Roofing Company." The secretary took this to the defendants, who signed it, and he (the secretary) returned the same to the bank. A few days after the delivery of the instrument the roofing company was allowed to overdraw its account to the extent of $509. Thereafter, and about the time the bank's quarterly statement was due, it requested the roofing company to make a note for $500, to cover that amount of the overdraft. The request was granted, and on the 5th day of November, 1895, the roofing company, through its secretary, executed and delivered a demand note for the sum of $500. payable to the bank. This note was renewed on February 10, 1896, and again on April 1, 1896,-each time by a demand note bearing 8 per cent. interest, and providing for attorney's fees. No notice of the acceptance of the guaranty, or of advances made thereon, was ever given the defendants. At the time of the transactions in question the Drake Roofing Company was insolvent, and, as it failed to pay the last renewal note, this action was brought on that note, and the instrument of guaranty hitherto set out. The defenses have already been stated, and, as they are each and all relied on, they will be considered in the order in which they were set out.

When defendants signed the letter of guaranty, the Drake Roofing Company was not indebted to the plaintiff. The advancements were made by the bank after the delivery of the instrument of guaranty, and the primary question is, was notice of the acceptance of the guaranty necessary? The authorities relating to this question are in hopeless conflict, and, although some of the rules are fairly well settled, there is a want of harmony in the decisions applying them to special circumstances. When the guaranty is a letter of credit, or an effort to become responsible for a credit that may or may not be given to another, at the option of the party to whom the application for credit is made, the decided weight of authority is that the guarantor must within a reasonable time be notified of the acceptance of the guaranty. But they differ more or less in determining what is a guaranty and what an offer to guaranty. Two very satisfactory and conclusive reasons are given for this general rule. The first is that the so-called guaranty is a mere offer or proposition, and is not complete until the party making the offer is notified of its acceptance, when the minds of the parties meet, and the contract is completed. The second is that the party making the offer is entitled to know whether or not his offer has been accepted, that he may know his responsibility, and so regulate his course of conduct toward the principal debtor that he may not suffer loss. See, as supporting the rule, Edmondston v. Drake, 5 Pet. 624, 8 L. Ed. 251; Douglass v. Reynolds, 7 Pet. 113, 8 L. Ed. 626; Lee v. Dick, 10 Pet. 482, 9 L. Ed. 503; Adams v. Jones, 12 Pet. 207,9 L. Ed. 1058; Davis v. Wells, 104 U. S. 159, 26 L. Ed. 686; Machine Co. v. Richards, 115 U.S. 524, 6 Sup. Ct. Rep. 173, 29 L. Ed. 480; Claflin v. Briant

