circumstances the. e can be no injustice in crediting a borrowing member, who chooses to surrender the stock pledged, with all that he has paid thereon. This rule has been frequently applied in Pennsylvania. North American Garden Assn. v. Tradesman's Bldg. Assn., 46 Pa. St. 493; Watkins v. Association, 97 Pa. St. 514. But that a different rule, as to credits to be given, should be applied in solvent and insolvent corporations is, we think, entirely clear. The rule is universal that when a corporation becomes insolvent there must be, or at least there may be, a loss to the stockholder. And, from their very nature, the certainty of loss in case of an insolvent building and loan association is greater than in many other forms of investment. They deal only with their members. Their capital consists exclusively of sums paid by their members. They cannot become insolvent in fact without an impairment of that capital, and, if there be an impairment, then the full amount of capital paid in cannot be returned. That being true, every principle of their organization requires that every dollar of capital that has been paid in upon stock subscriptions should bear its proportionate share of the loss. In End. Bldg. Assns., § 514, it is said: "The truth is that there is implied, in the very essence of the building association scheme, an agreement between the members of every association, in the light of which all other agreements, and all rules and by-laws, must be read, and to which they must be conformed; and that is the agreement that all burdens shall be equally borne, as well as all profits equally shared,-that the whole enterprise shall be conducted and the rights and obligations of the participants in it shall be adjusted upon a basis of strict mutuality, equality, and fairness." It is evident that if, in cases of the insolvency of the association, all the borrowing stockholders are to be credited on their indebtedness with all the capital they have paid in, they suffer none of the impairment, and ultimately the entire loss must be borne by the non-borrowing members, and thus the basis of strict mutuality of burdens is entirely disregarded. Equity cannot, therefore, under such circumstances extend to the debtor credit for all he has paid upon his stock. This we think is the rule of the authorities, as well as of reason. Eversmann v. Schmitt, 53 Ohio St. 174, 41 N. E. Rep. 139; Wohlford v. Association, 140 Ind. 662, 40 N. E. Rep. 694; Weir v. Association (N. J. Ch.), 38 Atl. Rep. 643; Moran v. Gray, Id. 668; Curtis v. Association, 69 Conn. 6, 36 Atl. Rep. 1023; Strohen v. Association, 115 Pa. St. 273, 8 Atl. Rep. 843; Post v. Association (Tenn. Sup.), 37 S. W. Rep. 216.

But, viewing respondents in the light of borowers only, and turning to the contract, we learn that, for the privilege of receiving the loan, respondents agreed to pay a premium of an amount equal to the cash received. That agreement was made by reason of the inducements held out by appellant, to the effect that both loan and pre

mium could ultimately be paid by a surrender and cancellation of the stock when it reached par, and that the stock could be brought to that condition by small payments thereon at stated intervals, together with the profits that would accrue to such stock through the operations of the association. But the association, by reason of its insolvency, is unable to carry out its contract. It cannot mature the stock. The inducement which caused the respondent to offer the large premium has failed. Hence, whatever has been paid upon such premium, if anything. should be credited to respondents. This we think is the better rule, and it is amply sustained by the authorities last cited, although some courts have undertaken to apportion the premium, and treat a portion of it as earned. See Towle v. Society, 61 Fed. Rep. 446; Sullivan v. Stucky, 86 Fed. Rep. 491. But, under what we regard as the better rule, respondents claim that they should be credited with the dues paid upon the shares of stock that were assigned as collateral to the payment of the premium. (It will be remembered that the premium was included in the bond, but drew no interest.) We held in the Shain case-and the authorities fully sustain the proposition - that payments made upon stock that was pledged as collateral security for the payment of the loan did not constitute payments upon the loan. This was held upon the theory that the purchase of the stock and the borrowing of the money were distinct and separate transactions. The stock was pur chased as an investment, and for the profits which it promised, and these profits inure to the benefit of the purchaser alike whether the stock be pledged or unpledged. Goodrich v. Association, 54 Ga. 98. True, in the ultimate adjustment it was the intention to exchange the stock for the bond. But, in the language of the New Jersey court of errors and appeals in Association v. Hornbacker, 42 N. J. Law, 635, until so exchanged, they are distinct in legal contemplation, as well as in form. The stock is a collateral security for, and not a credit on, the bond." No reason, in law or logic, presents itself to us, why the same rule must not apply to payments made upon stock that is pledged to secure the payment of the premium. Such payments on stock are not payments upon the premium. Hence in this case nothing has been paid upon the premium bid, and there is therefore nothing in that behalf with which to credit respondents. It will be noticed that in this case appellant is not seeking to recover any of the premium. He asks only the payment of the cash advanced, with certain interest thereon, and taxes paid. The association having become insolvent, and having been in the hands of a receiver, it becomes the duty of that officer to proceed to collect the assets of the association. It is his duty to close the business out. The expectations of both parties have been disappointed. The contract is at an end. The interest upon this loan was paid, under the terms of the contract, to November 8, 1895. The ap

