of the policies and specific performance of the contract, he was entitled to damages on such a basis. Probably reformation was an appropriate remedy. Smith v. Jordan, 13 Minn. 264. However, such was not the relief sought. The result reached follows the weight of authority and the prior decisions of the same court in holding that damages in an action of deceit are to be measured by the difference in value between what the plaintiff received and what he would have received had the representations been true. Heddin v. Griffin, 136 Mass. 229; Lunn v. Shermer, 93 N. C. 164. The minority, and seemingly the correct, view considers the plaintiff's loss and awards the difference in value between what he gave and what he received. Smith v. Bolles, 132 U. S. 125. In the principal case the plaintiff had received a benefit by way of insurance for ten years. His loss was therefore the difference between the value of this insurance and the amount paid in premiums. It is submitted that on principle the damages should have been so measured. See 14 HARV. L. Rev. 454.

EQUITY INJUNCTION CRIMINAL PROCEEDINGS. The plaintiff asked for an injunction to restrain the defendant, the Police Commissioner of New York City, from a threatened interference with his business for violation of the Sunday law. Held, that the injunction cannot be granted. Eden Musee American Co. v. Bingham, 125 N. Y. App. Div. 780.

For a discussion of the principles involved, see 14 HARV. L. REV. 293.

GIFTS IMPERFECT GIFT-APPOINTMENT OF DONEE AS EXECUTRIX. — A expressed an intention to give his wife B some bonds, but died before the gift was completed, having appointed B his executrix. Held, that the imperfect gift is perfected by the vesting of the property in B as executrix, and that the intention to give the beneficial interest to B is sufficient to countervail the equity of the beneficiaries under the will. Stewart v. McLaughlin, [1908] 2 Ch. 251.

This decision, carried to its logical extension, would permit a testator to make a valid gift to his executor by merely telling him that he might on the testator's death take whatever personality he cared to. It is submitted that on principle this doctrine is wholly unsound. For the transaction here cannot take effect as a trust, since an intended gift, which has failed, cannot be converted into an unintended trust. Richards v. Delbridge, L. R. 18 Eq. 11. Nor can it be sustained as a gift inter vivos, for there was no delivery. Allen-West Commission Co. v. Grumbles, 129 Fed. 287. Nor is it to be supported as a testamentary disposition, since it lacks the formalities required by the Wills Act. And though upon the death of a testator the legal title is vested in the executor, nevertheless, it is held in a representative capacity, and a promise of a testator, though based upon a meritorious consideration, does not give rise to an equity which can be successfully interposed at the suit of a beneficiary. Whitaker v. Whitaker, 52 N. Y. 368.

INDICTMENT AND INFORMATION FINDING AND FILING INDICTMENT EXAMINATION OF ACCUSED BEFORE GRAND JURY. - The defendants were compelled to be sworn as witnesses before the grand jury, and to answer questions not incriminating themselves, but later they were indicted. Held, that the indictment should not be quashed. U. S. v. Price, 39 N. Y. L. J. 2167 (Circ. Ct., S. D. N. Y., Aug. 1908).

The defendant in a criminal case cannot be made to go upon the witness stand. Low v. Mitchell, 18 Mo. 372. A witness, whether a party or not, may not be compelled to give testimony incriminating himself. Coburn v. Odell, 30 N. H. 540. The question in the principal case is whether the defendant, when compelled to be sworn as a witness, was a party to a criminal case. The weight of authority holds that criminal proceedings are not instituted until a formal charge has been made against the accused. The examination of witnesses before the grand jury is no part of the criminal proceedings against the accused, but is merely to assist the grand jury in determining whether such proceedings shall be commenced. Post v. U. S., 161 U. S. 583. Grand juries may seek information from persons conversant with the matter under investigation, and are not bound to exclude a person because it may happen ultimately that an indictment be found against him. U. S. v. Kimball, 117 Fed. 156. A re

cent case to the contrary seems insupportable in that it confuses a witness's privilege with a party's rights. People v. Gillette, 39 N. Y. L. J. 1293 (N. Y., App. Div., June, 1908).

