to obtain rescission of his contract to take shares; so in an action by the company against directors as its managing

agents to account or answer for misfeasance. The gist of the personal action against directors by a shareholder is a tort, not a trust; it is that they have by fraudulent or reckless misstatements in the prospectus induced the plaintiff to join in a commercial venture, whereby he has sustained loss. For this purpose the principles of an action

of deceit still hold good. The common law of England, though it exhorts honeste vivere, does not visit civility as a tortious act, or criminally, except in the witness-box, the mere telling of lies. In the case of contracts, of course, it is different; but to constitute a tort, to found an action of deceit, there must be something more. The plaintiff must prove (i.) actual fraud; (ii.) that the fraud was dans locum contractui; (iii.) that he was, in fact, misled by it; (iv.) that he suffered loss as a natural consequence of his doing so. All that the Directors' Liability Act, 1900, has done is to qualify the second of these conditions (ii.)—the necessity for the plaintiff proving actual fraud by making it enough that the directors have made a misstatement without reasonable ground for believing it true. It was thought politic by the legislature thus to stretch the law of deceit for the protection of the public against a particular class of persons who enjoy special facilities for committing frauds, and are under a peculiar obligation to deal honestly and candidly with the public. But the relaxtion of the law of deceit goes no further. It would add a new terror to life if for every idle word or careless opinion a man had to give an account in this world as well as in the next.-Solicitors' Journal.

BANKRUPTCY-LIMITATION OF TIME PRIOR TO BANKRUPTCY IN WHICH A PAYMENT MAY BE CONSIDERED A PREFERENCE.-One of the few remaining controversies of any importance over the new bankruptcy act is that over the question whether the time limit of four months, specified in subdivision "b" of section 60, apply to preferences referred to in subdivision "g" of section 57, so as to limit the return of preferential payments to those received during four months prior to bankruptcy proceedings. District and circuit courts of appeals have answered the question differently, and are awaiting patiently the decision of the supreme court to set the matter at rest. We called attention to this question and its serious character in our editorial comment on the recent case of Carson, Pirie, Scott & Co. v. Trust Co., 53 Cent. L. J. 1, where we said:

"One question is yet undecided. Is the time limit of four months provided for in section 60b, in regard to preferences which may be recovered by the trustee, applicable also to sections 60a and 57g in regard to preferences which must be surrendered to entitle the creditor to participate in the estate of the bankrupt? In section 60a no limit is set to when a payment may be a preference, except the insolvency of the debtor. It would, therefore, seem that the decision in the case of In re Jones, reported in 4 Am. B. R. 563 and holding that section 57g compels a surrender of a preferential payment of money, even though received more than four months prior to bankruptcy, as a condition precedent to sharing in the assets, is the only logical deduction to be drawn from the plain wording of these sections and the construction put upon them by the su

preme court. The question of expediency under such construction becomes even more vital than before, but it is one for congress and not the judiciary to determine."

This question has just recently come up for decision in the case of In re Steers Lumber Co., 6 Am. B. R. 315, where the court follows the case of In re Jones, supra, and holds that there is no time limit to the operation of section 60a or to the preferences mentioned in section 57g, and a payment received from a bankrupt while insolvent, though more than four months prior to the commencement of bankruptcy proceedings, creates a preference under both of said sections. court in rendering the opinion said:

The

"The court is constrained to the conclusion that there is no time limit to the operation of section 60a. The suggestion of the supreme court in Carson, Pirie, Scott & Co. v. Chicago Title & Trust Co., 5 Am. B. R. 814, tends in such direction, and the discussion of Judge Lowell (In re Jones, 4 Am. B. R. 563) states the view that may be adopted most reasonably. Some limitation of time upon the operation of 60a may be advisable, but an examination of the act and of the different parts thereof fails to disclose that it exists."

The question at bar did not arise in the Carson case, but counsel in that case referred to the four month' limit for the purpose of showing that if that was allowed the court "could travel outside" for the purpose of taking in the connecting element of intent also. This argument was met by the court as follows:

The argument is strong which is urged to support a four months' limitation; but it can be argued in opposition that subdivision 'a' needs no explanation from other parts of the statute in order to obtain a time limit on the question of preference. It can be argued that subdivision: 'a' gives such limit in the existence of insolvency. But we are not required to decide either way on this record. If the 'element' of intent is not to be interpolated into subdivision 'a' of section 60, it must seem that the element of time is not to be so interpolated."

DUTY OF WIFE TO FOLLOW DOMICILE OF HUSBAND.

