preserve the secrets of his client "at every peril to himself" not at every peril to the nation. The statutory privilege attaching to communications to counsel is merely declaratory of the law as it stood before its enactment. Murphy v. Waterhouse, 113 Cal. 467. In that case the court, declaring that the statute "is merely a declaration. without any substantial modification of a principle that has always obtained" read into it a common-law exception. If the existence of war transcends the policy of the common-law privilege, it likewise transcends the requirement of the statute and the oath has no application. In the same jurisdiction in which the statute mentioned exists it has been said of the rule of privilege that "as this rule has a tendency to prevent the full disclosure of the truth it ought to be strictly construed." Satterlee v. Bliss, 36 Cal. 489. The same court (In re Wax, 106 Cal. 343) and practically every other court in the United States have read into the rule the exception that if the communication relates to a contemplated crime public policy forbids that any privilege should attach to it. This holding of itself fixes the character of the privilege as one resting on public policy and yielding to the demands of a superior policy.

HE rule which affords to a vendor a legal "no man's TE land" between truth and vitiating fraud cannot be justified in ethics but finds some support in practical convenience. That convenience is most apparent when the rule is applied to that "puffing" which from time immemorial has been incident to the negotiation of a contract of marriage. If every exaggerated statement of courtship were ground for rescission the domestic relation would rest on a most precarious foundation. In Wier v. Still, 31 Iowa 107, it was said: "Mere false representations by one of the parties as to his fortune, character or social standing, will not avoid the marriage. If they should be so held where would courts fix the limits of invalid marriages? It would open a field for judicial investigation at once extensive and most detrimental to society." The bogus count and the pseudo heiress should remember the author of that decision with gratitude. So it is not undue cynicism to say that many men should give thanks for the decision in Hull v. Hull, 191 Ill. App. 307, wherein the court refused to annul a marriage because of the falsity of statements by a prospective groom that "he was a chaste person and had never had sexual intercourse with other women." It may be noted in that case that the wife's wrath was not wholly based on moral grounds but found its culminating grievance when the victim of an antenuptial seduction recovered damages. In Schaeffer v. Schaeffer, 144 N. Y. S. 774, it was held that the falsity of professions of ardent and undying love made before marriage is not ground for annulment. Had the decision been otherwise not only would the courts have been flooded with litigation, but a considerable contribution would have been made to the gaiety of nations. The Hippodrome and Winter Garden would have proved flat and uninteresting compared to the spectacle of a judge interpreting as a matter of law words murmured beneath the amorous moon and a jury endeavoring to decide whether those protestations were falsified by a subsequent refusal to buy a new dress or to go to the movies.

Incidents of Woman Suffrage.

I

T seems to be the general impression that the adoption of a woman suffrage amendment in a state automatically makes the fair sex eligible to all the responsibilities of citizenship. Such is not, however, the fact. Many statutes defining the qualifications of officers, jurymen, and the like confer eligibility on "resident electors." Such a phrase of course opens to receive the newly-created class of electors without further legislative action. But in many instances the word "male" is used in a statute prescribing qualifications, and such an act, except so far as it concerns the right to vote, is in no way affected by the grant of suffrage to women. For example, the New York judiciary law prescribes that jurors shall be "male citizens of the United States" and it has recently been ruled by the Attorney-General that in view of this provision the suffrage amendment does not make women eligible for jury service. Another complication is introconfining eligibility to office to "electors," expressly makes duced by a not uncommon type of statute which, after women eligible to certain offices. A nice question is presented as to whether the proviso does not under the maxim expressio unius, etc., prevent the extension of the term "electors" to newly enfranchised women. cause of such a provision, for example, the right of women to hold certain village offices in New York is doubtful, while their right to hold town offices is perfectly clear. In every jurisdiction it will require a careful revision of the statutes to discover and remove the multitude of minor inconsistencies which this radical change in our governmental polity has produced, and legislative committees should be appointed during the forthcoming sessions to do that work.

The Selection of Jurors.

