Mutual Life Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222. A fortiori he does so in undertaking to forward it to headquarters. It follows that when the defendant, through its authorized agent, received the application for transmission to its home office, it became liable for failure to transmit it, in accordance with the principle stated above. This liability, since it grew out of the relation of agency toward the applicant, which the defendant assumed, sounds in tort. Robinson v. Threadgill, supra. There is no logical difficulty in a corporation's becoming bound to submit an offer to one of its own departments when it has actually undertaken so to do. The principal case therefore seems correctly decided. Boyer v. State Farmer's Mut. Hail Ins. Co., 86 Kan. 442, 121 Pac. 329.

LIBEL AND SLANDER

- PRIVILEGED COMMUNICATIONS EFFECT ON PRINTER OF MALICE IN AUTHOR. The plaintiff sued jointly the author and the printer of a certain pamphlet, for defamatory statements therein contained. The occasion was privileged as regards the author, but he was actuated by malice. There was no malice in the printer. Held, that both were jointly liable. Smith v. Streatfeild, 29 T. L. R. 707.

The publisher and the author of defamatory matter can be sued jointly for the publication. Munson v. Lathrop, 96 Wis. 386, 71 N. W. 596. Such a publication is actionable per se, subject, however, to such defenses as truth and privilege. Bromage v. Prosser, 4 B. & C. 247; Ullrich v. New York Press. Co., 23 Misc. (N. Y.) 168, 50 N. Y. Supp. 788. The reasoning of the present case is not free from the confusion which has followed the doctrine of legal malice, and its rebuttal by proof of privilege. See Jackson v. Hopperton, 12 Wkly R. 913. The result can be reached by straightforward reasoning without reverting to any such antique fiction. See 60 Univ. of Pa. L. Rev. 365. In the principal case the printer published at his peril. He himself had no defense of privilege. Had there been no malice, he would have acquired a prima facie defense by virtue of the author's privilege. Baker v. Carrick, [1894] 1 Q. B. 838. But there was malice in the author, hence the author's prima facie defense of privilege fell. Stevens v. Sampson, 5 Ex. D. 53. Thus having no defense himself, and acquiring none from the author, the printer's absolute liability remained, making him jointly liable.

NEGLIGENCE - DEFENSES - ILLEGAL ACT OF PLAINTIFF. The plaintiff while riding in an unregistered automobile, was injured at a railroad crossing through the negligence of the defendant railroad. Held, that the plaintiff may recover. Lockbridge v. Minneapolis & St. L. Ry. Co., 140 N. W. 834 (Ia.).

The plaintiff's intestate while acting as engineer of the defendant's train was killed when the engine left the track. Although the rail was defective, the accident would not have occurred had the deceased not been exceeding the speed limit of four miles an hour fixed by a municipal ordinance. Held, that the plaintiff may not recover. Southern Ry. Co. v. Rice's Adm'x, 73 S. E. 592 (Va.).

The weight of authority holds that a plaintiff's breach of a criminal statute is equivalent to contributory negligence. Newcomb v. Boston Protective Department, 146 Mass. 596; Weller v. Chicago, M. & St. P. Ry. Co., 120 Mo. 635, 23 S. W. 1061. The plaintiff, however, is barred only when his act is the legal cause of the injury. Berry v. Sugar Notch Borough, 191 Pa. 345, 43 Atl. 240. Upon consideration merely of causation the Iowa case, where the plaintiff's act was mere collateral wickedness, correctly permitted recovery; while the opposite result seems proper in the Virginia case, where the statutory breach contributed directly to the wreck. But because of other considerations the correctness of each case is doubtful. In the Iowa case the plaintiff could not recover if regarded as a trespasser, unless wilfully or wantonly mistreated. Gwynn v. Duffield, 66 Ia. 708, 24 N. W. 523. The Massachusetts court

has reached a result squarely opposed to the Iowa case, by holding an unregistered automobile a trespasser, although there also the plaintiff was a trespasser as against the defendant only because of the defendant's rights upon the highway by virtue of the public easement. Dudley v. Northampton St. Ry. Co., 202 Mass. 443, 89 N. È. 25; Chase v. New York Central & H. R. R., 208 Mass. 137, 94 N. E. 377. Other courts are not inclined to hold an unlicensed automobile a trespasser. Hemming v. City of New Haven, 82 Conn. 661, 74 Atl. 892; Atlantic C. L. R. Co. v. Weir, 63 Fla. 69, 58 So. 641. An analogy which would argue against recovery in the Iowa case is to be found in the cases which hold that one traveling contrary to a Sunday statute is so far an outlaw that no duty of care as to the highway is owed him. Johnson v. Irasburg, 47 Vt. 28. Where the accident was the result of collision and not of derailment the courts have held that the plaintiff's breach of a statute, similar to the one in the Virginia case, prevented his recovery. Missouri, K. & T. Co. v. Roberts, 46 S. W. 270 (Tex.); Little v. Southern Ry. Co., 120 Ga. 347, 47 S. E. 953. However, in the principal case the speed ordinance of four miles an hour was passed undoubtedly to protect wayfarers, not to prevent engine derailment. Now when a defendant violates a statute irrelevant to the injury resulting, the breach is not held negligence. Gorris v. Scott, L. R. 9 Exch. 125. The courts have generally disregarded this distinction in the case of plaintiffs. Contra, Watts v. Montgomery Traction Co., 57 So. 471 (Ala.). It is submitted that there is no sufficient reason for a different test for plaintiffs than defendants, and that the plaintiff should not be barred by his breach of a statute not passed to prevent the injury sustained.

