same words," says Starkie (Sland. & L. p.

are propositions of law asserted by the Supreme Court of Rhode Island in Blake v. Smith, 34 Atl. Rep. 995. They say it is "clearly error to join the wife of the defendant in an action for words spoken by the husband; for, while the husband is liable at common law for his wife's torts (9 Am. & Eng. Enc. Law, pp. 82, 83, and cases cited in note 8. See note to Morgan v. Kennedy [Minn.], 30 Lawy. Rep. Ann. 521-530, 64 N. W. Rep. 912), yet the converse of this proposition is not true. And to allow her to be joined with her husband for a slander uttered and published by him would be to make her liable for his wrong. The declaration is also demurrable in that it charges, in the fifth count, that the slanderous language therein set out was uttered and published by both of the defendants jointly. It is well settled that an action cannot be maintained against two persons jointly for uttering and publishing slanderous words, because the words of one are not the words of another. The act of each constitutes an entire and distinct offense. Webb v. Cecil, 9 B. Mon. 198; Thomas v. Rumsey, 6 Johns. 32. action was commenced in 1891, and hence is not affected by subsequent legislation regarding actions by and against married See Gen. Laws R. I. ch. 194, § 16; Penters v. England, 1 McCord, 14; Malone v. Stilwell, 15 App. Prac. 421. Mr. Townshend, in his valuable work on Slander and Libel, section 118, states the law upon this point as follows: "If two or more utter the like words, either simultaneously or separately, it is not a joint publication, but a separate publication by each, for which each must be sued separately, and for which they cannot be sued jointly." See cases cited in note 1. "Within this rule, husband and wife are considered as separate individuals. If husband and wife utter the like words, either simultaneonelv or separatelv thev are two

women.

This

tions, and the court will not permit them to be consolidated, for it would be error to join the wife for words spoken by the husband only, and the declaration would be ill, either upon demurrer or on arrest of judgment." Diecy, Parties (Truman's Notes) 325. There may be a joint publication by writing, as, for instance, where the libel is signed by both of the defendants, or where the composition of a libelous letter is participated in by two and written by one of them, and afterwards sent by mail to the person to whom it was addressed. Miller v. Butler, 6 Cush. 71. In such case an action may be sustained against both, on the ground that it is an entire offense-a joint act. See Russell v. Webster, 23 Wkly. Rep. 59; Harris v. Huntington, 2 Tyler, 147; Starkie, Sland. & L. 354; Gazynski v. Colburn, 11 Cush. 10. So a husband and wife may be jointly sued for a libel published by them jointly. See Catterall v. Kenyon, 3 Q. B. 310; Townsh. Sland. & L. (3d Ed.) § 119.

LIBEL-LIABILITY OF NEWSPAPERS PRESUMPTION OF MALICE.-The authorities generally, English and American, hold the editor and publisher of a newspaper to the same rigid responsibility with any other person who makes injurious communications. Malice on his part is conclusively inferred if the communications are not true. The Supreme Court of Louisiana so holds in Fitzpatrick v. Daily State Pub. Co., 20 South. Rep. 174. They say also that it is no defense that same have been copied with or without comment from another paper, or that the information upon which an editorial article is based was obtained from the columns of another paper. It is no defense that the source of informa tion was stated at the time of publication, and that the editor or publisher believed it to be true. The freedom of speech and the liberty of the press were designed to secure

