statute is not really penal. Southern Ry. Co. v. Bush, 122 Ala. 470. The principal Alabama case also treats the statute as remedial. Missouri has an expressly penal statute as to killing by a railroad. Mo. REV. Stat., § 5425. The Supreme Court has treated this statute as penal, in considering its constitutionality. Young v. St. Louis, Iron Mountain, & Southern R. Co., 227 Mo. 307. This court, wishing, in the principal case, to hold the statute remedial, has at last frankly fixed the true status of such a statute as "remedio-penal." DECEIT GENERAL REQUISITES AND DEFENSES WHETHER ONE REPRESENTS THAT HIS ACTS ARE LEGAL. — A complaint for deceit against a director of a corporation set forth no other misrepresentation than that the directors declared a dividend, intending that the public should regard the declaration as a representation that the dividend had been earned, whereas it was in fact paid out of capital, contrary to a statute. Held, that the complaint sets forth no cause of action. Ottinger v. Bennett, 129 N. Y. Supp. 819 (App. Div.).

A representation may be effected by conduct as well as by words, provided that it may be reasonably implied from the conduct. Collen v. Wright, 8 E. & B. 647. Thus, an order for goods implies, by common understanding, an intention to pay for them. Swift v. Rounds, 19 R. I. 527. It by no means follows that the doing of an act is an implied representation of its legality. See Ward v. Hobbs, 4 A. C. 13, 29; 3 Q. B. D. 150, 163, 165. Whether it is so or not would seem to depend upon whether, on the particular facts of the case, it would be so understood by a reasonable person. It is true that the defendant's intent to mislead has sometimes been treated as the determining factor. March v. First Nat. Bank, 4 Hun (N. Y.) 466. It is submitted, however, that his secret intent cannot affect the question whether or not his conduct amounts to a statement of fact. If his act was ambiguous, it is not less so because he desired that a certain construction be put upon it. The question in the principal case would thus be whether, on its facts, a reasonable man would take the declaration of a dividend as a representation that it was to be paid only out of profits.

EMINENT DOMAIN - COMPENSATION - DATE AS OF WHICH DAMAGES ARE ASSESSED. A railway company entered land without consent of the owner, or prior payment of compensation, and occupied it as a right of way for sixteen years, when the owner first brought suit for damages. The state constitution provided that "private property shall not be taken for public use, or damaged, without just compensation which shall be paid .. before possession is taken." Held, that the damages are to be estimated as of the date of commencement of the action or the date of the trial. Faulk v. Missouri River & N. W. Ry. Co., 132 N. W. 233 (S. D.).

Where such a constitutional provision exists, there is a conflict in the authorities as to the time as of which damages should be estimated. Some courts hold that the time of entry is decisive. Wier v. St. Louis, etc. R. Co., 40 Kan. 130; Stauffer v. East Stroudsburg Borough, 215 Pa. St. 143. Their theory is analogous to the doctrine in the case of conversion of personal property. By bringing suit for damages, the landowner treats the wrongful entry as an appropriation, and hence the damages should be assessed as of that time. Moreover the objectionable speculative element involved in estimating the compensation according to the increased or decreased value of the land at the time of trial is avoided. Other courts, however, hold that the damages are to be determined by the time of trial, since, though the railroad can lawfully appropriate the land at any time, until it does so the title is in the owner, and hence damages should be estimated as of the time of lawful appropriation. Railroad Co. v. Perkins, 49 Oh. St. 326; San Antonio, etc. Ry. Co. v. Ruby, 80 Tex. 172.

EVIDENCE

CHARACTER PROOF OF REPUTATION OF DISORDERLY HOUSES. — In a prosecution for keeping a disorderly house, the state introduced evidence of the reputation of the house in the community. Held, that such evidence is admissible. Wilson v. State, 136 S. W. 447 (Tex., Ct. Cr. App.).

