by lessor held competent under the declaration, notwithstanding a general objection of variance.-Landt v. McCulloug, Ill., 75 N. E. Rep. 1069.

89. LANDLORD AND TENANT-Construction of Lease.A lease of a theater building does not imply a warranty that the building leased is fitted for occupation as a theater, or for any particular use.-Taylor v. Finnigan, Mass., 76 N. E. Rep. 203.

90. LANDLORD AND TENANT-Constructive Eviction.Where a lessee does not abandon the premises, but remains in possession, a constructive eviction by the landlord is no defense to a suit for rent. - Taylor v. Finnigan, Mass., 76 N. E. Rep. 203.

91. LANDLORD AND TENANT - Contract in Writing.— Where a rent contract was in writing, it was error, in a prosecution based thereon, to permit the state to prove its terms by parol.-Wilson v. State, Ala., 39 So. Rep 776. 92. LANDLORD AND TENANT-Extinguishment of Lien. -Surrender of a tenant's note and rental contract by the landlord to the tenant held not an extinguishment of the landlord's lien as a matter of law. Wilson v. State, Ala., 39 So. Rep. 776.

93. LANDLORD AND TENANT-Option to Purchase.-Lessee who failed to pay rent note provided for under contract of lease held not entitled to purchase the premises under an option contained in the lease. - Carpenter v. Thornburn, Ark., 89 S. W. Rep. 1047.

94. LARCENY-Bringing Stolen Property into State.On a prosecution for bringing stolen property into the state, evidence held sufficient to show with reasonable certainty that defendant brought $50 of stolen money into the satte.-Bink v. State, Tex., 89 S. W. Rep. 1075.

95. LIMITATION OF ACTIONS-Amended Complaints.Amended complaints founded on the same wrong must be regarded as filed at the date of the commencement of the action, in determining the effect of the statute of limitations.-Terre Haute & I. R. Co. v. Zehner, Ind., 76 N. E. Rep. 169.

96. LIMITATION OF ACTIONS-Effect Upon Securities.Lien existing as incident to a debt ceases to exist on the extinguishment of the debt by limitations. - Houston Ice & Brewing Co. v. Stratton, Tex., 89 S. W. Rep. 1111. 97. MANDAMUS-Petition.-An averment of petition for mandamus to compel reinstatement of petitioner's name to the police pension roll, that the petitioner's husband died from the effects of an injury received in the service, held zot overcome by other averments of the petition.— Eddy v. People, Ill., 75 N. E. Rep. 1071.

93. MASTER AND SERVANT- Assumption of Risk. - A servant does not assume the risk of negligence on the part of the master in the furnishing of instrumentalities for doing the work.-Chambers v. Wampanoag Mills, Mass., 75 N. E. Rep. 1093.

99. MASTER AND SERVANT-Duty of Master to Inspect. -Failure of a master to promulgate a system of inspection in its mills is evidence of negligence in case of injury to a servant through want of inspection. Chambers v. Wampanoag Mills, Mass., 75 N. E. Rep. 1093.

100. MASTER AND SERVANT-Liability of Abutting Owner for Defective Sidewalk.-Abutting owner of premises held liable for injury resulting from dangerous condition of sidewalk incident to the doing of certain work, al though the work itself was done by independent cou tractors.-Mullins v. Siegel-Cooper Co., N. Y., 75 N. E. Rep. 1112.

Negligence.-Stopping

101. MASTER AND SERVANT freight train on the west end of passing track at station held not negligence, though injury to employee would have been avoided if train had passed to east end.-Fore v. Chicago & A. Ry. Co., Mo., 89 S. W. Rep. 1034.

102. MASTER AND SERVANT-Negligence of Master in Failure to Inspect.-On the same issue of negligence of a railroad in inspecting a tender which was subsequently wrecked, thereby injuring a trainman, evidence that the inspector knew that his son was to go in the engine to which the tender was attached held relevant.-Hover v. Chicago, R. I. & G. Ry. Co., Tex., 89 S. W. Rep. 1084.

Willfu

103. MASTER AND SERVANT - Remuneration. default in performance of stipulation of contract held to preclude a recovery for services, although the stipula tion does not go to the essence of the contract.-Sipley v. Stickney, Mass., 76 N. E. Rep. 226.

104. MINES AND MINERALS-Gas Leases. Where a gas lease does not prescribe a time within which the well must be constructed, the law implies that it must be constructed within a reasonable time.-New American Oil & Mining Co. v. Troyer, Ind., 76 N. E. Rep. 253.

