known hidden defects, which the latter could not have discovered in the exercise of reasonable care. Moore v. Parker, 63 Kan. 52, 64 Pac. 975; Howard v. Washington Water Power Co., 134 Pac. (Wash.) 927. The landlord owes no affirmative duty to detect and warn the tenant against hidden defects. Whitmore v. Orono Pulp & Paper Co., 91 Me. 297, 39 Atl. 1032; Shinkle, Wilson, & Kreis Co. v. Birney & Seymour, 68 Oh. St. 328, 67 N. E. 715; Hines v. Wilcox, 96 Tenn. 148, 33 S. W. 914, 100 Tenn. 538, 46 S. W. 297, contra. The landlord ordinarily owes no greater duty to the tenant's employees, licensees, and business guests than to the tenant. The latter, having control of the premises, must be the one to warn them against hidden defects. O'Brien v. Capwell, 46 Barb. (N. Y.) 497; Meade v. Montrose, 160 S. W. (Mo.) 1I; Bailey v. Kelly, 86 Kan. 911, 122 Pac. 1027, contra. Some cases seem to hold, that where the landlord leases premises for a specific use he is liable if they are not fit for that use. Godley v. Hagerty, 20 Pa. 387; Carson v. Godley, 26 Pa. III. But so broad an exception to the general rule is not supported by the weight of authority. See Jaffe v. Harteau, 56 N. Y. 398, 401. Where, however, the owner leases premises for a public or quasi-public purpose, the public comes upon the premises in response to the implied invitation of the lessor and the latter owes a duty to the public to have the premises in suitable condition for that purpose at the time of the demise. Fox v. Buffalo Park, 47 N. Y. Supp. 788, 21 App. Div. 321; Barrett v. Lake Ontario Beach Improvement Co., 174 N. Y. 310, 66 N. E. 968; Joyce v. Martin, 15 R. I. 558, 10 Atl. 620. See also, 44 Am. Law Reg. 273, 276.

LIMITATION OF ACTION-NEW PROMISE AND PART PAYMENT - EFFECT OF PAYMENTS BY SURETY OF CLAIM ASSIGNED AS SECURITY. The defendant made a note to the plaintiff, and assigned him a claim against an insolvent bank as security. Later there was a payment to the plaintiff by the receiver of the bank. After the period of limitation has run upon the note, the plaintiff sues upon it. Held, that the payment does not toll the Statute of Limitations. Security Bank v. Finkelstein, 145 N. Y. Supp. 5 (Sup. Ct., App. Div.).

The defense of the Statute of Limitations can always be waived by the debtor, and a part payment is often a sufficient waiver. There must, however, be such an acknowledgment of the debt, by words or part payment, as fairly to imply a promise to pay the balance. Linsell v. Bonsor, 2 Bing. N. c. 241; Chambers v. Garland, 3 Greene (Ia.) 322. But the authority of the debtor must be found before any promise can be implied, and accordingly it is held that an acknowledgment of the debt by one of several joint debtors will not bind the others. Bush v. Stowell, 71 Pa. 208; Boynton v. Spafford, 162 Ill. 113, 44 N. E. 379. Nor will a payment by his assignee for creditors bind a debtor. Marienthal v. Mosler, 16 Oh. St. 566; Pickett v. King, 34 Barb. (N. Y.) 193. The argument of the considerable minority opposed to the principal case, is that the creditor has been made the debtor's agent to collect the collateral debt and apply it in payment, and that such a payment should bind the debtor, on the principles of agency. Bosler v. McShane, 78 Neb. 86, 113 N. W. 998; Buffinton v. Chase, 152 Mass. 534, 25 N. E. 977. It is hard to see, however, how the agency can be construed so broadly as to include a promise to pay the rest of the debt. Accordingly the principal case and the slight majority with it would appear to hold the better view. Brown v. Latham, 58 N. H. 30; Wolford v. Cook, 71 Minn. 77, 73 N. W. 706.