Much confusion exists in the cases as to what the real issue in these prosecutions is, i. e., whether the fact to be proved is fame or reputation, or actual habit or character. Martin v. State, 56 So. 64 (Ala., App. Ct.). See 2 WIGMORE, EVIDENCE, § 1620. If reputation is part of the crime, then certainly evidence of reputation is admissible. State v. Thomas, 47 Conn. 546; Carroll v. State, III Pac. 1021 (Okl., Ct. Cr. App.). See I WIGMORE, EVIDENCE, $78. But where actual habit or character is in issue, the authorities divide. Evidence of reputation then becomes mere hearsay. However, in a majority of jurisdictions, such evidence is admitted. In re Fong Yuk, 8 Brit. Col. 118; Drake v. State, 14 Neb. 535. In a very respectable minority of states the evidence is logically excluded as hearsay not falling within the recognized exceptions to the hearsay rule. State v. Boardman, 64 Me. 523; Henson v. State, 62 Md. 231. In many of these states, such evidence is now made admissible by special legislation relating to bawdy houses. CODE OF IA., 1897, 4944; WIS. STATS., 1898, § 4581 g; MD. PUB. GEN. Laws, 1904, Art. XXVII, § 18. These statutes have been held constitutional. State v. Haberle, 72 Ia. 138. The Pennsylvania courts, while not admitting reputation to prove the character of houses generally, make an exception in case of bawdy houses. Commonwealth v. Soo Hoo Doo, 41 Pa. Super. Ct. 249. The reason for this, namely, the difficulty of getting witnesses to testify to facts within their own knowledge in cases of this nature, is well stated in an earlier Pennsylvania case. See Commonwealth v. Murr, 7 Pa. Super. Ct. 391, 393. The same argument is advanced by text writers for such an exception to the hearsay rule. See 2 WIGMORE, EVIDENCE, § 1620.

EVIDENCE

RES GESTAE

TRAIN-DISPATCHER'S SHEET. On the issue of the negligent speed of the defendant's train by which the plaintiff was injured between T. and J., after notice and failure to produce the train-dispatcher's sheet, the plaintiff was allowed to prove the running time of the train between T. and J. on the day of the accident, as it appeared on the sheet, by the testimony of a witness who had seen it within a week in the defendant's office in B. Defendant's employees testified to the existence and nature of such a sheet. Neither the telegraph operators at T. and J. who reported the data, nor the dispatcher at B. who made the entries, were produced or accounted for. Held, that the evidence is admissible, against the defendant, "as part of the res gesta of the passing of the train by the stations." St. Louis & Santa Fé R. Co. v. Sutton, 55 So. 989 (Ala.).

Declarations of an agent are admissible against his principal, if made within the scope of his authority. United States v. Gooding, 12 Wheat. 460. The frequent misinterpretation of this rule in the phraseology of res gestæ, appropriate only to a distinct criterion of admissibility, has caused an unfortunate confusion strikingly illustrated by the principal case. Cf. Texas, etc. Ry. Co. v. Lester, 75 Tex. 56. The sheet seen by this witness was circumstantially identified with the one shown to be kept by the defendant's agents. Its admissibility against the defendant, therefore, should rest upon its being an admission. Lemen v. Kansas City Southern Ry. Co., 132 S. W. 13 (Mo.). Apart from this, it could be used by the dispatcher to refresh recollection, if the original observers also testified. The Mayor, etc. of New York v. Second Ave. R. Co., 102 N. Y. 572; Chicago Lumbering Co. v. Hewitt, 64 Fed. 314. Authorities cited by the principal case have indeed held that the mechanical medium of such reports and their life-and-death importance rendered the operator's testi

mony unnecessary. Donovan v. Boston & Maine R. Co., 158 Mass. 450; Louisville & Nashville R. Co. v. Daniel, 122 Ky. 256; Firemen's Ins. Co. v. Seaboard, etc. Ry. Co., 138 N. C. 42. Copying weights from scale-tickets, since destroyed, has also been held sufficiently mechanical to dispense with the weigher's testimony. Drumm-Flato Commission Co. v. Gerlach Bank, 107 Mo. App. 426. Mere inferences from an established course of business have been relied on, out of mercantile necessity. Fielder Bros. v. Collier, 13 Ga. 496; Continental Bank v. First Nat. Bank, 108 Tenn. 374. But, whether or not such cases already encroach too far upon the hearsay rule, apparently none would justify admitting a dispatcher's sheet without his testimony, except where it constitutes an admission.

INSURANCE GUARANTY INSURANCE NATURE OF CONTRACT: RELATION TO CONTRACT OF SURETYSHIP. The defendant company issued a contractor's bond guaranteeing the payment of all subcontractors. Certain subcontractors, to whose use the present action is brought, repeatedly extended the time of payment by agreement with the principal contractor. Held, that the defendant company is still liable on the bond for the principal contractor's obligations. City of Philadelphia, to Use of Thompson v. Fidelity & Deposit Co. of Md., 80 Atl. 62 (Pa.).

For a discussion of the principles involved, see 24 HARV. L. REV. 568.

PORTATION OF NATURAL GAS. An Oklahoma statute practically prohibited the transportation of natural gas, by means of pipe lines, out of the state, although domestic commerce was allowed. Held, that the statute is unconstitutional. West v. Kansas Natural Gas Co., 31 Sup. Ct. 564; Haskell v. Cowham, 187 Fed. 403 (C. C. A., Eighth Circ.).

