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as his rights in her property are concerned, assumes the condition of a large cipher. On the other hand, the husband's land is undeniably handicapped by his wife's dower. He can't sell, mortgage or do anything with his realty without her written acquiescence or waiver, and many a sealskin garment has been wrung from the helpless husband as the price of such consent."

How long will Americans, and lawyers and legislators stand such a state of affairs as we print later in this section? Or is it how long will Americans stand legislators who frame such statutes as exist in Oklahoma, in regard to divorce? There is a time when cheap advertising stops and when land booms return to their original particles of earth and air. The Chicago Legal News in an article on "Divorce while you wait" treats of this nickel-in-the-slot disgrace thus:

"It is remarkable how rapidly the average Oklahoma judge can dispatch divorce business. The defendants usually know nothing about the proceedings until the papers are served by the successful litigant. As a rule, no defense is ever offered in divorce cases in Oklahoma, for the reason that defendants are seldom aware of the beginning of the suit. This is one of the chief advantages this territory offers to divorce litigants.

Court records tell but little of the pending suits, and it is difficult to obtain much accurate information concerning them either before or after decrees are granted. Usually complaints are of the briefest possible character and tell nothing of the domestic troubles that are responsible for the legal proceedings.

"Within the last year the territory has become the temporary abiding place of more than 2,000 men and women who have been attracted there by the lax divorce laws. For many years divorce colonies composed a large per cent of the population of South Dakota. It did not take long, however, for men and women who wished to sever the matrimonial bonds to learn that Oklahoma offered superior advantages.

"The people who are now gaining the necessary 90-day residence in Oklahoma before filing their petitions for divorce reside in the four largest cities of the territory Guthrie, Kingfisher, Elreno and Oklahoma City. There

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are in Guthrie and Oklahoma City several fashionable boarding houses that cater exclusively to the trade of the divorce colony, and elaborate social entertainments of every character are given by the enterprising proprietors. Coaching parties make frequent trips to the neighboring Indian reservations." When will this machine wear out?

In Van Olinda v. Hall, the General Term of

the Third Department, holds that to maintain an action for alienating the affections of a husband and enticing him away, it is not enough that there was an attempt to alienate and entice, but the attempt must have been successful.

A verdict of $2,000 for alienating the affections of a husband and enticing him away is excessive, where the husband did not provide for his family and the wife was not anxious for his presence at home.

Judge Putnam, in writing the opinion of the court, says:

That such an action may be maintained by a married woman is now well settled. (Eldredge v. Eldredge, 79 Hun, 511; 29 N. Y. Supp. 941; Manwarren v. Mason, 79 Hun, 592; 29 N. Y. Supp. 915; Bennett v. Bennett, 116 N. Y. 584; 23 N. E. 17.) It is held that such an action may be maintained for alienating the affections of the consort of a plaintiff, although such consort has continued to live with the party (Heermance v. James, 47 Barb. 120). To maintain the action, plaintiff was compelled on the trial to show a wrongful and willful attempt on the part of the defendant to alienate the affections of her husband, or to entice him from her and to deprive her of his society; that such attempt was successful, and that plaintiff was not a consenting party. We will not attempt any extended discussion of the evidence, but we have examined and considered it carefully, and we are of opinion that it was insufficient to support the verdict. There is no proof whatever that when Mr. Van Olinda came to defendant's house, in December, 1893, he came at her solicitation or request. Whatever evidence there is in the case on the subject shows that he came in search of employment, and that she gave him work at his solicitation. Nor is there any satisfactory evidence that, while he was there, she used any improper or other influence to keep him at

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her house, or to alienate him from his wife, or that there was any improper or wrongful intercourse between them. All the evidence in the case on that subject seems rather to show a contrary state of facts. It is shown that on February 14, 1894, the last day that Van Olinda lived in defendant's house, while she remained at home, plaintiff called there and saw her husband and defendant; that the interview was friendly. Plaintiff made no complaint of her husband's absence from home or his relations with defendant. Up to the time that defendant left her home in Saratoga Springs and went to St. Paul, Minn., there is no testimony in the case showing any wrongful act on the part of the defendant, any wrongful inter

course between her and Mr. Van Olinda, or

any attempt on her part to entice him from his wife. After she left for St. Paul, it does not appear that she and Mr. Van Olinda ever met again, except two or three times in Schenectady, where she saw him, as far as the evidence disclosed upon business, and in the presence of the family with whom she was living.

