the jury. (Brooks vs. Harrison, 91 N. Y., 83.)

1098. As to communications between mere friends, see Byam vs. Collins, 111 N. Y., 143.

But

§ 1092. Statements made in legislative or judicial proceedings are said to be absolutely privileged, that is, privileged even though made with actual malice. most privileged communications are only conditionally privileged, that is, if actual malice be proved, the defamer is liable; otherwise, not.

§ 1099. If a mercantile agency in good faith communicates to such of its subscribers as have an interest in knowing, statements concerning the standing and credit of some business house, which turn out to be false the communication is privileged. (Ormsby vs. Douglass, 37 N. Y., 477; Sunderlin vs. Bradstreet, 46 N. Y., 188.)

§ 1105. It has been recently held in England that a communication which would be privileged if sent to A, is still privileged if sent to B. (Tompson vs. Dashwood, 11 Q. B. D., 43.)

§ 1107. See Usil vs. Hales, 3 C. P. D., 319.

§ 1109. See Lewis vs. Few, 5 Johns, 1; Davis vs. Duncan, L. R., 9 C. P., 396; Kelly vs. Tinling, L. R., 1 Q. B., 699.

§ 1114. A distinction is drawn in England and in many States between a false accusation against a public man and criticism of acts which in fact he has done ; the latter is permitted, but not the former. This is the rule in New York. (Hamilton vs. Eno, 81 N. Y., 116.) But in some States words spoken without malice of a public man with belief in their truth, and for the sole purpose of advising electors of what was believed upon reasonable grounds to be the true character of the public man, are privileged. (Bays vs.

Hunt, 60 Ia., 251; and see 31 Kan., 465; 49 Mich., 358.)

§ 1116. Slander is divisible into slander per se, and slander with special damage; the latter requires proof of special damage resulting from the defamation, in order to support an action; the former is actionable without such proof.

Of slander per se there are three forms: (1.) Charge of a crime involving moral turpitude. (Young vs. Miller, 3 Hill, 21.) This is the usual statement of the law in this country, but in England it is slander to charge a man with any criminal offence, whether it involve moral turpitude or not. (Webb vs. Beaver, 11 Q. B. D., 609.)

(2.) A charge of having certain contagious diseases, as leprosy or a venereal disease, but not of having had such diseases. A charge of having the itch or small-pox is not slander per se.

(3.) A charge tending to injure a man in his office, trade, occupation, profession or employment. It must directly relate to the trade, profession, etc., and he must be engaged in his profession, etc., at the time of the alleged slander.

In slander with special damage, the damage must be pecuniary or temporal, and be the proximate consequence of the speaking of the words. (Chamberlain vs. Boyd, 11 Q. B. D., 407; Terwilliger vs. Wands, 17 N. Y., 54.)

§ 1137. As to slander of title, see Dodge vs. Colby, 108 N. Y., 445.

§ 1146. A plea of justification, i. e., that the charge is true, must be proved fully and completely to avail as a defense. Formerly, if the evidence failed to prove it, this failure would enhance the damages; but, generally, now-a-days, statutes have changed this rule and allow circumstances tending to prove the truth of the charge to be pleaded by way of mitigating the

damages. Such is the case in New York. (Willover vs. Hall, 72 N. Y., 36.)

§1147. In civil actions for libel or slander the defamatory statement must be proved to have been published to one or more third persons; but in criminal cases of libel it is a sufficient publication to make the charge known only to the man himself who is defamed. This is because it tends to provoke retaliation and so cause a breach of the peace; but the theory as to civil libel is that it must be a wrong done to a person's reputation.

§ 1171. In criminal libels the old maxim was "the greater the truth, the greater the libel," because it was considered that if the charge were true it would be more likely to provoke retaliation than if it were false, since in the latter case it might be disregarded as powerless to injure. But in modern times the truth is generally declared a defense in criminal cases of libel, but only if published from good motives and for justifiable ends. This is the rule in New York. But in civil cases

the truth is always a defense, whatever be the motives of publication.

INFRINGEMENTS ON RIGHTS INCIDENTAL TO

LAND.

§ 82. Some States adopt the rule of the civil law as to surface waters, but in New York and several other States this doctrine is modified. Thus in New York, a lower proprietor may lawfully, when acting in good faith, and for the purpose of improving and cultivating his lands, fill them in, although by so doing he prevents the passage of the surface water thereon, to the injury of the upper proprietor, on the principle that surface water is a common enemy, which each proprietor may fight off as best he can. (See Barkley vs. Wilcox, 86 N. Y., 140; also Peck vs. Goodberlett, 109 N. Y., 180.) This rule is

adopted in New Hampshire, Massachusetts, New Jersey and Wisconsin, while the rule of the Roman law prevails in Pennsylvania, Illinois, California and Louisiana.

