dying man was conscious of impending death, he accused the prisoner of shooting him for nothing, and that the prisoner denied it. Held, that since the evidence could not come in as a dying declaration, nor as a part of the res gesta, it was not admissible. Brown v. State, 29 So. Rep. 519 (Miss.).

This ruling is directly in accord with one lately made by a Massachusetts Superior Court in the Eastman trial, and seems correct. When statements are made in the presence of a party to the litigation, and his answer, or failure to answer, supplies a fair inference of the truth of what was said, the statements and the manner of their reception may be shown in evidence. Commonwealth v. Brown, 121 Mass. 69. But the question whether such statements, by themselves inadmissible as hearsay, form in connection with the defendant's conduct, a basis for inferring an admission, so as to be competent on that ground, is a question for the court. Therefore, when acquiescence cannot fairly be found from the defendant's silence, or from his answer, when one is made, the evidence is properly excluded. Moore v. Smith, 14 Serg. & R. (Pa.) 388; Mattocks v. Lyman, 16 Vt. 113. English cases have held that whenever the statements are answered the evidence is admissible. Rex v. Edmunds, 6 C. & P. 164. But the English judges may charge on the weight of the evidence, and thus they reach almost the same results as would be reached under the doctrine contended for above. Jones v. Morrell, 1 C. & K. 266. In the principal case an admission of guilt could not possibly be inferred from the reply; and the evidence was therefore properly rejected. Moreover, the fact that the jury would be almost sure to misuse the evidence would incline the court to a strict observance of the rules of exclusion.

EVIDENCE HEARSAY POST-TESTAMENTARY DECLARATIONS. The posttestamentary declarations of a testator were offered as evidence against the validity of an alleged will. Held, that such evidence is inadmissible unless part of the res gesta. Throckmorton v. Holt, 21 Sup. Ct. Rep. 474. See NOTES, p. 149.

EVIDENCE-REAL EVIDENCE

PROOF OF AGE.

In an action for personal injuries, there being no evidence of the plaintiff's age except his personal appearance before the jury, the lower court charged that his age should be considered in estimating the damages. Held, that the charge was erroneous for want of evidence upon which to base it. Phelps v. Salisbury, 61 S. W. Rep. 582 (Mo.).

As early as 1219 are found instances of the determination of age by the inspection of the court. BRACTON'S NOTE-BOOK, ii., Case 46. By the almost unanimous concurrence of modern decisions it is established that the age of one alleged to be an infant, or under the criminal age, or below the age of consent, may be determined by the jury on the basis of the person's appearance, though no other evidence is introduced. Commonwealth v. Emmons, 98 Mass. 6; State v. Arnold, 13 Ired. (N. C.) 184. So it may be decided whether or not a plaintiff is an old man. Bertram v. People's Ry. Co., 154 Mo. 639. Even the competency of an employee or a defendant's sanity may be judged by inspection without more. Keith v. New Haven, etc., R. R. Co., 140 Mass. 175; Queen v. Goode, 7 A. & E. 536. In the principal case the jury was not called upon to form any accurate judgment as to the plaintiff's age, but merely to come to some approximate conclusion as indicating his future prospects. For this purpose his personal appearance furnished sufficient evidence. The case cannot be distinguished from those cited, and the decision is opposed to the great weight of authority.

PLEADING GENERAL ALLEGATION OF FRAUD-CONCLUSION OF LAW. - Held, that a general averment of fraud is sufficient on demurrer. Fivey v. Pennsylvania R. R. Co., 48 Atl. Rep. 553 (N. J., Sup. Ct.).

A conclusion that certain facts constitute fraud necessarily involves the application to those facts of a rule of law. It follows that a general allegation of fraud is a statement of a conclusion of law and not an averment of fact. According to the well settled rule of the common law, conclusions of law are immaterial allegations in the pleadings and must upon demurrer be disregarded. Some authority is to be found in support of the principal case. Christmas v. Russell, 5 Wall. 290, 303. But by the great majority of decisions it is held that when fraud is relied upon the facts must be fully pleaded. Cohn v. Goldman, 76 N. Y. 284; Wallingford v. Mutual, etc., Soc., L. R. 5 App. Cas. 685; STORY, EQ. PL., 10th ed., § 251. Similarly a general allegation of negligence is insufficient. Griggs v. St. Paul, 9 Minn. 246. The rule of the principal case sacrifices one of the essential objects of pleading, namely, to apprise the court and the opposite party of the facts intended to be relied on. Moreover it becomes

impossible to settle the case upon demurrer, although if the facts were stated it might appear that they were insufficient in law to support the plea. It would seem better to adhere to the well established rule that pleadings must state facts and not legal conclusions.