to the conditional privilege which newspaper publications enjoy is that when the publication is made in good faith, in the ordinary course of the publisher's business, with good motives and for justifiable ends, and without any intention to work injury to the reputation or character of the subject of it, the party injured will be restricted in his recovery to actual damages; but the publisher is liable, not only for the estimated damages to credit and reputation, and such special damages as may appear, but also such damages, on account of injured feeling, as must unavoidably be inferred from the publication of such libel; and as the law looks to the animus of the publisher in permitting his columns to be employed for the dissemination of calumny, circumstances may be shown in mitigation of damages. The instigating circumstances pointed out by the defendants in the case being that the administration of the government of the city of New Orleans had become so notoriously corrupt that suspicion, in the public mind, rested alike upon all those in any way connected with it, and urgently demanded investigation and reform; that they, as faithful and fearless public journalists, felt in duty bound to direct public attention to this serious condition of affairs; and consequently, when Orlopp, an important city contractor, made the disclosure attributed to him in certain other city papers, they deemed it to be the discharge of a public duty to make upon them the editorial comment that is complained of, it was held that, while conceding the principle, the conclusion is denied, in the total absence of a plea of justification and proof of the truthfulness of the specifications in the article contained; for the law is just as studious to protect the reputation and character as it is the property of the citizen, and the public official from unnecessary, unseemly, and unwarrantable aspersions, upon the management and conduct of his office, through the columns of a newspaper. While it is undoubtedly true, says the court, that the preservation of good and pure government, either in city or State, greatly depends upon a free and fearless expression of public sentiment through the columns of the journals of the country, yet it is equally true that same must and can be accomplished through the instrumentality of cogent, temperate, and well-reasoned edi

torials, predicated upon facts, and not by means of hasty, intemperate, and opprobrious criticisms and abuse, having no other foundation than the current local items published in some other paper. This rule, if adhered to, will greatly tend to the promotion of truth, good morals, and good govern

ment.

CRIMINAL LAW-LASCIVIOUS COHABITATION. -The Supreme Court of Appeals of West Virginia decides in State v. Miller, 24 S. E. Rep. 882, that to constitute the offense of lewd and lascivious cohabitation it must be proved that the parties cohabited togetherthat is, lived together in the same house as man and wife; proof of occasional acts of illicit intercourse is not sufficient. The court says in part:

Could the defendants be convicted of fornication on this evidence? I think not. If they could, that would not show them guilty of the offense of which they are indicted, for transient acts of intercourse, though they may be items of evidence going, with other circumstances, to show lewd and lascivious cohabitation, do not, by any means, alone establish it. A separate section of the Code from that under which this indictment was found applies to that. The statute says "lewdly and lasciviously associate and cohabit together." Code 1891, ch. 149, § 7. Webster gives the verb "cohabit" two meanings,-one, "to inhabit or reside in company, or in the same place or country." Of course, the sense of the word in our statute is not this sense. Webster's second definition is "to live together as husband and wife." Plainly, this is the meaning of the word in our statute. Black's Law Dictionary, among several meanings, gives, as its first, "to live together as husband and wife." So does Bouvier. That this is the meaning of the word in our statute is apparent from the opinion by Judge Wood in State v. Foster, 21 W. Va. 767. And, on literally the same statute, it has been twice held in Virginia that, "to constitute the offense, it is essential that it be proved that the parties cohabit together,that is, live together in the same house as man and wife. Proof of occasional acts of incontinence merely is not sufficient." Pruner & Clark's Case, 82 Va. 115. They must appear and act to the world as man and wife, without being married. The Iowa statute is "lewdly and lasciviously associate and cohabit together." Revision 1860, § 4351. In State v. Marvin, 12 Iowa, 499, the parties, just as in this case, lived in the same house as master and servant, and on two occasions, the defendant was seen getting out of bed with the female defendant. The court said: ""Cohabiting' means more than living together in the same house, and 'lewdly and lasciviously' means more than occasional acts of intercourse." In Searls v. People, 13 Ill. 597, the court said: "The parties must dwell together openly and notoriously in illicit intimacy, upon terms as if the conjugal relations existed between them. In other words, they must cohabit together. There must be an habitual illicit intercourse between them. The object of the statute was to prohibit the public scandal and disgrace of the living together of persons of opposite sexes notoriously in

illicit intimacy, which outrages public decency, having a demoralizing and debasing influence on society." In Massachusetts the statute uses the same words as ours, and such was its construction in Com. v. Calef, 10 Mass. 153. So say Bish. St. Crimes, § 712; Whart. Cr. Law, § 1747. See Carotti v. State, 42 Miss. 334.