58 Ga. 414; Taylor v. McClung, 2 Houst. 24; Tuckermann v. French, 7 Greenl. 115; Kellogg v. Stockton, 29 Pa. St. 460; Cincheloe v. Holmes, 7 B. Mon. 5; Allen v. Pike, 3 Cush. 238; Mussey v. Rayner, 22 Pick. 223; Rankin v. Childs, 9 Mo. 673; Mayfield v. Wheeler, 37 Tex. 256; McCollum v. Cushing, 22 Ark. 540; Geiger v. Clark, 13 Cal. 579; Cooke v. Orne, 37 Ill. 186; Oaks v. Weller, 13 Vt. 106; Steadman v. Guthrie, 4 Metc. (Ky.), 147; Kay v. Allen, 9 Pa. St. 320; Beebe v. Dudley, 26 N. H. 249. In Douglass v. Howland, 24 Wend. 35, Justice Cowen wrote an elaborate opinion entirely repudiating the doctrine of notice as necessary to the consummation of the contract; but that has not been generally followed and has been doubted, if not overruled, by Jackson v. Griswold, 4 Hill, 522. See, also, Beekman v. Hale, 17 Johns. 140. There are a few cases that seem to hold a guaranty relating to future advances binding, although no notice of acceptance is given the guarantor. These decisions are opposed to the great weight of authority, and we are not inclined to follow them. See Whitney v. Groot, 24 Wend. 82; Wright v. Griffith, 121 Ind. 478, 23 N. E. Rep. 281, 6 L. R. A. 639; Bank v. Coster's Ex'rs, 3 N. Y. 303; Lonsdale v. Bank, 18 Ohio, 126; Yancey v. Brown, 3 Sneed, 89. But even here the conflict is more in the application of principles to particular facts than in the principles themselves. The difficulty seems to be in distinguishing between an absolute guaranty and a mere offer to, or proposal of, guaranty. In some cases it is held that notice of acceptance must be given the guarantor even though his promise be absolute in terms. Chief Justice Marshall so held in Russell v. Clarke's Ex`rs, 7 Cranch, 69, 3 L. Ed. 271. Judge Story appears to have been of the same opinion. See Cremer v. Higginson, 1 Mason, 323, Fed. Cas. No. 3,383. See, also, Allen v. Pike supra; Talbot v. Gay, 18 Pick. 534; Craft v. Isham, 13 Conn. 28. But New York and some other States hold to the contrary. See cases already cited. But here, again, the conflict seems to be founded primarily on the construction of the contract, and on the divergent views as to what constitutes an absolute guaranty. Conceding for the purposes of the case that no notice of acceptance of an absolute guaranty is required, and holding, as we do, that a mere offer or proposal of guaranty requires notice of acceptance by the other party, we are to determine to . which class the instrument in suit belongs. The best statement of the rule we have been able to find is that announced in Machine Co. v. Richards, 115 U. S. 524, 6 Sup. Ct. Rep. 173, 29 L. Ed. 480, where Gray, J., speaking for the court, says: "A contract of guaranty, like every other contract, can only be made by the mutual assent of the parties. If the guaranty is signed by the guarantor at the request of the other party, or if the latter's agreement to accept is contemporaneous with the guaranty, or if the receipt from him of a valuable consideration, however small, is acknowledged in the guaranty, the mutual assent is proved, and

the delivery of the guaranty to him, or for his use, completes the contract. But if the guaranty is signed by the guarantor without any previous request of the other party, and in his absence, for no consideration moving between them, except future advances to be made to the principal debtor, the guaranty is, in legal effect, an offer or proposal on the part of the guarantor, needing an acceptance by the other party to complete the contract." See, also, De Cremer v. Anderson (Mich.), 71 N. W. Rep. 1090. The case at bar clearly belongs to the latter class stated by Justice Gray. There is no evidence of any request from plaintiff to defendant guarantors, or of any consideration moving from it, and received or acknowledged by them at the time they signed the guaranty, or that credit was extended the Drake Roofing Company at the time the letter of guaranty was delivered. Indeed, it clearly appears that the guaranty was not signed at the request of plaintiff. It was not present, either by agent or otherwise, at the time the instrument was executed; and there was no consideration for the guaranty, except in the future advances to be made to the roofing company. Plaintiff did not know who was to sign the guaranty until it was delivered, and even after delivery it was not bound to extend credit to the roofing company. We are of opinion that the instrument was, in legal effect, a mere offer of guaranty, requiring notice of acceptance to bind the guarantors. It is conceded by all parties that the guaranty is a collateral, and not an original, promise. Hence we have no occasion to determine any other question than that already decided. If the letter should be construed to be an original promise on the part of the defendants to pay for any goods that might be furnished to the Drake Rooting Company, or to pay any advances that might be made to it. perhaps the delivery of the goods or the furnishing of the money might complete the contract, under the rule announced in Bish. Cont. §§ 330-333. But no such contention is made in the

case.