pellant is entitled to recover the original loan, with the legal rate of interest in Minnesota, which is 7 per cent. from said November 8, 1895. Should respondents pay this amount, or should it be realized upon a sale of the mortgaged property, respondents will, of course, become the absolute owners of the shares of stock which were assigned as collateral security, and will be entitled to a reassignment thereof. There is a claim made for taxes for the sum of $18.80, which the court found were paid by plaintiff, and which should also be included in the judgment.

The trial court will set aside its judgment heretofore entered in this case, and enter judgment against the respondent Ella Cairns for the amount heretofore indicated, with the usual decree of foreclosure as to all the respondents. It is so ordered. Reversed. All concur.

NOTE.-Very Recent Cases on the Rights and Liabilities of Borrowers from Insolvent Building and Loan Associations.-Where a loan association be. comes insolvent, a borrower should be required to repay the loan, with interest, and would be entitled, after the debts were paid, to a pro rata dividend with a non borrower for what he has paid on his stock. Brown v. Archer, 1 Mo. App. Rep. 465. Though the appointment of a receiver for a building and loan association causes the debts due it by borrowing members and the mortgage securities to mature, yet the receivers cannot foreclose the same under the power of sale contained in the mortgage, the association alone being authorized to foreclose by sale. Strauss v. Carolina Interstate Building & Loan Assn., 117 N. Car. 308, 23 S. E. Rep. 450. In case of the insolvency of a building and loan association, borrowing members should be charged with the amount actually received by them, with six per cent. interest, and credited with the amount paid by them, whether paid as fines, penalties, or weekly dues. Strauss v. Carolina Interstate Building & Loan Assn., 117 N. Car. 308, 23 S. E. Rep. 450. A borrowing stockholder paid to a building association his debt, as shown by a judgment note, on the basis of a settlement in which he was allowed credits for payments on his stock as though the cor. poration were solvent. It was in fact insolvent at the time. The judgment, by neglect of the attorney, was not satisfied. Held that, after the insolvency was shown, he was not entitled to have the judgment representing the debt satisfied. Mechanics' & Working. men's B. & L. Assn. v. Swartz (Com. Pl.), Lack. Leg. N. 120, 5 Pa. Dist. Rep. 318. Where a building and loan association is insolvent, and unable to perform its part of the contract with a borrowing member, it is entitled to the amount it loaned, with interest thereon, less the amount paid by the mortgagor on the mortgage, whether in the nature of interest or premiums; and the installments on stock and fines go with the stock. Twin Cities Nat. Building & Loan Assn. v. Lepore (Com. Pl.), 17 Pa. Co. Ct. Rep. 426. A borrowing member of a building and loan association is not entitled, on the insolvency of the associa tion, to have the amount of his dues paid in applied in payment of his debt, but must share pro rata with the other members. Price v. Kendall (Tex. Civ. App.), 36 S. W. Rep. 810. A provision in the contract between a building and loan association and a borrowing member that, if the latter desires to have his shares of stock redeemed in the payment of his debt, they are to be taken at a cash valuation not less than

