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when deceased was standing at the rack, and that the road over which his route ran was very rough. As to the force to be given to circumstantial evidence, the Court said:

"A similar situation arises when a man is found dead at a place where a railroad train had just passed, there being no eyewitness of his death. Circumstantial evidence, if convincing, may establish the proposition that he died because the train struck him. Harrington's first indication that he was suffering pain was given immediately after he left his car on July 26, and it seems to us that it was not error to show the condition of things in the car, and its irregular movements on the rough roadbed, as circumstances to be considered by the jury in deciding whether on that day he received an injury through external, violent and accidental means."

LEGISLATION REGULATING EMPLOYMENT AGENCIES.—Among the new laws which the Initiative in the State of Washington has placed upon the statute books is one which after declaring that the system of collecting fees from workers for furnishing them with employment, or with information leading thereto, results frequently in their becoming the victims of imposition and extortion, and is therefore detrimental to the welfare of the State, makes it unlawful for any employment agent to demand or receive from any person seeking employment any remuneration or fee for furnishing such employment, or information leading thereto. An application on the behalf of the agencies to have the law declared unconstitutional was unsuccessful, one of the two judges of the court deciding that a State has the right to adopt any law it pleases which reasonably protects any of its citizens from fraud and extortion, the other holding that it was an unreasonable exercise of that power. The constitutionality of the act will therefore have to be passed upon by a higher court. 34a

JANSLAUGHTER By Ex-RAYS.-In a recent case in Minnesota, the defendant was indicted for manslaughter in the second degree for causing the death of a person in the course of taking an X-ray photograph. A demurrer to the indictment was overruled by the District Court, and he appealed to the Minnesota Supreme Court, which affirms the decision below. The indictment sets out, in substance, that the picture was taken on the assurance to the deceased that the exposure to the X-ray would do her no harm; that she relied upon defendant's assurances as a medical man and allowed the photograph to be taken; that the X-ray machine is a dangerous instrument except where skillfully operated, and that defendant placed the tube of the machine unreasonably close to the body of the deceased and failed to give her proper and requisite attention to prevent burning; that her body was so exposed for an unreasonable time, thus causing what is known as an X-ray burn, from which

34a 221 F. 694. VOL. L.

e indictmente negligence, ble negligence a

she died. The Court takes judicial notice of the fact that X-ray machines sometimes cause serious burns, and holds that, under the statute declaring guilty of manslaughter in the second degree one who causes death by any act, procurement, or culpable negligence, the indictment is not demurrable. The Court, in referring to the term “culpable negligence,” says: “Numerous definitions of this term may be found. Culpable negligence—that is, criminal negligence-is largely a matter of degree, and, as has been well said, incapable of precise definition. . . . When considered as the basis of a charge of manslaughter against a medical man or person assuming to act as such, culpable negligence exists where he exhibits gross lack of competency or inattention or wantom indifference to the patient's safety, which may arise from his gross ignorance of the science or through gross negligence in either its application or lack of proper skill in the use of instruments.'°36

SLANDEROUS WORDS SPOKEN IN JEST.—The Supreme Court of Wisconsin ruled in a recent case that where in an action for slander there was evidence that the words complained of were spoken by way of a joke, and were so understood by those hearing them, an instruction that, though the words were so spoken, defendant would be liable, and the fact could only be considered in reduction of damages, forming a part of the charge on the amount of damages, was erroneous.37 The words complained of were spoken to a third person, and charged plaintiff with having been guilty of improper conduct with a woman. Whether the plaintiff also was present at the conversation is not clear; it may be that he was and formed one of a party engaged-according to defendant's contention in pleasantry and in banter. The trial court charged that the alleged jocose character of the utterance could not entirely shield from liability, though it might go to reduction of damages. In the Appellate Court it is said: “Under the testimony the jury would have been entitled to find that the words were spoken as joking or jesting remarks, and so understood; and, if so spoken and so understood by those who heard them, they would not be actionable."

