but that this defense will not avail the other stockholders who had notice. Mills v. Hendershot, 62 Atl. Rep. 542 (N. J., Ch.).

Equity is not bound by the analogy of the statute of limitations, but may in its discretion apply it. Rugan v. Sabin, 53 Fed. Rep. 415. When there are concurrent remedies at law and in equity, and the former is barred by the lapse of the statutory period, equity will where fair apply the analogy of the statute to the equitable remedy. Kane v. Bloodgood, 7 Johns. Ch. (N. Y.) 90. Where dividends have been improperly paid out of capital it has been held that assumpsit lies at the instance of the company to recover them. Cf. Lexington, etc., Ins. Co. v. Page & Richardson, 17 B. Mon. (Ky.) 412. But where the dividends were received in good faith the lapse of the statutory period will be a bar both at law and in equity. Lexington, etc., Ins. Co. v. Page & Richardson, supra. It seems therefore that the defendant Downs is properly entitled to the benefit of the statute. But the other stockholders, who knowingly received their dividends without right, should not receive similar protection in equity. Cf. Vane v. Vane, L. R. 8 Ch. 383.

EQUITY INJUNCTION PROTECTION OF A VALUABLE Trade Secret.The defendant Nichols contracted with the complainant to devote his entire time and skill during a period of five years to the business of the complainant and never to divulge a valuable trade secret entrusted to him. With full notice of this contract, the other defendant, the American Foundry Co., induced Nichols to enter their employment with intent to gain possession of the complainant's trade secret. The complainant sought an injunction against both defendants. Held, that since the injury to the complainant by a disclosure of its trade secret would be irreparable, it is entitled to an injunction restraining not only the defendant Nichols from making the disclosure, but also the defendant company from employing Nichols or using any information acquired from him. Taylor Iron, etc., Co., v. Nichols, 61 Atl. Rep. 946 (N. J., Cĥ.).

By the better view, one who invents or discovers a secret process has a property right therein which a court of chancery will protect both against one who in violation of his contract undertakes to disclose it to third parties, and against those who with notice seek to profit by such disclosure. Peabody v. Norfolk, 98 Mass. 452. That portion of the injunction which restrained Nichols from disclosing, and the defendant company from using, the complainant's trade secret, clearly falls within this rule. Cf. Salomon v. Hertz, 40 N. J. Eq. 400. But the court goes further, and while expressly refusing to enjoin Nichols from taking other employment, restrains this particular defendant from employing him. There seems to be no case directly in point, either for or against such additional relief. As both defendants have shown themselves to be unscrupulous, to permit such employment would give them an excellent opportunity to devise a means of violating the injunction in safety, and such violation would work irreparable injury to the complainant. The circumstances, therefore, clearly seem to warrant the fuller protection of the innocent party against probable affirmative harm.

EXECUTORS AND ADMINISTRATORS ADMINISTRATION BONDS - RIGHT OF SURETY TO PURCHASE PROPERTY OF ESTATE. - An administrator fraudulently procured an order from the probate court for the sale of land, and then sold it to the surety on his bond. The court approved the sale. Held, that the sale may be set aside at the suit of a devisee, though the surety was without notice of the fraud. Fincke v. Bundrick, 83 Pac. Rep. 403 (Kan.).

An administrator's sale to a stranger cannot be avoided by proof of fraud, if the purchaser is bona fide. Adams v. Thomas, 44 Ark. 267. In nearly all jurisdictions the sale is voidable, even though not fraudulent, if the administrator, judge, auctioneer, or administrator's attorney purchases, because of the moral obligation to avoid a conflict between self-interest and duty. Cf. O'Dell v. Rogers, 44 Wis. 136. The court in the present case uses the same argument to deprive sureties of the rights of ordinary bona fide purchasers, but as they have no duties in connection with the sale, the decision requires further explanation. The court, in suggesting that the surety promises that the administrator will perform

his duty and that he must make specific reparation for the administrator's default, overlooks the fact that the surety does not undertake that the administrator's duty will be performed, but rather to pay damages if it is not performed. The decision is without precedent and must rest on the ground that an administrator is inclined to favor his surety and that fraud is easily concealed. But a sale to the administrator's son is not voidable on that ground, and no reason of policy appears for applying a stricter rule to his surety. Cain v. McGeenty, 41 Minn. 194.

