The defendant was surety on a building contract which contained a clause providing that the employer might direct changes as the work progressed. A change was made, with the contractor's consent, which, while material, did not affect the fundamental features of the contract. It was held that the clause authorizing changes referred only to minor details of the work and that the surety was discharged. Erfurth et al. v. Stevenson, 72 S. W. Rep. 49. The case applies the general rule that a surety is released whenever the risk assumed by him has without his consent been increased. This principle seems often to have been somewhat confused, in terminology at least, with the entirely distinct doctrine that a surety is discharged if the principal obligation is altered.

The term alteration in this connection is strictly applicable only to actual changes upon the face of a written instrument. See BOUV. LAW DICT. sub tit. Alteration. The general rule regarding alteration is that, if material, it entirely avoids the instrument. Master v. Miller, 4 D. & E. 320, 330. In the case of specialties this rule would seem, in its origin at least, to be based on the technical common law principle that the obligation of a specialty has no existence apart from the document itself. Material alteration of the document would, therefore, be destruction of the obligation itself. Pigot's Case, II Co. 26 b. The courts, however, have finally held that all written instruments are alike avoided by alteration. Master v. Miller, supra. See DE COLYAR, LAW OF GUARANTEES, 3rd ed. 383. This broad rule seems to be founded, not on any technical doctrine, but upon considerations of policy, that an obligee who has altered the instrument, or at least failed to preserve it unaltered, has thus destroyed the best evidence of the obligation, and may not bring forward secondary evidence of its contents against the ever-favored surety. Wood v. Steele, 6 Wall. (U. S. Sup. Ct.) 80. GREENL. EV. 16th ed. § 565. These rules, however, have been relaxed by the courts where the obligee has not acted fraudulently. Croswell v. Labree, 81 Me. 44; see BRANdt, Suretyship, 2nd ed. § 378.

On the other hand, variation of risk as a defense is based merely on the obvious principle that a surety shall not be held to a liability which is unfair or which lies outside his contract. In one class of cases, the defense seems to be available at law; in another, only in equity. The former cases are chiefly those in which the principal debtor and the creditor agree, without the consent of the surety, upon a modification of an original parol contract. If such change in the contract would in any respect increase the surety's risk, he may, under a legal plea, secure a complete discharge. Whitcher v. Hall, 5 B. & C. 269. As an equitable defense, variation seems available in any case in which, though the principal obligation may remain unchanged, a transaction takes place between the principal debtor and the creditor which might operate unfairly as against the surety. Calvert v. London Dock Co., 2 Keen 638. A common example of this is presented by cases in which the creditor releases security which he holds for the principal debt. In applying the doctrine, however, equity will look to the substantial justice of the situation, and will accordingly still hold the surety liable in so far as the transaction complained of could not have caused him damage. Dunn v. Parsons, 40 Hun (N. Y.) 77.

The principal case is clearly one of variation of risk, and, assuming the accuracy of the court's interpretation of the clause regarding changes, the holding that a complete defense exists at law cannot be disputed. As to the question of interpretation, the case is more doubtful. It would seem that the object of the clause was to secure a flexibility very desirable in such

contracts, and that a less strict interpretation might, consistently with fairness to the surety, have more nearly effectuated the intention of the parties. Cf. Drumheller v. Am. Surety Co., 71 Pac. Rep. 25 (Wash.).

COMPENSATION OF ASSISTANT PROSECUTOR BY PRIVATE PARTIES. Under the old common law both in England and America prosecution for crimes was left to counsel employed by private parties except in cases where the state was directly interested. Now, however, statutes giving to public prosecutors exclusive control of prosecution, except for certain minor offenses, are universal throughout the United States. An interesting question arising out of this change was recently discussed in the Montana courts. It was held that a district attorney may during the trial receive assistance from counsel privately employed and compensated. State v. Tighe, 71 Pac. Rep. 3. One judge dissented on the ground that, "The private attorney's client is a stranger to the action. The private attorney represents vengeance. The state's attorney paid by the people is expected to represent justice." Some courts agreeing with this dissenting opinion maintain that to allow privately employed assistants to appear for the state is inconsistent with our theory of criminal prosecution, besides being impliedly prohibited by statutes forbidding the taking of private fees by district attorneys. Biemel v. State, 71 Wis. 444. The weight of authority, however, even where such statutes exist, is clearly in accord with the principal case. State v. Bartlett, 55 Me. 200; Keyes v. State, 122 Ind. 527.

Under the old law compensation necessarily came from private sources in many cases. The private employment of assistant prosecutors was thus proper formerly, and there has been no express prohibition of the practice since. The only question then is whether the change in our system of prosecution for crime has impliedly excluded all private interference and aid. Criminal prosecution is now strictly an affair of the state. It is and always must be under the control of counsel employed by the government, and they as public officers cannot delegate their power. The ideal, it may be said, toward which our law is tending is the elimination of the idea of individual vengeance. The prosecuting attorney should seek the conviction and punishment of the prisoner, not for the satisfaction of the injured persons, but for the protection of society and the effect on the criminal himself. As a representative of the state he seeks the promotion of justice and occupies a position similar to that of the judge. In the management and the withdrawal of prosecutions he has important discretion. That he may be free to act in accordance with justice and the public interests he must remain independent and free from all obligation to the parties interested in securing convictions. The private employment of an assistant, it is urged, will inevitably introduce into the prosecution an undesirable element of partisanship.