The waiver of notice found in the guaranty has no reference to the notice of acceptance. Appellee contends, however, that we have already committed ourselves to the New York rule, and cites a number of our former decisions in support of its contention. This claim calls for a review of some of our previous cases. In Carman v. Elledge, 40 Iowa, 409, one Hampton had purchased a cow at public sale. Carman, the seller, refused to deliver her on Hampton's credit alone, and a note for the purchase price was drawn up and signed by Hampton. Defendant Elledge made an order on Carman to let Hampton have the cow, stating in the order that he would sign the note with Hampton. Relying on defendant's promise, Carman delivered the cow, but Elledge refused to sign or pay the note. In that case we approved the rule hitherto announced in this opinion, but held that the instrument, if a guaranty at all, was absolute and complete, and not a mere offer or proposal. It will be noticed that

the obligation of the principal debtor in that case was complete at the time the order was written, and that the acceptance of the order and the delivery of the animal were contemporaneous. That case is an authority for the rule we have just announced. In Case v. Howard, 41 Iowa, 479, plaintiff sold one Hills a bill of goods on the faith and credit of a writing signed by defendant, as follows: Mr. Hills wishing to purchase one case of tobacco on credit, I hereby agree to see the same paid for in four months, should said purchase be made." Recognizing the rule in the Carman case, we said, speaking through Day, J., "The guaranty in this case was absolute." This is all that is said regarding that point. That it was not regarded as controlling clearly appears from what follows. The opinion then recites that, when Hills returned from making his purchase, he exhibited a bill showing the purchase of the tobacco on credit of four months, and a settlement of the same by note. This was held to be notice to the defendant that the condition on which he had agreed to become liable had been performed. This case is in line with all the authorities which hold that the notice need not be in any particular form, nor need it come from the guarantee himself. Knowledge, no matter how acquired, is held to be notice, and it may be inferred from facts and circumstances warranting such a conclusion. See Adams v. Jones, supra; Bascom v. Smith, 164 Mass. 61, 41 N. E. Rep. 130; Bishop v. Eaton, 161 Mass. 496, 37 N. E. Rep. 665, 42 Am. St. Rep. 437; Oaks v. Weller, 16 Vt. 63; Bank v. Carpenter, 41 Iowa, 518. These cases are the only ones on which appellee relies, and we have seen that they do not support the rule contended for by it. There are some other cases to which it is well to call attention. In Case v. Luse, 28 Iowa, 527, the rule of Lee v. Dick, 10 Pet. 482, 9 L. Ed. 503, and the statement of the principle in 2 Pars. Cont. p. 13, note "d," was approved; and although the instrument sued on in that case was held not to be a promise, yet it was said that, if it had been, defendant was not bound, because not notified of its acceptance. In Farwell v. Sully, 38 Iowa, 387, the necessity of notice of acceptance of a guaranty and of future advances was recognized. In Crittenden v. Steele, 3 G. Greene, 538, the promise was held original, and not collateral, and it was said that no notice of acceptance was required. But the case really turned on defects in the pleadings. In Bank v. Carpenter, 41 Iowa, 523,-a case decided the next day after the Howard opinion was filed,-we said: "On this subject of notice of acceptance of a guaranty there is considerable conflict in the authorities, and upon this particular point especially, which, however, we will not undertake to reconcile or determine between the conflicting cases, since it follows that if the course of dealing between the parties immediately following the making of the guaranty, together with all the connecting circumstances, is sufficient to justify a finding that defendants had notice that plaintiff

was relying on the guaranty in making the advances," etc. This statement is quite conclusive of the proposition that the court had the day before held in the Howard case, that no notice was necessary. In Scribner v. Rutherford, 65 Iowa, 551, 22 N. W. Rep. 670, it is held in effect, that a mere offer of guaranty must be accepted, and notice thereof given the guarantor. We are therefore committed to the rule that a mere offer or proposal of guaranty is not a complete contract until notice of acceptance thereof is given the guarantor. That is the rule we have now reaffirmed, and, applying the rule by which to determine whether or not the promise in this case was absolute, we find that it was a mere offer or proposal, and that, as defendants had no notice or knowledge of its acceptance, it was binding on them.

