with the purchaser. Williams v. Donnelly, 74 N. W. Rep. 601, 605 (Neb.). Starr v. Haskins, 26 N. J. Eq. 414. Even in jurisdictions which repudiate the general principle that an innocent purchaser of a non-negotiable chose in action takes free from latent equities, the same result is reached on the ground that the assignor is estopped. Moore v. Moore, 112 Ind. 149; Moore v. Metropolitan Bank, 55 N. Y. 41 The contrary decisions seem to confuse equitable defences of an obligor with equities of persons other than an obligor. See Cutts v. Guild, 57 N. Y. 229. Against the obligor, to be sure, an assignee stands in the shoes of his assignor. But since he gets a legal right by his assignment, against equities of third parties he should be protected. 1 HARV. L. REV. 7. The principal case therefore seems unsound. It was decided on New York authority: Bush v. Lathrop, 22 N. Y. 535; Cutts v. Guild, 57 N Y. 227. But the court seems not to have noted the previous decisions the other way in its own jurisdiction; nor that the New York cases relied on have been much modified if not overruled. Silverman v. Bullock, 98 Ill. 11; Himrod v. Gilman, 147 Ill. 293; Humble v. Curtis, 160 Ill.193; Merchants Bank v. Weill, 163 N. Y. 436. The decision is more. over to be regretted from the standpoint of business convenience.

The

EQUITY RIGHT TO PRIVACY. INJUNCTION - A flour company published lithograph portraits of a young woman as a trade advertisement without her consent. plaintiff asked for an injunction and for damages. Held, that she has no cause of action. Roberson v. Rochester, etc., Co., 171 N. Y. 538. See BOOKS AND PEriodicals, p. 72. EQUITY TRADE Libel- RESTRAINING PUBLICATION BY INJUNCTION. The defendant, editor of a magazine, published fictitious letters containing false statements derogatory to the plaintiff's goods. Held, that a bill for an injunction stating the above facts is demurrable. Marlin Fire Arms Co. v. Shields, 171 N. Y. 384. For a discussion of this case after the contrary decision of the Supreme Court, see 15 HARV. L. REV. 734.

INSURANCE. BENEFIT Societies EFFECT OF CONTRACT TO NAME AS BENEFICIARY. A member of a benefit society took out a certificate naming his sister as beneficiary. Later, by an ante-nuptial contract, he agreed to substitute his intended wife as beneficiary; but he died before fulfilling the agreement. The association filed a bill of interpleader against the sister and the widow. Held, that the widow is entitled to the proceeds of the insurance. Pennsylvania, etc., Co. v. Wolfe, 52 Atl. Rep. 247 (Pa.).

In general, no change of beneficiary under such a policy is effectual unless the rules of the society are strictly complied with. Holland v. Taylor, 111 Ind. 121. In three well-defined classes of cases, however, where the insured has attempted to procure a change, but without fully complying with the rules, the courts sustain the change. Manning v. Ancient Order, etc., 86 Ky. 136; Grand Lodge, etc., v. Child, 70 Mich 163; Hirschl v. Clark, 81 Ia. 200. The present case goes further in giving effect to a change merely contracted for. The decision, however, though novel, seems sound. Contrary to the usual rule as to life insurance policies, a change of beneficiary in policies of benefit societies can be made without the consent of the person already named. Masonic, etc., Society v. Burkhart, 110 Ind. 189. The sister, therefore, before the death of the insured, had no vested interest of which the agreement to substitute the wife as beneficiary could defraud her. See Hoeft v. Supreme Lodge, etc., 113 Cal. 91. Being, moreover, a mere volunteer, she has no standing in equity as against one who has given value. Support is given to the decision by the cases found most nearly in point. Leaf v. Leaf, 92 Ky. 166; see also Jory v. Supreme Council, etc., 105 Cal. 20. It is further supported by the closely analogous cases of unfulfilled agreements to give legacies. See Riley v. Allen, 54 N. J. Eq. 495.

INSURANCE VALUED POLICY ON SHIP-INSURER'S LIABILITY FOR GENERAL AVERAGE AND SALVAGE CHARGES.—The vessel was valued at £33,000, and was insured for that amount. She incurred general average and salvage charges of £530, which were assessed on a valuation of £40,000. Held, that the insurers are liable for only thirty-three fortieths of the charges. S. S. Balmoral Co. v. Martin, 18 T. L. R. 802 (Eng. HL).