In such an argument there is undoubtedly much force. If, however, the official public prosecutor himself is forbidden to receive compensation from private parties, and is left in full control, the policy underlying the statutes would seem to be well satisfied. The interest of the state will then be the paramount influence. All that the private attorney can do is to help forward that interest and so incidentally to satisfy his client. It is desirable that the state's attorney should be allowed to receive all necessary aid that he may successfully prosecute the guilty. Justice is best promoted, not by

a judicial impartiality on his part, but by a vigorous and carefully prepared presentation of his side of the case. It is doubtful, also, whether the theory that the state is the sole party in interest is sound. The injured parties as individuals have surrendered their natural right of punishment to the state, but it would seem that they retain an interest in the state's enforcement of that right. In some measure, then, the prosecutor represents them, and is under an obligation to accept their aid, that their wrongs may be requited and their future protection secured. Such participation cannot be demanded as an absolute right, but it seems desirable that the court should have discretion to allow it at the request of the district attorney.

PAYMENT OF FORGED BILLS BY DRAWEE. — The rule has been laid down, and is regarded as well settled, that a drawee accepts or pays at his peril a forged bill in the hands of a holder in due course. Price v. Neal, 3 Burr. 1354. The most satisfactory explanation of this doctrine yet advanced seems to be that, as between two persons with equal equities, one of whom must suffer, the one having legal title should prevail. See 4 HARV. L. REV. 299. From this explanation writers on quasi-contracts have dissented, urging that the drawee should be allowed a recovery against the holder, as of money paid under a mistake of fact. See KEENER, QUASICONT. 154-158. In support of this latter contention it is pointed out that the holder suffered his loss when he gave value for a worthless piece of paper, and that in retaining the money paid him by the drawee, he simply makes his loss good at the expense of one against whom he has acquired no claim whatever; in short, that the equity of the holder is an equity against his transferrer alone, and thus is not involved in the case at all. This criticism of the theory of " equal equities," as explaining the doctrine of Price v. Neal, seems to proceed on a misinterpretation. There are no equal equities involved, in the sense of equitable claims against the same person in respect to the same res. The doctrine simply means that, as between parties equally meritorious, a legal title will not be disturbed. Both parties have paid out their money under an innocent mistake as to the same fact; but the holder now has legal title to the money he has received or, in case the bill has been only accepted, to the contract obligation to pay. Consequently there is no reason in equity for depriving him of that legal title.

If, however, for any reason the parties are not equally meritorious, the principle does not apply. In a recent Washington case the holder bought without inquiry or identification checks presented by an unknown man. The drawee paid the checks, but was allowed to recover the amount when it appeared that the checks were forged. Canadian Bank v. Bingham, 71 Pac. Rep. 43. The holder's negligence made him less meritorious than the drawee, and hence the case fell outside the doctrine of Price v. Neal. If however both parties are equally negligent, it is difficult to see how the plaintiff can recover.

The cases where the transaction between the holder and the drawee is not a payment but a sale should be carefully distinguished. In such cases the holder impliedly warrants the genuineness of the instrument and should be held to his warranty. Fuller v. Smith, 1 C. & P. 197.

LIMITATIONS ON POWER OF COURT to Direct VERDICT. — In almost every jurisdiction it is stated without qualification that the court will direct a verdict for one party, when, if the jury should find for the other, a new trial would be granted. A remarkable decision recently handed down by the Supreme Court of Missouri shows the extreme result which may be reached by the logical application of this unqualified test. A so-called "magnetic healer" in suing for libel introduced many witnesses who testified that they had been cured by his treatment. On appeal it was held that the trial judge erred in refusing to direct a verdict for the defendant; that where the evidence tends to prove what the court "knows" to be an impossibility, there is no question for the jury, even though a cloud of witnesses swear to it. Weltman v. Bishop, 71 S. W. Rep. 167. Insufficiency of evidence, or lack of credibility of witnesses, is undoubtedly a proper ground upon which to grant a new trial. If the same rule is to apply to the case of directing a verdict, it becomes strictly true that before there is a right to a trial by jury the court must be convinced, taking into consideration the sufficiency of the evidence and the credibility of the witnesses, that there is presented a question upon which reasonable men may differ. See 6 HARV. L. REV. 125.