PLEADING -THEFT MONEY.-Held, that under an information for theft, describing the property stolen as "lawful money of the United States," proof of a theft of silver certificates or national bank notes was a variance. Perry v. State, 61 S. W. Rep. 400 (Tex., Cr. App.).

The term "money," when employed in ordinary business transactions, is understood to mean any currency, including bank notes and any other circulating medium in general use as the representative of value. It has been held in a civil action, however, that treasury notes were not to be considered as money. Foquet v. Hoadley, 3 Conn. 534. But in general, unless specifically objected to when offered, silver certificates and bank notes are legal tender as money. Bank of U. S. v. Bank of Georgia, 10 Wheat. 333, 347. In criminal courts, however, where accurate specification is required, the term has been narrowly construed, sometimes as including merely coin, and frequently as including only legal tender in its strict meaning. Pryor v. Commonwealth, 2 Dana (Ky.) 298; Hamilton v. State, 60 Ind. 193; Lewis v. State, 28 Tex. App. 140. The broader interpretation in use in civil cases has been extended to indictments in some jurisdictions. Commonwealth v. Lincoln, 93 Mass. 233. No actual benefit comes to any one by requiring a particular description, since the only result is a long and useless enumeration of all kinds of money. The highly technical rule of the principal case, though firmly established in many jurisdictions, is therefore undesirable.

PROPERTY-COVENANT AGAINST INCUMBRANCES REMOTE GRANTEE. - Held, that a covenant against incumbrances is broken, if at all, as soon as made, thus becoming a chose in action which does not run with the land; but that this chose in action is impliedly assigned to every subsequent grantee until substantial damages have been suffered. Geiszler v. De Graaf, 59 N. E. Rep. 993 (N. Y.). See NOTES, p. 150.

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PROPERTY - PAROL GIFT OF LAND-DEDICATION. - F promised his neighbors to give land for a schoolhouse site, and they erected a schoolhouse thereon, which subsequently came under the charge of the defendant school district. Held, that there was a contract by F with his neighbors to convey the land on the erection of a schoolhouse, that the acts done in pursuance of the contract took it out of the Statute of Frauds, and that therefore the school district had a right to the possession of the land. Greenwood v. School Dist. No. 4, 85 N. W. Rep. 241 (Mich.).

There are many cases wherein specific performance of a promise to give land has been decreed in favor of a promisee in possession who has made valuable improvements, although it is difficult to find any evidence of consideration. Ungley v. Ungley, L. R. 4 Ch. D. 73; Freeman v. Freeman, 43 N. Y. 34. These cases apparently make no distinction between a contract and a gift on condition. Neale v. Neale, 9 Wall. 1. In reality they can hardly be distinguished from other cases in which a licensee under similar circumstances is not protected. Minneapolis Mill Co. v. Minneapolis & St. L. Ry. Co., 51 Minn. 304. In the principal case the fact that no specific grantees were named makes it impossible to support the decision on the ground of contract. It is suggested that the gift might have been held effective as a dedication of the land for public purposes, the intention to dedicate and acceptance by user being manifest. City of Cincinnati v. White, 6 Pet. 431. This doctrine originally applied only to highways, but in this country extensions of it, though perhaps objectionable because the beneficiary is a limited part of the public, are often allowed. A common example is the dedication of a burying-ground to a particular body of people. Beatty v. Kurtz, 2 Pet. 566. And the dedication of land for public schools has been supported. Carpenteria School Dist. v. Heath, 56 Cal. 478.

PROPERTY STATUTE OF LIMITATIONS - PUBLIC USE. The defendant occupied adversely and exclusively for the statutory time part of a railroad's right of way. Held, that the use by the railroad is for a public purpose, and therefore the right of way is not lost. Southern Pac. Ry. Co. v. Hyatt, 64 Pac. Rep. 272 (Cal., Sup. Ct.). See NOTES, p. 146.