MALICIOUS ABUSE OF PROCESS EFFECT OF BAD MOTIVE TERMINATION OF PRIOR SUIT IN MALICIOUS PROSECUTION. For the purpose of preventing a sale of the plaintiff's real estate, the defendant brought suit against the plaintiff to collect alleged commissions, and levied an attachment on the property. Before the termination of this action, the plaintiff sues for abuse

Malone v. Belcher, 103

of process. Held, that the plaintiff may recover. N. E. 637 (Mass.). Malicious abuse of process is defined as the employment of legal process for a purpose not designed by law. See COOLEY ON TORTS, 2 ed., p. 220. Under this broad definition any suit brought maliciously would be malicious abuse of process. The action must be more restricted. Two elements would seem essential: an ulterior motive, and an act in the use of process not proper in the proceeding. Jeffery v. Robbins, 73 Ill. App. 353; see Pittsburg, etc. R. R. v. Wakefield Hardware Co., 143 N. C. 54, 58, 55 S. E. 422, 424. It may be admitted that the wrong is as great in the principal case, where the ulterior motive, the prevention of the sale, is accomplished by the mere attachment, as in cases where a further act is done. But the right to use the machinery of the law to enforce a valid claim is a right so absolute that bad motive will not remove the justification. Docter v. Riedel, 96 Wis. 158, 71 N. W. 119. So where a bankruptcy petition was presented by the defendant, on a valid act of bankruptcy, no action arises, though his sole motive was to exclude the plaintiff from a partnership. King v. Henderson [1898], A. C. 720. The moment, however, the defendant does some act beyond the process, such as coercing the plaintiff to do something which has no reference to the proceeding, his justification fails, and an action lies. Graingee v. Hill, 4 Bing. (N. C.) 212. As there was no further act in this case, it fails as an action for abuse of process. Ludwick v. Penny, 158 N. C. 104, 73 S. E. 228. Nor can the action be maintained as for malicious prosecution. The elements for such an action are malice, want of probable cause, and generally termination of the prior action. Termination of the prior action must be shown wherever the issue involved therein is material in the present suit. The possibility of inconsistent results and the objection of trying a pending issue collaterally require this. In jurisdictions where the process of attachment is restricted to cases of fraud, the issue in the prior action need not be raised, and no termination is necessary. Fortman v. Rottier, 8 Oh. St. 550; Brand v. Hinchman, 68 Mich. 590, 36 N. W. 664. But in Massachusetts the requirements for attachment are merely the same as those in the principal action itself. Thus the issue in the principal suit is necessarily involved in the malicious prosecution suit, and termination must be shown. Wilson v. Hale, 178 Mass. 111, 59 N. E. 632.

MASTER AND SERVANT — Duty of Master TO PROVIDE SAFE APPLIANCES PREMISES LEASED BEFORE INJURY BUT WITHOUT SERVANT'S KNOWLEDGE. - The plaintiff's intestate, while employed about the defendant's coal docks, was injured by a defective appliance. Prior to the accident the defendant had leased the docks to another, but this fact was unknown to the plaintiff's intestate. Held, that the defendant is liable. Benson v. Lehigh Valley Coal Co., 144 N. W. 774 (Minn.).

An employer's duty to furnish safe appliances, whether it sounds in contract or in tort, grows out of the relationship of master and servant. See 3 LABATT, MASTER AND SERVANT, § 898. Since a man cannot avoid his contractual liabilities by disposing of his business, (Perry v. Simpson, etc. Co., 37 Conn. 520) if the employer be considered as impliedly contracting to furnish safe appliances, the fact of the lease should not discharge that liability. If the duty is in tort, the same result follows. The fact of the relationship creates the duty. See Ford v. Fitchburg R. Co., 110 Mass. 240, 260. And as long as the service continues, the employer must fulfill that duty. That the service did continue in the principal case seems clear. If the relation is merely consensual, it should terminate only on notification. If it is considered contractual, some courts even require express or implied consent. See Missouri R. Co. v. Ferch, 18 Tex. Civ. App. 46, 49; 44 S. W. 317, 319. But the better view is that dismissal alone terminates the service relation, although the