2. When a guaranty is continuing, and is unlimited in amount, and the amount for which the guarantor may be held responsible is subject to change, notice of advancements made and of the amount due when all the transactions are closed is generally held to be necessary. Machine Co. v. Mills, 55 Iowa, 543, 8 N. W. Rep. 356; Manufacturing Co. v. Littler, 56 Iowa, 601, 9 N. W. Rep. 905. In the instant case the amount of defendants' liability is fixed by the instrument itself. and the promise is such that notice of advancements made from time to time may well be said to have been waived. But, aside from this, the evidence shows that the Drake Roofing Company was insolvent from the time of the making of the guaranty down to the commencement of this suit. That fact alone is sufficient excuse for not giving notice of the advancements, or of the state of the account at the time the guaranty expired by limitation of time. Manufacturing Co. v. Welch, 10 How. 473, 13 L. Ed. 497. Demand and notice of non-payment were not essential to recovery. Claflin v. Reese, 54 Iowa, 544, 6 N. W. Rep. 729; Rodabough v. Pitkin, 46 Iowa, 544; Bank v. Gaylord, 34 Iowa, 246. For the error pointed out, the judgment of the district court is reversed.

NOTE.-Recent Decisions on the Subject of Neces sity and Character of Notice of Acceptance of Guar· anty. One who seeks to enforce a guaranty must show that notice of its acceptance was given to the guarantor. Buckingham v. Murray's Ex'r (Del. Super.), 7 Houst. 176, 30 Atl. Rep. 779. A written of fer to guaranty the payment of another's debt is not binding unless accepted by the one to whom it is made. Carter v. Wilkins (Tex. Civ. App.), 29 S. W. Rep. 1102. A written offer to "become surety" in a certain amount for a third person must be accepted to become operative as a guaranty. Lachman v. Block, 47 La. Ann. 505, 17 South. Rep. 173. One who, in response to a telegram from the seller as to whether he will guaranty the payment of the price of goods sought to be purchased by another, answers that he will,

not liable for such price unless notified of the acceptance of his guaranty. Evans v. McCormick, 167 Fa. St. 247, 31 Atl. Rep. 563. One who offers to guaranty the debt of a third person, to be contracted in the future, is not bound thereby unless the offer is accepted, and notice of such acceptance is given him

within a reasonable time, in the absence of excuse for failure to give such notice. Farmers' Bank v. Tatnall (Del. Super.), 7 Houst. 287, 31 Atl. Rep. 879. No special notice of the acceptance of defendant's guaranty is necessary when defendant knew that plaintiff was performing work relying on it. Bascom v. Smith (Mass.), 41 N. E. Rep. 130. Where a written guaranty is delivered, not as an offer but as an acceptance of a proposition, no further notice to the guar antor of acceptance by the grantee is necessary. Lehigh Coal & Iron Co. v. Scallen (Minn.), 63 N. W. Rep. 245. On receiving a letter from defendant offering to guaranty payment of purchase by N, plaintiff sold N goods, and on the same day wrote defendant acknowl edging the receipt of his letter, "guarantying whatever N may purchase of us," and saying that "his purchases up to this time amount to" a certain sum "which we are getting ready for shipment." Held, that the letter constituted a valid notice of acceptance. Hart v. Minchen (U. S. C. C.), 69 Fed. Rep. 520. A guaranty absolute in form does not require notice of acceptance to bind the guarantor. Niles Tool-Works Co. v. Reynolds, 38 N. Y. S. 1028, 4 App. Div. 24. Where, in answer to a letter asking defendants if they would guaranty a bill of goods sold to a third party, the defendants promised payment of all bills sold to such third party for a specific time, notice of an acceptance of the guaranty is unnecessary. Neagle v. Sprague, 63 Ill. App. 25. Where a proposition is made by one party to guaranty the payment to another, if he will sell goods to a third party, notice of acceptance of the proposition is necessary to create the contract of guaranty. Neagle v. Sprague, 63 Ill. App. 25. Where a guaranty of a third person is not accepted by the seller until he investigates as to the guarantor's responsibility, he is not liable thereon, without notice of acceptance. De Cremer v. Anderson (Mich.), 71 N. W. Rep. 1090. A guarantor, as a condition precedent to his liability, is not entitled to notice of the acceptance of the following guaranty: "The undersigned does hereby guaranty the faithful and full performance of the party of the second part to the contract of all the agreements and engagements therein entered into by the party of the second part." Lininger & Metcalf Co. v. Wheat, 49 Neb. 567, 68 N. W. Rep. 941. A letter from defendant to plaintiff, stating, "When S is ready to cut ties, if you can agree as to price, no doubt I can arrange the payment," was ineffective as a guaranty to pay for ties thereafter sold to S, plaintiff having given no notice that she had accepted or acted thereon, till several months after the sale. Gregory v. Bullock, 120 N. Car. 260, 26 S. E. Rep. 820. Where one directly binds himself to be responsible for another's contract, already made, and of which he has knowledge when he signs the contract of guaranty, no notice to him of acceptance of the guaranty is necessary. Shropshire v. Smith (Tex. Civ. App.), 37 s. W. Rep. 174. October 3d a third person wrote to a creditor that he would see that the debtor made a remittance in October, and that the account was paid by January 1. Replying, October 11th, the creditor asked that the guarantor would remit a part of the account by October 20th. On December 6th the creditor wrote: "As January 1st is nearly bere, we beg leave to call your attention to your promise that you would see the account of S paid by that time." Held an acceptance. Armstrong, Cator & Co. v. Snyder (Tex. Civ. App.), 39 S. W. Rep. 379. A promise of guaranty is binding when the promise acts upon it, and it is not necessary that he should notify the promisor of his acceptance. Hart

