against each other, they would contradict another maxim, nemo tenetur seipsum accusare.'"

Witnesses are no longer excluded on the ground of interest; and the statutes which have abolished this disqualification, have necessarily left the rule excluding husband and wife as witnesses for or against each other without much support.

If the common law rule as to the incompetency of husband or wife for each other had any other basis than interest in the result of the trial because of the unity of the relation, why was it that even at common law in proceedings where neither was a party in interest, husband or wife could testify even if such testimony "tended to criminate the other, or to subject the other to a legal demand." (Jones Ev., 1912, p. 927.) This is not the case with respect to the rule as to confidential communications which operates in collateral proceedings, as well as in proceedings where either spouse is a party in interest.

It is also to be observed in this connection that where the statute removes interest as a disqualification, a wife may testify for or against her busband provided she is also a party of record and in interest.

The particular result of the decision in the principal case is merely to enlarge a well recognized exception to the general rule at common law, that either spouse could testify for or against the other in proceedings based on a personal injury committed by one spouse upon the other. The point in controversy, and upon which some of the authorities are in conflict, was whether a prosecution against a husband for inducing his wife to go from state to state for purposes of prostitution is a proceeding "based on a personal injury inflicted by the husband upon the wife." While strictly speaking, this case could hardly be said to come within the old common law exception, yet as the court intimates, under the more liberal tendency of the recent cases to get away from a rule which seems to have so little to support it,

the application of the general common law exception to the facts in the principal case, seems to be amply justified.

There can be no doubt that ultimately our courts will come to the same sane conclusion, as the English courts have done, that since interest no longer disqualifies a witness, a husband or wife may testify even in cases where the other spouse is a party, except as to confidential communications made to each other during the marriage. A. H. R.

NOTES OF IMPORTANT DECISIONS.

INTERNATIONAL LAW WAIVER OF SOVEREIGNTY BY FOREIGN GOVERNMENT BY BRINGING SUIT.-In 85 Cent. L. J., 369, we noticed a decision by District Court, Northern District of New York, and we criticised the ruling therein. This decision has been reversed by Second Circuit Court of Appeals. Kingdom of Roumania v. Guaranty Trust Co., 247 Fed. (Not yet reported.)

The facts show that one Arditi began an action against the Guaranty Trust Co. and the Kingdom of Roumania, in a claim against the latter for breach of contract and to impress a lien upon funds of the latter in possession of the former. The Kingdom brought suit against the Trust Company to recover an alleged balance in its hands upon a credit alleged to be due the Kingdom. The district court, while admitting the immunity of this Sovereign Kingdom from suit, claimed that the immunity had been waived by its resort to the courts of this country to enforce its alleged rights against the Trust Company and that this waiver was general in its effect and as to everybody.

The Circuit Court of Appeals, after citing several cases decided by U. S. Supreme Court showing waiver of immunity from suit said:

"These authorities arose on quite a different state of facts. In the present case there is no specific fund. The relation between the Kingdom of Roumania and the Guarantee Trust Company being the usual one of debtor and creditor existing between banks and depositors, we are clear that the action by the Kingdom of Roumania to recover a debt owed it by the Guarantee Trust Company was not a waiver of its immunity as a sovereign to be sued by other parties. If this be not so the immunity

can be frittered away either by interpleader or attachment in any case where a foreign government undertakes to collect a debt owed it."

In the cases cited there were suits against officers of a sovereignty touching specific funds and the sovereignty put itself into the case by its own intervention. In the instant case, however, it was brought in by a third person | for his own purposes. But even in a case regarding a specific fund it was said that the sovereignty had solemnly appeared and answered plaintiff's complaint and, therefore, was estopped to deny the court's jurisdiction. If a foreign sovereignty has any right to invoke jurisdiction at all, that it does so penalizes it in no way so far as third persons are concerned. An estoppel of the nature claimed would be to subject a sovereignty to a consequence it cannot possibly anticipate and in itself confers a right so attenuated in nature as to have no real existence in fact.