Be

PENNSYLVANIA attorney is reported to have made a A suggestion as to the procedure for the selection of jurors which appears on its face to possess considerable merit. He recommends sending to all voters a questionnaire requiring them to state under oath their names, ages, occupations, physical condition and the periods when they could render jury service with the least inconvenience. convenience. Such a method would obviate the calling into court of those ineligible for jury service, unable to understand the English language or physically unable to serve. Much time of court and counsel and a substantial sum in fees would obviously be saved by this means. It would also make it possible to avoid calling farmers during planting time or harvest or business men during a season of special activity in their particular line. It would likewise make it possible, by a special order of court, to summon a jury of men peculiarly versed in some particular subject-matter to try a case whose technicalities of fact the ordinary run of veniremen are incompetent to pass on. The jury system with all its faults is so deeply rooted in our jurisprudence that it will never be displaced. In view of its importance and its admitted deficiencies it is peculiar that no improvement in the system other than the majority verdict provision obtaining in a few states has ever been put into effect. The suggestion made is a constructive one and deserving of serious consideration by some of the agencies which are striving for the reform of judicial procedure. In some jurisdictions a selective power is

conferred on a jury commissioner, but attendance at any jury term will convince the observer that, probably because of a lack of proper data, the selection leaves much to be desired.

Indictments.

D

ESPITE the progress of recent years toward more rational criminal procedure one may open a volume of reports almost at random and find an instance of absurd technicality in the construction of an indictment. In State v. Atkins (La.), 77 So. 771, it was charged that the defendant "did unlawfully and feloniously shoow one Rich Armstrong with a dangerous weapon, to-wit, a pistol, with intent him, the said Rich Armstrong, to kill and slay." A trial was had and the defendant was convicted. The court reversed the conviction, annulled the indictment and discharged the accused, saying with ap parent seriousness: "The only explanation we have of the use of the word-heretofore unheard of-shoow is suggested in the brief of the learned counsel for the state that, by a typographical error, the letter w was made for a t. We imagine-in fact we have as little doubt as we could well have without proof-that the typist who wrote the bill of indictment struck the wrong key. If he or she had left off the w as well as the t, we would be constrained to hold that the defendant was accused

and found guilty of frightening away Rich Armstrong, like a bird or fowl, with the intent if not then and there perhaps later on-him, the said Rich Armstrong, to kill and slay. In fact, that would be our conclusion if we should apply the doctrine of idem sonans. The rule is so liberal with regard to the spelling of words that it is possible the jury applied it in this case, and held that the mistake in the indictment was one of spelling, not typography. If so, the jury must have found that the accused did shoo Rich Armstrong; for that is the only verb we know having the same sound. Be all that as it may, the doctrine of idem sonans could not justify our substituting the word shoot for shoow." Beyond a doubt the evidence showed clearly enough just what the de fendant did. It would be ridiculous to suppose that the defendant and his counsel did not know before the trial precisely the charge which was to be met. In "The First Hundred Thousand" Ian Hay writes entertainingly of the "Practical Joke Department" and the "Fairy Godmother Department" by whom he conceives the British military service to have been run in the old days of "muddling." At times our judicial system does not seem to be wholly free from the suspicion of having similar departments which occasionally present a convicted criminal with his liberty on grounds which must be incomprehensible to him.

THE FAMILY AUTOMOBILE.

THIS is the era of democracy-not democracy in that limited local sense whose dynasty runs from Thomas to Woodrow, but that broad and all embracing spirit of democracy before which the ancient thrones of autocracy are crumbling and kings and kaisers are fleeing into affrighted exile. The theme of this discussion will therefore not be the many-cylindered, dog-killing and man-terrifying modern Frankenstein whose owner sets

forth on his career of devastation with a liveried chauffeur on the front seat, a pocket full of hundred-dollar bills to pay fines, and an indemnity policy for the benefit of the pedestrian who lives long enough to see his number plates. The law, which touches the life of man from the cradle to the grave, takes cognizance of that little brother of the poor, the family car, bearing the sign manual of Henry of Detroit on its radiator, which rests in the barn on peaceful terms with the family cow, which is not above going on a hurried trip to the grocer's of edge the sway of any member of the family tall enough an afternoon, and which is so poor in spirit as to acknowlto reach from the accelerator to the steering wheel.