EXECUTORS AND ADMINISTRATORS RIGHTS, POWERS AND DUTIES RIGHT AND DUTY OF RETAINER. - A sole trustee died insolvent having misappropriated trust funds. His administratrix refused to assume the trust. Sometime thereafter she appointed new trustees, in accordance with statutory provisions, in whom, however, the trust property was not vested. These trustees asked that the administratrix be required to exercise her right of retainer in order to recoup the trust estate from the personal estate of the decedent. Held, that the right of retainer is a privilege which, under the circumstances, the administratrix could not be compelled to exercise. In re Benett, 54 W. R. 237 (Eng., Ct. App., Dec. 5, 1905).

It is well established that a personal representative holding a claim, either legal or equitable, in trust for another, may exercise the right of retainer for the benefit of the trust fund. In the case of legal claims there are decisions, and of equitable claims, dicta to the effect that he must so exercise it at the instance of the cestui que trust. Fox v. Garrett, 28 Beav. 16; cf. Sander v. Heathfield, L. R. 19 Eq. 21; see LEWIN, TRUSTS, 9th ed., 1037. This position appears sound, since even though retainer be a privilege merely, it should be a privilege for those beneficially interested, since they, and not the personal representative, are injured by the latter's inability to bring an action. The present case exhibits a readiness to depart from this rule, and to disregard the dicta supporting the cestui's right to compel the retainer in the case of an equitable claim. Though the conduct of the administratrix in refusing the trust duties may seem open to question, yet as it has been decided that she may so act and as the cestuis or the new trustees might have proceeded against the estate for breach of trust, this case may perhaps be distinguished. Legg v. Mackrell, 2 De G. F. & J. 551; In re Ridley, [1904] 2 Ch. 774; Hatherley v. Dunning, 54 L. J. Ch. 900.

GOOD WILL GOOD WILL AS PROPERTY WHETHER MERELY AN ATTRIBUTE OF LAND. A racecourse company contracted to transfer to a reorganized company its land, business, and good will for £32,792, £10,000 representing the value of the land alone. The prospect of enjoying the same position as the old company under licenses from the Australian Jockey Club chiefly constituted the good will. Race meetings and clubs, not racecourses, were licensed. A deed was executed, conveying only the real estate, for the consideration of £10,000. Held, that the good will is not separate property, but merely enhances the value of the land, and that therefore the deed is subject to a stamp tax on the full amount, £32,792. In re The Rosehill Racecourse Co., 5 N. S. W. Rep. 492.

Good will is generally recognized to be a form of property. See 16 HARV. L. REV. 135; 15 Fed. Rep. 315, note; contra, Elliott's Appeal, 60 Pa. St. 161. It was originally regarded as purely local and hence inseparable from realty, but in this country the prevailing view is that mercantile good will may be distinct from the land upon which the business is conducted, and even from chattels employed in the business. See People v. Roberts, 159 N. Y. 70, 79; Washburn v. Nat'l Wall Paper Co., 81 Fed. Rep. 17. This view has support in England also. Potter v. Commissioners, 10 Exch. Rep. 147; but cf. Commissioners v. Muller & Co., [1901] A. C. 217. Obviously, the value of real estate may itself be enhanced by connection with a business. Cf. Ex parte Punnett, 16 Ch. D. 226. But it may equally be enhanced by a neighboring business, and such appreciation seems distinct from good will. Accuracy, therefore, demands that the good will which is the subject of a particular transfer be examined to discover whether it inheres, for example, in land, chattels, trade or firm names, licenses, agencies,

or the grantor's covenants. It is probable that in the principal case it could be enjoyed upon other land and consequently was distinct property. Unless, therefore, by construction of the deed the good will be included in the description, it is difficult to see how it passed at all by that conveyance.

