two, and carried away the portion that stood on his land. A sued B in trespass quare clausum fregit. Held, that A can recover punitive as well as actual damages. Bollinger v. McMinn, 104 S. W. 1079 (Tex., Civ. App.). Formerly an owner might assert his right to immediate possession by necessary force and plead his title in justification to an indictment for breach of the peace. I HAWKINS, P. C., 8 ed., 495. When deprived of this defense by later statutes, he still could not be sued in trespass quare clausum fregit. Taylor v. Cole, 3 T. R. 292; see Harvey v. Bridges, 14 M. & W. 437, 442. But it has been held that a tenant forcibly ejected may bring trespass against his landlord, because such act is criminal. Thiel v. Bull's Ferry Land Co., 58 N. J. L. 212. The great weight of authority, however, is against such a result. Low v. Elwell, 121 Mass. 309; contra, Dustan v. Cowdrey, 23 Vt. 631. The minority view is based, not on sound principle, but on public policy, to preserve peace and to secure a resort to legal measures instead of physical force. The same public policy is invoked by the Texas court in the present case as the basis for allowing a mere trespasser to maintain trespass against an owner entitled to immediate possession. Such an unwarranted step beyond the view of the minority courts is a fortiori opposed to the great weight of decided cases. BOOKS AND PERIODICALS. I. LEADING LEGAL ARTICLES. MATRIMONIAL DOMICILE AS A BASIS FOR DIVORCE. — Marriage is a status.1 For many purposes a status may be regarded as an incorporeal res created by law. Of course, such a res can have no real situs, but since the state of the domicile has an especial interest therein, a status is treated as if it had a situs there. Hence the law of the domicile alone may alter or terminate it. This is peculiarly true of marriage. Therefore, in actions for divorce, which closely resemble actions in rem, domicile is an essential jurisdictional fact." Logically every marriage contains three domiciliary possibilities, (a) the individual domicile of the husband, (b) the individual domicile of the wife, (c) the matrimonial domicile the place where the spouses reside as man and wife, animo manendi. In England the domicile of a married woman is, during coverture, merged in that of her husband. She cannot obtain a separate domicile even for purposes of divorce. It is also held that the husband's domicile is the single jurisdictional fact. Accordingly in England the matrimonial domicile, in so far as it fails to conform to, or represents more than the domicile of the husband, is without effect upon jurisdiction. In America, however, the great weight of authority makes an exception to the general rule, and permits a 1 Bell v. Bell, 181 U. S. 175; Le Mesurier v. Le Mesurier, [1895] A. C. 517; State v. Armington, 25 Minn. 29. 2 Wilson v. Wilson, L. R. 2 P. & D. 435, 442 (marriage ); In re Goodman's Trusts, 17 Ch. D. 266, 297 (legitimacy). 8 Scott v. Sandford, 19 How. (U. S.) 393 (slavery); Eddie v. Eddie, 8 N. D. 376 (legitimacy); Maynard v. Hill, 125 U. S. 190 (marriage). Domicile should be the single jurisdictional fact. See 19 HARV. L. REV. 586. This is the case in England. Le Mesurier v. Le Mesurier, supra. But in this country Haddock v. Haddock, 201 U. S. 562, has superadded personal jurisdiction of the libellee in certain cases. 5 Dicey, Conf. of Laws, 127. Dolphin v. Robins, 7 H. L. Cas. 389. But see infra, note 7. 7 Warrender v. Warrender, 2 Cl. & F. 488. But see Armitage v. Atty.-Gen., [1906] P. 135; Armytage v. Armytage, [1898] P. 178. wife to obtain a separate domicile, though for purposes of divorce only. Either domicile on the part of the husband, or on the part of the wife, confers jurisdiction on the court. And prior to Haddock v. Haddock,10 a divorce obtained at either domicile was entitled to full faith and credit throughout the Union, without reference either to matrimonial domicile or to personal jurisdiction of the libellee. Before that decision, therefore, matrimonial domicile, as distinguished from the individual domicile of either husband or wife, was without jurisdictional significance, precisely as it is without such significance in England today. It is true, as a recent article points out, that certain Scotch cases had suggested that matrimonial domicile, as distinguished from the individual domiciles of the spouses at the time of proceedings, might be a basis of jurisdiction, but Le Mesurier v. Le Mesurier 1 swept this doctrine away. Matrimonial Domicil, Anon., II Bench and Bar 37 (November, 1907). It remained for Haddock v. Haddock 10 to revive this discarded view in America. That case apparently holds that, unless the divorce proceedings be brought at the matrimonial domicile, personal jurisdiction of the libellee must be superadded to individual domicile on the part of the libellant to entitle