as to the defendant's financial condition which might have influenced the plaintiff's action, had he known of it, is no ground for equitable remedy. The second cause for avoiding the agreement is where the mistake is inconsistent with good faith, and proceeds from the violation of obligations imposed by law upon the conscience of either party. Story's Eq. Jur., No. 151; Wood v. Boynton, 64 Wis. 625; Thompson v. Jackson, 3 Rand. 504.

COMMERCE-INTERSTATE COMMERCE.-ST. & S. F. R. Co. v. STATE, 113 S. W. 203 (Ark.).—Held, a continuous transportation of freight between points within a state is "interstate commerce," free from the interference of the state, where a part of the route is outside of the state because of the unsafe condition of a bridge forming a part of the line of road in the state between such points.

The general rule is that all transportation of freight and passengers from one state to another, or through more than one state, either by land or water, is interstate commerce. Wabash, St. L. & P. Ry. Co. v. Illinois, 118 U. S. 557; Fry v. State, 63 Ind. 562. The United States Supreme Court holds, that the transportation of freight or passengers from one point to another in the same state, either by land or water, where part of the route is outside of the state, is interstate commerce and not under the control of the state wherein it begins and ends. Lord v. Steamboat Co., 102 U. S. 541. Some states, however, hold that such transportation is not interstate commerce. Campbell v. Chicago, M. & St. P. Ry. Co., 86 la. 587; State v. W. U. Tel. Co., 113 N. C. 213; Seawell v. Kansas City, Ft. S. & M. Ry. Co., 119 Mo. 222. In State v. Chicago, St. P., M. & O. Ry. Co., 40 Minn. 267, a distinction was made between a railroad line which is operated, partly through another state, for transportation between points in one state, and one which carries on the ordinary business of a common carrier along the line passing though the other state. The right of a state to tax a railroad running between two points in the state, but partly over the territory of another state, was expressly distinguished from an attempt by the state directly to regulate such transportation while outside of its borders. Lehigh Val. Ry Co. v. Penn., 145 U. S. 192; Maine v. Grand Trunk Ry. Co., 142 U. S. 217.

CRIMINAL LAW-HUSBAND AND WIFE-Slander OF WIFE BY HUSBAND. -STATE V. FULTON, 63 S. E. 145 (N. C.).—Held, that a husband may be convicted of slandering his wife, under a statute providing that if any person shall attempt in a wanton and malicious manner to destroy the reputation of an innocent woman by words, written or spoken, imputing unchastity, he shall be guilty of a misdemeanor. Brown and Hoke, J. J., dissenting.

Slander was not a crime at common law, and it is only within comparatively recent times that statutes have been passed making certain slanderous charges indictable. State v. Wakefield, 8 Mo. App. 11. The most common of these statutory offenses is that of imputing a want of chastity to a female. Stutts v. State, 52 So. 51 (Fla.); State v. Boos, 66 Mo. App. 537. Only two cases of a slander of the wife by the husband, however, are to be found in the reports. One of these lays down the rule that such a statute is all-embracing and includes slander perpetrated by

the husband against his wife. Slayton v. State, 46 Tex. Cr. R. 205. The other is a North Carolina case which is overruled by a majority of the court in the principal case, but upheld by the dissenting judges. State v. Eden, 95 N. C. 693. The basis of that decision was that "the law regards the marriage relation as sacred, and leaves temporary differences and wrongs between husband and wife to the corrective hand of time and reflection. It is to be noted that the common law rule that the identity of husband and wife prevented the wife from maintaining a civil action against her husband, has, in the case of slander, been generally held to be unaffected by statutes giving her a right of action for injuries to her property and person. Frecthy v. Frecthy, 42 Barb. 641; Mink v. Mink, 16 Pa. Co. Ct. 189.

INTEREST-PROPERTY DESTROYED BY NEGLIGENCE.-BUEL v. C., R. I. & P. RY. Co., 116 N. W. 299 (Neb.).—Held, where property is destroyed by the negligence of another, the owner will be entitled to interest on the value of such property from the time of its destruction.