It is a generally accepted rule of law that the domicile of the wife follows that of her husband.1

1 Greene v. Greene, 28 Mass. (11 Pick.) 410; Hairston v. Hairston, 27 Miss. 704; Burnham v. Rangeley, 1 Woodb. & M. 7, Fed. Case No. 2176; Johnson v. Turner, 29 Ark. 280; Jeness v. Jeness, 24 Ind. 355; McAfee v. Kentucky University, 70 Ky. (7 Bush) 135; Hick v. Hick, 68 Ky. (5 Bush) 670; Baldwin v. Flagg, 43 N. J. Law (14 Vroom.), 495; Henderson v. Ford, 46 Tex. 627; Yule v. Yule, 10 N. J. Eq. (2 Stockt.) 138; Ditson v. Ditson, R. I. 87; Williams v. Saunders, 45 Tenn. (5 Cold.) 60.

This doctrine rests, not merely on the legal identity of husband and wife, but more particularly on her duty to dwell with the husband wherever he dwells. If he commits an offense which entitles the wife to seek a dissolution of the marriage, she must abandon him or future cohabitation will generally amount to condonation and bar her claim to remedy.2

So long as the unity of the marriage relation remains undisturbed the wife cannot acquire a domicile other than that of her husband, nor can she acquire a separate domicile if separated from him, unless such separation is justified," or she is aban. doned. His domicile will be her domicile and will change with his thoroughout their married life. Only for the purpose of bringing a suit for divorce may the wife acquire a domicile or residence distinct from that of her husband.8

The fact that husband and wife have separated by agreement will not enable the wife to acquire a separate domicile. This seems to be the rule in England and

2 Twyman v. Twyman, 27 Mo. 383; Quincy v. Quincy, 10 N. H. 272; Delliber v. Delliber, 9 Conn. 235; Bishop, Mar. & Div. vol. 2, §§ 38, 40, 125; Phelan v. Phelan, 135 11. 447; Weigand v. Weigand, 42 N. J. Eq. (15 Stew.) 699, 11 Atl. Rep. 113; Harper v. Harper, 29 Mo. 301; Dutcher v. Dutcher, 39 Wis. 659; Smith v. Smith, 19 Neb. 706, 28 N. W. Rep. 296.

3 Howland v. Granger, 45 Atl. Rep. 740, citing In re Florance, 54 Hun. 328, 7 N. Y. S. 578; Shute v. Sargent, 67 N. H. 305, 36 Atl. Rep. 282; Ditson v. Ditson, 4 R. I. 87; Harrison v. Harrison, 20 Ala. 629: Hardin v. Allen, 9 Greenit. 140.

Maguire v. Maguire, 7 Dana, 181; Colburn v. Holland, 14 Rich. Eq. 176; Johnson v. Johnson, 12 Bush, 485; Greene v. Greene, 28 Mass. (11 Pick.) 410; McGown v. McGown, 18 Misc. Rep. 708, 43 N. Y. S. 745; Johnson v. Johnson, 75 Ky. 485. Contra: Chapman v. Chapman, 129 Ill. 386; Rundle v. Van Inwegan, 9Civ. Proc. Rep. 328; Arrington v. Arrington, 102 N. Car. 491, 9 S. E. Rep. 200.

5 Cheever v. Wilson, 9 Wall. 108, L. Ed. 604; Lyon v. Lyon, 30 Hun, 455; Derby v. Derby, 14 Ill. 645; Hill v. Hill, 166 Ill. 54.

6 Shute v. Sargent, 67 N. H. 305, 36 Atl. Rep. 282. 7 Cooper v. Biers, 143 Ill. 25; Mason v. Homer, 105 Mass. 116; Baiber v. Barber, 21 How. (U. S.) 103; Bank v. Balcom, 35 Conn. 351; 5 Am. & Eng. Ency. 868.

8 Jeness v. Jeness, 24 Ind. 355, 87 Am. Dec. 335; Craven v. Craven, 27 Wis. 418; Derby v. Derby, 14 Ill. App. 645; Lazovert v. Lazovert, Id. 653; White v. White, 18 R. I. 292, 27 Atl. Rep. 506; Mellen v. Mellen, 10 Abb. N. C. 329; Turner v. Turner, 44 Ala. 487; Hewes v. Hewes, 61 Hun, 625, 16 N. Y. Supp. 119; Hopkins v. Hopkins, 35 N. H. 474.