the amount of dues paid thereon, with five per cent. interest, does not entitle the borrowing member, on the insolvency of the association, to have applied, in an action by the receiver appointed for the association to recover the debt, the amount of dues paid and interest in part payment, the balance of the debt not being tendered. Price v. Kendall (Tex. Civ. App.), 36 S. W. Rep. 810. The resident receiver of an insolvent foreign association, appointed after an assignee had been appointed in the foreign State, cannot collect from resident borrowers any premiums in the nature of bonuses which fell due after the appointment of the assignee, the agreement to pay them having been made on the implied condition that the association would continue to be a going concern. Curtis v. Granite State Provident Assn. (Conn.), 69 Conn. 6, 36 Atl. Rep. 1023. Dues on shares of stock in an insolvent building association, paid by resident members, who were also borrowers on mortgage security, before the appointment of an assignee for the associa tion, cannot be credited as payments on the mortgage debts, since, as members, they are bound to contribute to the expenses and losses, and a credit for such payments would give them an undue advantage over nonborrowing members. Curtis v. Granite State Provident Assn. (Conn.), 69 Conn. 6, 36 Atl. Rep. 1023. On the insolvency and forced dissolution of a building association, premiums or bonuses in addition to interest on the loans and dues on the stock, paid by borrowers prior to the dissolution, should be credited as payments on their debts to the association, though the mortgages securing such debts expressly provide that the premiums should belong to the association. Curtis v. Granite State Provident Assn. (Conn.), 69 Conn. 6, 36 Atl. Rep. 1023. A borrowing member of an insolvent association is entitled to set off against his debt only the excess of what he had paid against the loan, over his share of the losses and expenses of the association and the expenses of receiver. Knutson v. Northwestern Loan & Building Assoc. (Minn.), 69 N. W. Rep. 889. On winding up an insolvent building and loan association, a borrowing member is entitled to be credited with whatever fines he has paid. Thompson v. North Carolina Building & Loan Assn., 120 N. Car. 420, 27 S. E. Rep. 118. In distributing the assets of an insolvent building and loan association, a borrowing stockholder is charged with the money actually received by him, with interest from date of its receipt, and credited with all payments of interest and premium as of dates when made. He is not allowed credits for amounts paid as dues on his stock, but, after all liabilities of the company are paid, the remaining fund is distributed pro rata among the stockholders, whether borrowers or not, on the basis of the amounts paid by them, respectively, as dues on the stock. Post v. Mechanics' Building & Loan Assn. (Tenn. Sup.), 97 Tenn. 408, 34 L. R. A. 201, 37 S. W. Rep. 216. Ky. St. sec. 864, requiring borrowing members of such associations to pay premiums, in addition to legal interest, violates Const. sec. 59, subd. 21, forbidding the passage of special laws "to regulate the rate of interest." Simpson v. Kentucky Citizens' Building & Loan Assn., 42 S. W. Rep. 834. A contract whereby a borrowing member of a building and loan association agrees to pay premiums for each share borrowed upon, in addition to interest at the legal rate, is usurious as to the premium, and can be enforced by the association only to the extent of the legal interest. Simpson v. Kentucky Citizens' Building & Loan Assn., 42 S. W. Rep. 834. In computing the amount due upon a mortgage, where the association is insolvent, the borrower should receive credit for all his payments of in