When property is converted or lost to the owner by a trespass, the plaintiff is entitled to interest on the value of it as a matter of law. Wilson v. City of Troy, 135 N. Y. 96, 104; Hale, Damages, p. 165. says that it is very difficult to perceive any sound distinction, in this regard, between cases where property is destroyed by a misfeasance, and where it is destroyed by negligence. And some courts allow interest in such cases as a matter of law. J., T. & K. W. Ry. Co. v. P. L. T. & M. Co., 27 Fla. 1; A., G. S. Ry. Co. v. McAlpine, 75 Ala. 113. Different views. however, have been adopted by other courts. Some hold that plaintiff is not entitled to interest as a matter of law, but leave it to the discretion of the jury. Frazer v. Carpet Co., 141 Mass. 126; Lincoln v. Claflin, 7 Wall. 132. Others hold that interest will only be allowed if the damages are compensatory and not penal. Gulf, C. & S. F. Ry. Co. v. Dunman, 6 Tax Civ. App. 101. While still others hold that no interest is recoverable in such cases. H. & T. C. Ry. Co. v. Muldrow, 54 Tex. 233; DeSteiger v. H., S. J. Ry. Co. 73 Mo. 33; unless the defendant receive some benefit by reason of the injury. Kenney v. H. & S. J. Ry. Co., 63 Mo. 99. In Pennsylvania it is held that where the damages are not in their nature capable of exact computation, both as to time and amount, no interest is recoverable eo nomine. Richards v. Citizens N. G. Co., 130 Pa. St. 37.

DIVORCE-GROUNDS-CRUELTY.-RYAN V. RYAN, 114 S. W. 464 (Tex.). -Held, that where there is no evidence in a suit by a wife for divorce on the ground of cruel treatment, of physical violence by the husband toward her, and it is not shown that the husband's cruel treatment of the wife produced a degree of mental distress threatening to impair her health, the divorce should be refused.

The causes entitling one to divorce for extreme cruelty are such as render life a great burden. Rosenfeld v. Rosenfeld, 21 Colo. 16. A divorce will be granted if the proof shows wantonly cruel and inhuman treatment. Hoyt v. Hoyt, 56 Mich. 50. Cruelty means an actual personal violence, or reasonable apprehension of it. Moyler v. Moyler, 11 Ala. 620. To constitute legal cruelty to authorize a divorce there must be actual violence

committed, attended with danger to life, limb or health, or reasonable apprehension of such violence. Extreme cruelty may be such conduct which produces mental suffering and destroys the peace of mind. Sylvis v. Sylvis, 11 Colo. 327; Caruthers v. Caruthers, 13 Ia. 266; Cole v. Cole, 23 Ia. 433.

EMINENT DOMAIN-PROCEEDings-Second TRIAL.-NORTHERN PAC. RY. CO. ET AL. V. CITY OF GEORGETOWN, 97 PAC. 659 (WASH.).—Where a city undertook to extend an avenue across railroad tracks, and a judgment of condemnation with an award of damages was entered, held, that the city could not, after abandoning the proceedings because of dissatisfaction with the award, maintain proceedings for the extension across the tracks of another avenue, located six inches south of the location of the first avenue, in order to avoid the award of damages on the first trial and to obtain a new trial on substantially the same proposition. Fullerton, J., dissenting.

The same rule applies in eminent domain proceedings as in a court of law, and while one award remains in full force it is conclusive and the petitioner is barred from instituting other proceedings involving the same proposition. Sandford v. Wright, 164 Mass. 85. And where he attempts to do so the remedy of the respondent does not lie in equity by injunction but his remedy is at law by a motion to dismiss. Chicago, R. I. & R. Ry. Co. v. City of Chicago, 148 Ill. 479. A discontinuance may be effected by a dismissal pending an appeal, and subsequent proceedings may be instituted to condemn another right of way over the same property, provided the dismissal was made in good faith. Corbin v. Cedar Rapids, I. F. & N. W. Ry. Co., 66 Ia. 73. Statutes are to be construed as against the release of private property from subservience to public use however great the emergency. Trustees of C. S. Ry. Co. v. Haas, 42 Ohio St. 239. And where it is provided by statute that the failure of petitioner to pay award within a specified time shall constitute a discontinuance, new proceedings may thereafter be immediately instituted. Ala. Midland Ry. Co. v. Newton, 94 Ala. 443; State v. City of Minneapolis, 40 Minn. 483.