MASTER AND SERVANT-SERVANT OF ONE MASTER AS THE SPECIAL SERVANT OF ANOTHER. We published some time ago an article, in which the writer collated the authorities to illustrate the general proposition that the servant of one master may become the special servant of another. See 39 Cent. L. J. p. 341. A recent New Jersey case-Delaware, L. & W. R. Co. v. Hardy-recognizes and enforces that doctrine holding, that a general servant of one person may, for a particular work or occasion, become pro hac vice the servant of another person, so that the latter will not be liable to him for an injury occasioned by the negligence of other servants engaged with him in a common employment; and that to establish the relation of master to such a servant, it must appear that the servant has, expressly or by implication, consented to the transfer of his services to the new master, and to accept him as his master pro hac vice, and has entered upon such service, and submitted himself thereon to the direction and control of the new master. The following is from the opinion of the court:

The "doctrine of collaborateur," as it is sometimes called, is this: A master who would be liable for an injury inflicted by the negligence of one of his serv ants upon a stranger will not be liable for a like injury inflicted upon another of his servants engaged at the time in a common employment with the negligent servant. To establish the immunity of the master, two things must appear: (1) That the person injured and the person doing the injury were his serv ants; and (2) that they were both at the time engaged in labor for him, tending to a common purpose, which is to be in a common employment. In a majority of cases the first of these requisites is made out by proof that both the persons injured and the person doing the injury were engaged and employed as servants, were paid for their services, and were directed and controlled therein by one and the same person. Usually the contest is over the other requi sites of common employment. But in the class of cases of which that before us is a sample the contest is over the establishment of the relation of service. Doubtless, no man can serve two masters, yet the law clearly recognizes a sort of duality of service. A general servant of one person may, for a particular work or a particular occasion, become pro hac vice the servant of another person. What will suffice to prove the assumption of the dual service gives rise to ques tion. I think the applicable rule is admirably expressed by Lord Watson thus: "I can well conceive that the general servant of A might, by working to

ward a common end, along with the servants of B, and submitting himself to the control and orders of B, become pro hac vice B's servant, in such sense as not only to disable him from recovering from B for injuries sustained through the fault of B's proper servants, but to exclude the liability of A for injury occasioned by his fault to B's own workmen. In or der to produce that result the circumstances must be such as to show conclusively that the servant submitted himself to the control of another person than his proper master, and either expressly or impliedly consented to accept that other person as his master for the purposes of the common employment." Johnson v. Lindsay (1891), App. Cas. 371. To establish the fact that the servant of one has thus transferred his serv. ices to another pro hac vice, it must appear that he has assented expressly or impliedly to such transfer. No one could transfer the service of his servant to another master without the servant's consent. It must further appear that the servant has in fact entered upon the service, and submitted himself to the direction and control of the new master. His assent may be established by direct proof that he agreed to accept the new master and submit himself to his control, or by indirect proof of circumstances justifying the inference of such assent. Such evidence may be strong enough to justify a court in removing the question from the jury, or it may require to be submitted to the jury. The case of Ewan v. Lippincott, ubi supra, has, as I conceive, been misunderstood. It falls within the rule above stated. It came to this court upon a rule to show cause. It appeared in the case that Ewan was a machinist employed by D & W, mas. ter machinists. Lippincott was a mill owner who employed D & W to alter the gearing of a wheel. D & W sent Ewan to do the work, and he and Lippin cott arranged how it was to be done, and particularly that, at times when Ewan was not at work on the wheel, it should be run by Lippincott's engineer to furnish power for the mill. The trial judge charged that, upon this evidence, Ewan and the engineer (whose negligence had injured Ewan) were not the servants of a common master. Obviously, this ruling was erroneous, if the evidence either established, or tended to establish, that they were fellow-servants. In the former case a nonsuit should have been granted. In the latter case the question should have been submitted to the jury. The verdict was set aside, and a new trial granted. The opinion of Mr. Justice Reed clearly indicates that in his view the evidence established the coservice of Ewan and the engineer, and in that opinion I concur. But it is unnecessary to go so far in order to support that case, for there was clear evidence from which a jury might infer that Ewan had assented to the transfer of his services to Lippincott, and submitted thereon to his control. The much-discussed case of Wiggett v. Fox, 11 Exch. 832, was cited and relied on by Mr. Justice Reed, and, in my judgment, exhibits the application of the same rule. The jury had found that the injured person was in the employment of a subcontractor, and not of the defendant, who was the general contractor for the building of the Crystal Palace. The reviewing court, having found that the evidence established that the subcontractor and his men (including the plaintiff) had submitted themselves to the control of the general contractor, and accepted him as their master, set the verdict aside and directed a nonsuit. The case was thus explained by Baron Charmell, though Lord Cockburn doubted whether the facts were correctly stated. Abraham v. Reynolds, 5 Hurl. & N. 143; Rourke v. White Moss Colli

