for such injuries, though she may be in some jurisdictions without power of asserting such right; and that this very lack of power furnishes the reason why we have not had more decisions upon the subject. The reasoning of the modern cases is that the husband always had the right to sue for the loss of his wife's consortium, and that no good reason can be shown why the same right did not inhere in the wife for the loss of the consortium of the husband; that in principle there is no distinction between the two cases; that the only obstacle in the way of her enforcement of this right was (as we nave seen) the legal unity of herself and husband, and the absence of enabling statutes; for, if she had been permitted to maintain any sort of an action at law, it would have amounted to a recognition of her separate legal existence. Certainly it would seem that, if the common law itself is now so liberally interpeted in this regard, in jurisdictions where it still prevails, under a system such as ours, where its provisions in reference to the disabil. ities of married women have been almost entirely wiped out, the time has come when the courts of Indiana must recognize and accept principles so plainly and obviously in harmony with the spirit of law-making power in this as well as in the majority of the jurisdictions of this country. It must be admitted that there are some modern cases in which the right of action in question has been denied. See Duffies v. Duffies (Wis.), 45 N. W. Rep. 522, 31 Cent. Law J. 29, and note by W. F. Elliott, where the cases are cited. But we think the decided weight of authorities is in the opposite direction, and it seems to us that the reasons given on that side are much more convincing, and the ruling is better adapted to the circumstances of our present society. In addition to the cases already cited, the following are referred to as supporting the view we have taken; Seaver v. Adams (N. H.), 19 Atl. Rep. 776; Westlake v. Westlake, 34 Ohio St. 621; Mehrhoff v. Mehrhoff (Cir. Ct. U. S. D. Kan.), 26 Fed. Rep. 13. In Seaver v. Adams, supra, the court say: "As the only reason why the wife formerly could not maintain an action for the alienation of her husband's affections was the barbarous common-law fiction that her legal existence became suspended during the marriage and merged into his, which long since ceased to obtain in this jurisdiction, there remains now not the semblance of a reason in principle why such an action may not be maintained here; and the weight of authority also is that the wife can maintain such an action where there is a statute enabling her to sue." In the well-considered case of Foot v. Card, supra, the Supreme Court of Connecticut used this language: "In a case of this kind, the wife can only ask for damages for herself. The law cannot make redress otherwise than to her solely, apart from all others, especially apart from her husband; for no theory of the law, as to the merger of the rights of the wife in those of the husband, could include her rights to his conjugal affection and society. Although all other debts and rights to her might go to him, there yet remained this particular debt from bim to her, absolutely alone, and beyond the reach of the law of merger. So long as she on her part kept the marriage contract, no interest in this right can be taken from her. The husband cannot acquire any interest in it. She cannot, therefore, transfer any. Of legal necessity, therefore, damages for injury to this right must be in her solely." We will not make any other quotations from the decisions referred to, nor pursue the inquiry further. We think, whether we view the question in the light of the common law or the recent legislation in our State, or both together,

we must conclude that there is no longer any reason for withholding from the married women of this State a right so well recognized and supported by such strong reasons. At all events, there can be no shadow of an excuse for denying the right of action in a case where she has been divorced, and has been invested with all the powers and capacities of a single woman to institute and maintain actions at law.

CRIMINAL LAW-HOMICIDE-SELF DEFENSE ON ONE'S LANDS.-The Supreme Court of Alabama, in Lee v. State, 9 South. Rep. 407, hold that the right of a person to defend himself in his own house, without retreating, does not extend to his lands outside the curtilage; and one who retreats to such lands after being assaulted cannot justify a killing there, when further retreat is practicable. Walker, J., says:

The exceptions to portions of the charge given by the trial court, and to the refusal to give the charges requested by the defendant, raise but the single question as to whether or not it was the duty of the defendant to retreat after getting out of the house and upon his own land. In behalf of the appellant it is urged that, after he got upon land, the right to the exclusive possession of which was in him, he was not bound to retreat further, though retreat was entirely practicable but was entitled to stand his ground and protect himself even to the taking of life, if he was without fault in bringing on the difficulty. We have not been cited to, nor have we found any authority to support the proposition that the fact that one happens to be upon any part of his own land thereby secures to himself all the rights deducible from the principle which is illustrated by the maxim that every man's house is his castle. It is familiar doctrine that, in order to entitle a person to the benefits of the plea of self-defense against the charge of homicide, he must have employed all means in his power, consistent with his safety, to avoid the danger and avert the necessity of taking life; and he must have retreated, if retreat was practicable. Carter v. State, 82 Ala. 13, 2 South. Rep. 766. In the old books of the law the phrases "retreat to the wall" or "retreat to the ditch" were much in vogne as figurative expressions of the rule that, in order to avoid the necessity of taking life, combat must be declined so long as the avenues of escape are open. 1 Hale, P. C. 479-483; 1 Russ. Crimes, 661. one who has been forced to the wall or to the ditch can withdraw no further, the law says he may there stand at bay, and resist assault, even to the taking of life. Upon like principles, a man's dwelling was regarded as the limit of retreat for him. In the turbulence of early times, men made their habitations holds of defense, and were often compelled to protect themselves therein. One's dwelling was regarded as his place of refuge. Its sanctity in this regard was fully recognized by the law. A man in his own house was treated as "at the wall," and could not, by another's assault be put under any duty to flee therefrom. 1 Bish. Crim. Law, § 858; Kerr, Hom. § 180; Brinkley v. State, 89 Ala. 34, 8 South. Rep. 22. A killing in defense of one's dwelling may be excusable in the eye of the law, when there would be no legal justification for the taking of human life, in like circumstances, to prevent a trespass upon property not the dwellinghouse. Carroll v. State, 23 Ala. 28; Simpson

As

V.

State,

59 Ala. 1. This shows the solicitude of the law to secure one's abode as a haven of protection for him and that the peculiar inviolability attaching to a man's habitation does not extend to his other property. It would seem that the special privileges pertaining to a man in his own habitation are available for his protection only while he is within such space as is usually occupied for the purposes of the dwelling and the customary out-buildings. Pond v. People, 8 Mich. 150-181. The very circumstance of one being within the precincts of his dwelling or of his business house serves as a warning to deter an assailant from intruding therein. No such evidence of a disposition to avoid combat or to get out of the reach of danger is afforded by the conduct of one who, when assaulted, merely withdraws to his own land, and there halts in a position exposed to attack. Manifestly he has not availed himself of such shelter and protection as his house affords. He has not sought what is known of all men as an asylum of safety. His act is not calculated to give pause to one in pursuit. The common law would not say that he had gone to the wall, and we cannot say that he had fulfilled the duty of retreat. Nothing has been found in the books to indicate that a man when upon his own land is to be regarded as at bay so as to be under no duty to yield further to an assailant, unless he is in his house, or within the curtilage or space usually occupied and used for the purposes of the house. When he is elsewhere upon his own land, the reasons which excuse him from withdrawing from the place which is to him as his castle and fortress do not apply. Jones v. State, 76 Ala. 8; State v. Patterson, 12 Amer. Rep. 212, note. Not until he has reached this place of refuge can he claim the protection and priviliges afforded thereby. When beyond its precincts, though upon his own land, he is under the duty to retreat when retreat with safety to himself is practicable.

EJECTION

CARRIERS OF PASSENGERS TICKET.-The Supreme Court of Oregon, in Peabody v. Oregon Ry. & Nav. Co., 26 Pac. Rep. 1053, declare that it is the duty of a passenger, if, through mistake or otherwise, he has not the required ticket or token evidencing his right to travel on that train, to pay his fare or quietly leave the train when requested, and resort to the appropriate remedy for the damages he has sustained, and if he attempts to retain his seat without paying his fare, and is expelled by the conductor, using no more force than is necessary, he can recover no damages for the injury incurred by such expulsion. Lord, J., says:

Summed up, then, the considerations in support of the principle invoked are: That as between the conductor and passenger, the right of the latter to ride must be evidenced by some proper token or ticket; that neither the time nor the occasion is suitable for an investigation, whether of explanation, or represen. tations of another conductor in conflict with the terms of the ticket, and contrary to the rules of the company; that it is better, under such circumstances, that the passenger comply if he is unable to produce the re

quired ticket, and pay his fare, or leave the train quietly and suffer the temporary inconvenience which results, than that the business of the road be interrupted to the annoyance of the traveling public; that such a course would avoid all liability to unseemly struggles often occurring in the presence of women and children and prevent breaches of the peace, and at the same time secure the passenger ample redress in the remedies which the law provides. The application of this principle includes a variety of cases, as where the passenger is unable to produce any token or ticket as evidence of his right to ride, or the ticket which he does produce is irregular or defective, due to the fault or negligence of the agents of the company.

In Frederick v. Railroad Co., 37 Mich. 342, the plaintiff held an insufficient ticket, caused by the fault of the company's agent in delivering to him a ticket to the wrong station. He asked and paid for a ticket to a given station, and received what he supposed was such ticket, but which on its face was only good to a point short of his destination. In passing upon this question the court observed: "How, then, is the conductor to ascertain the contract entered into between the passenger and the railroad company, where a ticket is purchased and presented to him? Practically there are but two ways-one, the evidence offered him by the ticket; the other, the statements of the passenger contradicted by his ticket. Which should govern? In judicial investigations we appreciate the necessity of an obligation of some kind, and the benefit of a crossexamination. At common law, parties interested were not competent witnesses and even under our statutes the witness is not permitted, in certain cases to testify as to facts which, if true, were equally within the knowledge of the opposite party, and cannot be procured. Yet here would be an investigation as to the terms of the contract where no such safeguards could be thrown around it, and where the conductor, at his peril, would have to accept of the statement of the interested party. I doubt the practical workings of such a method, except for the purpose of encouraging and developing fraud and falsehood, and I doubt if any system could be devised that would so much tend to the disturbance and annoyance of the traveling public generally. As between conductor and passenger, and the right of the latter to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as evidence of his right to the seat he claims. Where a passenger has purchased a ticket, and the conductor does not carry him according to its terms, or if the company, through the mistake of its agent, has given him a wrong ticket, so that he has been compelled to relinquish his seat, or pay his fare a second time in order to retain it, he would have remedy against the company for a breach of the contract, but he would have to adopt a declaration differing essentially from the one resorted to in this case." In Townsend v. Railroad Co., 56 N. Y. 295, the court say: "The question in this case is whether a wrongful taking of a ticket of a passenger by the conductor of one train exonerates him from compliance with the regulations on another on which he wishes to proceed upon his journey. I am unable to see how the wrongful act of the previous conductor can at all justify the passenger in violating the lawful regulations upon another train. conductor of the train upon which he was, was not bound to take his word that he had had a ticket showing his right to a passage to Rhinebeck, which had been taken up by the conductor on the other train. His statement to that effect was wholly immaterial, and it was the duty of the conductor to the