INTERNATIONAL LAW-RECOURSE BY OWNER OF PROPERTY APPROPRIATED BY REVOLUTIONARY LEADER.-In Oetjen v. Central Leather Co., 38 Sup. Ct. 309, decided by U. S. Supreme Court there was involved the question of title acquired by defendant to property seized by a revolutionary leader in Mexico and by him sold to defendant. It was held that when a government originating in revolution is recognized by the political department of this country as its de jure government, the purchaser of property so seized and sold receives so far as the courts of this country are concerned a valid title as against an assignee of the owner, such recognition being retroactive so as to validate the actions of such leader.

The court goes into a review of the political conditions in Mexico from the time of the assumption of the office of president by Huerta, along through the revolution inaugurated by Carranza and his commissioning of Villa as one of his generals and the final success and recog nition of the government thus inaugurated.

The property in question was sold to pay an assessment made by order of Gen. Villa and defendant became its purchaser.

It was said by the court that this being property at the time of seizure and sale belonging to a citizen of Mexico, and being taken by a duly commissioned military commander in the progress of a revolution, it is to be regarded as a military contribution and such seizure and sale is not the subject of re-examination and modification by the courts of this country.

"The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based on acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly 'imperil the amicable relations between governments and vex the peace of nations.'"

In a companion case decided by U. S. Supreme Court on the same day it was held that where property seized and sold as aforesaid belonged to an American citizen, who was neither in Mexico nor a resident in that country, the principle above stated applied in the same way. His remedy, if any, must be determined by the courts of Mexico or through the political departments of this country. Ricaud v. American Co., Ltd., 38 Sup. Ct.

The principle acted on in both cases appears to us undoubted and indisputable.

DIVORCE-INDIGNITIES AS CONSTITUTING CRUEL AND ABUSIVE TREATMENT.— In Armstrong v. Armstrong, 118 N. E. 916, decided by Supreme Judicial Court of Massachusetts, it is held that where cruel and abusive treatment is a ground for divorce, neither words nor acts not involving physical injury, though causing unhappiness and loss of health, are proof of cruel and abusive treatment, unless they were uttered or committed with malicious intent to injure.

The court said: "The spouse may be guilty of drunkenness or other vices; his habits or disposition, his indifference, neglect or desertion, may cause mental worry and injury to health, but these acts, standing by themselves are not enough to make out a case of cruel and abusive treatment *** unless it is shown that the language was uttered or these acts were committed with a malicious intent and for the purpose of injuring the libellant."

In this case the wife testified that the husband "stayed away longer than he ever had in four years and went out many evenings;" that when she spoke to him about this he said: "he had been going with a girl in Boston"; that "she expostulated with him and told him of her suffering," and he said he could not give up the girl, and she became worried and sick and has not completely recovered her

health. There was a finding that the wife lacked no attention during sickness and the impairment of her health was because his affections had been alienated. There also was proof of a disgusting act by the husband in his wife's presence and this was held contributory to her ill health.

Defining the term cruelty in divorce statutes has always been difficult for the courts, since in almost every state courts have limited the term to its common law meaning and no authoritative or accurate definition was ever made by the ecclestical courts. And, moreover, like the term, fraud, it is a word inherently incapable of definition since it comprises in its scope, the incalculable depths of infamy to which human ingenuity may descend.

It is easier, therefore, to say what does not constitute cruelty than to declare what does. Probably no better affirmative rule could be adopted than that laid down in the principal case. At any rate since men and women are not perfect and since the law does not attempt the impossible, cruelty should not be held to consist in any sum of vices and misadventures in which both men and women are likely to fall, and which are not the product of a studied and malicious attempt of one spouse to bring injury upon the other.

SALES AND DELIVERIES OF ARTICLES IN INTERSTATE COMMERCE LOSING OR RETAINING THEIR INTERSTATE CHARACTER.

