would suffer from not having had notice. Bank v. Drake, 79 N. W. Rep. 121. The cases in which this statement is made, however, are almost universally cases of continuing guaranties. Nevertheless, in Massachusetts, it is clearly settled that lack of notice of default to a guarantor of a promissory note discharges him to the amount of the resulting injury. Bank v. Haynes, 25 Mass. 423. Such, also, seems to have been the early English law. Philips v. Astling, 2 Taunt. 206. See, also, Tiffany v. Willis, 30 Hun 266.

As to the cases of continuing guaranties, there may well be a different rule. For in such cases the time when the liability accrues is uncertain, and often peculiarly within the knowledge of the person receiving the guaranty. The subject-matter, also, is not one definite act. On the other hand, in the principal case, the guarantor could be in no doubt as to when, if at all, his liability accrued, nor for what he was liable. If the tenant does not pay at a settled time, the guarantor is bound, whereas, in the case of a continuing guaranty, it is impossible for him to tell when a default may occur. The argument from analogy, therefore, is weakened. Moreover, the few authorities found directly in point, aside from the promissory note cases cited, appear to be in accord with the principal decision. Heyman v. Dooley, 77 Md. 162; Hungerford v. O'Brien, 37 Minn 306; Ames, Cas. Suretyship, 239. If notice is desired as a matter of business convenience, it may always be stipulated for in the contract, and in the absence of any such stipulation, the result reached in the principal case seems sound.

JURISDICTION IN DIVORCE PROCEEDINGS. The judgment in divorce proceedings operates directly upon the status of the parties, and thus it is everywhere recognized that jurisdiction in such proceedings belongs only to the state where the parties are domiciled. Sewall v. Sewall, 122 Mass. 156. In general, from the nature of the marriage relation, the domicil of a married woman follows that of her husband. Barber v. Barber, 21 How. 582. For purposes of divorce, however, an exception has been made, the wife being allowed to sue for separation at the domicil of the marriage, even though her offending husband had acquired a new domicil. Harteau v. Harteau, 14 Pick. 181. It would seem that this exception, however, required no further extension in order to fulfil its object of protecting the wife against the injustice of being compelled to follow a husband to every new domicil in order to obtain her freedom. Yet nearly everywhere in this country she is allowed to acquire a new and separate domicil for the purpose of instituting divorce proceedings, though for that purpose only. Hunt v. Hunt, 72 N. Y. 217. This doctrine has given rise to certain difficulties, not always satisfactorily treated by the courts, which are well illustrated by a recent New York decision. A wife left her husband who was domiciled in New York, and went to Oklahoma for the purpose of obtaining a divorce. On obtaining this she remarried and returned. Subsequently, on suit for divorce by the original husband in New York, it was held that this foreign divorce was invalid and no defence to this suit. Winston v. Winston, 165 N. Y. 553.

The decision follows the settled New York rule that a judgment of divorce against a non-appearing, non-resident defendant has no effect upon the latter's status, since it is granted without personal service.

Yet

if there is jurisdiction over the plaintiff, as must be the case if she has acquired a domicil, the decree will be effective as to her status, and consequently under this rule the husband is married but the wife is not. People v. Baker, 76 N. Y. 78. See Dunham v. Dunham, 162 Ill. 589, 606. The difficulty of service on which this New York doctrine is based is, however, purely imaginary, and the Supreme Court has very recently quite properly overruled this doctrine so far as it concerns the states of this country, on the ground that it does not give full faith and credit to the decrees of another state. Atherton v. Atherton, U. S. Sup. Ct.; decided April 15, 1901. Jurisdiction for divorce is more properly not personal, but quasi in rem, and therefore no personal service is required, but only the best possible practical notification to the defendant of the pendency of the suit. Doughty v. Doughty, 27 N. J. Eq. 315; Minot, Conflict of Laws, §§ 87, 94. This follows from the source of the jurisdiction and the nature of the subject-matter. For, since domicil of the plaintiff gives jurisdiction over her status, if the decree is to have any effect at all, it must likewise operate upon that of the defendant, as the status is a correlative one and cannot exist except there be two parties to it. But this personal element of the proceedings cannot be entirely disregarded, and thus it is only requisite that the defendant be given a reasonable chance to come in and defend the suit. If this is done, the decree is valid and entirely dissolves the marriage.

The invalidity of the decree in the above case, however, may be readily supported upon another ground, not adequately noticed by the court. It appears that no domicil was ever obtained in Oklahoma by the wife, and thus on this ground the decree was clearly void as to all parties. No domicil can ever be acquired by a person going to another state merely with the intention of obtaining a divorce and then returning, for there cannot be found in such cases the requisite bona fide intention to make a permanent change of home. Fennison v. Hapgood, 10 Pick. 77, 98. It makes no difference that the statutes of the state provide for granting of divorces upon a residence within the state of a fixed number of days. That can give no jurisdiction which another state ought to recognize. Divorces granted in all such states except to parties bona fide domiciled therein are utterly void, and should be fearlessly treated so everywhere. Bell v. Bell, U. S. Sup. Ct.; decided April 15, 1901. Such action would have a wholesome effect upon the all too loose divorce conditions existing in this country to-day.