The

company to enforce the regulation, as was repeatedly held by the trial judge by putting the plaintiff off in case he persistently refused to pay fare. The question is whether, under the facts found by the jury, his resistance in the performance of this duty was lawful on the part of the plaintiff. If so, the singular case is presented where the regulation of the company was lawful, where the conductor owed a duty to the company to execute it, and at the same time the plaintiff had a right to repel force by force, and to use all that was necessary to retain his seat in the car. Thus a desperate struggle might ensue, attended by very serious consequences, when both sides were entirely in the right, so far as either, could ascertain. All this is claimed to result from the wrongful act of the conductor of another train in taking a ticket from the plaintiff, for which wrong the plaintiff had a perfect remedy without inviting the commission of an assault and battery by persisting in retaining a seat upon another train, in violation of the lawful regulations by which those in charge were bound to gov. ern themselves." In Yorton v. Railroad Co., 54 Wis. 234, 11 N. W. Rep. 482, the plaintiff had purchased a ticket to the place of his destination, and asked the conductor for a stop-over ticket, and, through the fault or mistake of the conductor, he received a trip or train check instead of a stop over ticket for which he asked, and which the conductor undertook to give him. The conductor of the second train refused to recognize it for fare, and demanded passage money or a ticket, which being refused, the plaintiff was ejected from the train. The court say: "Then the question arises, was the plaintiff entitled to ride on a subsequent train, not having the proper stop over check, or was the second conductor justified, under the circumstances in putting him off the train when he refused to pay his fare? * He was perfectly justified in ejecting plaintiff from his train when plaintiff had no proper voucher, produced no sufficient evidence of his right to ride thereon, and refused to pay fare, and he himself was ignorant of the transaction between plaintiff and conductor Sherman, (the first conductor.] It seems to us there was no other course for him to pursue under the rules of the company, for he was certainly not bound to take the plaintiff's word that he had paid his fare, and that Sherman had made a mistake in not giving him a stop-over check. It is apparent that the right of plaintiff to ride on the train without a proper voucher, and the right of the second conductor to eject him for want of said voucher, were inconsistent rights. Each could not co-exist at the same time. Mistake or fault of the conductor in not giving him, on request, such a check, would not give him a lawful right to ride on the second train, though he might require damages against the company for the wrongful act of the first conductor." In Bradshaw v. Railway Co., 135 Mass. 407, the court say: "It is no hardship upon the passenger to put upon him the duty of seeing to it in the first instance that he receives and presents to the conductor a proper ticket or check, or, if he fails to do this, to leave him to his remedy against the company for a breach of its contract. Otherwise the conductor must investigate and determine the question as best he can while the car is on its passage. Tne circumstances would not be favorable for a correct decision in a doubtful case." See, also, Mosher v. Railroad Co., 23 Fed. Rep. 326; Hall v. Railroad Co., 15 Fed. Rep. 57; Petrie v. Railroad Co., 42 N. J. Law, 449; Railroad Co. v. Gants, 38 Kan. 618, 17 Pac. Rep. 54; Railroad Co. v. Griffin, 68 Ill. 499; Shelton v. Railroad Co., 29 Ohio St. 214; Railroad Co. v. Fleming, 14 Lea, 128; Railroad Co. v. Connell, 112

The statement that the plaintiff had no financial standing was libelous, and constituted a legal foundation for the recovery of damages, unless the occasion upon which it was uttered gave rise to the privilege of publishing what would otherwise be actionable. The term "privilege," as applied to a communication alleged to be libelous, means, simply, that the circumstances under which it was made are such as to repel the legal inference of malice, and to throw upon the plaintiff the burden of offering some evidence of its existence beyond the falsity of the charge. This court, in King v. Patterson, 49 N. J. Law, 419, 9 Atl. Rep. 705, declared "that a communication, made bona fide, upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain connivatory matter which, without this privilege, would be actionable." In the case cited the learned judge who delivered the opinion of the court referred with approbation to Lawless v. Anglo-Egyptian, etc., Co., L. R. 4 Q. B. 262, and to Railroad Co. v. Quigley, 21 How. 202. The first of these cases was an action for libel against a corporation for publishing a report made to the company by auditors, in their audit of the manager's account, reflecting upon the plaintiff. The report was submitted at a general meeting of the shareholders of the company, and, under a resolution of the meeting, was printed and circulated among the shareholders. The court held that, inasmuch as it was the interest of all the shareholders to be informed of the report, the publication was privileged, on the ground, as Mellor, J., said, "that to print the report was a necessary and reasonable mode of communicating it to all the shareholders, who must be more or less numerous." In the second case a report made to stockholders in writing, and printed, with respect to the capacity and skill of one of the company's employees was held to be a privileged communication. These cases are referred to for the purpose of showing that a communication to a shareholder of a corporation touching matters which concern the corporate body are within the rule of privilege, which secures the immunity to the official who makes the publication. Ohnmeiss being not only a co-surety with Rothholz upon the official bond of Voelker, but also a shareholder in the bank, he had the right to receive the information imparted to him by Dunkle, the cashier. The fact that Rothholz's name had been taken from a bond held by the bank, and the reason for removing it, was a matter which concerned Ohnmeiss. As a stockholder, he could justly have complained if a com

petent security had been improperly surrendered by those who conducted the affairs of the bank. It was not necessary, to justify the communication, that it should have been in response to an inquiry made by Ohnmeiss In Waller v. Lock, 45 Law T. (N. S.) 243, Jessel, M. R., says: "If an answer is given in the discharge of a social or moral duty, or if the person who gives it thinks it to be so, that is enough. It need not even be an answer to an inquiry, but the communication may be a voluntary one." In my judgment, the cir cumstances under which the letter was written upon which this suit is based, repel the inference of an improper motive on the part of defendant, and cast upon the plaintiff the burden of proving malice.