terest or premium, but not of dues. Weir v. Granite State Provident Assn., 38 Atl. Rep. 643. When all the premium was deducted when the loan was made, and the association becomes insolvent, the borrower should be charged with interest thereon, and credited with all interest paid by him, including interest paid upon the premium. Weir v. Granite State Provident Assn., 38 Atl. Rep. 643. Where the insolvency of a loan association makes it impossible for a borrowing member to continue the payments of interest and premium till value of the stock equals the loan, the parties are remitted to the position of ordinary lender and borrower. Moran v. Gray, 38 Atl. Rep. 668. In redeeming mortgaged premises from an insolvent loan association, a borrowing member will be charged with the money actually received, with interest to the time of the insolvency, and be credited with interest paid on the amount received and the premium, and interest on the interest paid on the premium. Moran v. Gray, 38 Atl. Rep. 668. A borrower is liable only for the amount of the loan with legal interest, provisions of the charter allowing any greater interest being invalid. Mutual Savings & Loan Assn. v. Owings, 43 S. W. Rep. 422. A contract between a borrower and a building and loan association provided that certain payments "shall be credited as dues on stock, to be continued until the dues so credited, together with the dividends, shall equal the amount loaned." Held, that the dues were payments on the loan. Stevens v. Home Savings & Loan Assn., 51 Pac. Rep. 986. One who borrows money from a building and loan associa tion cannot set up, in defense to an action for the recovery of the same, that the loan was made in disregard of a by law prohibiting the making of loans to any persons other than those who have been members of the association for a stated period. Reynolds v. Georgia State Building & Loan Assn., 29 S. E. Rep. 187. The principle of mutuality, which prevents loans by building and loan associations from being usurious, applies, although a borrower from such an association applied for the loan, and executes papers necessary to secure its payment before he is actually a member of the association, where, before obtaining the money, he did become such member, and the intention to become a member entered into and formed a part of the transaction which finally resulted in the loan. Rey. nolds v. Georgia State Building & Loan Assn., 29 S. E. Rep. 187. A contract to pay money borrowed of a building and loan association incorporated in a foreign State is one to be performed in such State, where the borrower has his option to send his payments to the association in such State, or make them at a local office, so long as the association sees fit to maintain it, with the understanding that the local agents are his agents. Pollock v. Carolina Interstate Building & Loan Assn., 29 S. E. Rep. 77. Under the laws of North Carolina, where a building and loan association, receiving monthly payments from a borrowing stockholder, reserves a certain portion thereof as a payment of "interest" on the loan at six per cent. per annum, another equal portion, described in the con. tract with the borrower as "premium," must be credited on the principal. Pollock v. Carolina Inter. state Building & Loan Assn., 29 S. E. Rep. 77. Where the borrower from a building association, agreeing to make monthly payments of interest, has paid nothing for six months, the entire principal, with interest from the day of the last payment, becomes due under Laws 1893, ch. 40, sec. 6, providing that the whole sum loaned by a building association and interest shall become due in case of non-payment of any interest for six months. Yankton Building & Loan

In the absence

Assn. v. Dowling, 74 N. W. Rep. 438. of an agreement to the effect that a stockholder in a building and loan association may have his payments on stock applied to the extinguishment of his loan debt, he has no legal right to demand that such pay. ments shall be so applied. Pioneer Savings & Loan Co. v. Everheart, 44 S. W. Rep. 885. Where a borrowing member of a building and loan association, whose loan was to be repaid by maturing stock, made all his payments and surrendered his stock certificate at maturity, he was entitled to cancellation of the note and mortgage. Pioneer Savings & Loan Co. v. Kasper, 52 Pac. Rep. 623. A borrower's note made to a loan association, October 13, 1891, was payable three years from date. December 10, 1893, in consideration of two months' extra premium and interest, the borrower was allowed to pay the whole debt. The premium paid when the loan was obtained, and subsequent payments, including that of December 10, 1893, were largely in excess of the principal and three years' legal interest. Held, that the borrower could recover, as usury, all sums paid by him in excess of reasonable dues for the maintenance of the association while a stockholder, the sum he specially agreed to pay in consideration of accelerated maturity, and the principal, with legal interest to December 10, 1893. Locknane v. United States Savings & Loan Co., 44 S. W. Rep. 977. Usurious interest was paid with partial payments on a loan by a building and loan association up to January 25, 1894. Twenty-one months thereafter an order was obtained permitting the association to sell the property which secured the loan. Held that, in computing the amount due, interest on the loan should be included only to January 25, 1894, and dues and fines imposed thereafter should not be included, the contract being usurious. Crabtree v. Old Dominion Building & Loan Assn., 29 S. E. Rep. 741. Where a building and loan association becomes insolvent, and a receiver is appointed to wind up its affairs, a borrowing shareholder is chargeable with the amount of money actually received by him, with interest from the time it was received, and is entitled to credit for all interest paid, and for so much of the premium as was unearned at the time the society passed into the possession of the receiver. Sullivan v. Stucky, 86 Fed. Rep. 491. The borrowing members of a building association cannot vote themselves the assets, in the way of premiums bid for loans, and still require the performance of a contract by a borrowing member who had obtained his loan at a 20 per cent. premium, while the average premium paid was over 30 per cent. Myers v. Alpena Loan & Building Assn., 75 N. W. Rep. 944. Plaintiff was a member of, and borrowed money from, a building and loan association. After a portion of the loan was repaid, the association informed him it had gone into liquidation, and with his consent transferred the loan to defendant, also a building and loan association. Plaintiff made a new application to defendant for the original amount of the loan, and upon his executing a new trust deed the old loan was canceled. The check by defendant for the amount of the loan was a mere form, and upon being indorsed by the plaintiff to the liquidating association was immediately transferred back to defendant, and credited as an advance payment on plaintiff's stock. No credit was given plaintiff for the payments made to the liquidating association. Held, that the transaction with defendant was a continuation of the original contract, and plaintiff was entitled to receive credit thereon for the payments made to the liquidating association. Neal v. New South Building & Loan Assn., 46 S. W. Rep.

