the $1500 goes to the residuary legatees. Young v. Robinson, 99 S. W. Rep. 20 (Mo., K. Č. Ct. App.). See NOTES, p. 483.

LIBEL AND SLANDER PRIVILEGED COMMUNICATIONS - DICTATION TO STENOGRAPHER AND TRANSMISSION BY CABLE. To transmit privileged defamatory information concerning the plaintiff to an interested party in a foreign country, the defendant dictated a letter to a stenographer, who typewrote and copied it. The defendant also sent a defamatory cablegram in a code which could readily be interpreted. Held, that, the communication being privileged, such publications are not actionable. Edmondson v. Birch & Co. & Horner, 23 T. L. R. 234 (Eng., Ct. App., Jan. 14, 1907).

Whether considered as libel or slander, the dictation of unprivileged defamatory matter to a stenographer, being a communication to a third person, is a publication, and actionable. Gambrill v. Schooley, 93 Md. 48. So is a defamatory message written and delivered to a telegraph company for transmission. Monson v. Lathrop, 96 Wis. 386. Nor should business demands justify a different result. See Pullman v. Hill & Co., [1891] 1 Q. B. 524. When, however, the publication to third persons is subsidiary to the communication of privileged information, the mere fact of publication should not, in the absence of bad motive, beget an action. For when the writing and the transmission of the privileged defamatory words are reasonably necessary means of making the communication, the privilege should be extended. Under these circumstances, accordingly, it has been held that publication to a copyist is privileged. Harper v. Hamilton, etc., Ass'n, 32 Ont. 295. Similarly, transmission by telegraph or cable should be privileged. See Robinson v. Jones, 4 L. R. Ir. 391, 396; cf. Williamson v. Freer, L. R. 9 C. P. 393. And, in cases where the privileged matter is to be communicated to numerous interested persons, the protection of the privilege covers even printing and circulation in pamphlet form. Gattis v. Kilgo, 52 S. E. Rep. 249 (N. C.).

LIS PENDENS NATURE AND SCOPE BASIS OF RULE. During proceedings to foreclose a mortgage the intervening plaintiff purchased the property at an execution sale for value and without actual notice. Subsequently the mortgagor filed a cross-bill to have the mortgage cancelled, claiming a lis pendens from the beginning of the foreclosure proceedings. Held, that the lis pendens relative to a cross-bill seeking affirmative relief dates, as against one taking under the plaintiff, from the filing of the cross-bill. Bridger v. Exchange Bank, 56 S. E. Řep. 97 (Ga.). See NOTES, p. 488.

MALICIOUS PROSECUTION PROBABLE CAUSE CONTINUING PROSECUTION AFTER KNOWLEDGE OF INNOCENCE. In a suit for malicious prosecution the court charged that if when the defendants instituted the prosecution they were justified in believing that the accused was guilty, but "if they continued to prosecute it after they had learned that he was not guilty of the charge, or that they had no reason to believe he was guilty of the charge, then the action was without probable cause." Held, that the inquiry as to probable cause relates to the time when the prosecution was commenced, and that the charge was erroneous. Hantman v. Hedden, 31 Pa. Super. Ct. 564.

It has been said that one should be liable who maliciously continues without probable cause a prosecution which another has begun. See Weston v. Beeman, 27 L. J. Exch. 57. But in the case under discussion it was the same person who continued it. The court relied upon the fact that a criminal prosecution is usually conducted by the state's attorney, and that the prosecuting witness has no control. But usually the latter exercises a very real control, and if he urges on the prosecution after ceasing to have probable cause he should be liable. Blunk v. A. T. & S. F. Ry., 38 Fed. Rep. 311. Existing authority reaches a different result when he merely lets the law take its course. Swaim v. Stafford, 26 N. C. 392; Scheibel v. Fairbain, 1 B. & P. 388. But it seems arguable that he owes a duty when he discovers his error to do what he reasonably can to stop the prosecution. Cf. Davies v. London, etc., Ins. Co., 8 Ch. D. 469. In civil suits, however, the complainant has control of the prosecution,

and clearly should not continue without probable cause. But in all cases evidence that probable cause no longer existed should be strong. The evidence offered by the defendant in the first suit cannot be sufficient. Wetmore v. Mellinger, 14 N. W. Rep. 722 (Ia.).

PHYSICIANS AND SURGEONS NECESSITY OF PATIENT'S CONSENT TO OPERATION. A surgeon, by telling his patient that a very slight operation was necessary, induced her to take ether and removed her uterus. Held, that the patient may recover exemplary damages. Pratt v. Davis, 224 Ill. 300. For a discussion of this case in a lower court, see 18 HARV. L. REV. 624.