Authority on the question is meagre. The case is supported by an early Massachusetts decision, but the New York and Federal Courts hold the insurer liable for the entire charges. Clark v. United Fire, etc., Co., 7 Mass. 365; Providence, etc., Co. v. Phenix Ins. Co., 89 N. Y. 559; Internat. Navig. Co. v. Atlantic, etc., Co, 100 Fed. Rep. 304. Cases of particular average on cargo are to be distinguished. The reason for using in those cases a formula similar to that employed here, is that the value of the cargo is subject to great fluctuations, and the owner is not insuring his profits, but merely securing himself against actual loss. See Lewis v. Rucker, 2 Burr. (Eng.) 1167. The

value of the ship, on the other hand, is practically constant, so that the reason for applying this formula disappears in such a case. See 2 ARNOLD, MARINE INS., § 1023. The court rests the decision on the ground that an owner who undervalues his ship is to be treated as an insurer for the excess of the actual worth over the policy value. But the rule of the New York and Federal Courts seems better adapted to the purpose of insurance, which is to protect the owner against all loss, up to the amount of his policy.

INTERNATIONAL LAW-GOVERNMENT CONTRACT — MINISTER AS PLAINTIFF. A shipbuilding firm contracted with A, B, C, D representing X, Minister of Marine of Spain. The ships contracted for were not delivered in time: and E, F, G, H, representing J, now Minister of Marine, sue. Held, that the suit is well brought. Castaneda v. Clydebank Engineering, etc., Co., Ltd., 18 T. L. R. 773 (Eng., H. L.). See NOTES, p. 60.

MANDAMUS-DIRECTED AGAINST EXECUTIVE- MINISTERIAL ACTS.-The governor of the State refused to fill a vacancy in the office of lieutenant-governor, by appointment, as directed by statute. Held, that mandamus will lie to compel an appointment. State ex rel. v. Nash, Governor, 64 N. E. Rep. 558 (Ohio)

A small majority of State courts wholly refuse to issue a mandamus against the governor, for the reason that executive functions should be free from judicial control. People ex rel. v. Governor, 29 Mich. 320. Some duties of the governor, however, in which no discretion is involved and the method of performance is fully prescribed by law, are wholly ministerial, and accordingly many courts will issue a mandamus in such cases. Martin, Governor, v. Ingham, 38 Kan. 641. See Marbury v. Madison, I Cranch (U. S. Sup. Ct.), 137. While this doctrine seems sound, it obviously should be applied with caution. The court in the principal case sought to conform its action to this doctrine, by leaving the selection of an appointee to the unrestrained discretion of the governor, and decreeing merely that some appointment be made. Such a splitting up of a single duty, however, compelling the governor to use his discretion, and yet attempting to leave that discretion perfectly free, goes beyond the reason and authority of previous cases, and is too subtle to be safely followed

MUNICIPAL CORPORATION-GRANT OF LIGHTING FRANCHISE-COMPETITION BY CITY. A state statute authorized cities to erect electric lighting plants, with a proviso that the right might be delegated. The plaintiff company was chartered by a city to erect and maintain such a plant for twenty years. Before the expiration of this time the city council voted to erect a municipal plant, to be maintained in competition with plaintiff. Held, that this is an act under state authority, impairing the obligation of a contract. Southwest Mo. Light Co. v. City of Joplin, 113 Fed. Rep. 817 (Circ. Ct.,

W. D. Mo.).

The court argues that in a grant of a franchise to operate in a certain field, there is implied a promise not to impair the value of that field by competition. But it is a wellrecognized rule that public grants are construed strictly against the grantee. Ap peal of Scranton Electric, etc., Co., 122 Pa. St. 154. An intention to grant an exclusive privilege will not be attributed to the governing body, except upon clear evidence. See Jersey City, etc., Co. v. Consumers' Gas Co., 40 N. J. Eq. 427. In the case relied upon by the court as authority for its decision, there was an express provision in the contract, that the city should not build during the term of the grant. Walla Walla Water Co. v. City of Walla Walla, 60 Fed. Rep. 957. Where there is no such provision, the grant has usually been construed as not exclusive. Hamilton, etc., Co. v. City of Hamilton, 146 U. S. 258. It would seem, therefore, that this grant should include merely a right to supply such customers as the company can attract by superior

service.

MUNICIPAL CORPORATION - NEGLIGENCE IN MAINTAINING DRAINS — INJURY TO HEALTH AND PROPERTY. A drainage ditch constructed by a municipal corporation became through negligence so obstructed that it repeatedly overflowed the plaintiff's adjoining premises, and caused damage to his property and illness in his family. Held, that the plaintiff could recover for injury to his property, but not for damage on account of the illness of himself or family. Williams v. Town of Greenville, 130 N. C. 93.

