Infant's Chargeability with Guardian's Neg ligence. — The " legend " of Hartfield v. Roper, 2 1 Wend. 615; 34 Am. Dec. 273, is subjected to severe criticism in Atlanta etc. R. Co. v. Gravitt, Georgia Supreme Court, 26 L. R. A. 553, holding that the negligence of the custodian of a child of tender years is not imputable to the child so as to prevent his re covery for an injury by the negligence of a third per son. The opinion of Lumpkin, J., gives the most exhaustive array of the authorities on both sides of •this vexed question that we have seen. The Court says that the New York doctrine has been approved in Massachusetts, California, Minnesota, Indiana, Maryland, Maine, Kansas and Delaware, and dis approved in Vermont, Alabama, New Jersey, Ohio, Pennsylvania, Virginia, Michigan, Nebraska, Ten nessee, Connecticut, Iowa, Texas, Missouri, and Illinois. The Court also calls attention to the modi fication of the New York rule, first made in that State itself, in Lannen v. Albany Gas-light Co. 46 Barb. 264, and uniformly followed there (McGany v. Loomis, 63 N. Y. 104; 20 Ann. Rep. 510), allowing a recovery by the child where the child exercised due care, although the parent or custodian may have been negligent. The text-writers (Wharton and Bishop) also disapprove the legend. Mr. Beach, in his excellent treatise on Contributory Negligence, sec. 116 etc., after citing the Donkey and Oyster cases, observes : "It appears therefore that the child, were he an ass or an oyster, would secure him a pro tection which is denied him as a human being of ten der years, in such jurisdictions as enforce the English or the New York rule in this respect." It is singular that the New York Courts should have clung to this ridiculous legend while they rejected the English doctrine of Thorogood v. Bryan, imputing to a pas senger the negligence of the carrier's servant. More singular still is the fact that the legendary doctrine of Hartfield v. Roper was obiter'. Cowen, J., said that " the defendants exercised all the care which in the nature of this case the law required," and that "it is a case of unavoidable accident," and then he puts forth the legend. Judge Cowen having been dead a good many years, it is safe, and it will not hurt his family's feelings, for us to say that his cele brated opinion is an illogical array of non scquiturs and false analogies. There is little left of the legend in the State of its birth, and it will wholly wane away in another generation. Meantime let us crow over the flexibility and certainty of the common law! Sale — of Liquors hy Club. — In State v. St. Louis Club (Missouri Supreme Court), 26 L. R. A., 573, it was held that distribution of wine or other
liquors among its members by a social club which is a bona fide organization with limited membership, admission to which is only on a vote of the governing board, and with common ownership of property, is not a sale of liquor by retail or in original packages within the meaning of the Missouri dram-shop act, under which license can be obtained only by a taxpaying male citizen above twenty-one years of age, although technically the act does amount to a sale for some purposes. The authorities on this vexed question are well re viewed in the opinion. The cases which hold that a dealing out of intoxicating liquors by a club to its members is not a sale are Graff v. Evans, L. R. 8 Q. B. 373; Com. v. Pomphret, 137 Mass. 564; 50 Am. Rep. 340; Seim v. State, 55 Md. 566; 39 Am. Rep. 419; Tennessee Club v. Dwyer, 11 Lea, 452; 47 Am. Rep. 298; Piedmont Club v. Com monwealth, 87 Va. 541; State v. McMaster, 35 S. C. 1; Burden v. Montana Club, 10 Mont. 330; Koenig v. State, 26 S. W. Rep. 835. The following are the the other way: State v. Lockyear, 95 N. C. 633; 59 Am. Rep. 287; Rickart v. People, 79 III. 85^ State v. Mercer, 32 Iowa, 405; State v. Horacek, 41 Kans. 87; Martin v. State, 59 Ala. 34: State v. Essex Club, 53 N. J. L., 99; People v. Soule, 74 Mich. 250; People v. Andrews, 115 N. Y. 427. In a number of these last cases the purpose to evade the excise law was evident, and they do not necessarily adjudge that a supplying of the liquors to members of a social club in good faith as refreshments is a violation of the law.
Tenancy by Entirety — Right to Rents dur ing Joint Lives. — The doctrine of Butler v. Nunan, 92 N. Y. 152; 44 Am. Rep. 361, that the modern Married Women's Acts have not superseded the doc trine of tenancy by entirety, and that under a grant of lands to husband and wife the survivor takes the whole estate, is supported by the great weight of au thority in this country, but the question of the right to the rents and profits during the joint lives has just now, for the first time, been authoritatively settled in New York, in Hills v. Fisher, 144 N. Y. 306, where it is held that the husband does not take them ex clusively, but that the husband and wife are entitled to them in equal shares. This approves Huttlar v. Rosenblath, 42 N. J. Eq. 615, and disapproves McCurdy v. Canning, 64 Pa. St. 39, and so it was held that the husband's mortgage of the lands covered his right to half the rents and profits during the joint lives, and the entire fee if he survived the wife.