the decree to full faith and credit throughout the Union. Thus, matrimonial domicile may, in certain cases, replace individual domicile as the jurisdictional fact. But matrimonial domicile is a most unsatisfactory basis for divorce jurisdiction. It is of necessity a domicile of choice. To create it there must be conjugal residence within the state, animo manendi. It may therefore never exist at all. If, then, matrimonial domicile is made the sole jurisdictional fact, there can be no divorce at all in such a case, since cohabitation after the offense, with knowledge of it, works condonation. This is a hardship on the parties, and also denies to the states in which they may have individual domiciles proper control over the marriage status. And this remains true, though the spouses have separate domiciles in the same state, since two individual domiciles added together do not make a matrimonial domicile. Nor is the situation greatly improved if the spouses obtain a matrimonial domicile, but separate prior to the offense and acquire individual domiciles elsewhere. Here a divorce may be possible if we allow matrimonial domicile, like individual domicile, to persist after abandonment until a new matrimonial domicile is established, but the injured party, ex hypothesi, must resort to the matrimonial domicile, to the excusion of the state of individual domicile. In other words, neither of the states really interested by reason of domicile may grant the divorce, while the state which has ceased to be interested may do so. Such a divorce proceeding is little better than an ex parte action in personam. Yet it has been held again and again that personal jurisdiction of both parties is insufficient to sustain a divorce. Under one set of circumstances, it is true, the matrimonial requirement has no ill effects. If either spouse happens to have an individual domicile in the state of matrimonial domicile, almost all American courts agree that divorce is proper, but there it is the individual domicile which saves the situation. If both kinds of domicile coincide, it is immaterial, in that particular case, which one is chosen as the jurisdictional fact. The total result is, therefore, that unless the matrimonial requirement is without effect, it prevents divorce in those states where divorce should be granted, while perhaps making it possible in that state where divorce should be denied. And surely, from a practical point of view, there is a fine Rabelaisian irony in requiring the spouses to cohabit in some state, animo manendi, as a condition precedent to dissolving the marital relation. E. H. A., JR. COMMISSION ON A SALE SUBSEQUENT TO A LETTING PROCURED BY AN AGENT. A recent decision of the English Court of Appeal that an estate agent with whom a landowner had placed property and who had procured a 8 Ditson v. Ditson, 4 R. I. 87; Cheever v. Wilson, 9 Wall. (U. S.) 108. 10 201 U. S. 562. tenant and received his commission for the letting, should, on a subsequent sale of the property directly between the landowner and the tenant, be entitled to a commission, is discussed by Mr. J. K. F. Cleave in a recent article. Letting and Subsequent Sale: Estate Agents' Commissions, 33 L. Mag. and Rev. 48 (November, 1907). After an examination of the authorities the author concludes that this decision has thrown the law on an apparently simple branch of agency into an unsettled state. In such cases the result is to be reached through the answers to two questions: (1) Was the plaintiff employed by the defendant to bring about the transaction with respect to which he claims a commission or does a former agency still exist and cover that transaction? (2) Did the plaintiff bring about that transaction, or, as it is frequently put in the books, was he the "procuring" or "efficient cause? On the agent's ability to establish the affirmative of both these questions depends his right to a commission.2 The discussion, then, must be solely as to an issue of fact, and when it is said that there is a confusion in the cases it is well to bear in mind a point which the author apparently overlooks, that these findings of fact cannot, in the nature of things, be absolutely binding and conclusive on subsequent issues. However, the criticism of the case in question is not without foundation, since certain questions of fact recur again and again, and it is desirable that some uniformity in the findings should be preserved. Indeed, to render the dealings of landowners and estate agents more certain, it might be well that certain findings should become crystallized into rules of law. The answer to the first question, whether the employment still exists, should depend on certain principles and, to some extent, it does. Thus, where the agent has effected a sale, the landowner cannot defeat his right to commission by a fraudulent discharge, or