While the defendant was at St. Paul and other places in the West, and afterwards at North Adams, Mass., she wrote a number of letters to Mr. Van, Olinda; and it is claimed that the admissions and statements contained in those letters are sufficient to uphold the verdict rendered by the jury. The letters show a considerable intimacy between the parties, a strong desire on her part that Mr. Van Olinda should join her in the West, and afterwards at North Adams; and one of the letters seems to

closes, met the defendant, except on two or three occasions, upon business, and in the presence of the family with whom she was boarding. Therefore, there is no satisfactory evidence that by the letters in question defendant enticed Van Olinda from his wife.

Nor does the testimony sustain the contention of the plaintiff that the defendant alienated the affections of Van Olinda from the plaintiff. As we have seen, while Van Olinda and defendant were living in her house at Saratoga Springs, there is no evidence indicating any improper attempt on her part to estrange him from his wife, or to show that she had succeeded in such attempt, if made. If her letters from the west and from North Adams indicated an attempt to alienate the husband from his wife, the evidence does not show that the attempt

succeeded.

We have no letters from Mr. Van

Olinda to the defendant in evidence. We are
not shown the state of his feelings towards the
defendant or his wife. It does not appear that
there was any change in his feelings in regard
to the plaintiff. The evidence in the case
hereinafter referred to indicates that prior to
this time the relations between the plaintiff and
her husband were not what they should have
been. Whether those relations were at all
changed in consequence of the letters of de-
fendant, or her influence, the evidence does
not disclose. As we have seen, plaintiff was
bound not only to show the wrongful attempt
of defendant to alienate Van Olinda, and entice
him from plaintiff, but that such attempt had

succeeded. The letters of defendant
may show
the unlawful attempt on her part to influence
Van Olinda, but plaintiff fails to show by satis-
factory evidence that defendant was successful
in such attempt.

suggest a proceeding for a divorce to be undertaken by him. In regard to those letters, it should be remembered that defendant and Mr. Van Olinda were connected by marriage; that she was among strangers in a western State, and might naturally desire the presence of Mr. Van Olinda, who was to be accompanied by her adopted daughter. But assuming that the letters evince an intent on her part to entice Van Olinda from his wife, or to alienate his affections, the evidence fails to show that de- The definition of fellow servant,' as settled fendant succeeded in her attempt. Van Olinda by recent decisions, is, those who are so far did not go West. He did not go to North working together as to be practically co-operatAdams. He did not undertake any proceed-ing, and to have opportunity to control or in

ings against his wife for a divorce. He never, after the letters, as far as the evidence dis

The Supreme Court of Appeals of West Virginia in Flannegan v. Chesapeake & O. Ry. Co. discusses the interest point as to who are "fellow servants" and Justice Dent in his opinion on this subject says:

66

fluence the conduct of each other, and have no superiority, the one over another' (Madden v.

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Railway Co., 28 W. Va. 619), while it is held under absolute rule to watch for and obey her
that those who act in a superior position, and orders before they dare enter upon the block.
have the right to direct and control the conduct If she had been attentive to her duties, she
of others are not fellew servants of such others, must have known the block was occupied and
especially in discharge of superior duties (Riley | obstructed, and her knowledge was the knowl-
v. Railway Co., 27 W. Va. 146; Core v. Rail- edge of the master, yet, in the face of that fact,
road Co., 38 W. Va. 456). The rear brake-she negligently gives a peremptory signal for the
man or flagman on a train is the fellow servant
of the front brakeman, for each has his respec-
tive, separate, yet dependent, duties to perform
in the running of the train; and they may in-
fluence, and even control, each others conduct,
yet they are neither superior to, nor can they
control each other. Yet the flagman occupies
a far different relation towards the trainmen of
all other trains, for, in giving them warning of
the obstruction of the track by the train to
which he belongs, he performs a duty delegated
to him by the master; and for his failure to dis-
charge it the master is liable, for it is one of
the master's personal or nonassignable duties
to keep the track free from obstructions, for
the safety of his employes. So a flagman, in dis-
charging the same duty, acts as a fellow servant
to some, and as the superior or master to others,
of his coemployes. Two persons who are called
upon to perform the same duty, in effect, may
occupy a relatively different position to the
same employe, in its discharge. For instance,
the flagman protects his coemployes by warning
the approaching train, while the master, the
dispatcher, and the operator render them the
same protection by not allowing the train to use
the track until it is clear. One stops the train.
The other holds it back. The one is a part of
the train, while the other belongs to an entirely
different department, which has the supervision
and management of all trains, and yet it is no
part of any train, but is entirely stationary.
The one acts for self protection. The other,
being in no personal danger, acts for the safety of
others, and the dispatch of his master's business.
In this case the defendant, seeking to discharge
its personal duty and provide a safe track, and at
the same time facilitate the rapid movement of
trains, established the signal station, and placed
the operator in charge, with full authority, by
means of a code of signal orders equally as
effective as any other kind could possibly be,
to control the running of all trains over this
block; and all trainmen, of every train, were