POWERS GENERAL POWERS - NATURE OF EXECUTOR'S TITLE WHEN APPOINTMENT BY WILL. By the Finance Act of 1894, § 9 (1), estate duty on property which passes to the executor as such is payable out of the residue, whereas estate duty on property not passing to the executor as such is a first charge on the specific property. D, having a general power of appointment over the equitable interest in personalty, exercised it by will. Held, that the appointed property does not pass to the executor qua executor, and that the duty is payable out of the appointed property. Re Dodson, 51 Sol. J. 230 (Eng., Ch. D., Jan. 22, 1907).

For favorable comment upon a contrary holding on this controverted point, see 16 HARV. L. Rev. 376.

RAILROADS

- TITLE TO RIGHT OF WAY-USER BY TELEPHONE COMPANY AS ADDITIONAL SERVITUDE. By condemnation proceedings a railway company acquired the right "to enter upon and occupy" the plaintiff's land for railway purposes. Later the company granted to the defendant the privilege of erecting poles and wires on its right of way for purposes not primarily concerning the railway business. Held, that the plaintiff may maintain trespass against the defendant telephone company. Pittock v. Central District and Printing Telegraph Co., 31 Pa. Super. Ct. 589.

In construing the nature of the estate or interest condemned by railways under the various eminent domain statutes, the American courts arrive at three different results: (1) that the right acquired is an absolute fee; (2) that it is a fee conditioned on the continuance of the user, with a reversionary interest over on abandonment; and (3) that it is essentially like an easement in gross. Prather v. W. U. Tel. Co., 89 Ind. 501; Currie v. N. Y. Transit Co., 66 N. J. Eq. 313; P., F. W., etc., Ry. v. Peet, 152 Pa. St. 488. Confusion results when the second and third theories are not distinguished, and especially when the attempt is made to deduce the nature of the right a priori, instead of interpreting the statutes. If the language of the statute is general, as in the present case, the right condemned should be limited to the requirements of the railway. Newton v. Perry, 163 Mass. 319. For the exercise of the right of eminent domain is in derogation of private rights and should be strictly construed. Lonce's Appeal, 55 Pa. St. 16. Therefore, a right broadly analogous to an easement in gross being sufficient to permit the railway to carry on its business, the court in the case at hand properly allowed the plaintiff, as owner of the fee, to maintain trespass. Cf. Hodges v. W. U. Tel. Co., 133 N. C. 225.

SET-OFF AND COUNTERCLAIM - COUNTERCLAIM AS WAIVING OBJECTION TO JURISDICTION. — A motion to quash a return of service was overruled. The defendants, after excepting, appeared as ordered and pleaded a counterclaim for damages under the contract upon which suit was brought. Held, that the defendants waived their right to question the jurisdiction by pleading a counterclaim. Merchants' Heat and Light Co. v. James B. Clow and Sons, U. S. Sup. Ct., Jan. 28, 1907.

In general, an appearance for any other purpose than to question the jurisdiction of the court gives personal jurisdiction over the defendant. Reed v. Chilson, 142 N. Y. 152. The better view, however, seems to admit the exception to this rule that where an objection to the jurisdiction has been erroneously overruled, it is not waived by a subsequent plea to the merits. Southern Pacific Co. v. Denton, 146 U. S. 202; contra, Stevens v. Harris, 99 Mich. 230. Other

wise the defendant would be forced to submit to the jurisdiction or entirely to forego his right to contest the merits of the plaintiff's claim. No such severe alternative is forced upon him by refusing to extend the exception to a counterclaim pleaded after unsuccessful objection to the jurisdiction, for he is at liberty to leave the determination of the controversy involved therein to a subsequent action. Quick v. Lemon, 105 Ill. 578. By his counterclaim the defendant invoked the positive aid of the court in a transaction which might have been made an independent cause of action, and thereby assumed the position of a plaintiff. Such a stand seems inconsistent with the contention that the court does not have personal jurisdiction. Farmer v. Nat'l Life Ass'n, 138 N. Y. 265.

STATUTES INTERPRETATION - EFFECT OF SPECIAL SAVING CLAUSE ON GENERAL SAVING STATUTE. - The defendant was indicted for paying rebates in violation of the first section of the Elkins Act, which had been superseded by the Hepburn Act. The offenses were committed prior to the enactment of the latter. An express saving clause in the Hepburn Act mentions only pending causes, but § 13 of the U. S. Revised Statutes provides that "the repeal of any statute shall not have the effect to release any penalty incurred under such statute unless the repealing act shall so expressly provide." Held, that the indictment is valid. United States v. D. L. & W. R. R. Co., U. S. Circ. Ct., S. D. N. Y., Feb. 14, 1907.

