her husband. But an analysis of the interests which are secured by these decisions shows that usually the interests of the wife or the social interests of the State are protected. Some comment will be made on four classes of these cases. These are: (A) where there are claims to homestead lands made by the wife; (B) where the pauper settlement of the wife is in question; (C) where there is an assessment of taxes on the property of the wife; (D) where the wife has left the husband or refused to follow him without cause.

The Homestead Cases.-In Anderson v. United States,26 it was held that the residence of the wife was in law the residence of the husband. Here the wife claimed a a right to homestead land, but it was shown that she had actually lived on the homestead land of her husband and only occasionally visited the land she was claiming. She was not allowed to keep the land. Here the interest which was secured was that of the State in having its lands made productive. It was this interest which overbalanced the interest which the wife might of had in having a separate residence. She did not reside on the land and so did not get it. (Here it will not be amiss to note that the courts use the word "residence" as synonymous with the word "domicile" and it is excedingly difficult to know just what it is they mean. In the instant case it may be that the residence requirement was not fulfilled and the case has nothing to do with domicile at all.)

In the Succession of Daniel Christie,27 it is the interest of the wife in her husband's labor which is secured. Here the husband goes to Louisiana from his domicile in New York. He takes up a domicile in the first named place and gets homestead land there. He dies in Louisiana. The wife claims the land, although she has never been on the land; she gets it. It is said that her domicile is that of her husband, and she can take under the Homestead Act.

(26) 202 Fed. 200 (27) 20 La. An. 383.

In Johnson v. Turner,28 the Court said: "The domicile of the wife and minor children follows that of the husband, and their actual personal residence at the homestead place is not necessary to perfect the right in him or to entitle them to the benefit of it after his death." *** "The homestead estate is created equally for the benefit of the wife and children and none of them can do an act that will impair or prejudice the rights of the others." Here the economic interests of the wife and children are being secured. It should further be noted that in this case there is no question of the husband failing to fulfill his marital duties.

Pauper Settlements.-In the cases dealing with pauper settlements it is generally held that when a married woman becomes a pauper she is taken care of by the same settlement where her husband is domiciled. Here, it is submitted, it is clear that the interests secured are those of the State in protecting the wife as an individual, and in determining where the substitute for the husband as a means of support is to be found. The husband is supposed to look after the wife. He does not do so. She cannot look after herself. The State then must do it. And it is reasonable to say that as the husband would have been held accountable for the wife's support at his domicile that his domicile be saddled with the burden of taking care of the wife. There is nothing inherent in the structure of Nature that this should be so, but it is simply held to be just that as a woman belongs at a certain place legally that that place look after her when she cannot be looked after by her own relations. The substitute for the husband must assume his burdens.

Where Wife Dies Leaving Personal Property. The reasons for making the domicile of the husband the domicile of the wife in the pauper settlement cases holds good also for the class of converse cases where the wife dies leaving personal property. Her domicile for taxation is said to

be that of her husband's. of the husband would be held responsible for the maintenance of the indigent wife, it is only fair that, if the wife dies in affluence, that whatever benefits the State may have from such affluence should go to the community which would have had to support the wife if she had been a pauper. Here, too, there is no inherent logic which makes such a rule imperative, but it is simply a practical and fair rule in a matter which has to be governed by a fixed method of procedure.

The Wife Leaves the Husband Without Cause.-In situations where the wife has left the husband through no fault of his, it is obvious that there is no reason for changing the old rule of identity of domicile. The husband is fulfilling, or is ready to fulfill, his duties and the State has no reason for taking the privilege of fixing the family domicile away from the husband. There is no reason why a wife should be allowed to profit by her own wrongdoing. If the State is not able to prevent the wrong it can at least not assist in giving any privileges to the wrongful person. If there are personal individual interests of the wife which to some extent are not secured by making her domicile remain with her husband, these interests must be sacrificed in order that the other interests involved might be secured.

These four classes by no means exhaust the types of cases where the domicile of the wife is held to be that of her husband, but the cases are very few in which the rule was applied simply because it was the rule. Nearly all of the cases were rightly decided when the balancing of the interests involved are considered.

Putting the matter differently we can say, that so long as the reasons which can support the rule are present the rule is enforced, but when the reasons for the rule begin to disappear the rule is relaxed and is gradually done away with. And, of course, it follows that with the increased

Cambridge, Mass.