train to proceed. In what way could she pos-
sibly be the fellow-servant of the trainmen, who
are entirely at her command and who can.
neither influence nor control her independent ac-
tions? She is as much the master of her section
block as the master is of the whole road.. In
Lewis v. Seifert, 116 Pa. St. 647, it is held :
"The master owes to every employe the duty
of providing a reasonably safe place in which to
work. This is a direct, personal and absolute
obligation; and while the master may delegate
these duties to an agent, such agent stands in
the place of the principal, and the latter is re-
sponsible for the acts of the agent. And where
the master or superior places the entire charge.
of his business, or a distinct branch of it, in the
hands of an agent or subordinate, exercising
no discretion or oversight of his own, the mas-
ter is held liable for the negligence of such
Mullan v. Steamship
agent or subordinate.”
Co., 78 Pa. St. 25; Railroad Co v. Bell, 112
"It would be a monstrous doc-
Pa. St. 400.
trine to hold that a railroad company could
frame such schedules as would inevitably or
even probably, result in collisions and loss of
This is a personal, positive duty; and
while a corporation is compelled to act through
agents, yet the agents, in performing duties of
this character, stand in the place of, and repre-
sent, the principal. In other words, they are
vice-principals." (Lewis v. Seifert, 116 Pa. St.
647.) In the case of Railway Co. v. Salmon
it is said: Higher officers, agents, or ser-
vants cannot, with any degree of propriety
be termed fellow-servants with the other
employes, who do not possess any such exten-
sive powers, and who have no choice but to
obey such superior officers or servants.
higher officers, agents, or servants must be
deemed in all cases, when they act within the
scope of their authority, to act for their prin-
cipal in the place of their principal, and in fact
to be the principal." (14 Kans. 524; Darrigan
v. Railroad Co., 52 Conn. 285.) A volume

life.

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might be written on this subject, and numerous authorities cited for and against the rule of vice-principal, as propounded in the case of Haney v. Railway Co., supra; but such rule has become too firmly established in this State to be departed from now, and must be carried out to its legitimate results, until abrogated or altered by legislation. It undoubtedly bears severely on corporations, but its object is the safety and preservation of life and limb. The doctrine, as recognized and enforced in this State, is that it is the personal or nonassignable duty of the master (1), to exercise reasonable care in providing and keeping in repair suitable machinery, and all necessary appliances, including a safe place to labor; (2) to exercise a like care to provide and retain suitable servants for each department of service; (3) to establish, conform to, and enforce compliance with proper rules and regulations. These are the superior duties, for the proper performance of which the master is responsible, whether he intrusts them to a department, or any employe, of any grade, and the neglect of which by the agent or agents to which they are entrusted renders the master liable to any one injured by reason of such neglect, against whom and to whom contributory negligence cannot be shown or imputed, from his own act or the act of a fellow-servant, whether it be of commission or omission. (Daniel's Adm'r v. Railway Co. 36 W. Va. 397; Cooper v. R. R. Co. 24 W. Va. 37; and other cases heretofore cited; also, Schroeder v. Railway Co., 108 Mo. 323; Foster v. Railway Co., 115 Mo. 165.) The decisions of many jurisdictions are not in line with our decisions on this subject. (7 Am. & Eng. Enc. Law, 821 tit. "Fellow Servants"). The rule of stare decisis applies with impregnable force in this instance, and from which there is no way of escape, even if the Court were so inclined, unless by an utter and reprehensible disregard of all precedent.

portion to the sentiment of the communities affected. In the Law Times appears an article on American divorces in English courts which is as follows:

It is becoming every day more evident that some international agreement on jurisdiction in divorce will be found a necessity to civilized life in the near future. The increasing facili ties of communication, the fact that expatriation is less and less regarded as abnormal or a thing to be avoided, the extended facilities for naturalization offered by all civilized powersall combine to multiply questions of doubtful jurisdiction in every department of family relations. But, as regards this country and the United States more particularly, the identity of language and the common ties of race and history are tending to make the English speaking world one vast community. In no one point of legislative policy is the divergence more marked than in English and American ideas on divorce and marriage relations generally; while from the frequency of intermarriage between English and Americans, in no department of law is there to be found such occasion for conflicts of jurisdictions. The social consequences of such conflicts are too obvious to require to be dwelt upon; while merely from the point of view of the administration of justice, it is plainly desirable that, in the two countries in which the "Reign of Law" has been most securely established, contradictory decisions of English and American tribunals should be constantly rendered between parties in an identical cause, to the common detriment of the authority of tribunals on both sides of the Atlantic.