OFFER AND ACCEPTANCE UNILATERAL CONTRACTS - MISTAKE IN TRANSMISSION OF OFFER BY TELEGRAPH COMPANY. - The defendant incorrectly transmitted the specifications in the plaintiff's telegraphic order for machinery. The addressee accepted the offer according to the altered specifications. The plaintiff received the machines and paid the price. Subsequently the plaintiff took an assignment of, and now sues on, the addressee's rights against the defendant. Held, that the plaintiff may recover. Jackson Lumber Co. v. Western Union Tel. Co., 62 So. 266 (Ala.).

The responsibility of an offeror for a telegraphic offer delivered in an altered form has been much disputed. Many courts deny his liability. Pepper v. Western Union Tel. Co., 87 Tenn. 554, 11 S. W. 783. But the weight of authority supports the better view, namely, that the offeror's intent as expressed to the reasonable offeree must govern, and that a valid contract arises on the acceptance of the offer received. Haubelt v. Rea, etc. Mill Co., 77 Mo. App. 672. See 24 HARV. L. REV. 244. The sender may then hold the telegraph company directly for his loss. Ayer v. Western Union Tel. Co., 79 Me. 493, 10 Atl. 495. The principal case, however, assumes that there is no contract and allows the sender to recover on the assignment of the addressee's right of action in tort against the defendant for the damage suffered in acting upon a telegram negligently transmitted. New York, etc. Tel. Co. v. Dryburg, 35 Pa. St. 298. See 19 HARV. L. REV. 474. The introduction of this tort liability in favor of the addressee as the basis of the action is, at best, difficult to support on legal theory. Dickson v. Reuter's Tel. Co., L. R. 3 C. P. D. 1. In the principal case, moreover, the action would fail for want of damage to the addressee if the sender were held to the contract, or if the payment made should be construed as mitigating the addressee's damages instead of subrogating the plaintiff to the addressee's rights.

PARENT AND CHILD ABDUCTION OF CHILD - RELATION OF MASTER AND SERVANT NOT ESSENTIAL TO RECOVERY. — In an action by a father for the abduction of a child of seven years, the complaint contained no allegation of loss

of service. Held, that a demurrer on that ground should have been overruled. Howell v. Howell, 78 S. E. 222 (N. C.).

Originally a father's action for the abduction of a child seems to have included only cases of abduction of an heir, in whose marriage he had a valuable right. See 3 BL. COM. 140; Barham v. Dennis, Cro. Eliz. 770. Subsequently he was allowed an action for injury to his parental rights by the fiction, per quod servitium amisit. Tullidge v. Wade, 3 Wils. 18. See also Norton v. Jason, Styles 398; Russell v. Corne, 2 Ld. Ray. 1032. American courts have recognized a right of recovery for the expense of caring for an injured child on the ground of his obligation to care for his offspring. Dennis v. Clark, 2 Cush. (Mass.) 347; Contra, Grinnel v. Wells, 7 M. & G. 1033. See Hunt v. Wotton, T. Ray. 259, 260. With this exception protection of his parental rights is extended to him as master rather than as father. Whitbourne v. Williams, [1901] 2 K. B. 722. English courts, though recognizing this rule as a mere fiction, have at times applied it stringently. Grinnel v. Wells, supra; Hamilton v. Long, [1903] 2 I. R. 407, [1905] 2 I. R. 552. American decisions are more liberal. Martin v. Payne, 9 Johns. (N. Y.) 387; Parker v. Meek, 3 Sneed (Tenn.) 29; Magee v. Holland, 27 N. J. L. 86. Universal recognition of the injury to parental rights as the basis for assessing damage lessens the injustice but not the absurdity of the fiction. Bedford v. McKowl, 3 Esp. 119; Phelin v. Kenderdine, 20 Pa. 354. Even courts that go far in deploring the technicality still feel themselves bound by it. Washburn v. Abram, 122 Ky. 53, 90 S. W. 997. The principal case is a distinct step forward. Two jurisdictions have like rules. Kirkpatrick v. Lockhart, 2 Brev. (S. C.) 276; Anthony v. Norton, 60 Kan. 341, 56 Pac. 529. In another the rule is statutory with regard to actions for seduction. How. ST. (Mich.), 2 ed., 13133.

