However, the delivery of the writ will not constitute the commencement of the action unless there is a bona fide intention at the time of delivery of having it served. Burnell v. Babbitt, 65 N. H. 168; West v. Engle, 101 Ala. 509.

INTOXICATING LIQUORS-SALES WITHOUT LICENSE-EVIDENCE-STATE V. BROWN, 102 S. W. 394 (Ark.).—On trial for selling liquor without a license, a witness testified that he asked the accused to sell him some whiskey; that the accused replied that he could not sell, but that he would loan him some; that the accused let the witness have two bottles of whiskey; that nothing was said as to when the same was to be returned or paid for; that about an hour and a half later, the witness returned and asked the accused what it cost to get whiskey there, and gave the accused that sum, and told him that when he made an order for whiskey, to get the witness some, and keep that in place of what he had got. Held, a sale as a matter of law. Battle, J., dissenting.

A sale implies a transfer of property for money. And, as a general rule, when a statute refers in terms to contracts of sale, it has no application to contracts of exchange. Massey v. State, 74 Ind. 368. And, while under the code of some states a "loan" would be as between the parties a "sale" as distinguished from a mere bailment, it would not be a sale within the meaning of a statute prohibiting the sale of intoxicating liquor without license, which, because of its being penal in its nature, must be strictly construed. Skinner v. State, 97 Ga. 690. These courts, however, will not countenance an attempted evasion of a statute, and it is generally for the jury to determine whether there was a sale or a bona fide exchange. Robinson v. State, 59 Ark. 341; Coker v. State, 91 Ala. 92. But there are many courts that hold that the intention of the legislature to inhibit the sale of liquor, in the broadest sense of that term, includes barter and exchange. Keaton v. State, 36 Tex. Cr. 259; Sparks v. State, 99 S. W. 546. It is said that practically there is no difference between the terms. And to make such a refinement the turning-point of the interpretation of a statute, contrary to the plain intent of the legislature, would be a violation of all sound rules of construction. Howard v. Hanis, 8 Allen 297. It has been held that a loan is a sale and this was without any limitation. Tombeaugh v. State, 98 S. W. 1054 (Tex.); Keaton v. State, 36 Tex. Cr. 259.

JUDGMENTS-VACATING-MERITORIOUS DEFENSE.-BRANDT V. LITTLE, 91 PAC. 765 (WASH.).—Held, that where an independent action is brought to vacate a judgment as obtained without jurisdiction, a showing that the defendant has, or at the time of judgment had a defense, is none the less necessary because the judgment may have been so obtained, especially if the lack of jurisdiction does not appear on the face of the record.

It seems to be the general rule in this country that a Court of Equity will not set aside a judgment, void for want of jurisdiction of the court rendering it, unless the party asking it has, or presents, a meritorious defense. Meyer v. Wilson, 166 Ind. 651; White v. Crow, 110 U. S. 183. However, it has been held in a number of states that a judgment rendered against a person who has not been served with process and by a court which has no jurisdiction over the parties is absolutely void, and that it is not incumbent upon the plaintiff, seeking to restrain its enforcement, to allege and prove a valid defense to the cause of action. Mosher v. McDonald & Co., 128 Iowa 70;

Blakeslee v. Murphy, 44 Conn. 188. But equity will not interfere to enforce a mere technical right. Gregory v. Ford, 14 Cal. 138; State v. Hill, 50 Ark. 458. And it has been held that, although the judgment is void for want of service on the defendant, a Court of Equity will not relieve until it is averred and proved that if the relief is granted, a result would be attained different from that reached by the judgment complained of. Colson v. Leitch, 110 Ill. App. 509; Hockaday v. Jones, 8 Okla. 156.