PROPERTY- WILLS - REVIVAL. — A testator duly executed a second will, which impliedly revoked his first will. Later, with the intention of reviving his first will, he destroyed the second. Held, that the first will must be admitted to probate, it conclusively appearing that the testator intended to reinstate that will, and the question of revival depending upon the intent manifested in the destruction of the revoking will. In re Gould's Will, 47 Atl. Rep. 1082 (Vt.). See NOTES, p. 142.

QUASI-CONTRACTS

- BREACH OF Express ConTRACT — MEAsure of DamAGES. The plaintiff, having committed a material breach of an express contract, sued on the common counts to recover the value of labor and materials furnished under that contract. Held, that the value to the defendant of the building produced is the measure of damages. Gillis v. Cobe, 59 N. E. Rep. 455 (Mass.). See NOTES, P. 144.

SALES WARRANTY - RESCISSION. The plaintiff furnished the defendant with a machine of a particular kind in fulfilment of an order. The machine proved defective. Held, that the defendant has no right to rescind the contract and return the machine, and that the plaintiff is entitled to recover the purchase price. Worcester Mfg. Co. v. Waterbury Brass Co., 48 Atl. Rep. 422 (Conn.). See NOTES, p. 148.

TELEGRAPHS FAILURE TO DELIVER MESSAGE LIABILITY TO ADDRESSEE. — Held, that the addressee of a telegram containing notice of the fatal illness of his son may recover from the telegraph company for a negligent failure to deliver. Western Union Tel. Co. v. Norris, 60 S. W. Rep. 982 (Tex., Čiv. App.). See NOTES, p. 143.

TELEGRAPHS

REASONABLE REGULATIONS POWER TO STIPULATE AGAINST LIABILITY FOR NEGLIGENCE. Held, that the stipulation upon a telegraph blank that the telegraph company shall not be liable for mistakes unless the message is repeated, is invalid and does not prevent a recovery for a negligent mistake in the transmission of an unrepeated message. Western Union Tel. Co. v. Norris, 60 S. W. Rep. 982. (Tex., Civ. App.).

This doctrine is law in many states, being rested upon the ground of public policy. Gillis v. Western Union Tel. Co., 61 Vt. 461. Upon principle, however, the decision is difficult to support, and the contrary has been held in England, in many American jurisdictions, and in the Supreme Court of the United States. Primrose v. Western Union Tel. Co., 154 U. S. 1. Telegraph companies as public servants are under an obligation to undertake the transmission of all messages offered them, for a reasonable remuneration and under a full liability for negligence. Baldwin v. United States Tel. Co., 45 N. Y. 744, 751. This obligation they offer to perform for the cost of a repeated message, and no case has been found holding such a charge unreasonable. Absolute accuracy in the transmission of messages by electricity is assured only by their repetition, a process frequently involving waste of time and labor. To avoid this, telegraph companies offer a special rate, that is, the cost of an unrepeated message, to the sender who agrees to take the chance of mistakes in the transmission of the message without repetition. If the sender chooses to accept this offer it is difficult to see how the public interest is injured by the enforcement of the resulting contract. Of course, a wilful or fraudulent mistake in transmission will not be protected by any agreement. Ellis v. American Tel. Co., 95 Mass. 226, 234.

Torts - Deceit — RepresentATION BROUGHT ABOUT BY THE DEFENDANT. A commercial agency gave the defendant an erroneous rating, based in part on false information given it by the defendant as to his financial condition. Relying on this rating, the plaintiff furnished goods to the defendant on credit. The defendant became bankrupt. Held, that the plaintiff cannot recover in an action for deceit. Tindle v. Birkett, 57 N. Y. App. Div. 450.

One who makes false statements to a mercantile agency, which repeats them on his authority to a third person, is liable to the latter, if in reliance thereon he extends credit to the maker and is damaged thereby. Eaton, etc., Co. v. Avery, 83 N. Y. 31. In the principal case, the plaintiff, not knowing of the defendant's statements, could not rely on them. But he did act to his injury in reliance on the rating of the agency, which was a representation intentionally caused by the defendant. In such circumstances an action might well be allowed, although to do so would be slightly to extend the strict rule that the plaintiff must rely on a representation made by the defendant. No decisions have been found directly supporting the principal case, but see Peck v.