CONTROVERSIES BETWEEN STATES. When the Constitution was first adopted, the individual states comprising the Union gave up many rights usually enjoyed by independent states, as, for example, the right to make treaties or to declare war. In view of this, the Constitution gave the United States Supreme Court jurisdiction in all suits to which a state should be a party, and thus virtually put the states on the same footing as private corporations in regard to the right to sue or be sued. But under this clause suits were brought against states by private individuals, and as this was thought to infringe upon their rights as sovereign states, the Eleventh Amendment was passed taking away from the United States courts their jurisdiction in such cases. This amendment has, however, introduced an interesting question as to what may constitute the subject

matter of suits between states. Questions of boundaries have formed the most common disputes before the United States courts. Rhode Island v. Massachusetts, 12 Pet. 657. It has been held, however, that no private citizen can use the name of his state to enforce a private claim against another state. New Hampshire v. Louisiana, 108 Ü. S. 76.

In this connection a recent decision by the Supreme Court is of interest. The State of Missouri, fearing that the operation of a drainage canal built by the State of Illinois would be injurious to the inhabitants of Missouri, filed a bill before the Supreme Court to enjoin such a use of the canal. The State of Illinois demurred, claiming that the State of Missouri was only nominally a party, and as the real parties plaintiff were the riparian proprietors on the Mississippi River, the action was contrary to the Eleventh Amendment. The court held, however, that it was an injury to the state as such, and overruled the demurrer. Missouri v. Illinois, 21 Sup. Ct. Rep. 331.

In view of the fact that the Mississippi River is a navigable stream, the decision seems clearly right. The bed of the stream is owned by the state, and is held for the benefit of the public generally. But as in the

case of a park or a highway, the state is the legal owner of the fee. When, therefore, an act is done which diminishes the value of the river, the state is directly injured as a state, and it is the proper plaintiff in an action to abate the nuisance. The nuisance here is such that, if done within the state by a private citizen, the attorney-general would be the proper official to proceed in behalf of the state. This fact suggests a satisfactory standard of judging where to draw the line. Whenever the act is one which, done by a private citizen, calls for the interference of the attorney-general, then such an act, done by a state, may be the basis of an interstate dispute sufficient to give the federal courts jurisdiction. This test would doubtless be good as far as property rights of a state or rights as sovereign are infringed. It may, however, be objected that the people as such are sometimes injured when the state as a state is not affected, and that in such cases the attorney-general proceeds in behalf of the public generally. As, for instance, where a public corporation, acting in excess of its chartered powers, gains such a monopoly in trade as to threaten the public interests. Attorney-General v. Great Northern R. R., I Drewry & Smale, 154. A careful examination of the attorneygeneral's authority, however, shows that in such cases, he does not directly represent the public, but acts as agent of the sovereign, who, as parens patriæ, is the proper one to guard such interests. Although the action is in the name of the attorney-general, the state in reality is the interested party. Jackson v. Phillips, 14 Allen, 539. This being so, the rule suggested seems both safe and practicable.

RIGHTS IN PUBLIC PONDS. Although comparatively little has as yet been written about the law of ponds, the decisions are hopelessly confused. This is largely due to the fact that, while the tests applied in the law of watercourses are too narrow to be applied to ponds, the courts have tried to carry them over. As an instance of this confusion, in England, it is held that the public have no rights whatever in ponds, while, on the other hand, in Massachusetts, it is said that all large ponds belong to the public, and littoral owners have no property rights in them

Bristow v. Cormican, 3 App. Cases, 641; Wattuppa Co. v. Fall River, 147 Mass. 548. Both these positions, however, are extreme, and neither represents the prevailing American doctrine. It may be doubted whether it is safe to say that there is a common doctrine, because in each jurisdiction the development is in some respects peculiar. But as far as large navigable ponds are concerned, almost all agree that the public have many rights in them similar to those they enjoy in navigable rivers. Gould on Waters, 3d ed., § 82. Some interesting questions concerning these rights of littoral owners and the public were raised in a recent Minnesota case. The defendant, for commercial purposes, cut a large amount of ice; as a result the natural level of a public pond was lowered, causing substantial damage to the littoral owners. The court held that

while the public had a right to cut ice on public ponds, yet this right was in each instance personal, and to take so large an amount for the purposes of sale was an unreasonable exercise of the right. Sanborn v. People's Ice Co., 84 N. W. Rep. 641.