ery Co., 2 C. P. Div. 205. Later English cases show the application of the same rule. Johnson v. Lindsay, 23 Q. B. Div. 508; Id. (1891) App. Cas. 371; Cameron v. Nystrom (1893), App. Cas. 308.

DIVORCE DECREE OF ANOTHER STATECOLLATERAL ATTACK CONTRACT FOR SEPARATION.—It is held by the Supreme Court of Indiana in Hilbish v. Hattle, 44 N. E. Rep. 20, that a decree of divorce of a court of general jurisdiction of a foreign State, reciting that defendant was summoned "as the law directs," and that plaintiff was a resident of the county, cannot be collaterally attacked because the affidavit required to precede and authorize publication of notice to defendant, a non-resident, does not appear from the record, or because the petition does not allege plaintiff's residence; that under the Indiana statute declaring that the divorce of one party shall fully dissolve the marriage contract as to both, and that a divorce decreed in another State by a court having jurisdiction thereof shall have full effect in this State, a decree of divorce granted to a man in another State, on constructive notice to the wife, and not attempting any adjudication of the wife's property rights in this State, will have the same effect, as to her rights in his property in Indiana, as if rendered there, and that a contract between a husband and wife in view of separation, whereby, in consideration of a conveyance of a just and fair proportion of his property, she relinquishes all her rights in his property, as wife or widow, not having been rescinded, is binding. Upon the law applicable to the case the court has this to say:

But it is further contended by appellant that, even if the decree of divorce rendered by the circuit court of Daviess county, Mo., should be held valid, still, that court not having acquired jurisdiction over the person or property of appellant, such judgment or decree could not affect any property rights which appellant might have in this State. And section 2660, Rev. St. 1894 (section 2499, Rev. St. 1881), that no act of the husband, without his wife's assent, and no dis position of his property "by virtue of any decree, execution or mortgage to which she shall not be a party (except as provided otherwise in this act) shall prejudice or extinguish the right of the wife to her third

St. 1894 (sections 1048, 1049, Rev. St. 1881), it is pro vided that "the divorce of one party shall fully dissolve the marriage contract as to both," and also that "a divorce decreed in any other State, by a court haying jurisdiction thereof, shall have full effect in this State." It would seem, therefore, that appellant, not being the surviving wife of Jacob Hilbish, could not, according to the statutes of this State, have any rights in his property by virtue of any marriage relation with him during his lifetime. Fletcher v. Monroe (at this term), 43 N. E. Rep. 1053. The Missouri court did not attempt any adjudication upon her rights or property in this State. But that court, after jurisdiction duly had, did determine the status of her former husband, Jacob Hilbish, and did decree a divorce to him, thus severing the marriage bond that united him to appellant. By force of our statutes, above quoted, it would seem that the same consequences followed that would have followed if the decree had been rendered in this State.