contractual obligations, such as to pay wages, continue unless ended by mutual consent. Champion v. Hartshorne, 9 Conn. 564. At any rate, notice of some kind is essential. The principal case is supported by the weight of authority. Delaware, L. & W. R. Co. v. Hardy, 59 N. J. L. 35, 34 Atl. 986. Missouri R. Co. v. Ferch, supra. See Solomon R. Co. v. Jones, 30 Kan. 601, 603, 2 Pac. 657, 658. But there are some decisions contra. Crusselle v. Pugh, 67 Ga. 430. Smith v. Belshaw, 89 Cal. 427, 26 Pac. 834. It is no hardship that the defective appliances are without the defendant's control, for he can avoid all liability by simply notifying the servant. The principle of estoppel is not involved. See Missouri R. Co. v. Ferch, supra.

NEGLIGENCE

- DUTY OF CARE - TRESPASSERS: TRESPASSING CHILDREN ON RAILROAD TRACK. The plaintiff, an infant of seven years, while trespassing on the tracks of the defendant railroad, was run down by an engine. The lower court directed a nonsuit on the ground that the defendant owed an infant "no higher degree of care than it owed anybody else who was wrongfully on its right of way." Held, that this is error. Piepke v. Philadelphia & Reading R. Co., 89 Atl. 124 (Pa.).

It does not appear that the plaintiff's presence was observed. If it was not, a nonsuit was proper, for there is no duty in Pennsylvania to look for trespassers. Philadelphia & Reading R. Co. v. Hummell, 44 Pa. 375; Brague v. Northern Central Ry. Co., 192 Pa. 242, 43 Atl. 987. On the supposition that the plaintiff was seen, according to the Pennsylvania cases, the proprietor's only duty would be to refrain from inflicting wilful or wanton injury. Little Schuylkill Navigation R. Co. v. Norton, 24 Pa. 465; Mulherrin v. Delaware, etc. R. Co., 81 Pa. 366. (For a clear statement of this rule, see Maynard v. Boston & Maine R., 115 Mass. 458; also article by Judge Peaslee, 27 HARV. L. REV. 403.) See Philadelphia & Reading R. Co. v. Hummell, supra, 379; Pennsylvania R. Co. v. Morgan, 82 Pa. 134, 141. But the reasoning of the principal case might lead one to believe that mere negligence would impose liability where the trespasser was an infant, while wilful or wanton conduct was necessary in case he was an adult. This is not so on principle, or authority, as is shown by cases in the same jurisdiction. Cauley v. Pittsburgh, etc. Ry. Co., 95 Pa. 398; Moore v. Pennsylvania R. Co., 99 Pa. 301. See Emerson v. Peteler, 35 Minn. 481, 484; also article by Judge Smith, 11 HARV. L. Rev. 349, 367. The proper analysis would seem to be that the trespasser's capacity is merely one fact bearing upon whether the defendant's conduct was wanton or wilful. However, the court says, following Philadelphia & Reading R. Co. v. Spearen, 47 Pa. 300, 304, if an adult be seen on the track, it would not be wanton conduct not to stop the train, because it may be assumed he will remove himself from danger; but if a child trespasser be seen, the train ordinarily should be stopped immediately. But see Pennsylvania R. Co. v. Morgan, supra, 141. Accordingly, the court's result, that a jury should be allowed to pass on the evidence, seems supportable.

PARDON CONDITIONAL PARDON OR PAROLE STATUTE GIVING COURT POWER TO GRANT. The petitioner was legally convicted and sentenced to six months' imprisonment. Under a statute authorizing courts to parole prisoners "upon such conditions and under such restrictions" as they "might see fit to impose," the trial court released him, on the condition, among others, that he make reports of his conduct at stated intervals for two years. More than six months later he broke the conditions. Held, that the court had no power to recommit him. In re Welch, 137 Pac. 975 (Kan.).