Introductory. The shipment of oil in bulk and of gas in pipes has caused some recent discussion among courts in respect to the original package ruling and the breaking of bulk in sales. In this article the cases are cited relative thereto and especially recent cases as to distribution of gas by means of facilities controlled by public

service commissions.

Breaking Original Package.-It must be conceded, that supplying a customer in another state with an article as part of a mass from which other customers are to be supplied, does not amount to a breaking up of the mass so as to bring the sale under local

control. Thus the Supreme Court in a very late case ruled that, where a foreign corporation shipped into a state a tank car of oil from one exterior point and a car load of barrels from another exterior point, so as to fill orders taken by a traveling salesman, the sale and delivery to the customers severally constituted no breaking of the bulk so as to make either or any of the transactions local in character.1

A Tennessee case, referred to approv ingly in the Lipscomb case, supra, many bulk shipment cases decided by U. S. Supreme Court, in which different purchasers already contracted with to be supplied, deduce the conclusion, that an oil company, shipping a tank car of oil, could fill separate contracts for oil from the mass conveyed, as protected transactions under the commerce clause.

state.

The breaking of bulk or package so as to bring sales therefrom under local law must be in a state where a sale is made and without authority by the seller in the foreign Thus where a portrait company shipped pictures and frames from Chicago on orders solicited in North Carolina, the shipping of the pictures in one or more packages and the frames in another or other packages, "the fact that these articles were not shipped separately and directly to each individual purchaser, but were sent to an agent at Greensboro, (N. C.), who delivered them to the purchasers, does not deprive the transaction of its character as interstate commerce. It may be only that the vendor used two instead of one agency in the delivery. And it was held that where brooms had been sold on solicited orders, the fact that they were tied in bundles and tagged and marked only according to the number ordered, making delivery to different customers from

(1) Western Oil Refining Co. v. Lipscomb, 244 U. S. 346, 37 Sup. Ct. 623, 61 L. ed. 1181. (2)

Western Oil Refining Co. v. Dalton, 131 Tenn. 329, 174 S. W. 1138.

(3) Caldwell v. North Carolina, 187 U. S. 622, 33 Sup. Ct. 229, 47 L. ed. 336.

Article at Rest in State So as to be Withdrawn from Interstate Commerce.-But though a shipment be made in interstate commerce, yet it may become subject to local law if there is such interruption in its transit before reaching a point for delivery, as may make it subject to local regulation. Thus the Supreme Court held," that where a domestic corporation having its plants for the manufacture of oil in Pennsylvania and Ohio, transportated oil in tanks to itself or consignee in Memphis for the purpose of distribution in smaller vessels for the filling of orders for customers in Arkansas, Louisiana and Misissippi, it came to rest in Tennessee so as to be subject to state law. Said the court: "It was only there for distribution, it is said, to fulfill orders already received. But to do this required that the property be given a locality in the state beyond a mere halting in its transportation. It required a storage there ---the maintenance of the means of storage; of putting it in and taking it from storage. The bill takes pains to allege this. This certainly describes a business-describes a purpose for which the oil is taken from transportation, brought to rest in the state, and for which the protection of the state is necessary a purpose outside of the mere transportation of oil."

Two of the bench, Justices Moody and Holmes, dissented from this view on the ground that as the oil had been sold before starting on its journey and was stopped "only momentarily for the purpose of repacking and reshipping it," that "the delay was to meet the exigencies of interstate commerce, which arose out of the nature of the transaction. * * * It would no more seem to be the subject of taxation

(4) Rearick v. Pennsylvania, 203 U. S. 507, 27 Sup. Ct. 159, 51 L. ed. 295. See also Crenshaw V. Arkansas, 227 U. S. 389, 33 Sup. Ct. 294, 57 L. ed. 565.