A state has no power to interfere directly with interstate commerce. Pullman Co. v. Kansas ex rel. Coleman, 216 U. S. 56. The absolute power of the State over its highways urged in support of the present statute, as a means of prohibiting the exportation of gas, must give way to the exclusive jurisdiction of Congress. That Congress has not legislated does not authorize the state to do so, for the original right to engage in interstate commerce, under the Constitution, can be regulated by Congress only. State laws prohibiting interstate commerce in game, however, have been sustained. Geer v. Connecticut, 161 U. S. 519; New York ex rel. Silz v. Hesterberg, 211 U. S. 31. A state statute prohibiting the taking of water from fresh-water streams to another state was held valid. Hudson County Water Co. v. McCarter, 209 U. S. 349. The right of the state to preserve its natural resources to itself would seem to be as great in the principal case. The interference with interstate commerce seems no more direct. But the nature of the state's property right in wild animals, and in streams, as compared with the complete private property right of the owner of natural gas reduced to possession differentiates the cases. See 25 HARV. L. REV. 76. The principal case seems clearly right. State ex rel. Corwin v. Indiana & Ohio Oil, etc. Co., 120 Ind. 575.

JUDGMENTS OPERATION AS BAR TO OTHER ACTIONS- DAMAGE TO PERSON AND PROPERTY CAUSED BY ONE NEGLIGENT ACT. - The plaintiff, while riding in his wagon, was struck by the defendant's trolley car and injured personally. His horse and wagon were also damaged, for which he recovered judgment. Held, that this does not bar an action for the personal injuries. Ochs v. Public Service Ry. Co., 80 Atl. 495 (N. J., Ct. Err. and App.).

This case reverses the decision of the lower court, criticised in 24 HARV. L. REV. 492.

LANDLORD AND TENANT REPAIR OF PREMISES - TORT LIABILITY OF LANDLORD. The defendant leased premises to a tenant for purposes of public

amusement, retaining the right to enter and make repairs, but not covenanting to repair. The plaintiff, while lawfully on the premises, was injured, owing to the premises having, by reason of negligence, become dangerous. Held, that the plaintiff has no cause of action against the defendant. Shapiro v. Wendover Hall Co., 45 N. Y. L. J. 2082 (N. Y., Sup. Ct., Aug., 1911).

In the absence of an agreement to repair, a landlord is not liable for personal injuries to a tenant or a member of the tenant's family, guest, or servant, who stands in the same position as the tenant, due to the defective condition of the demised premises, where the defects are not hidden defects existing at the time of letting, known to him and unknown to the tenant. Akerley v. White, 58 Hun (N. Y.) 362; Galvin v. Beals, 187 Mass. 250. And even if he has agreed to repair, it has been held that he is not so liable, - either in tort, because the failure so to repair is a mere non-feasance, or for substantial damages in contract, because damages for personal injuries are not recoverable for such a breach. Cavalier v. Pope, [1906] A. C. 428; Schick v. Fleischhauer, 26 N. Y. App. Div. 210. He is, however, liable for the condition of the part of the premises under his control, both to the tenant and to third parties lawfully on the premises, except bare licensees. Lang v. Hill, 138 S. W. 698 (Mo.); Miller v. Hancock, [1893] 2 Q. B. 177. For personal injuries to third parties, moreover, where he makes a covenant to repair, the landlord is liable for the condition of the demised premises, according to the prevailing view, either because he retains his tort obligation of due care or to avoid circuity of action. May v. Ennis, 78 N. Y. App. Div. 552. See City of Lowell v. Spaulding, 4 Cush. (Mass.) 277, 279. But, as held in the principal case, in the absence of such a covenant, unless the premises were a nuisance at the time of letting, the landlord has no tort liability toward third persons. Lane v. Cox, [1897] 1 Q. B. 415; Ahern v. Steele, 115 N. Y. 203.

MALICIOUS PROSECUTION

BASIS AND REQUISITES OF ACTION -GARNISHMENT RESULTING IN CONSEQUENTIAL DAMAGE. The plaintiff's wages were by statute exempt from garnishment, but his employer was accustomed to discharge any workmen whose wages were garnished. The defendant, knowing this, attempted to garnish the plaintiff's wages, and, as a result, the plaintiff was discharged. The plaintiff then brought an action for malicious abuse of process. Held, that he may recover. King v. Yarbray, 71 S. E. 131 (Ga.).

For a discussion of the principles involved, see 24 HARV. L. REV. 325.

MECHANICS' LIENS PRIORITY OVER MORTGAGE FOR FUTURE ADVANCES. - On a bill in equity to enforce a mechanics' lien for materials furnished, the question was whether a mortgage given to secure future advances to be made under a contract took precedence over the lien as to advances made subsequently to the acquisition of the lien and with no other notice of it than the understanding that the money advanced was to be used in erecting a building. Held, that the mortgage takes precedence as to prior advances only. Allen Co. v. Emerton, 79 Atl. 905 (Me.).