ALBERT LEVITT

(29) The discussion of this subject will be continued in the next issue of the Journal, and will treat of the domicile of a married woman for purposes of divorce and all other purposes.

MASTER AND SERVANT-SERVANT OPERATING AUTOMOBILE.

RILEY v. STANDARD OIL CO. OF NEW

YORK.

Supreme Court, Appellate Division, Second Department. April 16, 1920.

181 N. Y. Supp. 573.

Where a truck driver, instead of driving from depot where truck had been loaded to employer's factory pursuant to directions, drove in the opposite direction on a personal errand and injured plaintiff before returning to the route between the depot and the factory, the employer was not liable.

KELLY, J. The accident in which the infant plaintiff met with his injuries occurred at a time when the driver of defendant's truck was engaged, contrary to his instructions, in a personal errand. He was instructed to go to the railroad station, to load his truck with barrels of paint, and to return to the factory of the defendant. Instead of doing this, having loaded his truck, he proceeded in an opposite direction to carry some wood, gathered in the railroad yard, to his sister's home entirely as a personal brotherly service. Having delivered the wood to his sister, he turned his truck around to come back to his legitimate employment and route, and had proceeded but a short distance in the street in which his sister resided, when he ran over the plaintiff. The point at which the accident occurred was not between the railroad station and defendant's factory, but beyond

Under

the station, in the opposite direction. these circumstances, his acts while on this personal, unauthorized trip were not the acts of his employer or within the scope of his employment. The connection between the master and servant was broken while he was engaged upon that unauthorized trip for his own personal ends and purposes. Reilly v. Connable, 214 N. Y. 586, 108 N. E. 853, L. R. A. 1916A, 954, Ann. Cas. 1916A, 656; O'Brien v. Stern Brothers, 223 N. Y. 290, 119 N. E. 550; Fallon v. Swackhamer, 226 N. Y. 444, 123 N. E. 737. We think the ruling in Jones v. Weigand, 134 App. Div. 644, 119 N. Y. Supp. 441, should not be extended beyond the facts in that case.

The judgment and order should be reversed, with costs, and the complaint dismissed, with costs. This court unanimously reverses the finding of negligence upon the part of defendant implied in the verdict of the jury. All

concur.

NOTE.-Liability of Owner of Automobile for Injury by an Incompentent.-The use by one not a servant or agent of the owner of an automobile was in the early days of this instrumentality somewhat differently regarded than now.

In Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016, 26 L. R. A. (N. S.) 382, 19 Ann. Cas. 1227, it was said of automobiles that: "The dangers incident to their use as motor vehicles are commonly the result of the negligent and reckless conduct of those in charge of and operating them, and do not inhere in the construction and use of the vehicles." But, when we remember that many states have provisions in their laws requiring that not every one, but only one qualified by age or expert knowledge, lawfully may drive on the streets an automobile, there is implied a statement in legal policy, that an automobile is an instrument inherently dangerous. There is a suggestion that the owner should not allow it to come into use by any and everyone.

In Slater v. Advance Thresher Co., 97 Minn. 305, 107 N. W. 133, the opinion proceeds upon the assumption that unauthorized use was by one qualified as an expert, to-wit the chauffeur servant of the owner. And so are many other cases.

But suppose that an operator of an automobile is intoxicated. In New York Highway Law such a one is prohibited from operating an automobile. Lincoln Taxicab Co. v. Smith, 150 N. Y. Supp. 86. Now it is readily conceivable that an owner permitting an intoxicated person to operate an automobile on the highway could be held liable. But is it not true that an owner must guard his automobile against surreptitious use by a disqualified person or be liable for consequences?

It has been held that a law providing for liability of an owner of an automobile for any injury caused by one to whom an owner has loaned it is constitutional. Stapleton v. Independent Brewing Co., 198 Mich. 170, 164 N. W. 520. The Court said: "It is true that the automobile has be

come so perfected that it may not be classed as a dangerous instrumentality,' when intelligently managed. It will not shy, balk, back up or run away when properly directed, but may do all of these things when managed by an incompetent, or reckless, driver. When in control of such a one it becomes an exceedingly destructive agency as the daily toll of lives and the many injuries to persons chronicled by the newspapers attest. * * * The owner is supposed to know and should know about the qualifications of the persons he allows to use his car." But it was not said it was a matter of defense for an owner to show that a person using a car by consent of owner was competent. It seems to me that it would certainly be far more in the reach of police power specifically to hold an owner for the use of an automobile insufficiently guarded against its being operated by an incompentent person: Indeed, a statute of this sort ought not to be needed to fix responsibility of an owner for its being operated by an incompetent person.