755. After making stock payments and usurious in terest payments, a borrower gave notice to a building association for withdrawal of his stock, claiming that the loan had been paid. The by-laws provided for a withdrawal and return of the installments when the loan had been paid in full, and for sale of the stock in case of default. The borrower also tendered any balance that might be found due, and sale under the mortgage was restrained. Held that, though there was a small amount due, the borrower was entitled to the cancellation of the note and mortgage on pay. ment of same. Crenshaw v. Hedrick, 47 S. W. Rep. 71. Where a stockholder who is also a borrower makes default in the payment of monthly premiums, in computing the amount due on the loan, the monthly premiums will be applied to the reduction of the debt, said premiums not being forfeited to the association. People's Building, Loan & Saving Assn. v. Fowble, 53 Pac. Rep. 999. In the absence of evidence to the contrary, a stipulation in a mortgage to a building and loan association requiring the bor rower to pay a premium will be presumed to have been made under a bid to enable him to obtain a right of procedence in taking the loan as authorized by Code 1873, sec. 1185, rather than a device to cover up a usurious transaction, where the borrower, in his application, authorized the secretary of the association to bid such a premium, that he might have such precedence. Hawkeye State Savings & Loan Assn. v. Johnston, 76 N. W. Rep. 678. Under Acts 26th Gen. Assem., ch. 85, sec. 9, providing that, in a foreclosure of a mortgage by a building and loan association, the borrower shall be charged with the full amount of dues, interest, and premium for which he is delinquent, the court may render judgment for such items maturing after the commencement of the suit, and before judgment. Hawkeye State Saving & Loan Assn. v. Johnston, 76 N. W. Rep. 678. A bor. rowing member of an insolvent building association, who has given a mortgage to secure his loan, should be charged by its receiver with the amount of the loan at legal interest, and credited with all interest payments made thereon by him; but no credit should be allowed for payments on stock, and, upon payment of the balance, he is entitled to a release of the mortgage. Leahy v. National Building & Loan Assn., 76 N.W. Rep. 625. The fact that a borrowing member of a building association assigns his stock to the association as collateral to his loan does not cancel his membership. Leaby v. National Building & Loan Assn., 76 N. W. Rep. 625. The fact that, upon the death of a borrow. ing member, his heirs at law to whom his stock was assigned became owners of the premises mortgaged to secure the loan, gives them no greater rights than such member would have had, had he lived. Leahy v. National Building & Loan Assn., 76 N. W. Rep. 625.

BOOK REVIEWS.

AMERICAN STATE REPORTS, VOL. 58.

The value of this series of reports to the practitioner arises not alone from the fact that the cases reported are selected with great care and good judgment, but also because many of them are annotated by Mr. A. C. Freeman, whose qualifications in that regard are unsurpassed. In the present volume will be found a number of such annotations. We note especially the following: Lee v. Southern Pacific R. R. Co. (Cal.),

on the liability of lessor railway corporations to per. sons other than the lessee; Bank of Little Rock v. Frank (Ark.), which exhaustively reviews the authorities on when an assignment for the benefit of creditors is deemed fraudulent, and the effect of the fraud on the assignment; Catron v. Old (Colo.), on patents for mineral lands, and what included therein; Michigan Trust Co. v. Chapin (Mich.), on agreement between husband and wife to compensate each other's services or relinquish claims on the other's earnings or profits. The series is published by BancroftWhitney Co., San Francisco, Cal.