But, even if the property rights of the parties were not fixed by the decree of divorce, still we think that the postnuptial contract shown in the special findings would be sufficient to support the conclusions of law in favor of appellee. By that contract the appellant received 100 acres of land, worth $9,000, as in full of all claims of appellant, present or prospective, upon her husband or his estate, including any inchoate or contingent interest she might have as his surviving wife. This contract was found by the parties at the time to be her fair share of the estate, taking into account all her husband's property and all his debts. She was, in that negotiation and contract, represented by able counsel, and it would seem that all her rights were fully protected. It is the policy of the law that such just and fair provisions for the wife's support shall be respected and carried into effect. In case of a suit for divorce or alimony, the law requires that such provision shall be made for the wife; and when a voluntary agreement is made, either before or after marriage, if it is in all respects fair and adequate in proportion to the husband's property, the contract will be maintained. Randles v. Randles, 63 Ind. 93. In Hollowell v. Simonson, 21 Ind. 398, it was said: “We understand it to be well settled, upon ample authority, that a relinquishment of dower by the wife, the husband being then alive, is a good and valuable consideration for a conveyance by the husband, or procured by him, to the wife, or property which may be considered but a fair equivalent, and that the same will be viewed as valid, or not, as it may be shown to be fair or fraudulent; and the comparative value of the respective estates and interests may be taken into consideration. 2 Lev. 146; McCann v. Letcher, 8 B. Mon. 326; Ward v. Shallett, 2 Ves. Sr. 16; Ath. Mar. Set. 162." This statement of the law is quoted and approved in Brown v. Rawlings, 72 Ind. 505, where it is held that an agreement by a husband to convey certain lands to his wife in consideration that she would relinquish her inchoate interest in his lands, which she did, is valid, even though such agreement is not in writing. And in Jarboe v. Severin, 85 Ind. 496, this court said: "The release by a

pose.'" See, also, Copeland v. Copeland, 89 Ind. 29; Worley v. Sipe, 111 Ind. 238, 12 N. E. Rep. 385. In Dutton v. Dutton, 30 Ind. 452, Chief Justice Ray speaking for the court, it was said that the following instruction "fairly stated the law and should have been given. That where a parol agreement made between husband and wife in view of separation, and fully executed on the part of the husband, wholly for a consideration which, in the light of all the circumstances of the parties at the time the contract is made is fair, reasonable, and just, the contract will be upheld." That such a contract between husband and wife, when fair to all parties, will be upheld in equity, see Sims v. Tickets, 35 Ind. 181, 9 Am. & Eng. Enc. Law, 972, 14 Am. &. Eng. Enc. Law, 552, and authorities cited in notes.

ATTORNEY-PRIVILEGE

SERVICE OF SUBPOENA WHILE ATTENDING COURT.-In Central Trust Co. v. Milwaukee St. Ry. Co., decided by the United States Circuit Court of Wisconsin, it was held that service of subpœna to attend hearings as a witness, upon an attorney who has come from another State to attend to business of his clients pending in the court, before he has had reasonable time to take his departure, will be set aside, on his motion, as a violation of the protection which the law extends to all necessarily attending upon a court, especially when the business of his client requires his immediate presence in other States. The court said:

The facts stated by the petition, and conceded upon the hearing, are substantially as follow: The petitioner is an attorney-at-law residing in New York city, and has been engaged as counsel in the recent Northern Pacific litigation, throughout its pendency in this and other courts. He is also president of the defendant corporation in the above entitled action. On April 28, 1896, he was in attendance before this court on application for certain important decrees respecting the Northern Pacific Railway Company, hay. ing come from New York expressly for that purpose. Immediately after the hearing, while he was engaged in such matters, and in the office of the clerk of this court, the petitioner was served with a subpoena requiring his attendance as a witness before a commissioner of this court on May 1, 1896, in an examination pending in the above entitled action, on behalf of an intervener therein-being a matter entirely outside of said engagement. His duty as counsel in the Northern Pacific proceedings required his departure the same evening for St. Paul, and thence to various distant points, to obtain entry of ancillary decrees carrying out the purposes of the decrees entered here. Upon these facts, is a case presented which calls for intervention by the court to save the petitioner from compulsory attendance herein as a witness on behalf of adverse parties, taking into consideration the fact that he is the president of the defendant, a Wisconsin corporation, and a non-resident of the State? The answer to this inquiry is clearly deducible from the authorities.