It is well settled that a municipal corporation is not liable for damages caused by acts performed in its governmental capacity as distinguished from its corporate or ministerial capacity. Fire Ins. Co. v. Village of Keeseville, 148 N. Y. 46. The court considered the care of a drain an act done in governmental capacity, but nevertheless allowed recovery for injury to the property, regarding it as within the constitutional prohibition against taking property without compensation. The care of a drain,

however, is, by the better view, a ministerial duty, and the city's liability is based on the failure to perform it properly. Bates v. Westborough, 151 Mass. 174, 183; Hession v. Mayor, etc., of Wilmington, i Marvel (Del.) 122. The distinction made by the court in the principal case between injury to property and injury to health seems not well taken. True, it has been held that one cannot recover for an injury to health when the injured person suffers only as a member of the public. Hughes v. City of Auburn, 161 N. Y. 96. But when, as in the principal case, the plaintiff can show a trespass as a basis for his action, he can recover also consequential damages caused by injury to health. Allen v. City of Boston, 159 Mass. 324.

PLEADING-DEMURRER TO BILL IN EQUITY — ADMISSION OF TRUTH OF FACTS WELL PLEADED The State of Kansas filed a bill in equity to restrain the State of Colorado from diverting the waters of the Arkansas River to the detriment of the inhabitants and public institutions of the complainant State. Held, that a demurrer to the bill will not be regarded as admitting the truth of the facts well pleaded, but shall be overruled with leave to the defendant to answer. Kansas v. Colorado, 22 Sup. Ct. Rep. 552.

The rule has heretofore been well settled that a demurrer to a bill in equity admits the truth of all material facts, properly pleaded. Interstate Land Co. v. Maxwell, etc., Co., 139 U. S. 569; Gage v. Bailey, 115 Ill. 646. This rule was not followed in the p. ncipal case for the reason, as the court seems to imply, that certain facts stated in the bill, if admitted, would have defeated the relief sought. The court cites no authority to support this holding, but bases it entirely upon the ground that important questions are involved, and that the opposite ruling would result in hardship to the complainant. The decision may be accounted for upon the ground that equity pleading is somewhat more flexible than pleading at law. It is, undoubtedly, desirable that a case of so great importance should be tried upon its merits. However, this result could have been reached by sustaining the demurrer and allowing the complainant to amend his bill,— a course that would not have involved so radical a departure from the well-settled rules of pleading. See Schneider v. Lizardi, 9 Beav. 461, 468; I. DANIELL, CHAN. PRAC., 6th ed. 544.

PROCEDURE REVERSIBLE ERROR - PREJUDICIAL REMARKS BY COURT. — The court, in overruling a motion for a continuance supported by affidavits of the defendant and his counsel, imputed to them perjury, and accused them of an attempt to bolster up their cause by securing false testimony. Held, that the remarks, being overheard by the jurors, constitute reversible error, though the jury had not at the time been empanelled. Allen v. United States, 115 Fed. Rep. 3 (C. C. A., Ninth Circ.).

The general rule is that a party who knows of any prejudice entertained by a juror and makes no challenge when the jury is empanelled, is deemed to have waived his right. Lisle v. State, 6 Mo. 426; and see Fox v. Hazelton, 10 Pick. (Mass.) 275, 278. It is well known that jurors attribute great weight to any remarks, bearing upon the facts, made by the court. And undoubtedly the remarks of the court in the principal case so prejudiced the jurors as to render them wholly unfit to serve, and constituted cause for challenge. Yet it is probable that a court after making such remarks would have overruled any objections to the jurors on the ground of bias so created. And while the defendant might have carried the case up regularly on exceptions to such ruling, yet it would seem only proper, where the trial court has been so obviously unfair, that it should be reproved and the defendant fairly dealt with by the grant of a new trial. The cases are to this effect. Bowman v. State, 19 Neb. 523; Peeples v. State, 103 Ga. 629.

PROPERTY-COVENANT NOT TO ASSIGN LEASE WITHOUT CONSENT OF LESSOR -EFFECT OF MORTGAGE BY LESSEE. A lease contained a covenant against assignment without the lessor's consent, with a condition for re-entry in case of breach. The lessee, without such consent, mortgaged the lease as security for a debt. Under Michigan law a mortgage has the effect of a lien. Held, that the condition is not violated. Crouse v. Michell, 90 N. W. Rep. 32 (Mich.).