LIBEL AND SLANDER LAUDATORY - ACTS AND WORDS ACTIONABLE WORDS. The defendant newspaper knew that physicians and a large part of the public considered advertising by a physician unprofessional, and one who advertised, a "quack." The plaintiff's petition alleged that, maliciously and with intent to injure him, the defendant published a laudatory account of an imaginary cure said to have been effected by the plaintiff, and that he was damaged in consequence thereof. Held, that the plaintiff states a valid cause of action based upon the implication that he had inspired the article. Martin v. Nicholson Publishing Co., New Orleans Picayune, Jan. 5, 1906 (La., Sup. Ct.). See Notes, p. 527.

LIBEL AND SLANDER MENT OF DAMAGE.

DAMAGES SICKNESS CAUSED BY LIBEL as EleThe plaintiff brought this action of libel based on words libelous per se. The publication was without malevolence. In aggravation of damages the plaintiff was permitted to prove that the libel caused her acute mental distress as a result of which she became sick and unable to follow her profession. The jury awarded her $3,000 damages. Held, that the verdict be set aside as excessive, since the fact that the libel caused sickness resulting in inability to follow a profession is a consequence too remote to be properly proved in aggravation of general damages. Butler v. Hoboken Printing, etc., Co., 62 Atl. Rep. 272 (N. J., Sup. Ct.).

It is generally settled that in an action of libel only those damages may be recovered which are the proximate result of the libel. Chamberlain v. Boyd, 11 Q. B. D. 407. In determining what damages are "proximate" the courts have usually been rather strict. Cf. Lynch v. Knight, 9 H. L. Cas. 577. By the weight of authority, however, mental suffering is regarded as a proximate result of publishing a libel or slander, and as such it is a proper element to be considered by the jury in assessing general damages. Chesley v. Tompson, 137 Mass. 136. There is little authority as to whether sickness resulting from such mental anguish is a damage too remote to be the subject of recovery. In England and in New York the courts decline to hold it a sufficient special damage, where the words are not actionable per se. Allsop v. Allsop, 5 H. & N. 534; Terwilliger v. Wands, 17 N. Y. 54. A Texas case, however, permitted the jury to consider, presumably as an element of general damages, sickness and inability to labor resulting from slander. Zeliff v. Jennings, 61 Tex. 458. But the case at hand applies the English doctrine to the estimation of general damages in an action for words libelous per se.

MALICIOUS PROSECUTION - BASIS AND REQUISITES OF ACTION- COURT'S LACK OF JURISDICTION. — A writ of attachment in garnishee process was sued out maliciously and without probable cause from a court which had no jurisdiction, and damage resulted from the levy. Held, that an action for malicious prosecution will lie. Ailstock v. Moore Lime Co., 52 S. E. Rep. 213 (Va.).

It is generally held that, notwithstanding a defect in the process, an action on the case for malicious prosecution may be maintained. Ward v. Sutor, 70 Tex. 343; contra, Braveboy v. Cockfield, 2 McMull. (S. C.) 270. But by the weight of authority, if the court before which the defendant made the charge or instituted the suit had no jurisdiction of the subject matter, malicious prosecution will not lie, on the ground that the proceedings were extra-judicial and merely an attempt at prosecution, and that trespass is the proper remedy. Berger v. Saul, 113 Ga. 869; Vinson v. Flynn, 64 Ark. 453. Yet the objection that technically there has been no prosecution applies equally well where the court lacked jurisdiction of the person; and in cases where the defendant does nothing more than apply for a warrant or for a writ, and in no way participates in the service thereof, it is not easy to see how he has committed a trespass. See Marshall v. Betner, 17 Ala. 832, 836. Since the defendant has maliciously and without probable cause set judicial machinery in motion against the plaintiff,

who has in fact suffered damage thereby, there seems to be no very grave diffi. culty in allowing case for malicious prosecution. Cf. Antcliff v. June, 81 Mich.

