being on the farther side of the ditch. There was no obligation on the part of the defendants to fence against their neighbor's cattle. The plaintiffs horse ate the branches of the yew tree, which extended over the fence and partly over' the ditch, but not over the plaintiff's land. The Divisional Court dis missed the action, holding that there was no liability on the part of the defendants, and that there was no duty on them to take means to prevent the plaintiffs horse from having access to the branches of the tree. It was attempted to bring the plaintiffs case within the doctrine of the well-known case of Fletcher v. Rylands, 3 H.L. 330, but the court agreed that it did not apply, because the tree was wholly within the defendants' land. The true test was held to be that pointed out by Gibbs, C. J., in Deane v. Clayton, 7 Taunt., at p. 533. where he says: "We must ask, in each case, whether the man or animal which suffered had, or had not, a right to be where he was when he received the hurt." If he had not, then (unless the element of intention to injure be present, as in Bird 71. Holbrook, 4 Bing. 628, or of nuisance, as in Barnes v. Ward, 9 C. B. 392) no action is maintainable. Divorce — Prohibition of Remarriage — Ex tra-Territorial Effect of Statute. — It was settled by Van Voorhis*?'. Brintnall, 86 N. Y. 18; 40 Am. Rep. 505, that the prohibition of remarriage in the New York statute of divorce has no extra territorial effect, and that where the prohibited party went to another state, whose divorce statute con tained no corresponding prohibition, for the express purpose of evading the New York decree, and there remarried, and then returned to reside in New York, the marriage must be recognized as valid in New York. This doubtless is the general doctrine. A curious question would arise as to the effect of a re marriage in another state whose statute did contain a similar prohibition. Would that be recognized as a valid marriage in the state where the decree was pronounced? We think it would. It would be valid in the state where celebrated, because no decree of that state forbids it. It would be valid in the state where the decree had been pronounced because it would not be a disobedience of that decree, on the ground that such decrees have no extra-territorial effect. It could not be disregarded save on grounds of comity. A case in point is the recent one of Hernandez, 46 La. Ann. 24 L. R. A. 831 (with notes). The official headnotes are as follows : "The prohibition of article 161 of the code, to the effect that, in case of divorce on the ground of adultery, the guilty
party can never contract matrimony with his or her accom plice in adultery, is directed against marriage between the guilty spouse and the particular person or persons who are designated in the petition for the divorce, or described in the evidence in support of it, and upon which petition and evidence the decree of divorce is founded. "The prohibition of the statute of New York, to the effect that no second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, in case the former mar riage be annulled or dissolved on the ground of adulter}', has no extra-territorial effect, being a penal statute; and it cannot be given the effect of annulling a contract of mar riage between persons- at the time residing abroad, notwith standing it was solemnized in the city and State of New York, — the contracting parties announcing their intention to be to thereafter reside in Louisiana, and afterwards actually residing there."
Larceny by Husband from Wife.— In Bearley v. State, decided in the Supreme Court of Indiana, in September, 1894 (38 N. E. R. 35), it was held that if a husband takes his wife's personal property, under circums(pices which, were he a third person, would constitute larceny, he is guilty of that crime. The court said : "The learned Judge below held the indictment good upon the ground that the recent statutes give the wife exclusive control and authority over her personal property, and have greatly enlarged her personal rights as to the disposition thereof, making contracts, and doing whatever a feme sole might do, and that the effect of such statutes is to sever the unity of person and community of property heretofore existing Iwtween husband and wife. There seems to be sound logic in this position. By virtue of these beneficent statutes, a woman may hold her own property, make her own money, enter into her own con tracts, pay her own debts. She may even contract with her own husband. If he defrauds her, she may recover. If a woman may contract, under these statutes, with her husband, and recover for a breach of contract, or for cheat ing her, it would seem reasonable to conclude that he may steal from her also, where the circumstances attending the wrongful act are such that, if performed by another, it would constitute a felonious asportation. Under the ena bling statutes of Indiana, the husband's interest in the wife's goods and chattels is abolished, and with its de struction the right also to fraudulently misappropriate them." The court cited Ganett v. State, 109 Ind. 527, where an indictment was sustained against the hus band for arson of his wife's dwelling-house, as the property of " another person," although they both dwelt in it. Good, sound sense!