v. Wynne (Tex. Civ. App.), 40 S. W. Rep. 848. Signing a guaranty without the guarantee's request, and in his absence, merely in consideration of future advances to the principal, or a recited nominal considera tion in addition, requires acceptance and notice thereof to bind the guarantor. Barnes Cycle Co. v. Reed (U. S. C. C.), 81 Fed. Rep. 603. An offer of a continuing guaranty, executed by the guarantor at the special request of the agent of the person.to whom the guaranty is addressed, and agrees to make advances thereon to the person for whose benefit the guaranty is executed, requires no further notice of acceptance to bind the guarantor. Ferst v. Blackwell (Fla.), 22 South. Rep. 892. Where a salesmao, in notifying his house of a sale, states that, if necessary, the bill may be charged to him, the house cannot, four months later, on failure of the purchaser to pay, charge the same to the salesman, there having been no acceptance of such guaranty. Meyer v. Ruhstadt, 66 Ill. App. 346. Where a guarantor received a consideration for his guaranty, and this is known to the guarantee, and the words of the guaranty are certain, notice of acceptance is unnecessary. Sears v. Swift & Co., 66 Ill. App. 496. Under a guaranty of the pay ment of any bill that O may purchase "within ninety days from date of purchase, to the extent of two hun dred dollars," stating that "this guaranty is intended to cover a running account, and is to be binding upon us until we notify you to the contrary in writing," notice of the acceptance of the guaranty, or that goods have been sold on the faith of it, is necessary to charge the guarantors; but formal notice in writ ing is not necessary, it being sufficient that the guar antors have knowledge within a reasonable time that goods have been sold on the faith of the guaranty. Ford v. Harris (Ky.), 43 S. W. Rep. 199. Where a contract of guaranty is given to obtain an extension of time on a debt due and further credit, and the creditor grants the extension and the credit as provided for, no further notice of the acceptance of the guaranty by the creditor is necessary. Marx v. Luling Co-op. Assn. (Tex. Civ. App.), 43 S. W. Rep. 596. A writer of a letter of guaranty has sufficient notice of acceptance where he is informed with a reasonable time that the guarantee had acted upon it. Friedman v. Peters (Tex. Civ. App.), 44 S. W. Rep. 572. In case of an absolute guaranty, no notice of acceptance by the guarantee is necessary. Wheeler v. Rohrer (Ind. App.), 52 N. E. Rep. 780. An absolute undertaking to be responsible for any unsettled balance due by another for goods furnished under a written contract not paid when required by its terms requires no notice of acceptaace to bind the guarantor. Globe Printing Co. v. Bickley, 73 Mo. App. 499. The party to whom a guaranty of payment for goods to be sold in the future, is addressed is not required to notify the guarantor of the acceptance of such guaranty in advance of extending the proposed credit thereon. Standard Oil Co. v. Hoese (Neb.), 78 N. W. Rep. 292. In answer to a letter that plaintiff intended to remit a sum of money to a corporation of which defendant was president, for investment, defendant wrote plaintiff that if the remittance was made he would guaranty him against loss for a given period, and the details would be stated more definitely when the money was sent. Held a mere proposal of a guaranty to be thereafter made, and not a completed contract. Lamb v. Carley, 54 N. Y. S. 804, 33 App. Div. 503.