§ 84. See Dorrity vs. Rapp., 72 N. Y., 307; but a right of support for a house may be gained by prescription after 20 years. (Transportation Co. vs. Chicago, 99 U. S., 635.)

§ 85. The case of Brown vs. Robins, cited in the text, is contradicted by Gilmore vs. Driscoll, 122 Mass., 199, where it is held that damages will not include any injury to the buildings.

§ 89. See Bentice vs. Geiger, 74 N. Y., 341; Elliott vs. Fitchburg R. Co., 10 Cush.,

19.

§ 94. As to percolating waters and the right to make use of them, see Bloodgood vs. Ayres, 108 N. Y., 400; Johnston Mfg. Co. vs. Veghte, 69 N. Y., 16.

95. This doctrine of absolute liability for artificial collections of waters has been disapproved in this country in New York, New Jersey and some other States. (Losee vs. Buchanan, 51 N. Y., 476; Marshall vs. Welwood, 9 Vroom (N. J.), 339.) The rule in these States is that the person collecting the water is not liable unless he can be proved guilty of negligence. But Massachusetts favors the English rule.

NUISANCE.

§ 217. A nuisance may be defined, in its general sense, as any unreasonable or unwarrantable exercise by a man of his own rights and privileges so as to cause undue annoyance or detriment to others in the enjoyment of their rights and privileges. It is public when it interferes with public rights, as an obstruction of a highway or navigable river, or an injury to public health, public morals, public safety, etc.; private, when it violates private rights,

as by causing special annoyance or damage to an individual. A public nuisance also becomes private when it occasions special damage to a private person. There may then be both a private action and a public prosecution. If a nuisance affects the private rights severally of a number of persons, this does not make it public, but it is a private nuisance as to each of them. (Francis vs. Schoelkopf, 53 N. Y., 152.) §§ 220 and 221. See Campbell vs. Seaman, 63 N. Y., 568.

§ 222. A coal hole made in the highway without municipal permit by the landlord

is a nuisance, and a lessee of the premises in that condition who continues the use of the coal hole is liable, with the landlord, for an injury received by a person in falling into the hole. (Irvine vs. Wood, 51 N. Y., 224.) But if the coal hole were made by permit, it is not a nuisance, and liability for injuries caused by it must then be based upon the negligence of the person using it to keep it in safe condition. (Jennings vs. Van Schaick, 108 N. Y., 530; Wolf vs. Kalbfleisch, 101 N. Y., 246.)

COMMENTARIES ON THE NON-CONTRACT LAW, and especially as to Common Affairs not of Contract or the Everyday Rights and Torts. By Joel Prentiss Bishop, J. U. D. (Berne). Chicago, T. H. Flood and Company, 1889.

The purpose of this work is to set out in compact form and condensed language, substantially after the manner of the author's former work on Contracts, the common-law reasonings and the conclusions of the courts upon the subject of its title.

"Non-Contract" Law is a hitherto unknown division in the field of legal science, but the term is an appropriate and useful one. Its sphere extends beyond "Torts," which it includes, to whatever else is within a group of fundamental legal principles regulating things not bargained about. The book accordingly contains, in addition to the chapters on ordinary "torts," as Assault and Battery, Nuisance, Negligence, Slander and Libel, Conspiracy, &c., such special chapters as those on Teacher and Pupil, Street Car Travel, Sending Parcels, Hotels and Board

ing Houses, Dogs, Hunting and Fishing, Sports and Pastimes, and others of a miscellaneous nature. Mr. Bishop's style is very pleasant, and his work is throughout instructive, frequently entertaining, and occasionally even amusing.

A SUMMARY OF THE COMMERCIAL LAW OF THE UNITED STATES, with Business Forms and Practical Suggestions. By L. K. Mihills, LL. B. Des Moines, Iowa, The Mills Publishing Co., 1889.

This work is an attempt to state, in a single volume of 800 pages, the entire body of both the common and the statute law, substantive and adjective, at present prevailing in the United States. It is care

fully and not unskillfully compiled, and, although the very nature of the work renders it in many respects incomplete or one-sided, its merits are worthy of notice. It is of course not to be expected that a work of so small a compass, designed for popular use. and which "avoids the discussion of disputed questions," (of which that consummately perfected product of

A TREATISE ON THE LAW OF COMMERCIAL PAPER. By Christopher G. Tiedman, A.M., LL. D. St. Louis, The F. H. Thomas Law Book Co., 1889.