CARRIERS OF PASSENGERS REFUSAL TO ACCEPT TICKET.-In Kansas City, M. & B. R. Co. v. Riley, 9 South. Rep. 443, the Supreme Court of Mississippi decide that where the conductor of a railroad train returns to a passenger the wrong portion of a return trip ticket, and another conductor on the return trip refuses to accept it after the mistake is explained to him, and ejects the passenger from the train, the railroad company is liable. Cooper, J., says:

The decisions are in direct and palpable conflict upon the liability of a common carrier for failure to transport a passenger under the circumstances named. In New York, Michigan, Illinois, Maryland, Ohio, Wisconsin, Connecticut, New Jersey, Massachusetts, and North Carolina, it seems to have been decided that the ticket presented by the passenger is the only evidence of his right to travel upon the train which can be recognized by the conductor; and that if, by reason of the negligence of other servants of the carrier, a wrong ticket has been given to the passenger, or the right ticket has been given to him, but erroneously taken from him, the passenger's right of action is for the wrong thus committed; and that he may not insist upon his right to travel on the wrong ticket, or without it, where it has been taken up, and recover damages for the refusal of the carrier to permit him to do so; and that the carrier may lawfully eject him from its train, using no more force than is necessary to that purpose. The authorities in support of this rule are found in the brief of counsel for appellant. On the other hand, it is held in Georgia and Indiana that the passenger is entitled to travel according to his real contract with the carrier, where the mistake in giving the proper ticket or in. taking up a proper one held by the passenger, is caused by the negligence of the servants of the carrier. In a more recent case in Michigan than those cited by appellant's counsel-Hufford v. Railroad Co. (Mich.), 31 N. W. Rep. 544-the plaintiff had applied and paid for a ticket from Manton to Traverse City. The agent gave him a ticket previously issued for a ride from Sturgis to Traverse City. There was evidence tending to show that the ticket had been cancelled by conductors' marks for a ride between Sturgis and Walton, and the trial court instructed the jury that "if they bebelieved the ticket was punched, indicating to the conductor by the punch-mark that it had been used before between Grand Rapids and Walton, that would be evidence of an infirmity in the ticket, and the plaintiff would not be entitled to insist upon that

ticket being received." This instruction was held to be erroneous; the court saying: "When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he had paid to the agent who gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures, or other marks." The most remarkable thing about this decision is that it was made in the same case, upon the same facts, and between the same parties as that reported in 53 Mich. 118, 18 N. W. Rep. 580, in which, in an opinion delivered by Judge Cooley, it was held that, as between the conductor and the passenger, "the ticket must be conclusive evidence of the extent of the passenger's right to travel." There is a class of cases somewhat analogous to the present one, in which, by a uniform course of decisions so far as we are informed, it is held that the conductor must accept the statement of the passenger. We refer to those cases in which different rates are charged for one who has procured a ticket and one who pays upon the train. It is hell that as a condition precedent to the exercise of this right to charge higher train rates, and to expel one refusing to pay them, a reasonable opportunity should be given by the carrier to the passenger to procure the ticket required, and that one to whom no such opportunity has been afforded, and who for refusing to pay the higher rate is expelled from the train, may recover damages therefor. Hutch. Carr. § 571, and authorities in note 2; Forsee v. Railroad Co., 63 Miss. 66.