JETSAM AND FLOTSAM.

THREATENING CIRCULARS.

Attempts to destroy or cripple the business of a rival by threatening his customers with suits for infringement are not infrequent. Threatening circulars are sometimes sent out by a manufacturer whose claims of infringement are so baseless and dishonest that he cannot be induced to bring any suits to establish them, but who persists, nevertheless, in making threats to frighten customers away from his competitor. There has been much doubt as to a remedy for this wrong. For threats of infringement suits made in good faith, even if there is no infringement, there is clearly no remedy, but, when the threats are made in bad faith, and with the malicious purpose of wrongfully injuring a rival in business, there must be some remedy, unless the spirit of justice has departed from our jurisprudence.

The right to an injunction in such case has been upheld in some cases and denied in others, as appears from the note in 16 L. R. A. 243. In the Missouri case of Flint v. Hutchinson Smoke Burner Company, with which that note appears, the court refused to grant an injunction until the alleged slander of title of the patent had been determined in an action at law. In Kidd v. Horry, 28 Fed. Rep. 773, Mr. Justice Bradley also denied that au injunction could be granted against threats of infringement, even if they were malicious. On the other hand, such an injunc. tion was granted by Judge Blodgett in Emack v. Kane, 34 Fed. Rep. 46, and also by a State judge in Croft v. Richardson, 59 How. Pr. 356. Other cases, without granting any injunctions against threatening circulars, have intimated that it might be done if the threats were false and malicious. Such are the cases of Celluloid Mfg. Co. v. Goodyear Dental Vulcanite Co., 13 Blatchf. 375; Kelley v. Ypsilanti Dress Stay Mfg. Co., 44 Fed. Rep. 19, 10 L. R. A. 686; Hovey v. Rubber Tip Pencil Co., 57 N. Y. 119; and Chase v. Tuttle, 27 Fed. Rep. 110. The authority on this side is greatly strengthened by the very recent case of A. B. Farquhar Co. v. National Harrow Co., 102 Fed. Rep. 714, in which the United States circuit court of appeals for the third circuit has upheld the right to an injunction against malicious circulars when they are used for the sole purpose of destroying the busi ness of a rival.

The right to an action at law to recover damages for falsely and maliciously charging infringement of a patent, copyright, or trade mark is fully sustained by several decisions, among which are Snow v. Judson, 38 Barb. 210; McElwee v. Blackwell, 94 N. Car. 261; Andress v. Deschler, 45 N. J. L. 167; Dicks v. Brooks, L. R. 15 Ch. Div. 22; and Barley v. Walford, 9 Q. B. 197. There may be difficulties in the way of proving such a case, but the right of action when it can be proved is clear.-Case and Comment.

EFFECT OF NOLLE PROSEQUI IN MALICIOUS PROSECUTION.

A recent decision has reopened a controversy of long standing which had apparently been closed by a line of modern cases. The plaintiff was arrested on a warrant but the examining magistrate, without hearing any evidence, discharged the accused and dismissed the complaint. The court held this act equivalent to a nolle prosequi, and therefore not a sufficient termination of the proceeding to maintain an action for malicious procecution. Ward v. Reasor, (Va.), 36 S. E. Rep. 470. While this view has some

backing, both reason and the trend of authority reject it. Murphy v. Moore (Pa.), 11 Atl. Rep. 665.

In early times, the only remedy available for one who had been maliciously accused was conspiracy, and to maintain this be must show a complete acquittal. But later, when an action for malicious prosecution was allowed, all that was necessary was a termination of the proceedings favorable to the ac cused. 2 Vin. Abr. 28. This distinction was not well understood by the courts and as, at that time, there was a mistrust of a nolle prosequi owing to its abuse by the public prosecutor, no little uncertainty as to its effect was caused. Goddard v. Smith, 6 Mod. 261.