EQUITY-PERSONAL ASSETS-DEBT BY HUSBAND TO WIFE.-SHARPE V. MILLER, 47 So. 701 (ALA.).—Held, that a debt by husband to wife, secured by a mortage, is a personal asset, the title to which on the wife's death, vests in her administrator.

It is apparently settled law, that whereas a debt passes to the executor or administrator upon the death of the decedent, a mortgage given to secure the debt is also a personal asset. Smith v. Dyer, 16 Mass. 18; Bird v. Keller, 77 Me. 270. The principal case, however, is one that could not have arisen at common law, and is interesting as showing the extent to which the rule as to the invalidity of contracts and conveyances between husband and wife has been abrogated. Kneil v. Egleston, 140 Mass. 202. In England, money loaned by the wife, from her separate estate, to her husband, upon his promise to repay it, has long been recoverable in chancery. Woodward v. Woodward, 3 DeG., J. & S. 672. In this country, too, courts of equity in most jurisdictions have enforced such debts in the absence of fraud or prejudice to third parties. Medsker v. Bonebrake, 108 U. S. 66; Greiner v. Greiner, 35 N. J. Eq. 134. Contra: Woodward v.

Spurr, 141 Mass. 283. Now, also, by virtue of statute in many states, a wife may contract with her husband, or may convey and mortgage directly to him. Mathewson v. Mathewson, 79 Conn. 23; Reynolds v. City National Bank, 71 Hun. 386.

EVIDENCE-HEARSAY EVIDENCE-PEDIGREE.-SULLIVAN V. SOLIS, 114 S. W. 456 (Tex.).—Held, relationship and pedigree may be proved by hearsay evidence.

Declarations concerning pedigree are an exception to the rule as to the admission of hearsay evidence. DeHoven v. DeHoven, 77 Ind. 236. But such declarations are allowed only where they are made, before the commencement of the suit, by a deceased person, provided the person making them was related by blood to the person to whom they refer, or was the husband or wife of such person, McKelvey, Evidence, § 145; and they are admissible when pedigree is only relevant and not the question in issue. Inhabitants of Brookfield v. Inhabitants of Warren, 16 Gray (Mass.) 171. Contra: N. M. & M. V. Ry. Co. v. Simcoc, 14 Ky. Law Rep. 526. However, hearsay will not be admitted if better evidence is obtainable. Birney v. Hann, 10 Ky. 322.

EVIDENCE-INSPECTION BY SMELL AND TASTE.-Reed v. TERRITORY, 98 PAC. 583 (Okla.).—Held, that upon a prosecution for selling intoxicating liquor without a license, it was not error to permit the jury to look at and smell the contents of a bottle which had been properly identified and admitted in evidence, and which was alleged to contain whiskey.

Evidence by inspection includes all knowledge that is gained by a tribunal through its senses, either what it sees, hears, tastes or smells. State v. Linkhaw, 69 N. C. 214. The court generally has discretion as to what it will allow the jury to see for itself, even when both parties to a cause assent. Marshall v. Gantt, 15 Ala. 682. In Maine and Michigan it has been held that the jury may smell and taste liquor to determine the contents of a bottle. People v. Kinney, 124 Mich. 486; State v. McCafferty, 63 Me. 223. Grave doubts as to the propriety of this, however, have been expressed in Massachusetts and some other jurisdictions. Commonwealth v. Brelsford, 161 Mass. 61; State v. Coggin, 10 Kans. App. 455. These contrary views seem to be based on the ground that the less expert jurors would receive evidence from the more expert as to the contents of the bottle, in the privacy of the jury room, which would be against the rule that a juror cannot be allowed to give evidence to his fellow jurors without being sworn in. Wadsworth v. Dunram, 117 Ala. 661; State v. Lindgrove, 1 Kan. App. 51.