The interest which Columbia Law School students will take in this new work of Prof. Tiedeman, will doubtless be enhanced by the fact that it is dedicated by the author to the Hon. Theodore W. Dwight, and they will, with us, be pleased to find that it is a worthy tribute to their talented and honored teacher. For an outline of the scope and nature of the book, the reader is referred to our advertising columns. The author's claim that his is the only one volume work upon this subject, of so comprehensive a character, is fully sustained by its contents. There are, to be sure, many treatises on Bills, and on Bills and Notes, in which that position of the subject of Commercial Paper is more or less fully treated; but none on Commercial Paper as a whole, a term which includes all instruments of indebtedness which are used in the commerce of the world as representatives of money, or which are given the characteristics of money in the furtherance of commercial ends. This field is fully covered in the treatise before us, and we believe the work to deserve a prominent place upon the lawyer's book case.

THE CONSTITUTIONAL AND POLITICAL HISTORY OF THE UNITED STATES. By Dr. H. Von Holst, Professor at the University of Freiburg. Translated from the German by John J. Lalor. 1856-1859. 1856-1859. Buchanan's Election-End of 35th Congress. Chicago: Callaghan and Company, 1889.

The sixth volume of this great work has been eagerly awaited for some time. Covering though it does a period of less than three years, it is safe to say of this, as of its predecessors, that its substantial bulk of 350 pages contains not one dull paragraph. In fact, the most striking merit of the work to the casual reader, especially striking for the contrast it presents to the vast majority of German historical treatises, is the clearness and vigor of its language, rising, oftentimes, to genuine eloquence as in the brief narrative of Lincoln's early life in this volume, and it is a satisfaction to find these excellencies of style faithfully rendered in the translation. But, after all, its great reputation rests not on its brilliancy of diction, but on that thorough mastery of details which we naturally expect in a product of German scholarship, and, still better, upon the convincing logic with which all the facts are marshalled to prove, through seven large volumes, the great thesis of the "irrepressible conflict" between slavery and free institutions. It is these qualities which make it the most essential aid to any but the merest superficial study of our history.

CONSTITUTIONAL HISTORY OF THE UNITED STATES, from their Declaration of Independence to the Close of the Civil War. By George Ticknor Curtis. Two volumes. New York: Harper and Brothers. 1889.

Of an order of merit, certainly equal to that of the great work of Mr. Holst, is

Mr. George Ticknor Curtis' new book upon the same subject. To most American readers the latter work will, we think, be the more acceptable of the two; for while it is shorter, it is no less comprehensive, and its tone is more in sympathy with American institutions, and more flattering to our ideas of our national prominence and importance. The first volume, which is shortly to be followed by a second and last, is substantially a reprint of the author's "History of the Origin, Formation and Adoption of the Constitution of the United States," published some thirty years ago. As this work is an accepted standard upon the subject with which it deals, further comment upon it is unnecessary.

fact-a fact of no little importance to law students-that its price has been reduced from twenty dollars to twelve dollars, an announcement which will doubtless be hailed with pleasure by many of our deserving but perhaps impecunious young readers.

RIGHTS, REMEDIES AND PRACTICE AT LAW, IN EQUITY AND Under the CodeS. A Treatise on American Law in Civil Causes, with a Digest of Illustrated Cases. By John D. Lawson. Seven volumes. San Francisco Bancroft Whitney Company. 1889.

It is certainly an ambitious undertaking, to attempt to present a complete view of American Law on every species of right and remedy, of action and defense, both at law and in equity, within the compass of a single work, and under the guidance of a single hand. Yet such is the endeavor of the present work, and, judging from the first two volumes, which have just appeared, it looks as if the endeavor were going to be crowned with reasonable success. It is of course impossible for such a work as this to cite all the decided cases upon all the topics with which it treats; but the citation of authorities is, nevertheless, very full, and—as far as we have examined the work-none of the leading, or best considered cases have been omitted.

BICYCLE RIDING-LAW OF THE ROAD.-1. In an action for damages, allegations that defendant negligently and carelessly rode his bicycle in the centre of the road at the rate of fifteen miles an hour, up to within

twenty-five feet of the faces of plaintiff's horses, whereby they became frightened, are not sufficiently specific as to defendant's negligence, where the negligence sought to be charged is in the manner of