Gurney, L. R. 6 H. L. 377, 397- In the following cases, opposed to the principal decision, the statements of the defendants were the whole cause of the rating. Aultman, etc., Co. v. Carr, 16 Tex. Civ. App. 430; Bedford v. Bagshaw, 4 H. & N. 538; Regina v. Aspinwall, L. R. 2 Q. B. D. 48. Although in the English cases cited the plaintiffs knew that the defendants had made statements, the cases cannot be distinguished on this ground, since it was the ratings on which the plaintiffs relied.

TORTS-NEGligence — Joint TORT-FEASORS. Held, that one injured by a defective sidewalk cannot sue the municipality and the property owner in the same action, though both may be liable. Dutton v. Borough of Lansdowne, 48 Atl. Rep. 494 (Pa.).

Though the decisions as to who are joint tort-feasors are probably irreconcilable on principle, yet in actions for negligence the better view seems to be that where two persons have caused a single damage to a third, they are jointly liable to him, though there was no concert between them. Colegrove v. N. Y., etc., Ry. Co., 20 N. Y. 492; Cuddy v. Horn, 46 Mich. 596. Even where this is not law it has been held that in a state of facts very similar to those in the principal case there is a joint liability because there is a breach of a common duty to repair. Chicago, etc., Ry. Co. v. Scates, 90 Ill. 586; City of Peoria v. Simpson, 110 Ill. 295. Moreover, this joint liability to the injured person exists though the municipality may recover over against the owner. McDonald v. Lockport, 28 Ill. App. 157. In the principal case it is said that the duty of the municipality is not to repair the sidewalk, but to make the owner repair it. This would imply that if the owner cannot be made to repair, the municipality need not do But even if this were the correct view of the obligations of the parties, it seems insufficient to distinguish the case from those cited. The decision is, therefore, not to be supported.

So.

TORTS SLANDER PRIVILEGED COMMUNICATION. - The defendant, a voter and taxpayer, in a conversation with cther voters and taxpayers, said that the plaintiff, then a candidate for alderman, was a thief. Held, that it was error to charge that truth was the only defence, disregarding the defence of privilege. Ross v. Ward, 85 N. W. Rep. 182 (S. D.).

This case is decided under the state Code, which however, as to what constitutes privilege, seems declaratory of the common law as expressed in Harrison v. Bush, 5 E. & B. 344. It is perhaps most commonly held that the conduct and qualifications of a public officer or candidate are proper subjects of fair comment, but that a communication of fact in regard to such a person is not privileged. Hamilton v. Eno, 81 N. Y. 116. In one state it has been held that a candidate is on the same footing as a private individual. Banner, etc., Co. v. State, 16 Lea (Tenn.) 176. A third view is that when statements of fact relate to the candidate's fitness for office and are published by one voter to other voters, the occasion is privileged. Marks v. Baker, 28 Minn. 162; see 23 AM. LAW REV. 346. This is of course a conditional, not an absolute privilege, and the defence may be rebutted in the same way as in any other case of conditional privilege. The principal case, in following this liberal view, seems to subserve the public interests without doing violence to the general principles relating to the question of privilege.

TORTS-TRESPASSING DOG

POISON. Held, that the defendant is not liable if a neighbor's dog is killed by poison placed by the defendant on his premises to protect them against the depredations of dogs. Cobb v. Cater, 38 S. E. Rep. 114 (S. Č.). Although at common law dogs are not the subject of property for all purposes, yet it has been held from an early date that there is sufficient property in a dog to enable the owner to maintain a civil action for injury to the animal. BRO. ABR., tit. TRESPASS, 407; Brent v. Kimball, 60 Ill. 211. Accordingly, killing a dog is justifiable only when it is reasonably necessary for the protection of property from serious damage. Bowers v. Horen, 93 Mich. 420; Dunning v. Bird, 24 Ill. App. 270. There seems to have been no such necessity here. It might be argued, however, that the defendant is not liable for damage caused to a trespassing dog by the condition of t'e defendant's land. But while one is under no duty to keep his premises safe for trespassers, whether persons or animals, he must not do anything equivalent to laying a trap for them. BISH., Non-Cont. Law. § 943. It would seem that this rule should have been applied in the principal case, and the weight of authority supports that view. Gillum v. Sisson, 53 Mo. App. 516.