INJUNCTIONS - ACTS RESTRAINED BALANCE OF CONVENIENCE DOCTRINE. The defendant company constructed a system of sewage which extended on the plaintiff's land. The plaintiff prayed for an injunction to abate the nuisance caused by the discharge of sewage. Held, that the plaintiff is not entitled to an injunction. Somerset Water, Light & Traction Co. v. Hyde, III S. W. 1005 (Ky.).

The case follows numerous decisions which consider public convenience in the question of granting an injunction. Valparaiso v. Hagen, 153 Ind. 337. That this "balance of convenience" doctrine should be applicable to cases where the injury complained of is trivial seems reasonable. Elliott v. Ferguson, 103 S. W. 453 (Tex.). But its application in cases where the injury is substantial and the legal remedy admittedly inadequate seems as indefensible in principle as it is harsh in its results. The doctrine seems to rest upon two misconceptions of the extent of equitable power: the one, that the final settlement of property rights lies in a broad discretion of the chancellor and not in the clear legal and equitable rules which bind the chancellor himself; the other, that a court of equity may in effect condemn the property of an individual in the interest of the public, a power which the Constitution has placed in the legislature alone. Sammons v. City of Gloversville, 70 N. Y. Supp. 284; Simmons v. Mayor, etc., of Paterson, 60 N. J. Eq. 385. Further, the doctrine seems unwise in determining the standard of one person's right by the convenience of a particular public, or even, in its extension, by the necessities of another's business. Lloyd v. Catlin Coal Co., 210 Ill. 460.

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TRADING STAMP

INJUNCTIONS INTERFERENCE WITH CONTRACTS BUSINESS. - The plaintiff sold non-transferable trading stamps, redeemable at its stores, to merchants, who gave them to customers as a premium upon cash purchases. The defendant, a rival concern, purchased from holders or exchanged for its own stamps large quantities of the plaintiff's stamps which they sold to brokers, redeemed in large lots, or resold to the plaintiff's subscribers at a low rate. The plaintiff prayed for an injunction restraining the defendant from such practice. Held, that the plaintiff is entitled to an injunction. Sperry & Hutchinson Co. v. Louis Weber & Co., 161 Fed. 219 (Circ. Ct., N. D. Ill.). See NOTES, p. 50.

JUDGMENTS - ESSENTIALS TO VALIDITY-WAIVER BY TESTATOR OF PERSONAL SERVICE ON EXECUTOR. A, of Michigan, agreed with B, of Massachusetts, to submit a matter in dispute to arbitration under rule of court, the award to be binding on their executors in case of death. A died before the final award, and after notice by publication on A's executors judgment was given for B. Held, that the judgment is not binding on A's executors in Michigan. Brown v. Fletcher, 210 U. S. 82.

The "full faith and credit" clause of the Constitution does not prevent the court of a state in which the judgment of a sister state is presented from impeaching it for want of jurisdiction. Thompson v. Whitman, 18 Wall. (U. S.) 457. The test of jurisdiction is to be made at the time of verdict, not at the time of the commencement of the suit. Thus, jurisdiction over a citizen of another state is lost by his death, and it cannot be revived against his foreign executor, for personal service dies with the person. Jones v. Jones, 15 Tex. 463. A contract to waive personal service on oneself is probably good. See 15 HARV. L. REV. 746. But a contract to waive personal service on one's foreign executor has no effect. For a contract waiving appearance can give no greater right than actual appearance, and if an executor voluntarily submits to the jurisdiction of a foreign court, a judgment by that court is not binding on the estate, since an executor's representative character is a qualified one and cannot be extended beyond the jurisdiction of the court which created it. Judy v. Kelley, 11 Ill. 211.