105. MINES AND MINERALS-Provision in Gas Lease for Rental.-A condition in a gas lease, providing for an annual rental upon the failure of the lessee to drill a well within a designated period, is valid and enforceable.Indianapolis Gas Co. v. Pierce, Ind., 76 N. E. Rep. 173.

106. MORTGAGES-Option to Declare Debt Due. - Where mortgage provides on default of interest that the principal and interest should become due at option of mortgagee, foreclosure on default held an irrevocable election to treat the mortgage as due.-Kilpatrick v. Germania Life Ins. Co., N. Y., 75 N. E. Rep. 1124.

107. MORTGAGES-Sale Under Power.-In order to make a valid sale under a power in a nortgage, the terms of the power must be strictly complied with.-Chase v. Morse, Mass., 76 N. E. Rep. 142.

108. MUNICIPAL CORPORATIONS-Authority of Mayor.A resolution of a city council authorizing the mayor to execute a note held insufficient to render the city liable on a bond executed by the mayor thereunder.-Gutta Percha & Rubber Mfg. Co. v. City of Attalla, Ala., 39 So. Rep. 719.

109. MUNICIPAL CORPORATIONS-Donations for Private Purposes.-A city held not entitled to recover on a bond given to secure performance of a contract, by which the city agreed, on certain conditions, to donate money to a manufacturing corporation.-Collier Shovel & Stamping Co. v. City of Washington, Ind., 76 N. E. Rep. 122.

110. MUNICIPAL CORPORATIONS-Presumption that Improvement Made Under Valid Ordinances -Where two ordinances have been passed for the same improve. ment, one of which is valid and the other invalid, the law will presume that the improvement was made under the valid ordinance.-Harris v. People, Ill., 75 N. E. Rep. 1012.

113. MUNICIPAL CORPORATIONS-Special Assessment Proceedings.-A judgment of sale in a special assessment proceeding is defective where it refers to an attached schedule for the amount of the judgment, and there is no dollar mark in front of the numerals in the schedule, and nothing to show that the numerals indicated dollars and cents.-Gage v. People, Ill., 76 N. E. Rep. 56.

114. MUNICIPAL CORPORATIONS - Special Tax. - The fact that a village clerk fails to file his report of lands delinquent on account of a special tax, on the day required by an improvement ordinance, does not invalidate the tax.-Harris v. People, Ill., 75 N. E. Rep. 1012.

115. MUNICIPAL CORPORATIONS-Street Assessments.A condition in a deed of certain land conveyed to a city for a street, that the grantor and the remaining portion of the lot would not be liable for municipal assessment for maintaining the street, held ultra vires and void.Pittsburg, C., C. & St. L. Ry. Co. v. Oglesby, Ind., 76 N. E. Rep. 165.

116 NEGLIGENCE-Automobiles.-In an action for injuries to plaintiff by the frightening of his horse by defendant's automobile, evidence held to require submis. sion of defendant's negligence to the jury.-Gifford v. Jennings, Mass., 76 N. E. Rep. 233.

117. OBSTRUCTING JUSTICE -Inducing Witnesses to Absent Themselves.-In a prosecution under Cr. Code, § 272, for conspiracy to induce witnesses in a criminal case to leave the state, the guilt or innocence of the person at whose trial the witnesses should have testified is immaterial.-Tedford v. People, Ill., 76 N. E. Rep, 60.

118. PARENT AND CHILD-Action for Injuries to Child.Where without his father's consent an infant is employed in a dangerous service, his father's right to recover for injuries is based on the common law. -Texas & P. Ry. Co. v. Hervey, Tex., 89 S. W. Rep. 1095.

119. PARTNERSHIP-Good Will as an Asset.-A partner dissolving a firm held chargeable with the value of the good will to the same extent as though he had purchased the property and good will under order of court.-Griffith v. Kirley, Mass., 76 N. E. Rep. 201.

120. PARTNERSHIP-Liability of New Firm,-Where assets of an old firm are transferred to a new firm, it is under obligation to pay the debts of the old firm at least to the extent of what was realized in good faith therefrom.-La Montague v. Bank of New York Nat. Banking Assn., N. Y., 76 N. E. Rep. 33.

121. PRINCIPAL AND AGENT-Management of Estate.An agent of an administrator assisting in the settlement of the estate held entitled to pay an attorney for services rendered in the administration, but not to make other disbursements, except at the administrator's instance.Harms v. Wolf, Mo., 89 S. W. Rep. 1037.