In Lynde v. Browning, 2 Tenn. C. C. A. 262, there was considered the right of forfeiture of a machine that was being used by one who had stolen it and it was said: "Forfeiture of instrumentalities that have occasioned harm is one of the oldest principles of jurisprudence. This conception inheres in the English and American systems of jurisprudence." While it was said that no lien might attach for damages unless the operator was agent or servant of the owner, yet it was constitutional to make an owner, where a machine in the hands of a thief does damage, liable to the extent of the value of the machine.

But, if this be so, a fortiori it seems to me that if an incompetent operates a machine, whether with knowledge and consent of the owner or not, the owner ought to be held on the theory that he must guard against its coming into the possession of an incompetent.

ITEMS OF PROFESSIONAL

INTEREST.

C.

PROGRAM OF THE MEETING OF THE OHIO BAR ASSOCIATION.

The forty-first annual meeting of the Ohio Bar Association will be held at the Hotel Breakwater, Cedar Point, Ohio, July 6, 7 and 8, 1920.

The President's address will be delivered by Mr. Smith W. Bennett, of Columbus. Sir James Aikens, K. C., President of the Canadian Bar Association, of Winnipeg, will also deliver an address. Hon. Charles S. Thomas, U. S. Senator from Colorado, will address the Association on the subject of Federal Encroachments.

There will be the usual committee reports.

PROGRAM OF THE MEETING OF THE

KENTUCKY BAR ASSOCIATION.

The eighteenth annual meeting of the Kentucky Bar Association will be held at Henderson, July 14th and 15th.

The president's address will be given by Mr. Lewis Apperson, of Mount Sterling. The annual address will be delivered by Hon. Selden P. Spencer, of St. Louis. Other addresses will be given as follows: "The Income Tax," by Mr. Robert Miller, of Louisville; "The Work of the 1920 Legislature," by Mr. John Blue, of Marion, Ky.; "Some Great Lawyers of Kentucky," by Mr. W. L. Porter, of Glasgow, Ky.; "The Application of the Scintilla Rule by the Courts," by Mr. S. D. Rouse, of Covington, Ky.; "The Seventeenth and Eighteenth Amendments to the Constitution of the United States and the Effect Thereof," by Mr. Malcolm Yeaman, of Henderson, Ky.

BAR ASSOCIATION MEETINGS FOR 1920WHEN AND WHERE TO BE HELD.

American-St. Louis, August 25, 26 and 27. Arizona-El Paso, Tex., July 1, 2 and 3. Colorado-August 20 and 21; probably Colorado Springs.

Indiana-Indianapolis, July 7 and 8.
Kentucky-Henderson, July 14 and 15.
Minnesota-St. Paul, July 27, 28 and 29.
Missouri-St. Louis, December 3 and 4.
New Mexico-El Paso, Tex., July 1, 2 and 3.
Ohio Cedar Point, July 6, 7 and 8.
South Dakota-Sioux Falls, August 4 and 5.
Texas-El Paso, July 1, 2 and 3.
West Virginna-Wheeling, July 28 and 29.
Wisconsin-Milwaukee, September

and 30.

BOOKS RECEIVED.

28, 29

HUMOR OF THE LAW.

In court a few days ago some colored gentlemen were being questioned for the purpose of ascertaining their fitness for jury service.

"I can't serve on dis jury, Judge-no, suh," said Clarence Green.

"Why not, Clarence?"

"Well, suh, my mind's done made up yes, suh-"

"Is that so, Clarence? Since when has your mind been made up?"

"Well, suh, Judge, you might say ever since the incipiency of my information, suh, yes, suh."-New York Evening Post.

"The courts of justice in the mountains are not always show places of the English language," says Gov. Morrow of Kentucky, "but native judges who may know that L.L. B. does not mean 'lie like blazes,' often let fall gems of speech."