The well-known hostility of the courts towards conditions imposing forfeiture leads to a uniformly strict construction of all such covenants. Thus the particular covenant against assignments is held not to include involuntary transfers. Farnum v. . Hefner, 79 Cal. 575. Similarly it is held not to be violated by an agreement to assign, or by a bond for conveyance, or by an equitable mortgage. Bristol v. Westcott, 12 Ch. D. 461; Mayhew v. Hardesty, 8 Md. 479; Doe d. Pitt v. Hogg, 4 D. & R. 226. A like result has been reached in other cases where for various reasons the lessee's acts have failed to pass his entire legal interest. See Croft v. Lumley, 6 H. L. Cas. 672; Doe d. Lloyd v. Powell, 5 B. & C. 308. The effect of the decisions is thus to limit the scope of the covenants to direct voluntary assignments of the legal estate. The principal

case harmonizes with this distinction and reaches a correct result. The same view has been adopted in New York where the lien theory of mortgages is accepted. See Riggs v. Pursell, 66 N. Y. 193. On the other hand, under the common law view of mortgages, the transfer would seem necessarily to be construed as a violation of the covenant; and such was, in fact, the decision in Becker v. Werner, 98 Pa. St. 555

PROPERTY PLEDGE OF MEMBERSHIP IN A STOCK EXCHANGE. — The defendant's intestate pledged his membership in the stock exchange to the plaintiff, as collateral security for a note The seat was transferable only to some one who had been elected to the exchange. After the death of the intestate, the seat was sold, and the plaintiff claimed a lien on the proceeds of the sale. Held, that the plaintiff can recover, since the seat is property and can be pledged. Nashua Sav. Bank v. Abbot, 63 N. E. Rep. 1058 (Mass.)

The case is in accord with the great weight of authority. Hyde v. Woods, 94 U. S. 523; Londheim v. White, 67 How. Pr. 467; Fish v. Fiske, 154 Mass. 302; Habenicht v. Lissak, 78 Cal. 351. In Pennsylvania, however, garnishee process against the members of the exchange was denied, and the court declared that a seat on an exchange was not property subject to execution in any form. Pancoast v. Gowen, 93 Pa. St. 66. The Supreme Court of Illinois has adopted the same view, reiterating that such membership is merely a personal privilege, or license to buy and sell on the floor of the exchange. Barclay v. Smith, 107 Ill. 349. The ground of these latter decisions seems to be that the owner has not an absolute power to dispose of the seat. The rule of the principal case is clearly much to be preferred. True, the owner's power of disposal is qualified; but it is hard to see why that should be decisive. The seat is a valuable asset, and should not be withheld from the owner's creditors by mere force of a narrow and inadequate definition of property.

TAXATION-EXEMPTIONS-LEASED PARSONAGE. A parsonage was rented to an outsider and the income derived therefrom was appropriated to the salary of the pastor, who for his own convenience had rented a residence in another locality. Held, that under the provisions of the Constitution of South Carolina, art. 10, § 4, relating to exemptions, the parsonage was not liable to taxation. Protestant Episcopal Church, etc, v. Priolean County Auditor, 40 S. E. Rep. 1026 (S. C.).

Under the varied legislative provisions exempting from taxation the property of religious, educational, and charitable institutions, a proper and almost uniform result has been attained by the courts in holding that the property of such institutions shall cease to be exempt when it is occupied for purposes other than those directly connected with their objects and work, and that property used for revenue solely is subject to be taxed. President, etc., of Harvard College v. Assessors of Cambridge, 175 Mass. 145; see 19 L. R. A. 289. In the principal case the court reached an opposite result by holding, first, that the constitution does not except from exemption a parsonage used otherwise than as a pastor's home; and, secondly, that the property, though rented, was nevertheless a parsonage within the meaning of the exemption clause. Whether or not one can agree with the court, on the second point, it seems evident from an examination of the constitution, that the intention there manifest, that a parsonage shall not be exempt when it ceases to be used as a parsonage, finds sufficient expression in the rather obscure language employed.

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TORTS DUTY OF LANDLORD to Notify TENANT OF HIDDEN DANGERS IN LEASED PREMISES. The tenant was injured by the fall of a chimney, carelessly left by the landlord in a dangerous condition, the danger being known to the landlord and neither patent nor known to the tenant. Held, that since the lease contains no express or implied promise that the premises are safe, the tenant cannot recover. Land v. Fitzgerald, 52 Atl. Rep. 229 (N. J.).