122. PRINCIPAL AND AGENT-Unauthorized Disbursement by Agent. - In an action by an administrator, against his agent, for money received, a charge that the appraisers were only entitled to their regular allowance unless the administrator authorized a further payment held proper.-Harms v. Wolf, Mo., 89 S. W. Rep. 1037.

123. RAILROADS- Duty in Relation to Culverts.-A railroad company in constructing culverts for drainage held bound to take into consideration, not only existing conditious, but such future changes as it could have fore. seen. St. Louis Southwestern Ry. Co of Texas Rollins, Tex., 89 S. W. Rep. 1099.

V.

124. RAILROADS-Duty of Person Using Private Crossing. A drayman using a private crossing at the implied invitation of a railroad company while unloading a car held not bound to exercise ordinary care in selecting a crossing. Cowans v. Ft. Worth & D. C. Ry. Co., Tex., 89 S. W. Rep. 1116.

125. RAILROADS-Negligent Construction of Culvert.-A railroad company held liable for damages from overflow of land caused by its negligence in constructing culverts, concurring with the acts of others or the act of God. -St. Louis Southwestern Ry. Co. of Texas v. Jenkins, Tex., 89 S. W. Rep. 1106.

126. RELEASE-Fraud in Procurement.-Where a ser vant was treated for injuries in a hospital conducted by the master, false statements of the physicians in charge as to the servant's physical condition, made for the purpose of facilitating a settlement, invalidated the same.Gulf, C. & S. F. Ry. Co. v. Huyett, Tex., 89 S. W. Rep. 1118.

127. SALES-Transfer of Title.-The title to a personal chattel remains in the seller, if he is required by the contract to forward or deliver the article, until the goods are delivered in accordance with the contract.-Commonwealth v. Adair, Ky., 89 S. W. Rep. 1130.

128. SPECIFIC PERFORMANCE-Provision for Liquidated Damages.-Contract for exchange of land may be speci fically enforced, although it contains provision for liquidated damages in case of breach.-Koch v. Streuter, Ill., 75 N. E. Rep. 1049.

129. STATUTES-Acts in Pari Materia.-Statutes relating to the same subject, enacted at different dates, the latter having in view the earlier, and being intended as supplementary thereto or amendatory thereof, are to be treated as in pari materia.-State v. Kiley, Ind., 76 N. E. Rep. 184.

130. STIPULATIONS-Validity. - An agreement between the solicitors of record that a case be set down for hear

ing to test the sufficiency of defendant's plea of defective parties held valid.-Ingram & Goodman ▼. Gill, Ala., 39 So. Rep. 736.

131. TAXATION-Inheritance Tax.-Object of inheritance tax statute held not to prevent parent from giving property to children during his lifetime.-People v. Kelley, Ill., 75 N. E. Rep. 1038.

132. TAXATION-Power of County Board.-A county treasurer who is as such supervisor of assessment of the county has no supervision over the board of review, and has nothing to do with assessing omitted property, either personally or through his deputies.-Stevens v. Henry County, Ill., 75 N. E. Rep. 1024.

133. TAXATION-Transient Merchant. If a transient merchant has paid taxes on his goods in one county, he is excused from payment of further taxes for that year in another county on substantially the same stock. — Simoyan v. Rohan, Ind., 76 N. E. Rep. 176.

134. THEATERS AND SHOWS-Validity of Conditions in Theater Ticket.-Clause in theater ticket, providing that if sold by the purchaser on the sidewalk it would be refused at the door, held valid.-Collister v. Hayman, N. Y., 76 N. E. Rep. 20.

135. TORTS-Interference With Another's Business.No person or combination of persons can legally obstruct or interfere with another in the conduct of his lawful business. Purington v. Hinchliff, Ill., 76 N. E. Rep. 47.

136. TOWNS-Road and Bridge Tax.-A certificate of highway commissioners, showing a levy of 40 cents on the $100 for roads and bridges, without stating the amount required for each purpose, or the total amount of taxes required, is sufficient.-People v. Kankakee & S. W. Ry. Co., Ill., 75 N. E. Rep. 1063.

137. TRIAL-Instructions as to an Estoppel.-Where, in an action on a note, the court instructed fully as to the issue of estoppel raised by the reply, plaintiff could not complain because that issue was not referred to in all the other instructions.-Baum v. Palmer, Ind., 76 N. E. Rep. 108.