477.

MASTER AND SERVANT- FELLOW-SERVANT DOCTRINE - INJURIES TO PAUPERS Compelled to Labor. A pauper inmate of a workhouse was compelled under penalty of law to work for the guardians. While thus employed he was injured by the negligence of another servant of the guardians. Held, that the fellow-servant doctrine does not apply, and that the pauper may recover from the guardians. Tozeland v. Guardians, 22 T. L. R. 300 (Eng., K. B. D., Feb. 14, 1906).

The fellow-servant rule has in effect established an exception in the law of agency to the general principle of respondeat superior in the case of injuries tortiously inflicted upon one servant by another servant of the same master, upon the ground that as the danger of the latter's tortious conduct might reasonably have been foreseen, the risk is presumed to have been voluntarily assumed by the injured employee. Hence the doctrine should not apply to a servant who has no option to assume or to refuse these risks. Accordingly, there are strong dicta that the fellow-servant rule is not applicable to convicts compelled to labor for contractors. Boswell v. Barnhart, 96 Ga. 521; cf. Buckalew v. Tennessee, etc., Co., 112 Ala. 146. Similar language in opinions in the cases of slaves and of English pilots is really not in point, since neither the slaves nor the pilots were servants at all, but respectively chattels and independent contractors. See Scudder v. Woodbridge, Ga. 195; cf. Ponton v. Wilming ton, etc., Co., 6 Jones Law (N. C.) 245; Smith v. Steele, L. R. 10 Q. B. 125. The pauper seeks the workhouse under the stress of his poverty, and once there he must work as ordered. The court's conclusion is, therefore, clearly justified that the pauper had no real option about assuming the risks from which he suffers.

MASTER AND SERVANT

TRACTOR.

He

- The plaintiff, while employed by the defendant in stowing cotton on board a vessel, was injured by a bale which fell upon him through the negligence of other persons employed by the defendant upon the same work. brought this action against the defendant, who denied responsibility upon the ground that the labor union, of which the plaintiff was a member, reserved the right to appoint the foreman in charge of the work, who in turn had power both to select the laborers and to superintend the work. Held, that since the responsibility of employers for injuries received by workmen rests upon their freedom to select and superintend the latter, the defendant is not liable. Farmer v. Kearney, 39 So. Rep. 967 (La.).

One who contracts with an independent contractor for the performance of an act which is not unlawful, a nuisance, or manifestly dangerous to third parties, is not liable, under the rule of respondeat superior, for the negligence of such contractor or of his servants. Murray v. Currie, L. R. 6 C. P. 24. And the test usually applied to determine the relation to the defendant of the negligent party, whether servant or independent contractor, is whether the defendant retained the power of controlling the work in detail. Murphey v. Carall, 3 Hop. & C. 462; Sadler v. Henlock, 4 E. & B. 570. In the case at hand it appears that the defendant had the right neither to select the laborers nor to control the manner in which the work should be done. Whether the right to control rested with the foreman personally, or with the foreman as the officer and agent of the union is not clear. In either case it is plain that the defendant is not liable. Cf. Murray v. Currie, supra. Another fatal objection to the plaintiff's recovery could be based on the "fellow-servant " rule, which obtains in Louisiana. Satterly v. Morgan, 35 La. An. 1166.

NUISANCE PRIVATE ACTION FOR PUBLIC NUISANCE - SPECIAL DAMAGE. The plaintiff, a private citizen, sought to enjoin the defendant from excluding the plaintiff's cattle from government lands which the public had a right to use as a common for the pasturage of stock. The plaintiff proved no circumstances tending to show special damage to himself, other than the owner

ship of land in the vicinity and a desire to avail himself of the right of common. Held, that this does not constitute such special damage as is necessary to support a private action for a public nuisance. Wilkinson, etc., Co. v. McIlquam, 83 Pac. Rep. 364 (Wyo.).