The decision of the Probate and Divorce

Division on the 29th July, in the cause of Cox v. Cox, furnishes a striking illustration of the drawbacks of the present system of disputed the United States Circuit Court of Illinois, jurisdiction. A litigant, who by a decision of rendered on the 18th Oct. last, was. granted a As we have suggested several times before, divorce and authorized to re-marry, has been the press and the public are giving much at- judicially declared by an English court on the tention to secure uniformity of laws, not only 29th July to be living in adultery, having reas between our own States, but also between married under the authority of the court of the countries, as an international reform. Doubt State in which he has become a citizen. less the latter would be difficult to accomplish," Naturalization," his Lordship is reported to but its inception can very well be made now have observed, "" does not prove anything. and its growth will undobtedly be rapid in pro- Inasmuch as the original domicile was English,

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The facts of the case are not particularly important. The only one deserving notice is, that the defendant has resided in America since 1887. So his domicile would undoubtedly be American. What is really important to bear in mind is, that such conflicts of jurisdiction, while producing the gravest inconvenience to both British and American subjects and to the authority of courts of justice, present no prospect whatever of being solved by judicial agreement. Treaty alone, as recommended by the Conference of the Hague of June 1894, appears to be the sword to cut the tangled web of judicial theory.

the safest course is to treat the English mar- communities of fostering that strange justice riage as a good one." which alters its features on crossing a frontier. It is needless to say that what is desirable, and what it is to be hoped may some day be arrived at by an international agreement, is not the victory of any particular theory of jurisdiction in family relations. One or other must, of course, be fixed upon, whether it be that of political nationality, of the last common matrimonial domicile, or of the present domicile of the husband or of the wife. But what is eminently desirable is that some fixed criterion should be adopted. It might even be adopted as a rule that a divorce pronounced by a tribunal having jurisdiction over one of the parties should be valid all over the civilized world. What is not desirable is the present anarchy, under which a man or woman may be held by dissenting courts to be married to one person in England, to another in the United States, and to yet another in the Australian colonies.

For the theory of jurisdiction in divorce put forward in the present case is only one of divergent, if not contradictory, theories affected by English courts within recent years. The present criterion, as stated in Cox v. Cox, may be taken as that of the original matrimonial domicile; that is to say, that jurisdiction in divorce appertains to the tribunal of the domicile of the husband at the time of marriage, although he has meanwhile become domiciled in and a citizen of another State. But several other decisions of English courts acknowledge the validity of American divorces if the husband has become domiciled in the United States. On the other hand, the theory peculiar to our courts of the jurisdiction appertaining to the courts of the "matrimonial home "— origi- | nating in Niboyet v. Niboyet-disregards the domicile altogether.

The law of the United States, however, is not

any more logical or consistent. A recent law
of Pennsylvania, which incidentally came be-
fore the Probate and Divorce Division in 1893,
enables any American woman who is a citizen
of Pennsylvania, and marries a foreigner abroad,
to leave her husband, return to Pennsylvania,
and obtain a divorce there for offenses, some
of
a minor character, enumerated by the
Pennsylvanian Legislature.

The fact appears to be, that the courts in both countries, desirous to administer justice to all applicants, are inclined to adopt such theory in the case immediately before them as may give them authority to decide.

But this perfectly intelligible desire to assist suitors in the concrete case overlooks the injury to all civilized

ROMAN JURISPRUDENCE.

In the maxims of Roman law the practical lawyer and judicial administrator still finds an unfailing resource when in quest of principles to guide him to an equitable decision. These principles of equity and legal maxims have become common to all forms of government and to all systems of laws; are suitable to all men, among all peoples, at all times and applicable to every community, for they are universal in their character, minutely discriminative in their application, substituting natural, just and expedient laws for those which were arbitrary, capricious and inopportune.

Out of the rudiments of political thought and the cardinal institutions of family, tribe and State, inherited from the East, the Roman people developed a system of public and private law which presented the highest type of national feeling and the keenest discrimination of the grounds of national justice. When the words cedant arma toga, concedat lauria lingua were spoken by Cicero, they expressed the destiny of the Roman law. While the larger conception of humanity, incident to the evolution of society has reduced its proportions in its relation to modern development, we are still indebted for the institution of positive law, in its modern sense as rights founded upon facts, to Roman wisdom. And this beautiful system of jurisprudence stands in its original strength, above the broken masses of the philosophy and science of the country upon whose history it was engrafted. The philosophic student delights to contemplate its noble

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