AMERICAN STATE REPORTS, VOL. 59.

The reader of this volume will be impressed with the many important cases to be found therein, and the exhaustive character of the annotations appended to them. Following the case of Robinson v. Templar Lodge (Cal), is a long annotation on the subject of remedies of members of fraternal and other associations. The case of Huyett & Smith Co. v. ChicagoEdison Co. (Ill.), is followed by an annotation em. bodying all the authorities on the subject of entirety of contracts-complete performance, when essential to a cause of action ex contractu. Attached to the case of Austin v. Tecumseh National Bank (Neb.), is a note reviewing the authorities on the subject of when a corporation becomes liable for the debts of a preceding corporation or partnership. And to the case of Hoboken Printing Co. v. Kahn (N. J.), is a note on the as yet unsettled question of the liability of corporations for exemplary damages. The case of Eingartner v. Illinois Steel Co. (Wis.), has a note on the subject of when transitory causes of action may not be prosecuted in a foreign State or country. These annotations are veritable briefs in themselves, and will be found of great aid to practitioners interested in their various subjects. The book is pub. lished by Bancroft-Whitney .Company, San Francisco.

JETSAM AND FLOTSAM.

EVIDENCE OF EXCLAMATIONS WHILE ASLEEP.

The Supreme Court of Vermont holds that somniloques are not admissible as evidence in personal injury cases. In Plummer v. Ricker, 41 Atl. Rep. 1045, which was an action for damages sustained from a vicious dog, the plaintiff's father was asked to describe in a general way how his son appeared from the time he was bitten down to the time the wounds healed, and stated, among other things, that at night espe cially, the moment he would drop into a drowse, he would jump right up and call, Take him off-the dog is biting me." The trial court, in holding that this testimony was admissible, said: "If the boy's story is found to be true, it tends to show that the dog made a visible attack upon him; and that has a bearing upon the question of how it may have affected his nerves-impressed itself upon him. We think that if it should be found that it so impressed him that, when asleep, the impression followed him, made him nervous, and caused him to cry out, it is evidence indicating the condition of the boy. It is not evidence that the dog ever bit him.”

Considering defendant's exception to this ruling, Justice Start, delivering the opinion of the supreme court, said: "Under this ruling, the jury were at liberty to consider the words spoken by the plaintiff

while in sleep, upon the question of how the attack of the dog impressed itself upon him and affected his nerves. Words spoken while in sleep are not evidence of a fact or condition of mind. They proceed from an unconscious and irresponsible condition; they have little or no meaning; they are as likely to refer to unreal facts or conditions as to things real; they are wholly unreliable; and a jury ought not to be allowed to guess that such expressions are produced by a present mental or physical condition. The expres sions of a person respecting a past mental or bodily condition cannot be shown by a non-professional witness. The testimony of such a witness is confined strictly to such complaints, expressions and exclamations as furnish evidence of a present existing pain or malady. State v. Fournier, 68 Vt. 262; Knox v. Wheelock, 54 Vt. 150. The expressions of a person in sleep may be induced without cause, and by past as well as present conditions. In dreams, things long forgotten return, and we live over a past which has no relation to present conditions, and exclamations then made are as likely to be induced by a past as by a present condition. If what the plaintiff said while in sleep can be given any meaning, it was narration of a past event, and did not indicate his present mental or physical condition, and the testimony was hearsay and inadmissible. State v. Fournier, supra. In People v. Robinson, 19 Cal. 40, it is held that words spoken in sleep are not admissible in evidence."Chicago Law Journal.

VENUE AND JURISDICTION IN LARCENY.