LANDLORD AND TENANT - SURRENDER BY OPERATION OF LAW - EFFECT OF INTENT OF PARTIES. - The plaintiff was cestui que trust under a lease to his trustee. He took a new lease for a longer term, running directly to himself. The new lease was void. Held, that the original lease is not surrendered by operation of law. Zick v. London United Tramways, Ltd., [1908] 2 K. B. 126. See NOTES, p. 55.

LIBEL AND SLANDER ACTS AND WORDS ACTIONABLE - SUIT BY CORPORATION. The defendant said that the plaintiff, a business corporation, was "composed of a lot of fakirs, robbers, thieves, and business pirates, who are devoted to fraudulent practices, and take advantage of men when in their weakest position to extort money from them and give them absolutely nothing in return." Held, that the plaintiff cannot maintain an action for slander. Hapgoods v. Crawford, 125 N. Y. App. Div. 856.

For a discussion of the principles involved, see 21 HARV. L. REV. 60.

LIBEL AND SLANDER - PRIVILEGED COMMUNICATIONS - INFORMATION SUPPLIED BY COMMERCIAL AGENCY.-Communications made in good faith by a commercial agency to a subscriber who had specifically requested them, contained statements defamatory of the plaintiff's character. Held, that such communications are not privileged. Macintosh v. Dun, [1908] A. C. 390.

Statements, though defamatory, are privileged if made by one who has a legal or moral duty to do so, to one who is interested in the subject matter. Rothhotz v. Dunkle, 53 N. J. L. 438. So, a communication is privileged if made in answer to a proper inquiry. Kine v. Sewell, 3 M. & W. 297. The particular facts of the principal case come before the English courts for the first time, and the rule is departed from on the ground that public policy does not require protection of those who "trade in other people's character": competition, the court fears, will lead to malpractice in the collecting of information. This distinction is inconsistent with former decisions. The American courts recognize that modern business conditions demand that knowledge of the financial and personal trustworthiness of a firm be readily ascertainable, and they accordingly protect a commercial agency which has transmitted communications, confidentially and in good faith, to a customer having an interest in the subject matter. Ormsby v. Douglass, 37 N. Y. 477. Information, however, which is volunteered, such as a general report sent out to subscribers, is not privileged. Douglass v. Daisley, 114 Fed. 628.

LIMITATION OF ACTIONS-NATURE AND CONSTRUCTION OF STATUTE — WHERE AND WHEN CAUSE OF ACTION ARISES. The defendant executed promissory notes in Kansas payable in that state. Before they became due he removed to Washington, where he remained for the statutory period. He then went to Idaho, where suit was brought. An Idaho statute provided that "when a cause of action has arisen in another state, . . . and by the laws thereof an action cannot there be maintained against a person by reason of the lapse of time, an action thereon shall not be maintained against him in this state." Held, that the action lies against the defendant. West v. Theis, 96 Pac. 932 (Idaho). The result in such cases depends on the interpretation of the clause when a cause of action has arisen." It has been held that a cause of action cannot arise in the state where a debt is payable when the debtor is not personally within the jurisdiction. Luce v. Clark, 49 Minn. 356. But the better view is that in such a case, wherever the debtor may be, a cause of action arises. Doughty v. Funk, 15 Okl. 643. Hence a cause of action arose in Kansas when the notes matured. Lawson v. Tripp, 95 Pac. 520 (Utah). It has been held that a cause of action arises whenever the courts of a state have power to adjudicate upon the particular matter involved. Hyman v. McVeigh, 10 Chi. L. N. 157 (Ill.). According to this doctrine a cause of action arose in Washington, as well as in Kansas, and being barred in Washington was barred in Idaho. But this reasoning confuses "cause arising" with " right accruing" and seems unsound. McKee v. Dodd, 93 Pac. 854 (Cal.). There

fore, since the action in Kansas was not barred for the debtor was not in the jurisdiction the case is correct. Moreover, it is supported by the weight of authority. McCann v. Randall, 147 Mass. 81.