Without determining more upon this disputed question than is necessary for the decision of the case before us, it is sufficient to say that where, as here, the ticket in the hands of the passenger supports and confirms the truth of his statement, and no possible injury can result to the carrier by the conductor's accepting and acting thereon, he must so act, or refuse at the peril of inviting an action for damages against his principal if the statement be true. We do not decide that a person holding a ticket from Myrtle to Blue Springs has a right to ride from Blue Springs to Myrtle; but no real injury could result to the carrier in recognizing such right, for the distance is the same, and in the usual course of business as many trains pass in one direction as the other. What we do decide is that a passenger holding and attempting to use such ticket, under the circumstances disclosed in this record, and explaining to the conductor how the mistake occurred by which the ticket read in the wrong direction, makes such a reasonable and prob. able showing as entitles him to be dealt with as a passenger, and therefore that any regulation of the carrier authorizing the conductor of its trains to disregard such statement is unreasonable and need not be submitted to by the passenger.

VALIDITY OF STATE REGULATIONS OF COMMERCE.

Much difficulty has been experienced from the formation of the government to the present time, in defining the exact limits of State authority, and the precise boundary of the federal government's powers on the one hand, and the sovereignty of the States upon the other.

The powers of the federal government, we understand, were granted by the States; and all powers not thus granted remain in the States. Very early in the history of the republic, bitterly-contested questions arose as to what attributes of sovereignty were included in this grant; and from that time to the present the conflict has been unintermittent. Political parties, some holding that the constitutional grant of powers should be strictly construed, and others advocating the larger authority of the general government were founded shortly after the adoption of the constitution, and have continued in varying shapes until to-day.

The earlier decisions of the Supreme Court of the United States were devoted to the adjudication of questions relating to the relative powers of the federal government and the States.

But as the commerce between the States in the early history of the nation was of comparatively small importance, since it was conducted chiefly by modes of conveyance which were simple in operation, and no great highways or public quasi public corporations involving large public interests had been created, the authority of congress to regulate interstate commerce, or interfere with State regulations thereof, was admitted by but a few.

The authority of congress over the high seas and coasts was never brought into question. But it may be primarily observed, that until the great case of Gibbons v. Ogden was decided by the United States Supreme Court, the power of congress to legislate concerning commerce between the States was but dimly understood. In this case it was decided by Chief Justice Marshall that the States have not concurrent powers to regulate interstate commerce, but that such power resides solely in the federal government. Since this decision the general doctrine of congressional authority in the premises has not been called into question, but scarcely a case has been decided since this opinion was rendered that has not a dissenting opinion. It is therefore obviously impossible to designate the exact line of demarkation between the police powers of the States and the general authority expressly and impliedly given to the federal government by the constitution.

In later years the development of com

19 Wheat. 1.

merce, including a rapid multiplication of the modes of conducting traffic, has been so unprecedented, so marvelous have been the improvements in motor-power-matters of which the framers of the constitution did not even dream-that many contests have arisen in the application of general principles to the varying sets of, circumstances attending each case. Those who do not believe in extending the authority of the general government, have resisted strenuously every encroachment upon the authority of the States. The difficulty has been to determine the extent of the power which has been granted and by construction assumed to reside in congress to regulate commerce between the States. Since the case of Gibbons v. Ogden,2 the doctrine has been settled in favor of a liberal construction of that power. But the determination of what constitutes an encroachment upon that power by State legislation is not easily arrived at, if, indeed, it may be arrived at all. An apparently unreconciled line of decisions. here presents itself to the student. This lack

of harmony is chiefly due to the widely-diverging political views of those who have constituted the federal bench. On the one hand a series of decisions have favored and defined a strict construction of the powers which have been delegated to congress, while on the other a number of adjudications by the supreme court have admitted to the federal jurisdiction cases which had hitherto been considered as solely within the province of the States. There are numerous instances in which a State may regulate commerce in a way which incidentally affects commerce between the States. It was decided in Peik v. Chicago, etc. Ry. Co.,3 that a State has a right to regulate railroad fares, and prescribe a maximum limit therefor, not only upon transportation which is wholly within the State, but also upon transportation begun in one State and brought into another, notwithstanding that such commerce incidentally affected interstate commerce. The reasoning was, that as the State creates the railroad, it should have power to regulate it. The charter was obtained from the State; the road was constructed by authority of the State; and the regulation of it by the State is not repugnant to that authority which the constitution vests

2 Supra. 3 94 U. S. 164.