It has been held that the existence of an express saving clause mentioning only pending causes of action declares by implication that no other causes based on the repealed act may be prosecuted, a general saving statute notwithstanding. State v. Showers, 34 Kan. 269. The reason assigned is that otherwise the special saving clause would add nothing to a general saving statute, while the law seeks to give force and effect to every word and clause in an act. See Opinion of Justices, 22 Pick. (Mass.) 571. But it is hard to believe that Congress intended that all unprosecuted violators of the Elkins Act should be immune from punishment. Further, the general saving statute has provided that in the absence of express contrary legislation, offenders against repealed acts might be punished. The Hepburn Act contains no express provision to the contrary; hence the general saving statute must be applied unless it is repealed by implication. But repeal by implication is looked upon with disfavor, and express legislation must control in the absence of subsequent legislation equally express. Rosencrans v. United States, 165 U. S. 257. This sound doctrine justifies the refusal of the court to recognize an implication opposed to the furtherance of justice, though the result be to stultify the special saving clause.

SURETYSHIP - Defense of OMISSIONS of Creditor-Creditor'S FAILURE TO PROVE IN BANKRUPTCY. - The plaintiffs were indorsees and the defendants indorsers of a promissory note. The maker of the note became bankrupt, and the plaintiffs, having neglected to prove their claim against the estate in bankruptcy, wished to recover their whole loss from the indorsers. Held, that they can recover only the difference between the amount due on the note and the pro rata dividend they would have received had they proved in bankruptcy. Second Nat'l Bank v. Prewett, 96 S. W. Rep. 334 (Tenn.).

It is fundamental in suretyship law that a creditor, as regards the surety, owes in general no duty of affirmative action against the principal debtor. Thus, by the weight of authority, a creditor retains unimpaired his right against the surety, though his own delay has defeated his claim against the estate of a deceased principal. Sibley v. McAllaster, 8 N. H. 389; contra, Siebert v. Quesnel, 65 Minn. 107. So a creditor's failure to exercise his privilege of participating in insolvency proceedings will leave intact his right against the surety. Scholt v. Youree, 142 Ill. 233. The present decision, therefore, is against the decided weight of authority in these analogous cases, as well as in the few cases where the same situation has arisen in connection with bankruptcy proceedings. Clopton v. Spratt, 52 Miss. 251. The general rule first stated is not without exception, however. When the affirmative act called for is trivial, and the injury to the surety consequent upon its omission great, the creditor's failure to act

has been held to relieve the surety. Sullivan v. State, 59 Ark. 47. But proof in bankruptcy involves possibilities too onerous to bring it within this exception.

SURETYSHIP DEFENSE OF OMISSIONS OF CREDITOR - NECESSITY OF NOTICE TO GUARANTOR OF ACCEPTANCE. — At the plaintiff's request the defendant wrote to him a letter guaranteeing payment for any goods A might purchase of him. Goods were then furnished to A by the plaintiff. The defendant's relations with A were such as should have kept him informed as to the transactions between A and the plaintiff. On A's failure to pay the purchase price the plaintiff sought to hold the defendant. Held, that lack of notice of acceptance of the defendant's guaranty is no bar to recovery. Drucker v. Heyl-Dia, 52 N. Y. Misc. 142. See NOTES, p. 485.

SURETYSHIP DEFENSE OF SUSPENSION OF PRINCIPAL OBLIGATION FRAUDULENT Preference to Creditor. — The defendant, with knowledge of the insolvency of the maker of a note, accepted payment. Within four months the maker was adjudicated a bankrupt, and the plaintiff, the trustee in bankruptcy, recovered the payment. Held, that the defendant may recover on the note against the indorser and the sureties. Hooker v. Blount, 97 S. W. Rep. 1083 (Tex., Civ. App.). See NOTES, p. 484.

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TAXATION PARTICULAR Forms of TAXATION TAX WITHIN MEANING OF BANKRUPTCY ACT. — A corporation went into bankruptcy owing the state for its annual license or franchise tax. Held, that the state is entitled to a preference over other creditors, as this is a tax within the meaning of § 64 a of the Bankruptcy Act. State of New Jersey v. Anderson, U. S. Sup. Ct., Dec. 10, 1906. See NOTES, p. 490.

TRUSTS FOLLOWING TRUST PROPERTY EQUITABLE LIENS ARISING FROM UNLAWful Deposit. — A national bank unlawfully received on deposit a large sum of county taxes, mingled it with other deposits, and purchased worthless securities therewith. Into these securities could fairly be traced three-fourths of the county's deposit along with a much larger sum of the bank's own. The bank became insolvent, leaving assets insufficient to meet the county's claim. Held, that the county may get from the receiver the lowest amount continually on deposit during this period and also the entire proceeds of the securities. Crawford Co. Commissioners v. Patterson, 149 Fed. Rep. 229 (Circ. Ct., N. D. Oh., Ē. D.).