The courts seem to have drifted into their present attitude on the question of directing a verdict without realizing its contrariety to certain other principles which they have expressly or tacitly recognized at the same time. Owing to the fact that the practice of directing a verdict has succeeded the old demurrer to evidence, it has frequently been stated that in directing a verdict the truth of the evidence and of all reasonable inferences which may be drawn from it is admitted. Schuchardt v. Allens, 1 Wall. (U. S. Sup. Ct.) 359, 370; Mynning v. Detroit, L. & N. R. R. Co., 64 Mich. 93. Furthermore it is often said that the credibility of the witnesses is entirely for the jury. Gannon v. Laclede Gas Light Co., 145 Mo. 502. Again, in the states generally there are statutes forbidding a judge to express any opinion as to the weight of the evidence. See Norris v. Clinkscales, 47 S. C. 4.8. Finally, there is the recognized constitutional right to trial by jury. This constitutional safeguard is of little substantial value if the jury is not to pass upon the weight of the evidence or the credibility of the witnesses. When a new trial is granted, it may be said that there is no denial of this right, for there is another jury trial. The same, however, cannot be urged in favor of directing a verdict, unless the upper court happens to reverse the ruling of the trial court. Furthermore, though the practice of granting new trials may be supported on the ground that it existed at the time the constitutional provisions were adopted, the present practice of directing verdicts, having grown up in the last half-century, cannot be regarded as impliedly recognized by the constitutions.

Because of these objections, the courts, in one state at least, have held that a verdict cannot be directed so long as there is a "scintilla" of evidence for the jury to consider. Cincinnati St. Ry. Co. v. Wright, 54 Oh. St. 181. A more reasonable view is laid down by an early Massachusetts case to the effect that a verdict will not be directed unless the evidence is such that the court would set aside any number of verdicts based upon it. Denny v. Williams, 5 Allen 1. In Wisconsin the courts direct a verdict only when the evidence and all reasonable inferences from it, if true, would not support a verdict as a matter of law. The credibility of the witnesses is entirely for the jury. O'Brien v. Chicago & N. W. R. R. Co., 92 Wis. 340. The most satisfactory rule, however, seems to be that adopted by the federal courts, where the discretion of the judge is not restricted by statute.

When there is doubt as to the weight of the evidence or the credibility of the witnesses, the court may express an opinion and may even go into detail, but the final decision in this respect rests with the jury. Mt. Adams, etc., Ry. Co. v. Lowery, 74 Fed. Rep. 463. In this manner, while trial by jury is preserved intact, yet the jury may be restrained within the bounds of reason. See 21 AM. L. REV. 859.

LIABILITY OF OCCUPIERS OF LAND FOR NEGLIGENCE. It seems to be a commonly accepted opinion that a landowner is exempt, so far as acts upon his own land are concerned, from the general tort liability for damage resulting from want of care. His non-responsibility to trespassers is regarded as illustrative of his general status. On the other hand, his responsibilities to business visitors, licensees, etc., are regarded, not as applications of the fundamental principle that every man must use due care in his acts, but rather as obligations imposed upon the landowner only in exceptional cases. In their efforts to prove certain cases either within or without one of these exceptions, the courts have sometimes drawn confusing distinctions. A social guest, for example, is not entitled to the protection that is accorded to one coming on business, though the former's invitation is often the more apparent of the two, and though the business visitor may be regarded as willing to assume the greater risk. Southcote v. Stanley, I H. & N. 247. On the other hand, the injustice which would result in many cases from denying recovery to a trespasser has led some courts to hold that even to him the occupier of land owes a rather vaguely defined duty of care. Cincinnati, etc., R. R. Co. v. Smith, 22 Oh. St. 227. The turn-table cases are familiar instances of the conflict of opinion in this branch of the law. See Frost v. Eastern R. R., 64 N. H. 220; Keffe v. Milwaukee, etc., R. R. Co., 21 Minn. 207.

The length to which a court may go to fit a case to a rule was illustrated in a recent Maine decision. The plaintiff, who was waiting to enter the defendant's exhibition grounds, was injured by a bullet, owing to the defendant's negligence in the construction of a shooting gallery on the grounds. The court with great difficulty concluded that the plaintiff might be classed as a business visitor on the land, though he was not at the time on the defendant's land, but on a near-by railroad platform. Thornton v. Maine State Agricultural Society, 53 Atl. Rep. 979. The case seems to involve a confusing extension of the class of business visitors; but the result is undoubtedly correct. It is believed that the general confusion in the subject may be avoided by reversing the usual point of view, namely, that the landowner is not liable save in exceptional classes of cases, and regarding him as subject to the ordinary responsibilities for all negligent acts, with such exceptions as public policy, or the circumstances of the case may require. Thus as a matter of policy it may be necessary to the proper enjoyment of land that the owner be not compelled to keep his land in a safe condition for trespassers. Moreover, since trespassers are not ordinarily to be expected, due care under the circumstances may mean little or no care. On the other hand, since the same considerations of policy do not operate to an equal extent as against licensees and business visitors, and since their presence is more or less to be expected, the care required owing to the circumstances is greater, and accordingly the courts impose a greater responsibility. The rules of law applicable to these cases may be regarded as nothing more than