LIMITATION OF ACTIONS-NEW PROMISE AND PART PAYMENT-DELIVERY OF CHECK PAYABLE IN FUTURE. More than six years prior to the bringing of suit the defendant delivered to the plaintiff a check in part payment of an old obligation. By agreement between the parties the check was not presented and paid until a day less than six years before the action was com menced. Held, that the plaintiff's claim is barred by the Statute of Limitations. Marreco v. Richardson, 24 T. L. R. 624 (Eng., Ct. App., May 15, 1908).

A voluntary part payment revives an obligation barred by the Statute of Limitations, on the reasoning that the transaction involves a recognition of the dent and a promise to discharge it. Cleave v. Jones, 6 Exch. 573. The court here holds that the promise must be implied as of the date of delivery of the check, following a decision that a bill of exchange drawn for future payment is evidence of a promise made at the date of drawing only. Gowan v. Forster, 3 B. & Ad. 507. Cf. Turney v. Dodwell, 3 E. & B. 136; Smith v. Ryan, 39 N. Y. Super. Ct. 489. It seems clear that if a new promise is anywhere to be found, it must be implied from some affirmative act of the debtor. Such an act is the transfer of the check; its payment, on the other hand, is an act of the bank. To imply that the promise involved in the delivery continues and is therefore repeated at the moment of payment, would be to draw an implication from another implication, and that without any equitable basis. In refusing to adopt such a fiction the court seems eminently sound.

MUNICIPAL CORPORATIONS LIABILITY FOR TORTS - ORDINANCE RAT IFYING UNAUthorized Act OF MAYOR. — Under its charter a city could change street grades only by ordinance. The defendant, who was mayor of the city, in pursuance of a resolution of the council, changed a street grade near the alley upon which the plaintiff's property abutted, rendering it unaccessible to vehicles. An ordinance authorizing the change was passed some time after. Held, that the defendant is liable for damage done previous to the passing of the ordinance. Faust v. Pope, 111 S. W. 878 (Mo.).

The plaintiff had a right to have the street kept open for the benefit of his property. Longworth v. Sevedic, 165 Mo. 221. Unless justified by the subsequent ordinance, the change in grade without proper authorization was a trespass for which the mayor is liable as an individual. Reed v. Peck, 163 Mo. 333. A municipal corporation has certain powers conferred upon it, which must be performed in the manner prescribed. Cross v. Morristown, 18 N. J. Eq. 305. Since grading could be authorized only by ordinance, any grading not so done was ultra vires and incapable of ratification; for otherwise the express power granted by charter would be disregarded. Page v. Belvin, 88 Va. 985. A recent decision which permits ratification may be distinguished on the ground that in it the city council was empowered to grade without the authorization of an ordinance. Wolfe v. Pearson, 114 N. C. 621. Even then the decision might be assailed on the ground that ratification should not be permitted when to do so would deprive a third party of a vested right of action. Bird v. Brown, 4 Exch. 786. The principal decision, then, seems clearly

correct.

QUASI-CONTRACTS MONEY PAID UNDER DURESS OR COMPULSION OF LAW PAYMENT TO PUBLIC SERVICE CORPORATION. -- The plaintiff with full knowledge of the facts, and without fraud on the defendant's part, voluntarily paid to the defendant telephone company an excessive charge. The plaintiff sued for the overpayment. Held, that the mere fact that the defendant is a public service corporation does not constitute such compulsion as to allow a recovery. Illinois Glass Co. v. Chicago Telephone Co., 85 N. E. 300 (III.). See NOTES, p. 52.

REPLEVIN STATUTORY REDELIVERY BOND ACCIDENTAL DEstrucTION OF PROPERTY BEFORe Verdict. The defendant, in an action of re

plevin, executed a statutory redelivery bond and retained possession of the property. Through no fault of the defendant the property was destroyed by fire. The court then found the issues in the replevin suit for the plaintiff. Held, that the plaintiff is entitled to the full value of the property. Bradley v. Campbell, 111 S. W. 514 (Mo.).