PARTNERSHIP

- RIGHTS AND REMEDIES OF CREDITORS DISTRIBUTION OF ASSETS OF INSOLVENT PARTNERSHIP AND INSOLVENT DECEASED PARTNERS. - Two partners died insolvent and the partnership was also insolvent. In the probate court the question arose as to the distribution of the assets of the insolvent estates. Held, that the partnership creditors be preferred as tɔ partnership assets and share equally with the separate creditors in the distribution of the separate estates. Robinson v. Security Co., 87 Atl. 879 (Conn.). The principal case departs from the general common-law rule, which is that partnership assets are to be distributed among partnership creditors and separate assets among separate creditors, and the excess of either estate is to be applied to the deficiencies of the other. See In re Wilcox (D. C.), 94 Fed. 84. But the general rule neither attains justice nor is it to be supported on any logically developed theory. Camp v. Grant, 21 Conn. 41. See 18 HARV. L. Rev. 495; 20 HARV. L. REV. 589, 591. The general rule seems to be another of the numerous compromises between the mercantile or entity theory of partnership and the common-law or aggregate theory. If the aggregate theory were followed consistently, the obligations of partnership being merely joint obligations of the several partners, the rule of distribution would be that both partnership creditors and the separate creditors of the individual partners would share equally as well in the separate estates of the partner as in the partner's share of the partnership assets. If we follow the entity theory we reach the result of the principal case, since the firm would be primarily liable to the partnership creditors and the partners individually would be sureties. See article by Brannan, 20 HARV. L. REV. 589, 591; CORY, ACCOUNTS, 2 ed., 124; LINDLEY PARTNERSHIP, 8 ed., 815. The mercantile theory is the result of convenience, logic, and experience, while the common-law theory is a derivative of an imperfect Roman law analogy. See 24 HARV. L. REV. 591, 603. Therefore the latter often breaks down where the two conflict. Thus it would seem that the solution of these difficulties is only to be found by dropping the mask and expressly adopting the entity

theory. 57 CENT. L. J. 343; 2 JURIDICAL SOCIETY PAPERS, 40; 20 HARV. L. REV. 589. The only sound objection to the rule of the principal case is a practical one, in that it differs from that of the Federal Bankruptcy Act which adopts the common-law or English rule. Act July 1, 1898, c. 541, sec. 5, 30 Stat. 547. Thus the rule of distribution would depend upon whether the estates were being settled in the state or the federal court. This objection was thought fatal in England under similar circumstances. Grey v. Chiswell, 9 Ves. 118. But since the principal case is a step toward establishing a theory of partnership in accordance with the true facts and at the same time achieves a more just result, it would seem worthy of being followed in spite of the conflict it may create.

PATENTS

INFRINGEMENTS

RIGHT OF SUB-PURCHASER TO DISREGARD NOTICE LIMITING RESALE PRICE. - The purchaser of a patented article from a jobber disregarded a notice, put on the article by the patentee, to the effect that it was not to be resold below a certain price. Held, that there was no infringement of the patent. Bauer & Cie v. O'Donnell, 33 Sup. Ct. Rep. 616. This case is commented upon in this issue of the REVIEW on p. 73.

POST OFFICE USE OF MAILS FOR FRAUDULENT PURPOSE WHETHER ACTUAL INTENT TO DEFRAUD ADDRESSEE IS REQUIRED. The defendant sent through the mails a catalogue advertising and soliciting orders for loaded dice and marked cards. He was indicted under a statute providing punishment for anyone who, having devised a scheme to defraud, should for the purpose of executing such scheme place any letter or advertisement in the post office. Act March 4, 1909, c. 321; PEN. CODE, § 215; 35 STAT. AT LARGE, 1130. Held, that a demurrer to the indictment should be sustained. Stockton v. United States, 205 Fed. 462 (C. C. A., Seventh Circ.).

The court argues that the legislature did not intend the general language of the above section to cover the defendant's offense, because an amendment to the statute as originally framed has made punishable any scheme to use the mails for disposing of counterfeit money or certain other specified artifices which would enable the purchaser to commit a fraud. But an order by mail to sell counterfeit money was punishable under the statute before amendment. United States v. Jones, 10 Fed. 469. In a case to the contrary, relied on by the court in the principal case, the decision turned upon a defect in the indictment, which charged a scheme to defraud the man who bought the counterfeits, instead of, as was the case, those who might deal with him. Milby v. United States, 109 Fed. 638. See Milby v. United States, 120 Fed. 1, 2. The amendment did not curtail the original statute, but simplified the course of conviction for the specified offenses. Streep v. United States, 160 U. S. 128; Culp v. United States, 82 Fed. 990. See Milby v. United States, 120 Fed. 1, 4. Since it is impossible to conceive that the vendor in the principal case had no intention to defraud, the result seems contrary to reason as well as authority.