Some courts apparently regard it as legally impossible to subject a paroled convict to the restraints of his parole after his term of imprisonment should have expired if served. Woodward v. Murdock, 124 Ind. 439, 24 N. E. 1047;

Scott v. Chichester, 107 Va. 933, 60 S. E. 95. One argument made is that, by the very terms of the sentence, no confinement is legal after the date fixed for its expiration. See Woodward v. Murdock, supra; Scott v. Chichester, supra. This overlooks the fact that the date of termination is significant only as fixing the quantum of time to be served. Ex parte Ridley, 3 Okla. Cr. 350, 360, 106 Pac. 549, 553; State v. Horne, 52 Fla. 125, 135, 42 So. 388, 391. More plausibly it is argued that since one paroled must conform to certain restrictions he is not technically free and must therefore be considered as serving the sentence. Woodward v. Murdock, supra. But time on parole is obviously not equal to time served, and consent to postponement of the punishment seems valid, even if consent to the conditions is not. There seems to be no reason why general power to grant parole should not include power to make its conditions operative indefinitely, or for any specified period. In re Kelley, 155 Cal. 39, 99 Pac. 368; State v. Horne, supra. Such a conditional parole should perhaps be strictly construed in the prisoner's favor. Huff v. Dyer, 4 Oh. Cir. Ct. R. 595. The same may be said of a statutory power to grant conditional parole. In re Prout, 12 Idaho, 494, 86 Pac. 275. Upon such a liberal construction the principal case seems correct.

PLEDGES TRANSFER OF POSSESSION CONSTRUCTIVE DELIVERY BY TRANSFER OF DISTILLING RECEIPTS. A distilling company, having stored spirits in its own distillery warehouse as required by Federal statute, issued warehouse receipts for the same and indorsed them to the plaintiff bank as security for a loan. Held, that as against the trustee in bankruptcy a valid pledge was created. Taney v. Penn National Bank of Reading, U. S. Sup. Ct., Jan. 26, 1914.

To constitute a valid pledge there must be an actual or constructive delivery of possession. Seymour v. Colburn, 43 Wis. 67. The delivery of a warehouse receipt is ordinarily sufficient. Bush v. Export Storage Co., 136 Fed. 918. But if issued by the owner of the goods himself, it is in no way a symbol of them; and its delivery is ineffectual. Thorne v. First National Bank, 37 Oh. St. 254; Valley National Bank v. Frank, 12 Mo. App. 460; Yenni v. McNamee, 45 N. Y. 614. The opposite view seems incorrect even when the owner is actually a warehouseman. Bank v. Jagode, 186 Pa. St. 556, 40 Atl. 1018. But see State v. Robb-Lawrence Co., 17 N. D. 257, 115 N. W. 846. By federal statute every distiller is required to provide a warehouse in which his spirits must be stored under government supervision until the government tax is paid. U. S. REV. STAT., §§ 3247-3334. Warehouse receipts issued under such circumstances have been treated, as in the principal case, as valid symbols of possession. Merchant's National Bank v. Roxbury Distilling Co., 196 Fed. 76. Contra, Conrad v. Fisher, 37 Mo. App. 352. But the government is not a bailee, and the owner is still in control. In substance, therefore, such a receipt amounts to nothing more than a promise on the part of the possessor to hold the goods as security. Accordingly, it is difficult to find any actual pledge. It seems, however, that the promisee should have an equity based on a right to specific performance. See article by Professor Williston, 19 HARV. L. REV. 557, 583. Union Trust v. Trumbull, 137 Ill. 146, 27 N. E. 24. But such an equitable right, secretly incumbering the property, is invalid against a trustee in bankruptcy. Fourth St. National Bank v. Millbourne Mills, 172 Fed. 177; American Can Co. v. Erie Preserving Co., 171 Fed. 540. A recognized custom to so use distilling receipts would safeguard against the giving of credit on the ostensible ownership of the possessor, and it seems that the equity should prevail.