LEASE COVENANT AGAINST ASSIGNMENTS-BREACH.-Herzig v. BlumenKROHN, 107 N. Y. Supp. 570.-A lease to B. contained a covenant against assignments without the lessor's written consent, and reserved to the lessor the right to re-enter for breach thereof. Before the commencement of the lessee's term, and without the lessor's consent, the lessee leased the same premises to defendant C. for the same term at the same rent by a lease which, except for the date and names of the parties, was a precise copy of the original lease. Held, that such second lease, though containing a covenant that the lessee should surrender on the last day of the term, and reserving to B. the right of re-entry for condition broken, constituted an assignment of the original lease, and not a sub-lease, and was therefore a breach of the covenant against assignment in the original lease. Ingraham, J., dissenting.

Originally a reversion in the primary lessee of some fragment of his estate was needful to support a sub-lease, though it might be a day, Crusoe v. Bugby, 3 Wilson 234, an hour, or even a minute, Poutney v. Holmes, I Strange 404, but this rule is at present extended, and a reservation in the first lessee of a right of entry for breach of covenant brings about the same result, Stewart v. Long Island R. R. Co., 102 N. Y. 601, being based on an early English case, Doe v. Bateman, 2 Barn. & Ald. 168, but there is an apparent conflict in New York itself, Bedford v. Terhune, 30 N. Y. 454. This latter view is based on the reversionary interest retained by the lessee, Collamer v. Kelly, 12 Iowa 319; that is, that a contingent reversionary interest to be availed by an entry for breach of condition is sufficient to change the character of an apparent assignment to a sub-lessee, Dunlap v. Ballard, 131 Mass. 161, but this principle is apparently predicated on statutory grounds, for it is contrary to common law, for such was not a reversion nor an estate, but a mere chose in action, Southard v. Central R. R. Co., 26 N. J. L. 21, and could not be aliened or assigned or pass by grant of reversion, 2 Washburn Real Prop. 451; Hoyt v. Ketcham, 54 Conn. 60; and the modern view, irrespective of statute, follows the main case, Sexton v. Chicago Storage Co., 129 Ill. 318.

MASTER AND SERVANT-ACTIONS FOR WRONGFUL DISCHARGE-OTHER EMPLOYMENT AS A GROUND FOR REDUCTION OF DAMAGES.-Beissel V. VERMILLION FARMERS' ELEVATOR Co., 113 N. W. 575 (MINN.).—Held, where the employee is wrongfully discharged prior to the termination of his contract of employment, in an action to recover the stipulated wages for the entire term covered by the contract, the employee is not required to allege and prove that in the interim he was unable to obtain other employment.

Where a servant is discharged before the expiration of his term of service, and endeavors, but is unable to obtain other employment, the measure of damages is the sum fixed by the contract of such unexpired term. Southwick v. Bernhard, 17 N. Y. Supp. 478. And, while a party is bound

to use reasonable diligence in obtaining other employment, he is not bound to accept employment of a substantially different character. Hinchcliffe et al. v. Koontz, 121 Ind. 422. But if he does accept employment of a different character, the wages received may be shown in mitigation of damages for the wrongful discharge. Stevens v. Crane, 37 Mo. 487. And, in mitigation of damages, where an employee, discharged before the expiration of his term of service, brings an action for wrongful discharge, and the defense in part is that he received compensation in other employments during the unexpired portion of the term, the burden of showing such compensation and the value thereof is upon the employer. World's Columbian Exposition v. Richards 57 Ill. App. 601. And though a servant is bound to use reasonable efforts to obtain employment elsewhere, the burden of showing that, by reasonable efforts, he might have obtained such employment is upon the employer. Emery et al. v. Steckel, 12 Pa. State, 171; Barker v. Knickerbocker Life Ins. Co., 24 Wis. 630.

MUNICIPAL COrporation-Maintenance of POLICE STATION.-WILCOX V. CITY OF ROCHESTER, 82 N. E. (N. Y.) 1119.—Where a city exercises a governmental function in maintaining a police station, used in part as a jail for prisoners, as well as in part for the accommodation of its police force, held, that it is not liable for the negligence of an employee in charge of an elevator therein.