(3) General Oil Co. v. Crain, 209 U. S. 211, 28 Sup. Ct. 475, 52 L. ed. 754, affirming S. C. 117 Tenn. 82, 95 S. W. 824, 121 Am. St. Rep. 967.

The Crenshaw case, supra, and in a later case, in both of which state rulings were reversed, it was held, that delivery to customers by draymen employed by consignors of goods not identified as separately set apart, but selected from the mass by checking from original orders, did not come under the rule of "rest" as declared in the Crain case, supra. The Tennessee Supreme Court in the Dalton case, supra, expressed its regret that the Cranshaw and Stewart cases did not speak more "pointedly touching the test conceived to have been formally applied" by the Supreme Court, to-wit: "the preappropriation of the commodities to respond to the order of the bargaining customer." We discover, however, from the Crain case there may be a "rest" in the state, subjecting to local influence, though this be no more than to arrange for distribution among customers an article shipped in bulk, and though the shipper uses his own storage for this purpose and makes his own segregation for his customers, to whom the article shipped in bulk has been preappropriated. What shall be said, when to accomplish distribution he must rely on means regulated by local authority?

Employing Drays to Assist in Deliveries. -The Stewart case, supra, holds that where goods were shipped in carload lots from Chicago to points in Michigan and upon arrival orders therefor were filled by delivery at the car to customers by draymen employed by the shipper, such deliveries were

(6) Am. Steel & Wire Co. v. Speed, 192 U. S. 500, 24 Sup. Ct. 365, 48 L. ed. 538.

(7) Stewart v. Michigan, 232 U. S. 665, 34 Sup. Ct. 476, 58 L. ed. 786.

in interstate commerce, providing such deliveries were on orders previously solicited. There was no stress placed on the fact, that resort was made to drays that had to be licensed by the state, but generally the case was held to come under the rule in the Crenshaw case. That case speaks of ranges shipped being "loaded on delivery wagons and delivered by the delivery men to purchasers in the precise shape, form, condition and packages in which they were delivered to the common carrier" at the point of shipment. But in this case no notice was taken of this feature. It may be that there was no need to notice this feature, because licensing of drayman is regarded merely as a revenue law, and is not intended to preclude draymen getting business from whomsoever may see fit to employ them. At all events no point was made as to their employment in this way, as being the using of a facility under control of the local jurisdiction. It is to be thought, however, that had the state expressly provided, that draymen delivering interstate articles only should be required to pay a license the same as where they were engaged in other work the statute would be valid, provided no discrimination be made against such articles in their charges.

quire, that from the agency lawfully used in transportation, delivery may be effected without any discrimination in the use of other necessary means in the effecting of complete delivery. If residents may freely use these necessary means, so may non-residents, and whether the articles be subject to state law as a part of the mass of things there located or not. But the resident in using these other things may come under a rule or regulation to which these other things are subject.

Correlative Obligation in Use of Franchise.-In a noted insurance case Justice Lamar, in dissent, in speaking of property, devoted to public use, said: "Some of them had franchises. Most of them used public ways or employed property which they had acquired by virtue of the power of eminent domain. They were therefore subject to the correlative obligation to have the use, of what had thus been taken by law, fixed by law." While Justice Lamar dissented from the rest of the Court as to this correlative obligation existing as to the business of insurance, there can be no doubt of it so far as regards other business

This dedication is a part of domestic policy. It puts upon property of this kind a new burden. May it not be said that one using it submits himself to this limitation, that he comes into its operation according to state law? If so, that which was before an article in interstate commerce ceases to be such by the will of the owner of the article and is transferred to the mass of

to its customers the use of conveyors in the streets of a muncipality? Can it be supposed that the commerce clause meant so iar to interfere with domestic arrangements as to commandeer them for the benefit of interstate commerce in effecting delivery of articles sold therein? Is it not enough to preclude local regulations from discriminating against such articles? Naturally it would seem sufficient for congress to re

its laws.