It is everywhere the law that, where a thief steals property in one county and is found in another with the goods in his possession, he may be indicted in either, but not in both. State v. Williams (Mo.), 47 S. W. Rep. 891, is no exception to this rule. The defendant stole a steer in Texas county and brought it with him into Pulaski county, where he was indicted for larceny. The court held that the venue was properly laid in Pulaski county on the ground that each transportation of the stolen property by the thief was a new caption. Though the reasoning of the court is questionable, it reaches a sound result. In different counties there is the same law and the same punishment. There is but one offense against a single sov. ereignty. Venue being a merely formal matter, a thief may be indicted for convenience sake in any county which he enters with the stolen property without prejudice to himself. The decision in the present case, then, may well have been reached without recourse to the fiction of continuing trespass, even if such a doctrine is sound.

The principle of continuing larceny is truly tested when the thief is indicted in a jurisdiction into which he has carried goods stolen in another. The English courts have always disclaimed jurisdiction when the original taking was in another sovereignty. Regina v. Carr, 15 Cox C. C. 131n. In the United States the authorities are divided. Commonwealth v. Holder, 9 Gray, 7, proceeding on the analogy of the rule adopted where property is stolen and carried from county to county, decides that the thief may be indicted in whatever State he enters with the goods. Lee v. State, 64 Ga. 203, declares, on the other hand, that there is but one offense which exists only at the place where the original trespass occurred. Larceny is the taking and carrying away of the personal property of another animo furandi. The act of taking is the essence of the crime. It is evident that, after possession is once complete and continuous in the thief, no subsequent act of his can constitute a new caption from the cus

tody of the true owner. Yet the doctrine of Commonwealth v. Holder and kindred cases can rest on no other principle than that every act of possession by the defendant, subsequent to the original change of custody, is a new trespass on the actual possession of the true owner-which ex hypothesi has terminated. The analogy drawn from decisions like the principal case where the goods are carried from county to county is a mistaken one. There the thief can be punished but once. It is really a rule of convenience. If the palpable fiction of continuing trespass be adopted to its full extent, and the defendant make a tour with the stolen property through every State in the Union, there is nothing but death to prevent his retracing his steps in a series of imprisonments.— Harvard Law Review.

INJURY TO EMPLOYEE BY POISONOUS GERMS.

The question of an employer's liability for poisonous germs causing injury to an employee was recently decided by the Kansas City court of appeals in Hysell v. Swift & Co. This was an action against the proprietor of a slaughtering and packing establishment for the loss of an eye of a workman caused by a poisonous yellow rust that he was cleaning from an iron rail. This rust formed by blood and other or. ganic matter adhering to the rail contained bacteria that destroyed the eye. The workman was ignorant of the danger, and the contention was that the employer knew or ought to have known it. The court held that a master must keep up with scientific development and knowledge as it may affect the char acter of his business, and become informed of such scientific knowledge as men of general education and information possess relative to the danger and hazard of the business, and give due warning of the dangers to his employees. But it was held that the master was not liable in this case because the injury could not have been reasonably anticipated. In proof of this it was shown that, while this yellowish dust fell and settled over fifteen or sixteen other persons engaged in the service, it injured none of them.

The principle of the decision is doubtless the true one, whether it is rightly applied to the facts or not. Not the possibility, but the reasonable probability, of danger, must be the basis of liability. The court, as an illustration, refers to the danger of putting persons to work with one who has tuberculosis. But if a person who has that disease in an advanced stage is put by an employer who knows the fact at work with others who do not know it, and they take the disease, there is much reason to urge his liability in the present state of knowledge as to the danger of that disease. The liability ultimately rests on two questions of fact: First, the knowledge of danger; second, the degree of the danger or the reasonable probability of injury.Case and Comment.

HUMORS OF THE LAW.

An Iowa judge relates an amusing incident that occurred in his court when a colored man was brought up for some petty offense. The charge was read, and as the statement "The State of Iowa against John Jones" was made in a loud voice, the colored man's eyes bulged out of their sockets, and he seemed perfectly overcome with terror and astonishment. When he was asked if he had anything to say, or pleaded guilty or not guilty, he gasped out: "Well, yo' honah, ef de whole State o' Iowa is agin this one pore nigger, I'se gwine to give up right now?"