A municipal corporation exercises two classes of functions, private and governmental, Hourigan v. Norwich, 77 Conn. 358, this distinction being clearly defined and well recognized, Bailey v. Mayor, 3 Hill 531, but in the application lies the conflict. When the duty enjoined relates to some act in the doing of which the city has some special interest apart from the public generally, Merrifield v. Worcester, 110 Mass. 216, it is the English rule, Mersey Docks v. Gibbs, etc., II H. L. Cases 685, as well as the American, that the municipal corporation is liable for an injury sustained, Briegle v. Philadelphia, 135 Pa. St. 451, but when the duty relates to acts which, in their nature, are for the benefit of the public, Finch v. Board, 30 Ohio St. 37, and the city is representative and agent of the public, it is not liable, Hill v. City of Boston, 122 Mass. 344; this latter view was also held by Chief Justice Marshall in Fonle v. Alexandria, 3 Pet. 398. And the duty and function of keeping, Brown v. Guyandotte, 34 W. Va. 299, and maintaining a city prison is purely such a governmental act, Gray v. Griffin, 111 Ga. 361, and a police officer is generally regarded as a public officer, Craig v. Charleston, 180 Ill. 154; Vaughtman v. Waterloo, 14 Ind. App. 649.

REVIEWS

Legal Essays. By James Bradley Thayer, LL.D., late Weld Professor of Law at Harvard University. The Boston Book Co., Boston, 1908. pp. 402.

This collection of the legal essays of the late Prof. Thayer is one of considerable interest and value. The book contains in convenient form a large number of the instructive short works which Prof. Thayer wrote from time during the last twenty years of his life. For the most part the essays in this volume are here reprinted from the Harvard Law Review to which Prof. Thayer was a generous contributor. From his note book it was learned that he had had in mind making such a collection as this and publishing it and, while it is realized that had he lived to do this himself the results would have been an even greater achievement, still the work in its present form, carefully compiled and indexed as it is, deserves the highest commendation. Any words that Prof. Thayer has uttered on legal matters cannot be too carefully preserved and this collection preserves in one volume many of the best of Prof. Thayer's legal contributions, some of the most important of which are: "The Origin and Scope of the American Doctrine of Constitutional Law," "Legal Tender," "A People Without Law," "Our New Possessions," "Bedingfield's Case-Declarations as a Part of the Res Gesto." H. T. S.

SCHOOL AND ALUMNI NOTES

The Yale Law School Catalogue for 1907-1908 was issued recently. It contains the official list of professors and instructors, which number thirty-four this year as against thirty-six the year before. Professor Charles Cheney Hyde, '95, is announced as Lecturer in International Law, giving the courses formerly given by Professor Theodore S. Woolsey, '72, who is abroad for the year on a leave of absence. The subject for the Storrs Lectures, which this year are to be given by William Dameron Guthrie, '04, Hon., of New York City, is announced as "The Original Jurisdiction of the Supreme Court of the United States and the Eleventh Amendment."

Hon. Charles Newell Fowler, '76, Congressman from New Jersey, and Chairman of the House Committee on Currency, delivered an admirable address on the currency question in Hendrie Hall, February 10th, under the auspices of the Yale Law School Forum.

Corbey Court and Phi Delta Phi announce the election of the following men:

Chester Adraine Adams, 1908, of Akron, Ia.;
William Edward Egan, 1908, of Southington, Conn.;
William James Larkin, Jr., 1909, of Waterbury, Conn.;
Edward Robert McGlynn, 1909, of Orange, N.
Roy Alexander Cheney, 1910, of Syracuse, N. Y.;
George Henry Malstedt, 1910, of New Rochelle, N. Y.

J.;

The Law School has received from Mrs. Townsend, widow of the late Professor William K. Townsend, '71, a portrait painting of Professor Townsend and a valuable part of his law library. The gift includes about a thousand volumes of State and United States reports and some text books. This addition brings the number of books owned by the Law School Library to over 32,000 volumes exclusive of the pamphlets.

The course in Bankruptcy given by Hon. Macgrane Coxe of the New York Bar, commenced on February 17th.