by refusing to comply with the sale procured. But where no time limit is fixed the employment ceases if after a reasonable time the agent has failed to find a customer. And if, as in the present case, an agent has been employed to let or sell and procures a tenant, the better view, in absence of anything to the contrary in the agreement, seems to be that he has exhausted his power and that he is not entitled to commission on a subsequent sale by the landowner to the tenant. Any other rule would unreasonably deprive the owner of a free right to the world as a market. The recent decision which Mr. Cleave criticizes seems to have resulted from a disregard of this principle. In answer to the second question, it is impossible to determine or formulate anything definite as to what constitutes "efficient" cause. At least, something more than a mere introduction to the landowner of the person who ultimately becomes the purchaser is required.' Mr. Cleave also discusses another point: whether the question is to be left to the jury or reserved for the court. Former English rulings are to the latter effect. In this country the question does not appear to have come up in connection with a letting and subsequent sale, but in similar cases where the agent has introduced a person who subsequently purchases directly from the owner, it has universally been left to the jury whether or not the agent is entitled to a commission, as the efficient cause of the sale. Mr. Cleave conceives, taking the better view perhaps, that the facts might be found by the jury, but the inference should always be for the judge, since the construction of an agreement is involved.10 1 Debenham v. Warter (London Times, 12th July, 1907). 2 Millar v. Radford, 19 T. L. R. 575. Moses v. Bierling, 31 N. Y. 462. 4 Kock v. Emmerling, 22 How. (U. S.) 69. 5 Houghton v. Orgar, 1 T. L. R. 653. 6 See Lord Watson in Toulmin v. Millar, 12 App. Cas. 746; and Lord Esher in Gillow v. Aberdare, 9 T. L. R. 12. 7 Brandon v. Hanna, [1907] 2 I. R. 212, 233 Gillow v. Aberdare, supra: Millar v. Radford, supra. McDonald v. Ortman, 88 Mich. 645; Bell v. Electric Co., 101 Wis. 320. 10 See Thayer, Evidence at the Common Law, 183 et seq. RESTRAINTS ON ALIENATION IN NEW YORK. An interesting question arising under the New York Real Property Law is considered in a recent article. Powers of Sale as Affecting Restraints on Alienation, by Frederick Dwight, 7 Colum. L. Rev. 589 (December, 1907). Under that law it has been held that a trust is void when it is to continue longer than two lives in being if the trustee has no power to terminate the trust, though he has power to change the form of investment by sale of the res at any time.1 Mr. Dwight argues that the sole basis for the common law rule against restraints on alienation is one of commercial convenience, which demands that land remain alienable so that it may come into the hands of those who will put it to the most profitable use and thereby increase the national wealth. He would give no weight to what he terms the "sentimental" theory of Professor Gray, which rests on the offense given any manly sense of justice by seeing a man enjoy a liberal income while his creditors may remain unpaid. He concludes, therefore, that under the New York law the trust in question, since it allows free transfer of the res, meets the true requirement of the rule against restraints on alienation and so should not have been held void. This conclusion seems entirely correct in so far as the New York law is concerned. In the first place, since the New York statute in some cases expressly allows, even requires, restraints on alienation which would have been prohibited at common law, it may well be that the "sentimental" theory, whether or not important in the common law, is not to be considered today in New York. In the second place, since the New York law does not allow the cestui to alienate, and yet does permit a trust like the one in question, provided the trustee has the additional power to terminate it when he pleases, it would appear that certainly in this case the "sentimental" theory is not to be regarded, for the creditors cannot compel the trustee to exercise this power of termination in their favor. But in spite of this conclusion the strength of Mr. Dwight's argument by analogy to the theory of the common law seems questionable. However permissible or even necessary in many cases it may be to rely on the common law to aid in interpreting a statute, yet when, as in this case, the statutory provisions are inconsistent both with each other and with the common law, the analogy is very dangerous. Furthermore, Mr. Dwight's argument against the existence of the "sentimental" theory in the common law does not seem entirely convincing. He argues that if that theory were at the bottom of the rule against restraints on alienation, the