Lou Lewis, a Circuit Judge of the upper Kentucky River section in the mountains, always made the occasion of a charge to the grand jury one of expounding every law on the statute books with local applications mixed in. Incidentally, each of his charges was a political speech, for the Judge was a constant condidate for office. On the occasion that comes to mind, his concluding charge was this:

"Gentlemen of the jury: A most heinous crime has been called to the attention of this court. You all know the Piney Grove meetin' house. The godly elders and deacons thereof, in the goodness of their hearts, went down to the banks of the middle forks of the Kentucky and with great care selected a fine lot of water maples and brung 'em back and planted 'em in the meetin' house yard. Them trees growed and flourished and was doin' fine, but, gentlemen of the jury, observe the perversity of mankind.

"A few wild bucks on a Sunday rid their nags up to the meetin' house and, ignorin' the hitchin' post on the outside, rid their beasts into the yard and hitched them to the aforesaid maples, and while the congregation inside wuz a-singin' sweet songs of Zion, them thar beasts chawed all the bark off uv them thar trees and to-tilly destroyed them.

"Gentlemen of the jury, I say to you that a man who would do the like uv that would ride a jackass into the Garden of Eden and hitch him to the Tree of Life. Indict 'em, gentlemen, indict 'em."-Post-Dispatch.

1. Adverse Possession-Forcible Entry and Detainer. The actual possession that will support an action for forcible entry or detainer is the same kind of actual possession that will in time ripen into good title, and is determined by the same rules as in any other action.-New York-Kentucky Oil & Gas Co. et al. v. Miller et al., Ky., 220 S. W. 535.

2. Alteration of Instruments-Materiality. -Material alteration of negotiable instrument by party to it, as by reducing amount without consent of maker, renders instrument void, and it cannot be enforced even by a subsequent purchaser in good faith without notice, whether the alteration is injurious or beneficial to the party liable.-Keller v. State Bank of Rock Island, Ill., 127 N. E. 94.

4.- -Bulk Sales Law.-Where, within four months of bankruptcy, defendant, without compliance with the Bulk Sales Law, purchased a bankrupt's stock of goods, the stock belonged to the trustee as against defendant, and defendant's purchase rendered him liable to the trustee in trover.-Philoon v. Babbitt, Me., 109 Atl. 817.

5.- -Insurance.-An order denying petition of a trustee to require bankrupt to deliver up a policy of life insurance or pay its surrender value held a bar to a later application to require him to surrender the policy or pay its loan value.-In re Samuels, U. S. C. C. A., 263 Fed. 561.

6.Salaries.-Salaries, not unreasonable in amount, voted and paid by the directors of a corporation, who also owned a large majority of its stock, to certain officers of the corporation for past services, without objection by any stockholder or creditor, held not recoverable by the trustee on behalf of subsequent creditors, on bankruptcy of the corporation more than ten years later.-In re Franklin Brewing Co., U. S. C. C. A., 263 Fed. 512.

7. Banks and Banking-Admission of Signature. A statement by a bank cashier that a check was good admits that the signature of the drawer was genuine, and that there were sufficient funds on deposit to cover the amount named in the check, but not that the amount was that originally written by the drawer.— Central Nat. Bank v. F. W. Drosten Jewelry Co., Mo., 220 S. W. 511.

8. -Certifying Check.-The "certification of a check" by the bank on which it is drawn is equivalent to the acceptance of a bill of exchange, and implies that the check is drawn upon sufficient funds in the bank's possession, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment.— McAdoo, Director General of Railroads, v. Farmers' State Bank of Zenda, Kan., 189 Pac. 155.

9. Bills and Notes-Attorney Fees.-It is no defense to a claim for attorney's fees in a suit on a note that, before the finding thereof and before giving defendant the 10 days' notice required by statute, the payee had already sued defendant on the note, and that such suit is pending at service of such statutory notice, but had been dismissed before the finding of second suit.-Lang v. Hall, Ga., 102 S. E. 877.

to

10. Boundaries—Adjoining Owners.-Boundary line agreement by adjoining owners having had bona fide dispute as to location thereof, followed by possession with reference the boundary so fixed, is conclusive on the parties, although the possession may not have been for the full statutory period, it being sufficient to show that the dividing line was actually established and thereafter recognized or acquiesced in by the parties for a considerable time.-Holbrooks et al. v. Wright et al., Ky., 220 S. W. 524.

11. Bribery-Tender of Money.-A baggage porter, employed by a railroad under the control of the federal government by virtue of Act Aug. 29, 1916, is acting on behalf of the United States in an "official function," so that