RECEIVERS EFFECT OF RECEIVERSHIP ON RELATION OF AGENTS TO COMPANY. - The plaintiff sued the defendant railroad for injuries received before the railroad passed into the hands of receivers. A statute provided that in actions against railroads, process could be served on any of their station or ticket agents. After the receivership, process was served by the plaintiff on a station agent, an employee of the railroad retained by the receiver. Held, that the service was valid against the railroad. Ennest v. Pere Marquette R. Co., 142 N. W. 567 (Mich.).

The appointment of a receiver might have one of two possible effects upon the relation of employees to the railroad. They may be held to be agents of the receiver only. Cain v. Seaboard, etc. Ry., 7 Georgia App. 461, 67 S. E. 127.

Or they may continue agents of the company so that service upon an employee is effective to bind the company. Faltiska v. New York, L. E. & W. R. Co., 12 Misc. N. Y. 478, 33 N. Y. Supp. 679, affirmed 151 N. Y. 650, 46 N. E. 1146. That a receivership does not dissolve a corporation is well settled. See Kincaid v. Dwinelle, 59 N. Y. 548; City Water Co. v. State, 88 Tex. 600, 32 S. W. 1033. Stockholders may hold elections during the receivership. State ex rel. Atty. Gen. v. Merchant, 37 Ohio St. 251. The corporation itself must conform to police regulations enacted for public protection. Ohio & M. R. R. Co. v. Russell, 115 Ill. 52, 3 N. E. 561. It is liable for torts committed before receivership. Decker v. Gardner, 124 N. Y. 334, 26 N. E. 814. The receiver's possession of the property is but temporary. Robinson v. Atlantic & G. W. Ry. Co., 66 Pa. St. 160. The Michigan court seems correct in finding no inconsistency in an agency for the railroad while employees are under the temporary management of the receiver. In the minds of its men and the public at large the road still operates; receivership signifies at most a change in management. Service on such agent meets the test of bringing notice of the suit to the company. See Coler v. Pittsburgh Bridge Co., 84 Hun 285, 286, 32 N. Y. Supp. 439, 440.

SELF-DEFENSE - NECESSITY CREATED BY DEFENDANT - GOING ARMED NEAR ONE WHO HAS THREATENED. - In a trial for homicide, the court refused to instruct the jury that the defendant would not be deprived of his right of self-defense although he knew before entering the house of a mutual friend, where the encounter took place, that he would likely meet the deceased there, and that the deceased would likely attack him. Held, that the instruction was properly refused. Valentine v. State, 159 S. W. 26 (Ark.).

When a defendant enters the presence of one who has threatened him and being attacked kills the threatener, it is not clear on authority under what circumstances he retains his right of self-defense. Where the defendant went into the vicinity of the deceased on a mere pretext, knowing and intending that his presence alone would cause an attack, the excuse has been denied. State v. Neely, 20 Ia. 108; State v. Hawkins, 18 Ore. 476, 23 Pac. 475. See Y. B. 21 H. 7, 39, pl. 50. But a man may, if necessary, arm himself and go about his lawful business, in spite of the probability of thus causing an attempt upon his life, and yet be excused for killing in case of necessity. People v. Batchelder, 27 Cal. 69; State v. Evans, 124 Mo. 397, 28 S. W. 8. The excuse may well depend on the reason for the defendant's presence at the place. For the welfare of the community it is essential that a man should be free to come and go while concerned with earning his livelihood, but it is not so important that he should be protected in the pursuit of pleasure. See note, 8 HARV. L. REV. 355. The principal case is correct on the ground that the defendant may have been engaged in the pursuit of no legitimate interest to which the law affords such protection. A previous Arkansas case has a contrary tendency. Nash v. State, 73 Ark. 399, 84 S. W. . 497.

SPECIFIC PERFORMANCE LEGAL CONSEQUENCES OF RIGHT OF SPECIFIC PERFORMANCE RIGHT OF PERSONAL REPRESENTATIVE OF VENDOR TO PURCHASE MONEY AFTER OPTION TO PURCHASE. - The owner of land leased it for a term of years giving an option to purchase. After his death the option was exercised. Held, that the general legatee, and not the heirs, are entitled to the proceeds. McCutcheon's Estate, 61 Pitts. Leg. J. 315 (Allegheny Co., 1913). See NOTES, p. 79.

TELEGRAPH AND TELEPHONE COMPANIES CONTRACTS AND STIPULATIONS LIMITING LIABILITY - UNREPEATED MESSAGES. A mistake due to the negligence of an agent of the defendant occurred in an unrepeated message sent under a stipulation limiting liability to the amount of the toll charge.