138. TRIAL-Special Findings.-A general verdict in favor of plaintiff is a finding against defendant upon the issuable facts, and is supported, as against special findings, by every inference which may be drawn from the evidence.-Union Traction Co. v. Sullivan, Ind., 76 N. E. Rep. 116.

139. TRUSTS-Powers of Trustee.-Executor and trustee appointed after the resignation of the orignal executor and trustee held entitled to exercise discretion vested in such original executor.-In re Wilkin, N. Y., 75 N. E. Rep. 1105.

140. WILLS-Construction.-A clause of a will referring to certain property as having been previously conveyed by testator cannot be given the effect of a devise, although the deed of conveyance referred to was invalid for want of delivery.-Noble v. Tipton, Ill., 76 N. E. Rep.

151.

141. WILLS-Intention of Testator. - Where the entire will clearly shows an intention on the part of testator to postpone the vesting of his estate until the period of distribution, such intention will be effectuated. Starr v. Willoughby, Ill., 75 N. E. Rep. 1029.

142. WILLS-Who are Legatees.-Trustees in will held "legatees" within the meaning of clause giving the property not otherwise disposed of to legatees previously mentioned. Crawford v. Mound Grove Cemetery Ass'n, Ill., 75 N. E. Rep. 998.

143. WITNESSES-Cross-Examination.-To what extent a witness may be cross-examined on collateral issues to test his credibility rests largely in the discretion of the trial court.-Robinson v. Old Colony St. Ry. Co., Mass., 76 N. E. Rep. 190.

144. WITNESSES-Leading Questions.-In the absence of a palpable abuse of discretion resulting in substantial injury to accused, the allowance of leading questions is not of itself ground of reversal.-Maguire v. People, Ill., 76 N. E. Rep. 67.

Central Law Journal.

ST. LOUIS, MO., MAY 4, 1906.

ANNOUNCEMENT.

We take considerable pleasure in congratulating the profession on the following editorial comment on the celebrated case of Haddock v. Haddock, recently decided by the Supreme Court of the United States, which was prepared at our solicitation by the Hon. Moses N. Sale, one of the most learned of the judges now sitting on the circuit bench of the city of St. Louis and who is especially conversant with the rules and principles of law involved in the subject matter of that decision.

THE HADDOCK CASE-DECREES FOR DIVORCE ON SUBSTITUTED SERVICE NOT PROTECTED BY FULL FAITH AND CREDIT CLAUSE OF CONSTITUTION.

The decision of the Supreme Court of the United States, rendered April 16th, 1906, in the case of Haddock v. Haddock, is not nearly so revolutionary in its effect as one would naturally conclude from the published accounts of the decision. The gist of the decision is contained in the following extract from the opinion of Justice White, who delivered the majority opinion of the court: "Where a personal judgment has been rendered in the courts of the state against a nonresident merely upon constructive service, and, therefore, without acquiring jurisdiction over the person of the defendant, such judgment may not be enforced in another state in virtue of the full faith and credit clause of the federal constitution. This general rule is, moreover, limited by the inherent power which all governments must possess over the marriage relation, its formation and dissolution as regards their own citizens. From this exception it results that where a court of one state, comformably to the laws of such state, has acted concerning the dissolution of the marriage tie, as a citizen of that state, such action is binding on that state as to such citizen, and the validity of the judgment may not therein (i. e., in the state in which the judgment is rendered), be questioned on the

ground that the action of the state in dealing with its own citizens concerning marital relations was repugnant to the due process clause of the constitution; and as a corollary of the recognized power of a government thus to deal with its own citizens by a decree which would be operative within its own borders, irrespective of any extra-territorial efficacy, it follows that the right of another sovereignty exists, under principles of comity, to give to a decree so rendered such efficacy as to that government may seem to be justified by its conceptions of duty and public policy." In concluding the opinion, the court uses the following language: "Without questioning the power of the State of Connecticut to enforce within its own borders the decree of divorce which is here in issue, and without intimating a doubt as to the power of the State of New York to give to a decree of that character, rendered in Connecticut, within the borders of the State of New York, and as to its own citizens, such efficacy as it may be entitled to in view of the public policy of that state, we hold that the decree of the court of Connecticut, rendered under the circumstances stated, was not entitled to obligatory enforcement in the State of New York by virtue of the full faith and credit clause of the constitution.”