Though its reasoning is confused, the court's conclusion is sound. There was in fact an equitable lien on each fund. For a discussion of the true view, see 19 HARV. L. Rev. 511.

WATERS AND WATERCOURSES SUBTERRANEAN AND PERCOLATING WATERS APPROPRIATION OF MINERALS IN SOLUTION. The defendant, by pumping brine from his mine, abstracted salt from the plaintiff's mine. The plaintiff sought to enjoin him and to recover for the salt already withdrawn. Held, that the defendant has committed no actionable wrong. The Salt Union, Ltd. v. Brunner, Mond & Co., [1906] 2 K. B. 822. See NOTES, p. 487.

BOOKS AND PERIODICALS.

I. LEADING LEGAL ARTICLES.

TAXATION OF GROSS RECEIPTS OF INTERSTATE CARRIERS. For over fifty years the Illinois Central Railroad, an interstate carrier, has paid to the state of Illinois, in accordance with stipulations in its charter, five per cent of its gross receipts in addition to the usual property tax. A suit recently instituted by it against the state to recover back a portion of the taxes so paid has

prompted Professor Schofield, of the Northwestern University Faculty of Law, to consider in a recent article the constitutional validity of this form of taxation. The State Tax on Illinois Central Gross Receipts and the Commerce Power of Congress, 1 Ill. L. Rev. 440 (February, 1907).

To the question whether a state may constitutionally levy such a tax on gross receipts the United States Supreme Court has given seemingly contradictory answers. In 1873 it upheld the tax, in State Tax on Railway Gross Receipts. In 1887, in Philadelphia, etc., Steamship Co. v. Pennsylvania, it expressly disapproved the earlier case. And in 1891, in Maine v. Grand Trunk R. R. Co., it apparently returned in part to its original view, holding valid a tax ascertained by multiplying the railroad's average gross receipts per mile over its entire system by the number of miles within the taxing state. The ground taken by the five judges who constituted the majority, that the tax might be supported as an excise, seems unsound, as an interference with the commerce power of Congress. It may, however, be sustained on the theory that, if in lieu of the ordinary property tax and not in excess of it, it was in its essence a franchise tax based on the value of the property within the state.1

Professor Schofield, after stating the question at issue, proceeds: "Viewing it merely as a state law, laying a tax upon gross receipts, and including in the gross receipts those derived from transporting goods and passengers in the way of interstate commerce, the provision [in the Illinois Railroad's charter] is probably bad." This proposition is certainly sound if confined to assessments on gross receipts resulting from interstate transactions as such. But apparently Professor Schofield thinks it constitutionally impossible to devise a state rule for apportioning gross receipts of an interstate road when the haul begins or ends in the state, so as to subject even a part to the taxing power, on the ground that the price paid for an interstate haul is of necessity indivisible. This differs widely, he says, from a tax upon the property of the railroad, in which case the mileage rule of apportionment may be applied for the purpose of fixing the taxable value of the interstate property.

There is undoubtedly some distinction between the two species of taxation. The question is, should this change the result? The Grand Trunk case, while recognizing the distinction, seems to say it is one without a difference in any case where the gross receipts tax is apportioned, and is substituted for a property tax. It is true, that as the Illinois gross receipts tax was not a substitution, but an addition, and was not even apportioned, it does not come within the rule of the Grand Trunk case. Nevertheless the discussion of the subject, in making no reference to the latest utterance on the subject by the United States Supreme Court, is incomplete. The article relies mainly on a dissenting opinion of Mr. Justice Miller in the State Tax on Railway Gross Receipts case. While this is an almost prophetic enunciation of the present-day tendency to extend the power of Congress under the commerce clause, it is of little real authority today. It seems clear that Professor Schofield could have effectively shown the invalidity of the Illinois tax by relying on the Philadelphia Steamship case, which is overruled only in the situation where the tax in question is a substitution for a property tax and is apportioned on some just basis so as to separate as accurately as possible the proportion of gross receipts actually earned within the state.5

RATIFICATION OF AN UNAUTHORIZED CONTRACT OF INSURANCE AFTER THE OCCURRENCE OF Loss. - Of the many unsettled problems in the law of ratification Mr. Frederick T. Case has selected one of the more difficult, and in a recent article has given it what is probably its first thoughtful treatment.

1 15 Wall. (U. S.) 284.

2 122 U. S. 326.

8 142 U. S. 217.

4 Postal Telegraph Cable Co. v. Adams, 155 U. S. 688; see, generally, 17 HARV. L. REV. 248, 261-263.

See Cumberland, etc., R. R. Co. v. Maryland, 92 Md. 668.