But however docile it may be toward the family of its owner, the family car has on occasion proven itself ferocious as to strangers, and out of the effort to get legal question on which the courts are hopelessly divided, legal redress for injuries inflicted by it has grown a viz.: If a man keeps an automobile which he permits the members of his family to use at will for their own pleasure and convenience, is he liable to a person injured by their negligence? It is of course hornbook law that a man is not ordinarily liable for the torts of his wife or children not committed at his instance or in the prosecution of his business, and a large number of decisions apply this rule to the acts of a wife or child however, a considerable line of cases in which has been driving an automobile for their own pleasure. There is, developed a theory never applied except in the case of the automobile, the father being held liable on the view, as stated in Denison v. McNorton, 228 Fed. 401, that "where a father provides an automobile for the purpose of furnishing members of his family with outdoor recreation the use of the car for such purpose is within the scope of the father's business, analogously to the furnishing of food and clothing or ministering to their health." This view, despite the fact that it is an innovation on the established law of parent and child, has been adhered to by a majority of the decisions which have passed directly on the question. It obtains in California (Crittenden v. Murphy, 173 Pac. 595); Colorado (Hutchins v. Haffan, 167 Pac. 966); Georgia (Griffin v. Russell, 144 Ga. 275, 87 S. E. 10); Iowa (Lemke v. Ady, 159 N. W. 1011); Kentucky (Stowe v. Morris, 147 Ky. 386, 144 S. W. 52); Minnesota (Uphoff v. McCormick, 166 N. W. 788); Maine (Farnham v. Clifford, 101 Atl. 468); Montana (Lewis v. Steele. 52 Mont. 300, 57 Pac. 575); New Mexico (Boes v. Howell, 173 Pac. 966); Oklahoma (McNeal v. McKain, 33 Okla. 449, 126 Pac. 742); South Carolina (Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487); Tennessee (King v. Smith, 204 S. W. 296); Texas (Allen v. Bland, 168 S. W. 35); Washington (Birch v. Abercrombie, 74 Wash. 496, 133 Pac. 1020), and Wisconsin (Hiroux v. Baum, 118 N. W. 533).

The leading case on this side of the question is Birch v. Abercrombie, 74 Wash. 486, which has been relied on as a controlling authority in a number of subsequent decisions: In that case it was said: "It seems too plain for cavil that a father, who furnishes a vehicle for the customary conveyance of the members of his family, makes their conveyance by that vehicle his affair, that is, his business, and anyone driving the vehicle for that purpose with his consent, express or implied, whether a member of his family or another, is his agent. The

fact that only one member of the family was in the vehicle at the time is in no sound sense a differentiating circumstance abrogating the agency. It was within the general purpose of the ownership that any member of the family should use it, and the agency is present in the use of it by one as well as by all. In this there is no similitude to a lending of a machine to another for such other's use and purpose unconnected with the general purpose for which the machine was owned and kept."

The contrary view is that the owner of an automobile kept for family use is not liable for the negligence of a member of the family unless the car is being used specifically in the business or at the direction of the owner. This rule has found acceptance in the following jurisdictions: Alabama (Parker v. Wilson, 60 So. 150); Mississippi (Wood v. Clements, 113 Miss. 720, 74 So. 422); Missouri (Hays v. Hogan, 273 Mo. 1); New Jersey (Doran v. Thompson, 76 N. J. L. 754, 71 Atl. 296); New York (Van Blaircom v. Dodgson, 220 N. Y. 111, 115 N. E. 443); Pennsylvania (Kunkle v. Thompson, 67 Pa. Sup. Ct. 37); Utah (McFarlane v. Winters, 47 Utah 598, 155 Pac. 437); Virginia (Blair v. Broadwater, 93 S. E. 632); Canada (B. & R. Co. v. McLeod, 7 D. L. R. 579).

That cer

In Van Blaircom v. Dodgson, 220 N. Y. 111, the court said of the view asserting a liability: "But it seems to us that such a theory is more illusory than substantial, and that it would be far-fetched to hold that a father should become liable as principal every time he permitted a capable child to use for his personal convenience some article primarily kept for family use. tainly would introduce into the family relationship a new rule of conduct which, so far as we are aware, has never been applied to other articles than an automobile. We have never heard it argued that a man who kept for family use a horse or wagon or boat or set of golf sticks had so embarked upon the occupation and business of furnishing pleasure to the members of his family, that if some time he permitted one of them to use one of those articles for his personal enjoyment, the latter was engaged in carrying out not his own purposes, but, as agent, the business of his father." In Parker v. Wilson 179 Ala. 361, 60 So. 150, it was said: "The doctrine contended for amounts to this: This the pleasure of the family in its utmost detail is the business of the father. As applied to the case in hand, it means that the son, in pursuit of his own pleasure, with an automobile owned by his father, was engaged in the business of the father. But the doctrine, we think, has no firm foundation in reason or common sense. In theory it overlooks the well-settled principles of law; in practice it would interdict the father's generosity, and his reasonable care for the pleasure or even the well-being of his children, by imposing an universal responsibility for their acts." As said in Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. (N. S.) 335, 131 A. S. R. 677: "It would subject a parent to liability if he bought for his son a baseball or for his daughter a golf club, and, by permitting them to be used by his children for their appropriate purposes, injury occurred. It bases the creation of the relation of master and servant upon the purpose which the parent had in mind in acquiring ownership of the vehicle and its permissive use by the child. This proposition ignores an essential element in the creation. of that status as to third persons, that such use must