The usual broad statement of the law is that a private action for a public nuisance is maintainable only by one suffering thereby some special damage. A distinction, however, which seems valid, has been expressly recognized by some courts, and apparently unconsciously observed by many others. When the gist of the wrong is an injury to one's person or private property resulting from the alleged nuisance, a private action may be maintained even though that nuisance is indictable, and the plaintiff suffers no more damage than numerous other persons. Wesson v. Washburn Iron Co., 13 Allen (Mass.) 95. But when the gist of the wrong is a disturbance of a common and public right, then a private action lies only if the individual proves a special injury which is different from that suffered by the public in general and which is not too remote and consequential. See Benjamin v. Storr, L. R. 9 C. P. 400, 406. In applying these tests, each case must be considered on its own facts, although courts differ as to how consequential the particular injuries may be. Cf. Wilkes v. Hungerford Market Co., 2 Bing. (N. C.) 281; Ricket v. Metropolitan Ry. Co., L. R. 2 H. L. 175. All courts, however, would probably recognize the correctness of the present decision. Cf. Winterbottom v. Lord Derby, L. R. 2 Exch. 316.

NUISANCE RECOVERY OF DAMAGES RIGHT OF REVERSIONER.

As

the result of the operation of a light and power plant, the owner of adjacent property suffered loss by being compelled to allow a reduction in rent upon making a renewal lease. He later filed a bill to prevent the continuance of the nuisance, and also asked for damages for loss of rent. After the bill was filed, but before trial, the nuisance was abated. Held, that he cannot recover damages. Three justices dissented. Miller v. Edison, etc., Co., 34 N. Y. L. J. 1739

(N. Y., Ct. App., Feb. 6, 1906).

It has long been settled that a reversioner can recover for an injury to the inheritance, even though the tenant may have an action for injury to his particular estate on account of the same malfeasance. Bedingfield v. Onslow, 3 Lev. 209. But, in order to recover for a nuisance, it must be of such a permanent nature as necessarily to injure the reversion. Simpson v. Savage, 1 C. B. (N. s.) 347. Accordingly, the New York courts have allowed the reversioner to recover against the elevated railway, since, by its charter, it may remain indefinitely. Kernochan v. New York Elevated Rd., 128 N. Y. 559. But where the nuisance is only temporary and affects only the present salable value of the reversion, the reversioner is held to have no claim, for the questionable reason that as a purchaser will always have a remedy when he enters into possession the price should not be diminished by such nuisance. Rust v. Victoria, etc., Co., 36 Ch. D. 113. Conceding the correctness of that rule, which must now be regarded as established, the claim of the reversioner in the present case was justly refused. The law seems to proceed on the theory that the landlord should get full rent and let the tenant recover for injury to his possessory rights, rather than that the landlord should recover and reduce the rent.

PARTNERSHIP - Rights of PARTNERS INTER SE RIGHTS OF DECEASED PARTNER'S REPRESENTATIVE AS AGAINST EQUITABLE MORTGAGEE. · A and B were partners under an agreement providing that upon the death of either, the surviving partner should take over the other's interests, paying his estate therefor. B, the surviving partner, executed an equitable mortgage, as security for a loan, on land which had been joint partnership estate. Subsequently B died insolvent, having failed to pay for A's interest in the business. A's executors claimed a lien on the proceeds of the real estate in priority to the mortgagee. Held, that the mortgagee has priority. In re Bourne, [1906] 1 Ch. 113. The decision is unquestionably correct, but in its reasoning the court appears quite oblivious of both the reasoning and the decision of the House of Lords in a prior case. Knox v. Gye, L. R. 5 H. L. 656, 675; see also Noyes v. Crawley,