TRUSTS CONTRACT OF SALE-RIGHT OF VENDEE TO PROCEEDS OF INSURANCE POLICIES. The plaintiff and the defendant entered into a contract for the purchase and sale of the defendant's land. Before the purchase price was paid, and while the vendor was still in possesion, the premises were injured by fire. The property had been insured by the vendor prior to the contract. Held, that the proceeds of the insurance policies, received by the vendor after the contract was fully performed, belong to the vendee. William Skinner, etc., Co. v. Houghton, 48 Atl. Rep. 85 (Md.).

The court reaches its conclusion on the theory that by the contract the vendee acquires the rights of substantial ownership, and that the relation of the parties is then that of trustee and cestui que trust. Admitting that this is practically true for many purposes, the question as to who should bear the risk of loss while the vendor retains possession has given rise to a difference of opinion. The court's view seems the sound one, and is in accord with the weight of authority. Paine v. Meller, 6 Ves. 349; Lombard v. Chicago Sinai Cong., 64 Ill. 477, 482. See I COLUMBIA LAw Rev. 1. There is, however, strong authority contra. Gould v. Murch, 70 Me. 288. See 9 HARV. LAW REV. 106, III. Under any view the relation of the parties would seem to be more nearly that of mortgage than of trust in the strict sense. Lysaght v. Edwards, L. R. 2 Ch. Div. 499, 506. And granting that the risk of loss is on the vendee, the conclusion of the court by no means follows. A contract of insurance is a personal contract of indemnity against loss to the insured's interest in the property. MAY, INS., § 6. Hence it is difficult to see on what principle the vendee is entitled, without an assignment, to this right obtained by the vendor wholly for himself. The English law is settled contrary to the principal case. Rayner v. Preston, L. R. 18 Ch. D. I. There seems to be no American decision exactly in point except King v. Preston, 11 La. Ann. 95, which follows the English law. But the principal case is supported by numerous dicta. Cf. Hill v. Cumberland Valley Co., 59 Pa. St. 474, 478.

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TRUSTS FRAUD OF TRUSTEE LIABILITY OF TRANSFEREE. - An executor under a will containing a legacy to the defendant, a missionary society, paid the legacy out of funds not part of the estate, but held in trust for the plaintiff. The defendant afterwards, in good faith, expended the money. The plaintiff brings a bill in equity. Held, that he cannot recover. Holly v. Domestic, etc., Soc., 21 Sup. Ct. Rep. 395.

According to the weight of authority, the transfer of negotiable paper in payment of an antecedent debt is a transfer for value. Swift v. Tyson, 16 Pet. 1. A fortiori this is true of money. Even in New York, where the contrary view is held as to negotiable paper, it does not apply to money. Stephens v. Board of Education, etc., 79 N. Y. 183. The society might therefore be treated as a purchaser for value, the money being received in payment of the executor's liability. Even if a volunteer, however, the society should be protected. Where a volunteer has parted with the property in good faith he is not liable to the defrauded person, except to the extent of the consideration received by him. Bonesteel v. Bonesteel, 30 Wis. 516; Robes v. Bent, Moo. K. B. 552. Where he has received no consideration, having parted with the property, he could be liable only on the ground of breach of a constructive trust. it is not against conscience for him to transfer while still in ignorance of the defrauded person's claim, and so there is no breach of trust. From either point of view, therefore, the case seems correct.

But

TRUSTS NOTICE - LIABILITY FOR AIDing Trustee'S BREACH.-Shares in the defendant corporation standing in the name of X, as trustee, were assigned by him in breach of trust, the instrument of assignment describing him as trustee. The defendant, having no notice that the assignment was improper, but without making inquiry, transferred the shares on its books to the assignee. Held, that the term "trustee" on the books of the company and in the assignment gave notice of the trust, that there is a presumption that a trustee has no power to sell or transfer the trust property, and that the defendant must therefore compensate the cestui for the loss incurred. Geyser-Marion, etc., Co. v. Stark, 106 Fed. Rep. 558 (C. C. A., Eighth Circ.).

In applying the principle that a purchaser for value takes the trust property subject to equities of which he has notice, it is held that actual notice that the property is incumbered constitutes constructive notice of those equities which due diligence would have disclosed. Shaw v. Spencer, 100 Mass. 382, 390; Jones v. Smith, 1 Hare, 43, 55. Provided that he has notice, one who aids a trustee in committing a breach of trust is equally liable to the cestui. Duckett v. National Mech. Bank, 86 Md. 400. As in the case of a purchaser, actual notice that a breach is being committed is not indispensa