The

be in furtherance of, and not apart from, the master's service and control, and fails to distinguish between a mere permission to use and a use subject to the control of the master and connected with his affairs." recent case of Hays v. Hogan, 273 Mo. 1, reviews the authorities with great thoroughness and overrules several decisions of the Missouri Court of Appeals which have been widely cited in support of the rule imposing liability. Weighing the arguments of the two lines of cases the better reason seems clearly to be with the cases which deny liability. deny liability. The argument of agency proves altogether too much. gether too much. If the pleasure and recreation of the family is the father's business then at all times when they are seeking their pleasure they are his agents. Wifie playing bridge, little Johnnie in the street with his marbles, Mary flirting with passing soldiers at the door of the ice cream parlor and Willie, the black sheep of the family, "out with the boys" are all the agents of poor hardworking father and he is liable for everything they may do. If daughter Kate breaks her engagement, father is liable for breach of promise, for is it not a part of father's business to permit his daughters to entertain company, and did he not provide the attractive gown and the dimly lighted parlor which enticed the unfortunate swain to his doom? No case which maintains the rule has pointed out any logical stopping point short of an absolute liability for every tort of every member of the family.

Running through the cases which assert a liability there is an under current of the idea, never directly asserted, that because an automobile is more dangerous when carelessly used than any other family agency there should be an extension of the established doctrines of principal and agent. Thus in Birch v. Abercrombie, it was said: "We think that, both on reason and authority, the daughter in the present instance should be held the agent of her parents in the use of the automobile. Any other view would set a premium upon the failure of the owner to employ a competent chauffeur to drive an automobile kept for the use of the members of his family, even if he knew that they were grossly incompetent to operate it for themselves. The adoption of a doctrine so callously technical would be little short of calamitous." Of course whenever the question has been passed on squarely the courts, even in the jurisdictions which maintain the rule of liability, repudiate any such doctrine as that an automobile is within the rule making the owner of an inherently dangerous instrumentality liable for the consequences of the use thereof by any person. See Tyler v. Stephen, 163 Ky. 770, 174 S. W. 790; Goodman v. Wilson, 129 Tenn. 464, 166 S. W. 752; Premier Motor Mfg. Co. v. Tilford, 61 Ind. App. 164, 111 N. E. 645. Moreover the cases which pass on the liability for the acts of a hired chauffeur confine the liability very strictly to acts within the scope of the chauffeur's authority and exonerate the owner in case of any deviation therefrom. See the note to Griffin v. Russell, Ann. Cas. 1917D 994.

The fact that the rule rests on agency and not on the dangerous instrumentality doctrine is also shown by the fact that no liability exists where the car is taken in disobedience to a parental command. Sulzberger v. Smith, 174 Ia. 704, 156 N. W. 673. See also Wilde v. Pearson, (Minn.) 168 N. W. 582.

Of course if a child drives the family car at the instance of his father for the purpose of taking other members

of the family for a ride, he is not acting independently or for his own pleasure but is an agent of the father. That is the true scope of the theory that the pleasure of the family is part of the father's business-if he engages another to minister to their pleasure that person is his agent. As was said in Missell v. Hayes, 86 N. J. L. 348, distinguishing Doran v. Thompson, 76 N. J. L. 754: "In the present case there exists a very important fact (the absence of which was commented upon in the opinion of Mr. Justice Vorhees, speaking for this court in the Doran case) which is, that the automobile at the time of the accident was occupied by the father's immediate family and their guests. This fact constituted This fact constituted affirmative evidence that the automobile was being used in the father's affairs or business. It was within the scope of the father's business to furnish his wife and daughter, who were living with him as members of his immediate family, with outdoor recreation just the same. as it was his business to furnish them with food and clothing, or to minister to their health in other ways.' See to the same effect Winn v. Haliday, 109 Miss. 69 So. 685; Smith v. Jordan, 211 Mass. 269, 97 N. E. 761.