rule would apply particularly to sane adults. It is true that the rule applies indiscriminately to sane adults, infants, and lunatics. But it may be said that the law by other wellknown rules has given to these weaker classes such protection that in the situation now under discussion they may be treated like other men. And in the case of other persons who, while not insane, might yet as a matter of fact be incapable of efficiently managing their own property, here as in other situations it is against the general policy of the law to make discriminations in their favor. It is, however, not denied that the theory of commercial convenience is a very important basis for the common law rule against restraints on alienation. In fact, Mr. Dwight quotes from Professor Gray himself a sentence showing the great commercial advantage of the rule. But there can be nothing novel in the co-existence of two equally important but nevertheless independent reasons for the same rule of law. CONSTITUTION, THE TRUE - SUGGESTIONS TOWARD ITS INTERPRETATION (Continued). Joseph Culbertson Clayton. Contending that the federal government should have all the powers inherent in nationality not withheld by the Constitution. 15 Am. Lawyer 281. 1 Hawley v. James, 5 Paige (N. Y.) 318. 2 N. Y. Laws of 1896, c. 547, § 83. 8 See Williams v. Montgomery, 148 N. Y. 519, 526. 4 Gray, Restraints on Alien., § 259. CORPORATION LAW, INFLUENCE OF RAILROAD DECISIONS IN. Richard Selden Harvey. 15 Am. Lawyer 315. INTENT, THEORY OF THE ADMISSION OF OTHER ACTS THAN THOse Charged TO SHOW. Anon. 5 The Law 327. JUSTICES OF THE PEACE, THE LIABILITY OF. W. W. Lucas. Classifying the cases in which justices of the peace may be liable criminally or civilly. 33 L. Mag. and Rev. 22. LETTING AND SUBSEQUENT SALE: Estate Agents' CommISSIONS. J. K. F. Cleave. 33 L. Mag. and Rev. 48. See supra. LIFERENT, GIFTS OF, UNDER POWERS OF APPOINTMENT. John S. Mackay. Urging the adoption in Scotland of the English rule that a void remainder under a power of appointment should not invalidate an otherwise good life estate. Rev. 245. 19 Jurid. MATRIMONIAL DOMICIL. Anon. II Bench and Bar 37. See supra. PATENT LAW. Edmund Wetmore, Advocating the creation of a patent court of appeal. 17 Yale L. J. 101. PEACE CONFERENCE, THE SECOND. A. H. Charteris. Discussing, among other results of the Conference, the proposed international prize court. 19 Jurid. Rev. 223. POWERS OF SALE AS AFFECTING RESTRAINTS ON ALIENATION. Frederick Dwight. 7 Colum. L. Rev. 589. See supra. RAILROAD RATE REGULATION. Herbert S. Hadley. Discussing a method for deter mining when a rate is reasonable. 7 The Brief 175. RAILWAY RATES, THE APPLICATION OF JUDICIAL REMEDIES IN THE REGULATION OF, BY PUBLIC AUTHORITY. Fred K. Nielsen. Contending that the Commission should be merely an advisory body. 65 Cent. L. J. 385. SYSTEMS IN LEGAL EDUCATION. John Wurts. Attacking the case system for its lack of preliminary dogmatic teaching. 17 Yale L. J. 86. TREATIES, FEDERAL, AND STATE LAWS. sion. 6 Mich. L. Rev. 25. Charles Noble Gregory. A general discus II. BOOK REVIEWS. THE RULES OF PRACTICE IN THE UNITED STATES COURTS. ANNOTATED. By William Whitwell Dewhurst. New York: The Banks Law Publishing Company. 1907. pp. 775. 8vo. In the December issue of the REVIEW, Professor Kales dolefully pictured the lack of practical equipment with which the student leaves the Harvard Law School. We wonder that he made no point of the Harvard case-book graduate's total ignorance, not only of the nature of the rules of practice, but even of their very existence. For we gratefully confess that those congeries of irritations known as Rules of Court (having all the force of laws) were kept from us by an “ideal” faculty a jogged memory recalls faintly only Equity Rule 94. But there they are, these rules, in all their minutiæ, grim realities of practice, and we are indebted to Mr. Dewhurst for his compilation of the most extensively applicable sets of rules. The collection is not so comprehensive as its title, for it contains only the rules promulgated by the Supreme Court and the circuit courts of appeal, and does not embrace the additional rules adopted by the various district and circuit courts under § 918 of the Revised Statutes. The old rules of the Supreme Court, and the rules revised at the December term, 1858, are given without annotations. Then follow the present Supreme Court rules; the rules of the circuit courts of appeal, formed by combining the rules of the First Circuit with the variations and additions of the other circuits; the equity rules; the admiralty rules; the rules relating to appeals from the Court of Claims to the Supreme Court; and the general orders in bankruptcy prescribed by the Supreme Court under the Act of 1898. Each of these rules is separately set forth with annotations of its history and source, |