The ancient rule in England extended to practicing attorneys generally the privilege from arrest by the ordinary process of court, on the theory that they

were "always supposed to be there attending," and that the "business of the court or their client's causes would suffer by their being drawn into any other than that in which their personal attendance is required." 3 Bl. Comm. 289; Bac. Abr. tit. "Privilege." This doctrine obtained no acceptance, as an entirety, in the jurisprudence of this country; and a privilege of such nature and extent could not well exist, in the light of American institutions, nor under the conditions of the present day. But, out of the common law rule, it has become firmly established in the courts of the Union that "all persons who have any relation to a cause which calls for their attendance in court, and who attend in the course of that cause, though not compelled by process, are, for the sake of public justice, protected from arrest in coming to, attending upon and returning from the court (Tidd, Prac. 196; 1 Greenl. Ev., §§ 316-318, and cases cited)." In re Healey, 53 Vt. 694, 38 Am. Rep. 713, and notes, page 717. Necessarily, if not primarily, the immunity extends to the attorney representing the cause of his client before the court. In that view, it is stated in Brooks v. Patterson, 2 Johns. Cas. 102: "The object is that attorneys may not be drawn into other courts, or to other business, to the injury of the suitors," but that "the privilege is that of the court, for the sake of public justice, and is not intended as an accommodation to the individual." And in the leading case of Parker v. Hotchkiss, 1 Wall. Jr. 269, Fed. Cas. No. 10,739, it is said, in the opinion by Judge Kane, in which Chief Justice Taney and Mr. Justice Grier concurred, that the privilege is that of the court, and the immunity of the parties is incidental; that it arises "in the necessities of the judi cial administration, which could be often embar. rassed, and sometimes interrupted," if suitors and officers were not thus protected; and with reference to its exercise being discretionary, "as the purposes of substantial justice may require" (per Starret's Case, 1 Dall. 357), the explanation is given that "the suitor or the witness from another jurisdiction may be relieved; he who is at home here amongst us, suffering no inconvenience from the service, may be refused a discharge." The opinion further commends Halsey v. Stewart, 4 N. J. Law, 420, as containing clear exposition of the law, and in that case the court says: "Courts of justice ought everywhere to be open, accessible, free from interruption, and to cast a perfect protection around every man who necessarily approaches them;" that "he should also be enabled to procure without difficulty the attendance of all such persons as are necessary to manifest his rights." No decision has been called to my attention which denies the protection to the attorney in actual attendance, nor to a non-resident for sufficient further time to come to and return from such attendance, and the right is clearly declared in the cases above cited, and in Com. v. Ronald, 4 Call. 97; Secor v. Bell, 18 Johns. 52; Humphrey v. Cumming, 5 Wend. 90; Case of McNeill, 3 Mass. 287; Anderson v. Rountree, 1 Pin. 115. And in Parker v. Hotchkiss, supra, an instance is cited, with approval, in which Judge Sharswood, of the Pennsylvania Supreme Court, set aside the service of a summons upon an attorney from another county attending as counsel in a cause there pending. Upon the question whether the rule applies to the service of a subpoena, or other civil process, where there is no arrest, in the literal sense, the authorities in the State courts appear to preponderate in so holding, although there are decisions otherwise, as per Rhodes v. Walsh, 55 Minn. 542, 57 N. W. Rep. 212. But the doctrine of the federal courts clearly ex