a

In Griffin v. Russell, 144 Ga. 275, it was argued that the foregoing rule was indistinguishable from that holding the father liable when a child used the car for his own sole pleasure. The court said: "If father or mother, owning an automobile, and keeping it to be used for the comfort and pleasure of the family, should authorize a son to drive it for the comfort and pleasure of the family, this would make the owner liable for the negligence of the son operating the machine for such purposes. How many of the family must be riding in the machine in order to make it a family use? If the boy should carry his sister for a ride, this would evidently be such use. Suppose that the sister should determine not to go, and he should go alone, would the use cease to be a family use? Certainly not all of the family have to be riding in the machine, to make it a family use. If two are sufficient for that purpose, why not one? But it may be said that here the boy was using it for the comfort and pleasure of himself and friends, who were riding with him, even though by and with the consent of the owner of the car. If it would be a family use for the boy to ride alone, it is difficult to perceive how taking his friends with him would make it less so, especially if with the consent of the owner." The argument in that case, however ingenious, seems to be unsound in principle. Applied to a hired chauffeur it would be ridiculous. If a chauffeur drives his employer over a certain route he is an agent. If he drives alone over the same road for a purpose of his own he is not. The one essential and distinguishing question is whether the driver is acting for himself or for the owner of the car.

If a father permits the use of the car by a child who is under the age at which persons are allowed by law to operate an automobile he is liable, for he has himself authorized an act which is by virtue of the statute negligent per se. Walker v. Klopp, 99 Neb. 794; Taylor v. Stewart, 172 N. C. 203.

But it would be impossible to conceive of a doctrine more mischievous in general application than that a person who keeps a facility for the use of others is liable in damages for their misuse of it. A golf club usually keeps a supply of "drivers" and "niblicks" which mem

bers may secure. Is it liable if a "duffer" drives a ball into the anatomy of an innocent bystander? Yacht clubs usually keep a tender at the float for the use of members. Must the club respond in damages if some member capsizes in the tender and drowns his guest? The theory is palpably unsound and is without a line of analogy in the law.

The younger generation should certainly rise in rebellion at this new doctrine for it is on them that it will inevitably react. Fathers are old fashioned, overcautious tightwads by nature. The writer is a father and has heard about it. But confronted with the rule that the children are his agents in pursuing whatever pleasure he may provide for them, father will certainly be compelled in self-protection to limit amusements to jack straws, dominoes and family prayers or else a line of "parent's indemnity insurance" will have to be put out. W. A. S.

EFFECT OF CESSATION OF HOSTILITIES ON GOVERNMENT WAR CONTRACTS

WITH the cessation of hostilities the need of the government for great quantities of munitions and war supplies comes to an end, and the question naturally arises, what will become of the numerous contracts that have been made to meet the needs of a great country engaged in a great war. When it is remembered that these contracts run up into the billions of dollars, the question would at first blush seem to be one of great moment, but from the reports of the terms of these contracts as far as available to the writer, the government anticipated the present much-to-be-desired condition of affairs and incorporated in the great majority of these contracts a clause providing for their annulment or cancellation when the necessity for their execution should no longer exist. As to this class of contract there is little to be said, but there are other so-called war contracts in which no provision was made to meet the change in conditions brought about by the ending of the war. Not that the war has come to an end when viewed from a legal standpoint, for although at the time of the writing of this article an armistice has been signed by the belligerent powers, that does not mean an ending of the war in the eyes of the law. Exactly when war does end is a question of much interest and of much importance to those who have entered into contractual relations for the period or duration of the war. To them a fixed and definite point of time when the war may be declared legally at an end is of first importance, but in so far as the rights of the parties to government contracts are concerned the governing fact is the stopping of the need for the supplies whether brought about by an armistice or the actual signing and approval of a treaty of peace.

When the government in its discretion concludes that the necessity which prompted the making of the contracts no longer exists, it cancels or annuls the contracts, and the question arises, does the fact that the contracts were made because of and in aid of war give the government any more latitude in abrogating them than it would have in regard to a contract made in time of peace and for peace purposes? There is a dearth of authority dealing