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118 Il8 HARVARD LAW REVIEW. (which would be barred in two years by the statute) but for the malicious use of the words to the plaintiff's injury. Van Horn v. Van Horn, 28 Atl. Rep. 669 (N. J.) See Notes. Criminal Law — Larceny — Possession. — A horse was borrowed to drive to church and while there was taken. Held, by the Court of Criminal Appeals of Texas, under statutes clearly declaratory of the common law, that such gratuitous bailee does not get possession, and consequently it is not necessary, to warrant a conviction, to show that the taking was without his consent. Etnerson v. istate, 25 S. W. Rep. 289 (Tex.). It is submitted that such a bailee does get the actual control, care, and management necessary for possession. Such a decision as this would lead to most unsatisfactory results. The court was probably confused by the fact that the bailor is allowed to bring a possessory action, but such action would be for the wrong done to the bailee's possession. Story on Bailments, § 280. Evidence — Contract in Writing — Collateral Oral Agreement. — The defendant, a resident of Georgia, constituted X his attorney to make an exchange of lands of the defendant, situate in New York, for lands of the plaintiff lying in Georgia. The power of attorney contained " a full power of substitution and revocation." X and the plaintiff met and concluded a contract of exchange in writing, the deeds to be de- livered at a certain time ; and X stipulated orally that one Y should thereafter act for the defendant, and that plaintiff's performance should be made to him. At the time set plaintiff tendered her deeds to Y who made no objection to the manner of their exe- cution, but requested plaintiff to wait and keep the matter open until the defendant's deeds should be forwarded. Subsequently the defendant, being anxious to avoid the contract, sought to impeach it on the ground that the deeds offered by the plaintiff were not executed according to the requirements of Georgia law, and moreover disputed the validity of the appointment of Y as his agent, and the agreement as to the place of performance of the plaintiff. Held, that the delegation of authority of X to Y was competent under the power of attorney, and that the oral agreement by which the sub- stitution was made, and place of performance fixed, did not "contravene the terms of the written instrument." Grillenberger v. Spencer, 27 N. Y. Sup. 864. The decision seems based on liberal and just conceptions of the equities of the case. According to a rigid doctrine, perhaps, the collateral oral agreement would be inad- missible on the ground that, the written instrument appearing complete, there was an irrebuttable presumption that it did contain all the negotiations of the parties on the subject (see the typical case of Naumberg . Young, 44 N. J. 331). Such a summary rule, however, has been previously discountenanced in New York, as is seen by cases cited in the report, and also Chapin v. Dobson, 78 N. Y. 74, and, fairly considered, the oral agreement seems to be in no way inconsistent with either the spirit or language of the written contract. Mortgages — Redemption. — Held, that after foreclosure of a senior mortgage, and sale and conveyance under such foreclosure, a junior mortgagee, although he has not been a party to this foreclosure, cannot himself foreclose without first redeeming from the sale. Rose v. James, 36 N. E. Rep. 555 (111.). The decision seems thoroughly sound. The court points out that the junior mort- gage was only a claim upon the mortgagor's right of redemption. Ilis right to fore- close was a right to have the mortgagor's right of redemption sold, but after this right of the mortgagor has been wiped out by the foreclosure proceeding, he could have no further right of foreclosing. However, he also had a right to redeem from the senior mortgagor, and this right could not be affected by a proceeding to which he was not a party, so that he might still redeem. Nonsuit — Right to — Discretion of Court. — After a trial has begun the plaintiff has no absolute right to take a nonsuit, and the same lies in the liberal dis- cretion of the court, but will be denied if the plaintiff has got in all his evidence and is not surprised by the defendant's evidence. The decision is based on the injustice of allowing the plaintiff to put the case beyond the power of the court, when it is in a position to decide it on the merits. Johnson v. Bailey, 59 Fed. Rep. 670 (Circuit Court, w. D. Wis.). The decision is avowedly contrary to the rule of common law, but is in accord with the decisions in several States. Personal Property — Attachment — Information by Telephone. — The attaching creditor being absent from the State, his attorney made the necessary affi- davit, on information received from the creditor by a long-distance telephone. Held, that such information was sufficiently reliable, that received by telegra])h being decided so, and that the attachment was rightly granted on the affidavit based thereon. Murphy v.Jackf 27 N. Y. Sup. 802.