A landlord knew of the presence of sewer gas in the leased premises. He failed to disclose the fact to the tenant, and the latter, being ignorant of it, was injured by the gas. Held, that the landlord is bound to notify the tenant of hidden dangers of whose existence he knows. Sunasack v. Morey, 196 Ill. 569.

A third view of the legal status of the tenant in cases of this kind is adopted by the Supreme Court of Tennessee, which gives him the rights of one on the premises by invitation, imposing on the landlord the duty of making reasonable examination to discover hidden defects. Hines v. Willcox, 96 Tenn. 148. The rule adopted by the Illinois court making his rights similar to those of one on premises by the license of the owner, seems to be supported by the weight of authority. Cowen v. Sunderland, 145 Mass. 363; Cesar v. Karutz, 60 N. Y. 229. This view appears the more reasonable. The fact that the prospective tenant is, from his situation, thrown on his guard, and that he may protect himself by the terms of his lease, may properly put on him

the burden of the examination, for defects not known to the landlord. But when the landlord is aware of hidden dangers, the fair rule is to require him to inform the tenant. The New Jersey Court treats the action as if founded on an implied promise instead of tort. The two authorities cited in the case do not justify the decision, for in both the tenant himself had actual knowledge of the danger. Clyne v. Helmes, 61 N. J. Law 358; Mullen v. Rainear, 45 N. J. Law 520.

TORTS LIBel· PRIVILEGE DEPENDENT UPON USE OF DUE CARE. - The defendant, a mercantile agency, received a report from an agent, that the plaintiff had made an assignment to secure the assignee for indorsing a note. The agency, in a notice sent to its subscribers, stated that the plaintiff had made an assignment for the benefit of his creditors. Held, that the continuance of the privilege arising from the occasion is dependent upon the exercise of due care in forwarding the information. Douglass v. Daisley, 114 Fed. Rep. 628 (C. C. A., First Circ.).

It is generally assumed that a conditional privilege may be rebutted only by proof of actual malice. Clark v. Molyneux, 47 L. J. Rep. C. L. 230; POLLOCK, TORTS, 6th ed., 260, 268. In practice this view is favorable to the defendant, as it is difficult to prove the existence of malice. To offset this advantage on the part of the defendant, it has been held in some American jurisdictions, that absence of reasonable cause for belief in the truth of the publication will destroy the privilege. Carpenter v. Bailey, 53 N. H. 590; Express, etc., Co. v. Copeland, 64 Tex 354. The holding in the principal case seems to be in accord with this rule, reasonable ground for belief being dependent upon the exercise of reasonable care in ascertaining the truth of the subject matter of the publication. See Toothaker v. Conant, 91 Me. 438. The decision finds support in the closely analogous cases dealing with reports of judicial proceedings, which are privileged if fair and honest. Usill v. Hales, 3 C. P. D. 319. It seems reasonable that the right arising from a privileged occasion should be lost if carelessly or unreasonably exercised. On principle, therefore, the decision appears correct.

TORTS MALICIOUS PROCUREMENT OF EMPLOYEE'S DIscharge. - The defendants, who were officers in labor unions, combined to prevent the plaintiffs, who were members of a rival organization, and who were employed from day to day, from being employed upon any building upon which the defendants' men were working, and in several instances procured the plaintiffs' discharge by threat of a strike. Held, that the defendants could not be enjoined from so doing. Nat. Protective Ass'n, etc., et al. v. Cumming et al., 170 N. Y. 315

The appellant corporation, on account of the appellee's refusal to compromise a claim against it, procured his discharge by threatening to cancel a policy held by his employer in the appellant corporation. Held, that the appellee could recover the damages suffered by reason of his discharge. London Guarantee, etc., Co. v Horn, 101 Ill. App. 355. For a discussion of the questions involved, see 15 HARV. L. REV. 402; 8 HARV. L. REV. I.

TORTS -- MALICIOUS PROSECUTION OF CIVIL SUIT. - Held, that an action will lie for the malicious prosecution of a civil suit where there has been no arrest of the person nor seizure of property. Wade v. National Bank, etc., of Tacoma, 114 Fed. Rep. 373 (Circ. Ct., Wash.). For a discussion of the question involved, see 12 HARV. L. REV. 358.

TRUSTS DISTRIBUTION BETWEEN LIFE TENANT AND REMAINDERMAN. — - A corporation whose shares were held in trust, instead of declaring dividends laid by its earnings in the form of a surplus. The trustee sold the stock. Held, that the increase in price due to earnings made by the corporation during the life tenancy is income and goes to the life tenant. Simpson v. Millsaps, 31 So. Rep. 912 (Miss.). See NOTES. P. 54.