The modern courts are misled both by these old English cases and by a misunderstanding of the alle gations. It is not necessary that there should be an end to all prosecution upon that charge, but that the particular prosecution complained of shall have been finished. Unless this were so, no action could be founded upon an ignoramus by the grand jury, nor upon a discharge in a preliminary hearing, for, in both these cases, new proceedings may be begun. Thus there would be no remedy in those cases where the charge was least justified. A nolle prosequi, when put into force by a discharge, ends the particu. lar prosecution, and in order to proceed against the accused again a new prosecution must be instituted. Woodworth v. Mills, 61 Wis. 44. The courts have also failed to distinguish carefully the allegations of lack of probable cause and termination of the prose cution. The reason for this latter allegation is merely to obviate the possibility of two proceedings upon the same dispute pending at the same time. Bishop, Non Contract Law, § 246. After termination of the proceedings has been shown, the task of proving a lack of probable cause still remains, and while this may be rendered more difficult by the manner of ending the prosecution, yet so long as there has not been a verdict of guilty, the fact that it has ended cannot be affected by the mode of closing it. When this dis tinction is kept in mind, there would seem to be no reason for insisting, as does the court in the principal case, that one cannot allege an end of the prosecution until some other court has passed on the question of probable cause. Kennedy v. Holladay, 25 Mo. App. 503.-Harvard Law Review.

the case, after a charge from the court, which was virtually an order for acquittal, brought in a ver dict of guilty. The presiding judge then addressed Paine:

"You will move for a new trial, I presume, Mr. Paine."

Paine arose with a demeanor that was painful in its solemnity.

"I thank your honor for your suggestion," he said, "but I am impressed with the gravest doubts whether I have the right to move for a new trial in this case. Your Honor, I have already asked for and have received for my idiot client the most precious heritage of our English and American Common Law-a trial by a jury of his peers."

The Judge then ordered the verdict set aside.

BOOK REVIEWS.

AMERICAN STATE REPORTS, VOL. 73.

What is preferred stock and what are the special rights of its holders, is an important subject which finds interesting treatment in a note to the case of Heller v. National Marine Bank (Md.). The case of Frankel v. Frankel (Mass.), has an exhaustive note on the subject of suit, between husband and wife, where they may be maintained. Gifts to a class, such as "children," and who are entitled to take, is the subject of the note following the case of Thomas v. Thomas (Mo.).

HUMORS OF THE LAW.

Henry W. Paine, one of the most brilliant lawyers of the Massachusetts Bar, not long before his death, became interested in a case as a matter of charity, in which a lad of some 15 years was charged with arson. Paine defended the boy and offered conclusive evidence that he was, to all practical purposes, an idiot and totally irresponsible. Nevertheless, the jury in

.....

......12

UNITED STATES C. C......... ........ 4, 5, 29, 32, 33, 69
WISCONSIN.....
WYOMING

...

...7, 23, 35, 45, 48, 49, 64, 80, 82 .65

1. ACCOUNTING-Partnership.-A bill in equity for an accounting between partners which did not allege the existence of a past or present partnership between complainant and defendants, nor that complainant was a member of such partnership, or that it had been dissolved, and which contained no prayer for dissolution, was insufficient.-TUTWILER V. DUGGER, Ala., 28 South. Rep. 677.

2. ADVERSE POSSESSION-Landlord and Tenant.-A tenant who has openly disavowed the landlord's title, and notoriously held adversely to him, with his knowledge, will be protected by the statute of limita. tions after the lapse of 15 years.-SOUTH'S HEIRS V. MARCUM, Ky., 58 S. W. Rep. 527.

3. ASSIGNEE FOR BENEFIT OF CREDITORS-Additional Compensation.-Where an assignor for benefit of creditors executed to his assignee an instrument which recited that as, with proper administration, there would probably be a surplus over the claims of creditors, and, if there were, the assignee should have a certain percentage on the same in addition to his legal fees, it was error, in an action on the agreement, to submit to the jury the question whether the agreement was in.