POLICE POWER - INTEREST OF PUBLIC HEALTH · CONSTITUTIONALITY OF EUGENIC MARRIAGE LAWS.— A Wisconsin statute forbids the county clerk

to issue a marriage certificate to any male applicant who does not produce a physician's certificate stating the applicant to be free from acquired venereal diseases, and provides that the physician's fee for such examinations shall not exceed three dollars. Held, that the statute violates Article 1, section 1, and Article 1, section 18, of the Wisconsin Constitution. Peterson v. Widule, (Circuit Ct. of Milwaukee County, Wis.). Not officially reported.

The probability that other states will enact statutes modeled after the one held invalid in the principal case gives rise to a discussion of such statutes from the point of view of the Fourteenth Amendment and similar provisions in state statutes. See NOTES, p. 573.

SALES TITLE OF GOODS SUBJECT TO BILL OF LADING — BILL OF LADING AS SECURITY FOR ADVANCES; NATURE OF PLEDGEE'S INTEREST-EFFECT OF SURRENDER ON A "TRUST RECEIPT." —The plaintiff bank advanced money on the security of several order bills of lading duly indorsed. Subsequently in return for a receipt it indorsed and delivered the bills to the original owner of the goods to effect a transfer of the goods to a warehouse. The owner sold the non-negotiable warehouse receipts he received on deposit of the goods to the defendant. Held, that the plaintiff is entitled to the goods. B. W. McMahan & Co. v. State Nat. Bank, 160 S. W. 403 (Tex. Civ. App.).

For a discussion of the application of the mercantile view of negotiable documents of title, see NOTES, p. 583.

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TITLE OWNERSHIP AND POSSESSION POSSESSION CONTROL OF SAFE DEPOSIT COMPANY OVER SECURITIES IN BOX OF DEPOSITOR. An action was brought by the State of New York to recover a penalty under the Inheritance Tax Act, which provided that no safe-deposit company, "having in possession or under control" securities of a decedent, should transfer them to the legal representative without first notifying the Comptroller. The defendant company had allowed the removal of securities from a safety-deposit box without notice. They controlled access to the vault, but the decedent and his agent held the only keys to the box. It was claimed by the defendant that they did not have the securities "in possession or under control." Held, that the defendant is not liable. People v. Mercantile Safe Deposit Co., 159 N. Y. App. Div. 98 (N. Y. Sup. Ct., App. Div., 1st Dept.).

The Supreme Court of Illinois under a similar statute recently decided squarely the opposite where the bank had one key and the depositor another, both of which were necessary for access to a safe-deposit box. National Safe Deposit Co. v. Stead, 250 Ill. 584. The Supreme Court of the United States in reviewing this decision held that the vault owner had sufficient control to prevent the statute from being unconstitutional as an arbitrary attempt to impose the liabilities of possession when none existed. 34 Sup. Ct. Rep. 209. It is difficult to agree with the Illinois court that the bank has actual possession. For complete possession there must be present active dominion. Sullivan v. Sullivan, 66 Ñ. Y. 37, 41; 6 HARV. L. REV. 443; see article by Albert S. Thayer, 18 HARV. L. REV. 196. The bank may be excluded from such an active dominion by the depositor, but through its own power to exclude has acquired one important element of possession, and has sufficient control to bring it fairly within the obvious purpose of the statute. Just how far such legislation is intended to cover cases where there is a power to exclude is doubtful. The owner of a large office building who rents separate rooms has a power to exclude at the street entrance, but clearly would not be within the statute. It is submitted, however, that in the principal case as well as the Illinois case there was "control" within the meaning of the legislature.

USURY FORFEITURES RIGHT OF DIRECTOR TO ENFORCE PENALTY AGAINST CORPORATION.- The plaintiff paid usurious interest on a loan made