286 HARVARD LAW REVIEW. of the police power as one that " must necessarily enlarge its range as business expands and society develops," recognized that if the State wished to compel fidelity in the insurer and to provide a safe investment for the insured, the only way it could do so was by taking the business out of the hands of individuals over whom it had no visitorial powers, and directing it into channels that would admit the necessary measure of control. The business itself was not prohibited, nor was any one excluded from engaging in it under the conditions imposed. The decision seems sound, and it also has the merit of approving salutary and progressive legislation. Constitutional Law — Public Office not Property. — The governor was empowered by statute to appoint a superintendent of public instruction, and also to re- move him from office for incompetency, neglect of duty, or malfeasance, without a trial in a court of law. Held, one removed from office under this provision is not deprived of property without due process of law. Cameron v. Parker, 38 Pac. Rep. 14 (Okla). Offices were one class of incorporeal hereditaments by the common law, and the incumbent could not be deprived of his property without the judgment of a court. 2 Black. Com. 36. But under our representative government a public office of legisla- tive creation has never been so regarded. It is not viewed as the subject of a grant, nor even as a contract within the constitutional provisions protecting contracts. Throop, Publ. Officers, §§ 17, 19. The legislature may increase the duties, diminish the salary, abridge the term, or abolish the office, and still be within the provisions of the Federal and State constitutions forbidding legislative interference with property and vested rights. Cooley, Const. Lim. p. 331, note 2; Hare's Const. Law, p. 650. Contracts — Condition Precedent. — In the sale of a horse, the defendant made a cash payment and agreed to pay an additional sum if the horse would go as fast as a horse of the defendant's, the test to be made within ninety days by a person named. Held, that the defendant was bound to pay the additional sum on evidence that plain- tiff's horse was several seconds faster than the defendant's, though no trial had been made, owing to the sickness of the horses. Dayo v. Hammond, 60 N. W. Rep. 455 (Mich.). The case seems wrong. The defendant at the sale distinctly said that a warranty of speed would not suffice, and made a test the condition precedent to his liability to pay the additional sum. This test became impossible through no default of the defend- ant, and it is hard to see on what ground he is obliged to accept the testimony of wit- nesses when he had expressly stipulated for a trial. In the case of Potter v. Lee, 94 Mich. 140, cited by the court in support of their view, there was a clear default on the part of the buyer, which makes the case not in point. Contracts — Joint Guarantors — Payment by Check by one Guaran- tor. — Defendant and Thomas jointly guaranteed plaintiff payment of a certain rent. The rent was not paid, and plaintiff took a check from Thomas. The check having been dishonored, plaintiff brought an action against Thomas on the check and re- covered judgment, but this had never been satisfied. He then sued the defendant, and the question was whether the judgment recovered on the check given by one of the joint- contractors extinguished the cause of action against the other joint-guarantor under the guarantee. Held, it did not. Wegg Prosser v. Evans, 11 The Times Law Rep. 12. The English Court of Appeals overrule Camhefortv. Chapman, 19 Q. B. D. 229, and follow Drake v. Mitchell, 3 East, 251, to reach this result. The court seem to have been confused in Cambefort a7td Chapman, as to the exact point of Kendall v. Hamilton, 4 App. Cas. 504. It was held in the last-mentioned case that if you sue one of two or more joint-contractors on the contract, you cannot afterward come against the other joint-contractors, the reason being that the judgment is the higher security, and your claim is therefore merged in that. In Cambefort and Chapma7i,oweve:r,ie court said that Kendall and Hamilton was decisive of the case, and that it decided that " when you have converted the liability on the joint contract into a liability on a judgment so that you have a security of a higher nature, . . . then the maxim transit in remjndicatam ajjplies." There can be no doubt that this is the decision of Kendall and Hamilton ; but the court in Cambefort and Chapman applied this to a case like the principal one, and said that there the " liability on the joint contract had been converted into a liability on a judgment." This was a mistake, as the judgment was not ohi2iixed on the joint contract, but on something entirely collateral, /. e., the check or note. This distinction is noted in the principal case, Drake and Mitchell, and Dudley on Partnership, 6th ed., p. 263. Equity — Injitnction — Piracy of Unpublished Literary Matter. — Where a newspaper obtained the plot and incidents of a play before public production by collusion with one of the actors and published the same, held, an injunction will