The weight of authority supports this decision. Hinkson v. Morison, 47 Iowa 167; George v. Hewlette, 12 So. 855 (Miss.). Contra, Pope v. Jenkins, 30 Mo. 528. Opposing decisions are based on the rule that if the condition of a bond becomes impossible of performance by act of God, the penalty is saved. The application of this rule to a case like the present is specious, for it makes no distinction between the liability of a wrongdoer and that of a mere bailee. It is just that a bailee should be excused by the accidental destruction of the subject matter of the bailment. U. S. v. Thomas, 15 Wall. (U. S.) 337. But where there is a precedent wrong, and the obligor's liability does not rest wholly upon the contract, he should bear the loss of the property. The defendant in the principal case was a wrongdoer, for he was holding the plaintiff's property against the latter's will. He should not be allowed to keep such property at the owner's risk, for he has deprived him of the opportunity of disposing of it pending the litigation.

TAXATION-WHERE PROPERTY MAY BE TAXED OPEN ACCOUNTS TAXED AT DEBTOR'S DOMICILE. A Connecticut insurance company conducted business in Louisiana through an agent. The company extended no credit to its customers, but on delivery of each policy a debt arose from the agent to the company for the amount of the premium. Held, that the debt is taxable in Louisiana. National Fire Ins. Co. v. Board of Assessors, 46 So. 117 (La.).

This case is contrary to many early decisions in Louisiana, but follows the more recent trend of judicial decision in that state, and in others, to tax debts and choses in action at the domicile of the debtor. The court, by this decision, extends the doctrine for the first time in Louisiana to open accounts not represented by some tangible document. For a discussion of the principles involved, see 15 HARV. L. REV. 680; 20 ibid. 656.

TENANCY IN COMMON PURCHASE BY ONE TENANT AT FOREeclosure SALE OF COMMON PROPERTY. After the death of a mortgagor of land the property was purchased by one of the heirs at the foreclosure sale. Held, that he holds the title free from any trust in favor of his co-heirs. Jackson v. Baird, 61 S. E. 632 (N. C.).

The case is opposed by virtually all American authority. Savage v. Bradley, 149 Ala. 169; Moy v. Moy, 89 Iowa 511. But on principle the decision seems unassailable. It is, indeed, established law in the United States that co-tenants stand in a fiduciary relation to one another, and that the purchase by one cotenant of an encumbrance on the common estate inures to the benefit of all who elect to contribute their shares of the purchase price. Van Horne v. Fonda, 5 Johns. Ch. (N. Y.) 388. The basis of the doctrine is that it is inequitable for one co-tenant to obtain a title adverse to his fellows. In the principal case, however, the co-tenancy itself has ceased through the sale, and each has an equal chance to buy back. Sutton v. Jenkins, supra. And the case is clearly distinguishable from repurchase by a co-tenant at a tax sale, which revives the cotenancy, on the general ground that purchase by any one under a legal duty to discharge the obligation to the state operates as a simple payment of the tax. Delashmutt v. Parrent, 39 Kan. 548. The English doctrine that there is no fiduciary relation between co-tenants seems preferable. Kennedy v. de Trafford, [1897] A. C. 180. See 9 HARV. L. REV. 427.

TORTS LIABILITY OF A COUNTY- INJURY TO PROPERTY RIGHTS. — A county employee, while repairing a road, negligently diverted a watercourse which destroyed the plaintiff's house. Held, that the county is liable. Matsumura v. County of Hawaii, 19 Haw. 18. See NOTES, p. 54.

VENDOR AND PURCHASER Remedies oF PURCHASER - Vendee's Lien AFTER RESCISSION. After paying part of the purchase price on an executory