9 Dolphin v. Robbins, 7 II. L. C. 390; Warrender v. Warrender, 3 Cl. & F. 488.

in many of our states," 10 but in New York the rule is now well established that a wife may acquire a domicile separate from that of her husband whenever it is necessary for her to do so, and when husband and wife have separated and agreed to live apart the wife's domicile cannot be drawn to that of her husband without her consent or without her actual presence at his place of residence." The husband has the right to decide where the matrimonial residence shall be,12 and may without the consent of the wife, change it as often as his health, pleasure or buisness dictates, 13 and when in good faith he thus changes his residence and his wife refuses to go with him such refusal amounts to desertion.14

It is the husband's right to fix the domicile of the family, and the refusal of the wife to accompany him and live with him on a change of residence, is desertion on her part.15 She cannot control his right to fix his residence where he will.16

In Cutler v. Cutler, the court said: "The husband has the undoubted right to change his home as often as his business, his comfort or bis health may require; and so long as his conduct in this particular is free from taint or cruelty we have no authority to criticise it.”17

In Illinois, where the husband moved from his old homestead to a new one about a mile distant, and his wife refused to join him, and insisted on remaining in the old home with her brother to whom it had been conveyed by herself and husband, the court granted the husband a decree of divorce on the ground of desertion. 18

On application of the wife for separate maintenance under the Illinois statute, where it was shown that the husband had removed to Michigan for good reasons, and the wife refused to follow, the court denied

10 See ante note 4.

11 Rundle v. Van Inwegan, 9 Civ. Proc. Rep. 328. 12 Kennedy v. Kennedy, 87 Ill. 250; Hanberry v. Hanberry, 29 Ala. 719; Cutler v. Cutler, 2 Brewst. (Pa.) 511; Stewart, Mar. & Div. §§ 221-253; Firebrace v. Firebrare, Law Rep. 4 Pro. & D. (Eng.) 63. 13 Cutler v. Cutler, 2 Brewst. (Pa.) 511.

14 Gahn v. Darby, 36 La. Ann. 70; Hunt v. Hunt, 29 N. J. Eq. (2 Stew.) 96; Thompson v. State, 28 Ala. 12; Ralston v. Ralston, 13 Phila. 30.

13 Angier v. Angier, 7 Phila. 305.

16 In re Bye, 2 Daly, 525.

17 2 Brewst. (Pa.) 511.

18 Kennedy v. Kennedy, 87 Ill. 250.

the application, saying: "It is her duty as a faithful and obedient wife to accompany him there. 19

In the Kennedy case, supra, the court said: "In the case of Davis v. Davis, 30 Ill. 180, the general and well-recognized rule of law was announced that the domicile of the husband is that of the wife, and the rule was recognized in the case of Ashbaugh v. Ashbaugh, 17 Ill. 476, where it was said the residence of the wife follows that of the husband."20 Where the husband's income became reduced, and in order to curtail expenses he removed to another home in the same city, which was in every way suitable, and his wife refused to accompany him, the court granted a divorce." In the case of Hunt v. Hunt the parties were married in Wisconsin, and later the husband established himself in the legal profession in New York, supporting his wife who remained in Wisconsin. He requested her to live with him in New York but she refused his requests saying "she could not think of it; she could not think of giving up her arrangements in Wisconsin; that she could not break up all her arrangements and plans in compliance with that letter." The court granted a divorce.22 Willful refusal of the wife to live with her husband in South Carolina where he had moved after their marriage in Alabama constituted desertion on her part.23

Desertion to constitute a ground for divorce under the statutes of most of the states is generally, if not always qualified and "willful," "willful and malicious" or "willful, continued and obstinate" desertion must be proven.24 And there are, however, limitations and exceptions to the general rule that it is the wife's duty to follow her husband to a new residence. The husband cannot arbitrarily and without reason compel the wife to conform

19 Babbitt v. Babbitt, 69 Ill. 277.

20 Kennedy v. Kennedy, 87 Ill. 252.
21 Beck v. Beck, 163 Pa. St. 649.
22 29 N. J. Eq. 96.

23 Hanberry v. Hanberry, 29 Ala. 719.

24 Broughton v. Broughton, 1 Del. Co. Rep. 273; Bean v. Bean, 11 Lanc. Bar, 138; Appeal of Clark, 2 Chest. Co. Rep. 38; Rose v. Rose, 50 Mich. 92, 14 N. W. Rep. 711; Davis v. Davis, 60 Mo. App. 545; Sergent v. Sergent, 33 N. J. Eq. (6 Stew.) 204; Orr v. Orr, 71 Ky. (8 Bush) 156; Jennings v. Jennings, 13 N. J. Eq. (2 Beasl.) 38; Rutledge v. Rutledge, 37 Tenn. (5 Sneed) 554; Cornish v. Cornish, 23 N. J. Eq. 208.

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