Like most mechanics' lien statutes, the Maine law simply provides that the lien shall attach to any interest which the owner that is, the equitable owner has in the land. REV. STATS. OF ME., 1903, c. 93, § 29. Where land has been mortgaged, the mortgagor's interest obviously includes all rights not already granted to the mortgagee. If the mortgage is given as security for merely optional advances, some courts hold that it has no effect upon the equity of redemption until the advances have been made, and that, consequently, any second incumbrance takes precedence, when recorded, over the first mortgage as to subsequent advances. Ladue v. Detroit & Milwaukee R. Co., 13 Mich. 380. By the weight of authority, however, a recorded mortgage

is a potential lien, and gives security for all advances made on the faith of it before receipt of actual notice of a second lien. Ackerman v. Hunsicker, 85 N. Y. 43. Cf. Hopkinson v. Rolt, 9 H. L. Cas. 514. If, on the other hand, the mortgagee has bound himself to make advances, he immediately becomes, by the better view, a bonâ fide purchaser to the full amount of his contractual liability, and no subsequent incumbrance can affect his rights. Moroney's Appeal, 24 Pa. St. 372; Blackmar v. Sharp, 23 R. I. 412. The English rule, however, accords with that of the principal case. West v. Williams, [1899] I Ch. 132.

FURNISHED.

MECHANICS' LIENS - WHAT CONSTITUTES MATERIALS The plaintiffs furnished lumber to make forms for a concrete building. These forms did not remain in the building permanently, but were made valueless by the use. A statute provides that "a person who performs labor or furnishes materials . . . for the improvement, in any manner, of real estate . . . Ishall have a lien thereon." Held, that the plaintiffs are entitled to a lien. Avery v. Woodruff, 137 S. W. 1088 (Ky.).

By the better view, a mechanics' lien statute which merely gives a new remedy to enforce a right is to be construed liberally. Springer Land Association v. Ford, 168 U. S. 513. See BOISOT, MECHANICS' LIENS, §§ 34-36. Contra, Pugh Co. v. Wallace, 198 Ill. 422. But even if it is considered to be in derogation of the common law, in Kentucky the principle of broad interpretation must be applied. RUSSELL, STATS. OF KY., 1909, § 4174. On this view, it has been decided by cases in which dynamite was used in construction, that to come within the words of the statute, physical incorporation into the structure of the materials furnished is not essential. Giant-Powder Co. v. Oregon Pacific Ry. Co., 42 Fed. 470. On the other hand, strict construction has led to the decision that oil furnished to a railroad is not within the terms of a similar statute. Central Trust Co. v. Texas & St. Louis Ry. Co., 23 Fed. 703. Taking the liberal view, the principal case appears to be closely analogous to the dynamite case, and accordingly a proper interpretation of the statute. To prevent an undue extension of the decision and to reconcile it with authorities, it is suggested that a proper delimitation would be to exclude material, such as scaffolding, which can be used again. Oppenheimer v. Morrell, 118 Pa. St. 189.

MUNICIPAL CORPORATIONS - LIABILITY FOR TORTS FAILURE TO ENFORCE ORDINANCES RELATING TO USE OF STREETS. - A city passed an ordinance making it unlawful for vicious dogs to run at large and requiring police officers to kill any such dogs. Through failure of the officers to enforce the ordinance, the plaintiff was bitten. He sues the city on the theory that this was a failure to exercise a corporate rather than a governmental power. Held, that he may not recover. Addington v. Town of Littleton, 115 Pac. 896 (Colo.). Constructing and maintaining streets in a reasonably safe condition is a corporate duty for the breach of which an action lies at common law. Denver v. Maurer, 47 Colo. 209. But making and enforcing ordinances regulating the use of streets is an exercise of governmental power, and for failure to enforce such ordinances there is no liability in the absence of statute. The principal case, although near the border-line, seems rightly decided. It represents the weight of authority. Rogers v. City of Binghamton, 101 N. Y. App. Div. 352, aff. 186 N. Y. 595; Hull v. Roxboro, 142 N. C. 453. Contra, Taylor v. Mayor, etc. of Cumberland, 64 Md. 68. The doctrine of the minority is criticized in 15 HARV. L. REV. 736.

NEW TRIAL GROUNDS FOR GRANTING NEW TRIAL PREJUDICIAL CONDUCT BY TRIAL JUDGE. — At a trial for murder the judge in making rulings did things which, probably negligible if limited to one or two instances, in the aggregate were calculated to create an atmosphere of prejudice against the de