“Undoubtedly,” says the New York Law Journal,38 “persons actually participating in good-natured raillery should not be subjected to liability for defamation. One party should not, however, be permitted to take advantage of a mild joke at his expense to utter a gross accusation without rendering himself liable to suit. And it would be clearly unjust to hold that a person might be excusable in making charges of immorality and indecency against third persons, men or women, on the ground that he was merely indulging his own peculiar vein of vivacity." There does not seem to be much law on the subject. In a note to Townshend on Slander and Libel, it is stated that it is not a defense to an action of slander or libel that the words were not spoken in earnest, but as a jest, and that the defendant did not expect to be believed. The authorities cited in support of this proposition are not very numerous, nor are they all closely in point. In one of them, however, 39 it was laid down by the Supreme Court of Illinois (1845) that:

36 State v. Lester, 149 N. W. 297. 37 Hauson v. Fenling, 152 N. W.


38 May 24, 1915.

In point of law it is immaterial whether a party who slanders his neighbor designs or expects to be believed or not. He cannot be permitted either carelessly or wantonly to sport with the character of another, and then excuse himself upon the ground that he was not really in earnest, and did not intend that his auditors should credit his unfounded aspersions. When the speaking or publication of slanderous words is once proved, malice is inferred. If the words are used in an unqualified manner, whether the speaker was in jest or earnest, whether he expected to be believed or disbelieved, the mischief is the same, and no legal distinction can be drawn in favor of the guilty party.

12.3 Atl. 356), ihe "defense that thecide whether the ha wa

In this case the suit was brought by a husband and his wife for slander. The words complained of had been spoken by the defendant concerning the wife, and were of a very gross character. A verdict for substantial damages was affirmed, the Court laying down the salutary doctrines above stated.

As to possible abuse between the parties themselves of relations of familiar companionship, some helpful suggestions may be drawn from cases dealing with practical jokes of a physical nature. In Wartman v. Swindell, in the Court of Errors and Appeals of New Jersey (25 Atl. 356), it was ruled: If, in an action of tort, the defendant relies upon the defense that the act he did was by way of joke, it is a question for the jury to decide whether the parties had been perpetrating practical jokes upon each other in such a way that the defendant had a right to believe that the plaintiff would accept his act as a joke. The maxim de minims non curat lex does not apply to the positive and wrongful invasion of another's property. The right to maintain an action for the value of property of which the owner is wrongfully deprived is never denied.

In State v. Monroe, in the Supreme Court of North Carolina, 40 it was held that a druggist who sold croton oil, and at the purchaser's request dropped it into a piece of candy, might be convicted of assault and battery where the purchaser caused another person to eat the candy to his injury, and the druggist had reason to believe that the dose was intended as a trick or joke upon the person to whom it was administered, and not for medicinal purposes.” Commenting upon the New Jersey case shortly after it was decided, we remarked: The question would seem to be

29 Hatch v. Potter, 2 Gilman 725.

40 28 S. E. R. 547.

peculiarly within the province of a jury to determine, on the whole case, whether a given act ought to have been accepted as a joke or can be taken seriously as a tort. On the one hand, a jury could probably be trusted to do justice in a case in which, under the trumped up protection of a practical joke, a person had committed a grievous assault or destroyed valuable property. On the other hand, a jury would be likely to award only nominal or trifling damages to a person who, having by his own acts provoked playful retaliation, suddenly says, I won't play.

PENAL SANCTIONS OF THE LAWS OF WAR.—Recently delegates from the various Chambers of Commerce in France, under the presidency of M. Engerand, assembled to consider what action should be taken against Germany, at the conclusion of hostilities, for her violation, on all sides, of the laws of war. The assembly viewed the question from the moral rather than the legal standpoint, and, although few persons would dispute the validity of the justice of the views expressed, yet the members of the Chambers of Commerce ignored, or little appreciated, the legal difficulties with which they were confronted. M. Thomas Loubat, the ProcuratorGeneral at Lyons, pointed out some of these difficulties in Le Temps. Now we have the question exhaustively re-examined by M. Andre Weiss, member of the Institute and Professor of International Law in the University of Paris.

There is not a Frenchman, writes M. Weiss, who does not wish with M. Engerand and your honorable correspondent of Lyons, M. Loubat, for the hour of justice and expiation for the crimes without number by which Germany has tarnished her arms, in the course of the war which she treacherously declared upon us.