The right of a littoral owner was of course involved, and the decision of the court that he has special property rights seems commendable and timely. In dealing with rights which are peculiarly public, such as the right to fish or to navigate, it is often said that a shore owner on a pond has no greater right than any other member of the public. Brastow v. Rockport Ice Co., 77 Me. 100. In each actual case the statement is doubtless true, but its form is too broad and sweeping. There are of course fewer opportunities to injure a shore owner on a pond than on a river, and the incidents of such ownership are less valuable in the case of a pond. But there are certain well-defined incidents of littoral ownership on a pond which it is only just to allow the proprietor to hold as property. Such incidents are the rights of access, to accretion, and to have the water remain in its natural state subject only to reasonable use by others; and as far as these are concerned there is no reason why the law should not treat the littoral as well as it does the more fortunate river-bank owner. 3 HARVARD LAW REVIEW, 1.

The distinction which the court makes between a taking for personal use and for commercial purposes may, however, well be doubted. This right to cut ice is public, and is very similar to the right to fish; in fact, it is only another application of the common right to the beneficial use of the pond. Doubtless no one would contend that the right to take fish from public waters is personal, and it is hard to distinguish between that and the right to cut ice. Moreover, no authority for the distinction has been found. But it has often been held that there are limits to this public right. Water cannot be taken from a pond by artificial means so as to injure a riparian owner on an outlet stream. Concord Mfg. Co. v. Robertson, 66 N. H. 1. But no satisfactory test has been given to determine what is a reasonable use. If it were a case of taking water from a navigable stream by a member of the public, doubtless he would be restricted to the same amount as is allowed a riparian owner for other than domestic uses; that is, to such an amount as shall not perceptibly diminish the flow. Drawing an analogy from this, it is suggested that it might be well to limit the public to such a use as shall not injure or diminish the pond as a pond, and that any use resulting in perceptible diminution is both unreasonable and unlawful.

ASSIGNMENT OF LIENS. Common law liens depend for their validity on the detention of goods solely as security for the payment of the lienholder's claim. By an unauthorized sale or pledge of the goods, by a voluntary delivery to the true owner, or by a wrongful claim of title, they are regarded as dealt with for a purpose inconsistent with this sole right, and the lien is destroyed. Since, then, the goods may be held only for the payment of a personal claim, it follows that a lien is a merely personal right, and therefore not assignable so as to vest a legal right to the lien in the assignee. A recent case holds that any attempted assignment for the benefit of another is not only invalid, but destroys the lien. Glascock v. Lemp, 59 N. E. Rep. 342 (Ind.). A livery stable keeper, having a lien on a horse for the payment of his board, assigned the claim, together with the horse as security therefor, to the defendant. The owner replevied the horse, and the court held that the purported assignment constituted no defence, as it destroyed the lien. The decision is in accord with the few cases in point. Ruggles v. Walker, 34 Vt. 468. It is difficult to see on what legal principle the lien can be held destroyed by such a transaction. The assignment of the chose in action gives the assignee, in contemplation of law, merely a right to sue on the claim in his assignor's name. Even though by statute the assignee may prosecute the suit in his own name, the change is one of procedure merely, and the chose in action is still legally held by the assignor. Therefore, when a chose in action is assigned, together with goods on which a lien exists for its protection, whatever may be the rights to the custody of the goods as between assignor and assignee, the latter must be considered as detaining them from the owner solely for the protection of his assignor's legal right to the chose in action. In a suit by the owner of the goods against the assignee for their detention, such as in the principal case, there should be the same defence as is accorded any lienholder's bailee, for both may truly say that the goods have never been treated otherwise than as security for the original lienholder's claim.

A further question is suggested, namely, whether the assignee would be entitled to hold the goods as against his assignor. Clearly the parties impliedly agreed that the assignee should have exclusive right to possession until the lien debt was satisfied. As any retaking would, therefore, constitute a breach of the contract under which the custody of the goods was transferred, the assignee ought to be allowed to assert his rights to possession, like any bailee entitled to possession for a period of time. Such dealing with the goods, as before stated, would not destroy the lien, because it would be entirely consistent with a detention solely as security for the chose in action. Thus to an action for the goods by the owner, the assignee could interpose the lien as a defence, to an action by the assignor, his contract right to possession. In accord with this view are several dicta. Pugh v. Bigler, 62 Pa. 242; Buckner v Mcllroy, 31 Ark. 631. To call such a transaction an assignment of a lien is strictly inaccurate, since the lien, being legally unassignable, would still exist in the assignor. The right to the actual custody of the goods alone would be transferred, yet as the results of an actual legal assignment would thus be practically attained, and as the phrase is similarly used in connection with choses in action, it will serve the present purpose.

Ever since the first recognition of liens in the time of Edward IV., then known as rights to detain, their effect has been regarded as beneficial. By the recognition of custom, by equity, and by statute, the common law