EVIDENCE-PAROL EVIDENCE AFFECTING WRITINGS-VARYING TERMS OF CONTRACTS.--RUGGERIO V. LEUCHTENBURG, 113 N. Y. SUPP. 616.-Held, that where a written contract for the sale of land provided that the price should be a sum certain, but stated no other terms, so that it must be presumed that the amount was payable in cash, parol evidence to show the terms of payment varied the terms of the contract, and its admission was

error.

The general rule is, that when a contract is reduced to writing the

contents of such document cannot be contradicted, altered, added to or varied by parol or extrinsic evidence. Uihlein v. Matthews, 172 N. Y. 495; Pike v. McIntosh, 167 Mass. 309. Such evidence may, however, be admitted when the terms of the contract are ambiguous. Burton v. O'Neill Mfg. Co., 126 Ga. 805; Hunt v. Gray, 76 Ia. 268. Also admissible to supply terms as to which a contract is silent, but which are in accordance with previous undisputed custom between the parties. Texas & P. Ry. Co. v. Coggin & Dunaway, 99 S. W. 1052 (Tex.). But, courts of equity grant relief in cases of fraud and mistake by carrying the intention of the parties into execution where the written agreement fails to express that intention. Hunt v. Rousmanier, 8 Wheat. 211; Spriggs v. Bank of Mt. Pleasant, 14 Peters 201; Warc v. Cowles, 24 Ala. 446. And where no fraud or mistake in its execution is alleged, the terms of a written contract cannot be varied, even in equity, by proof of a contemporaneous parol agreement. Connecticut Fire Ins. Co. v. Buchanan, 141 Fed. 877 (Ia.); Ware v. Cowles, 24 Ala. 446.

EVIDENCE-WRITTEN INSTRUMENT-CONTEMPORANEOUS VERBAL AGREEMENT. PAULSON ET AL. V. BOYD ET AL., 118 N. W. 841 (WIS.).—In a suit on a note given for the price of certain mining stock, evidence of a contemporaneous verbal agreement that the payee would renew the note twice for a similar period, and at the end of that time would accept a retransfer of the stock in satisfaction of the note at the maker's election, held, admissible to show that the note was never delivered with intent that it should consitute a completed instrument in pracsenti. Finlin, Marshall, and Kerwin. J. J., dissenting.

That parol evidence cannot be admitted to vary the terms of a written contract absolute on its face is a well-settled rule of law. Brown v. Spoffard, 95 U. S. 480. Cases of fraud, illegality or want of consideration are exceptions to this rule. Carrington v. Maff, 112 N. C. 115. Evidence of an oral agreement that a note is to become void upon the happening of a condition subsequent is inadmissible under the rule. Potter v. Earnest, 45 Ind. 418. This rule excluding parol evidence to vary a written instrument presupposes the existence in fact of such agreement; hence, the rule has no application where the writing was not delivered as a present contract but to become binding only upon performance of some condition precedent resting in parol. McFarland v. Sikes, 54 Conn. 250; Reynolds v. Robinson, 110 N. Y. 654. A note in the hands of a bona fide holder for value cannot be affected by such evidence to his prejudice. Burnes v. Scott, 117 U. S. 582.

GIFTS UNDUE INFLUENCE-BURDEN OF PROOF.-GILMORE V. LEE, 86 N. E. 568 (ILL.).—Held, that the relation of priest or spiritual adviser and parishoner is one of confidence, and a gift causa morris by a parishoner to her priest is in and of itself prima facic void, and the burden of proof rests on such priest to show that the gift was freely and voluntarily made, and that it was not the result of undue influence. Scott, J., dissenting.

Freedom of will and good faith are as essential to the validity of a gift as in other contracts; Ferguson v. Lowery, 54 Ala. 510; Garvin v. Williams, 44 Mo. 465; and burden of proof is thrown on the donee to