That some criminal prosecutions can be undertaken in France against the responsible authors of crimes which arouse our indignation. I freely admit. The law of nations could not shield those who have deliberately violated it. The enormity of the crime is no title to impunity. Theft, murder, pillage, burnings committed against the laws of war, find in these laws neither justification nor excuse, and our courts-martial do not hesitate to put into operation against the guilty ones who have fallen into the hands of French troops the rigors of the Code of Military Justice. But is it meet that we should go further and, par contumace, extend this repressive action to the officers and soldiers of the enemy still at liberty? I am not at all convinced that it is so. The cases will be very rare of a public prosecution with a certainty of success among those who have taken part in the collective delirium of the army of invasion, the criminals of all ranks. The chances of error will be considerable, the proofs almost always doubtful; the defense to which every accused has the right will be difficult to organize with sufficient guarantees. The impartiality of the judges, the sincerity of the witnesses, will be criticized and disputed beyond the frontiers. The moral authority of the sentence will not be universally recognized, and the trans-Rhenish newspapers would delight in exalting such convicts as objects for imperial favor, and in railing at an impotent furor which had dealt with these miscreants in court before a decisive victory had been obtained in the field of battle.

National justice, then, it seems, is disarmed, but international justice is not. And international law itself possesses the means of denouncing and branding the attempts by which the German Empire has brought us day by day nearer to barbarism.

The fourth Convention signed at The Hague on the 18th October, 1907, took care, and no one is ignorant thereof, to assure by a sanction pecuțiaire, respect for the provisions in the regulations annexed, “concerning the laws and customs of war," which protect the person and property of non-combatants and place under protection from confiscation and useless destruction the property of public enemies. Art. 3 of this Convention is thus framed: “The belligerent who shall violate the provisions of this regulation shall be liable for indemnity if there be ground. He shall be responsible for all acts committed by individuals composing his armed force." Unless we must consider this article as a chiffon de papier without value, it means that Germany, vanquished or even victorious, must indemnify our country for all the outrages against the law of nations, imputable to her officers and soldiers, which the reports of the French official commission have stigmatized with such a terrible nomenclature.

And that which it is necessary to remark here is that this sanction, thus introduced into the Hague Convention, which emphasizes its obligatory character, is of German origin. The initiative was taken at the second Peace Conference, and General von Gundell, the German military delegate, to make precise the import of this clause, insisted upon the necessity of placing at the charge of the State the infractions committed by the anonymous crowd which fights under its flag, and to discard in this respect the traditional theory of the faute subjective, according to which the responsibility of the State would only be pledged for the act of its soldiers if a want of care and supervision could be imputed to it.

It is unnecessary to observe that the pecuniary responsibility which the Convention of 1907 has so happily consecrated to the principle does not create any relation de droit between the State which is bound by it and the individuals in the interests of which it exists. These are not able to make application for indemnities, but only the State of which they are the ressortissants and the protégés; it is to this State that belongs exclusively the right to claim legitimate reparation against the State responsible for the injuries of its nationals and of which it will be the sole dispenser.

Two ways are open to the injured State to obtain this redress. They may be either by a Convention entered into with the contravening State; the inscription into the treaty of peace which will mark the end of the hostilities of a forfeited sum destined to indemnify those of its nationals who shall have suffered from a violation of the laws and customs of war formulated in the Conventions of The Hague, and independent of the indemnity or war, properly so called, to which the victor has laid claim. Or there might be an arbitration, a decision by the International Court of The Hague.

All my preferences, I must say, are in favor of this latter solution. It alone is able to assure a la morale the satisfactions demanded for each offense during the war, which our enemies caused to ravage our land. It is not sufficient in effect to make Germany vanquished bear the material ransom of her crimes under the form of a pecuniary contribution. It is necessary that the civilized world should take cognizance of the proceedings in this war, to which Germany has had recourse, and that it should consider the horrors of these. This necessary publicity, this avenging publicity, will be the best sanction of the law of nations insulted. France victorious will have the duty of prosecuting in a solemn international debate, before international judges, whose independence no one will impugn, the process of the Kultur germanique, such as has been revealed in our invaded provinces, and to raise against Germany the requisition of the conscience universal. At The Hague all proofs will be admitted, all testimony will be produced, freely. Nothing will stand in the way of the Berlin Government in discussing and disputing them, of raising doubts, or showing extenuating circumstances. It will be able even to attempt

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