In order to fully understand the force and extent of the court's opinion, the facts will be briefly stated. Mrs. Haddock was a resident of the State of New York, and sued her husband in that state in 1899, and obtained personal service upon him. The petition charged that the parties had been married in New York in 1868, where they both resided, and where the wife continued to reside, and it was alleged that the husband, immediately following the marriage, abandoned the wife, and thereafter failed to support her. A decree of separation from bed and board, and for alimony was granted to the wife by the lower court in the State of New York, and sustained by the Supreme Court of the State of New York. The answer filed by the husband in the case alleged that the husband in 1881, some eleven years prior to the date of the wife's suit in New York, had obtained in the court of the State of Connecticut, a decree of total divorce. On the trial of the New York case for partial divorce and alimony, the referee who tried the case sustained

an objection to the introduction of the judgment-roll in the suit for divorce in Connecticut, on the ground that the Connecticut court had not obtained jurisdiction over the person of the wife, as the notice of the pendency of the suit was by publication, and she had not appeared personally in the action; and, second, because the ground upon which the divorce was granted, viz., desertion by the wife, was false. These objections were sustained, and, as stated above, on appeal to the highest court of the state, the judgment was affirmed, and a decree entered in favor of the wife for a partial divorce and alimony in the sum of $780 per annum from the date of the judgment.

The federal question thus raised was, "Did the court below violate the constitution of the United States by refusing to give to the decree of divorce, rendered in the State of Connecticut, the faith and credit to which it was entitled?" In discussing this question the court says: "It is no longer open to question that where a husband and wife are domiciled in the state, there exists a jurisdiction in such state, for good cause, to enter a decree of divorce, which will be entitled to enforcement in another state by virtue of the full faith and credit clause. It has, moreover, been decided that where a bona fide domicile has been acquired in the state by the parties to a marriage, and a suit is brought by the domiciled party in such state, for a divorce, the courts [of that state, if they acquire personal jurisdiction also of the other party, have authority to enter a decree of divorce, entitled to be enforced in every state by the full faith and credit clause."

It seems also to have been determined in the Haddock case that a divorce obtained even on an order of publication may, under certain circumstances, be entitled to enforcement in every other state of the union by virtue of the full faith and credit clause of the constitution. "Where the domicile of matrimony," says the supreme court, "was in a particular state, and the husband abandons his wife and goes into another state in order to avoid his marital obligations, such other state to which the husband has wrongfully fled does not, in the nature of things, become a new domicile of matrimony, and, therefore, is not to be treated as the actual or constructive domicile of the wife; hence, the place

where the wife was domiciled when so abandoned constitutes her legal domicile until a new, actual domicile by heris elsewhere acquired. The general rule is that a voluntary separation will not give to the wife a different domicile in law from that of her husband, but if a husband abandons their domicile, and abandons his wife, to get rid of all those conjugal obligations which the marriage relation imposes upon him, neither giving to her the necessaries nor the comforts suitable to their condition and his calling, and relinquishes altogether his marital control and protection, he yields up that power and authority over her which alone makes his domicile hers. So, also, it is settled that where the domicile of a husband is in a particular state, and that state is also the domicile of matrimony, the courts of such state having jurisdiction over the husband may, in virtue of the duty of the wife to be at the matrimonial domicile, disregard an unjustifiable absence therefrom and treat the wife as having her domicile in the state of the matrimonial

domicile, for the purpose of a dissolution of the marriage, and as a result have power to render a judgment dissolving the marriage, which will be binding upon both parties and will be entitled to recognition in all other states by virtue of the full faith and credit clause."

It is plain to be seen from the foregoing that if either husband or wife brings suit for divorce in the state where either may be domiciled, and where the cause for divorce accrued, if that domicile likewise be the domicile of matrimony, that, under such circumstances, a decree of divorce in favor of one against the other would be enforced, not as a matter of comity but as a matter of right, in every state in the union. It is so held by the supreme court in the case of Atherton v. Atherton, 181 U. S. 155, and the case is cited with approval by the court in its recent opinion in the Haddock case. So that, after all, nothing more was decided in the Haddock case than this: that a decree of divorce obtained in a state to which the husband or wife resorts, and which state was not the state of the matrimonial domicile of the husband and wife, and while domiciled in such other state procures a decree of divorce upon an order of publication, or upon any substituted service, such decree, while valid and binding

within the limits of the state in which the decree is granted, has no extra-territorial or extra-state force unless other states elect to acknowledge its force as a matter of comity or state courtesy.

In the Haddock case it is seen that the New York courts refused to recognize the Connecticut decree of divorce; and that was to have been expected by reason of the fact that the policy of the state of New York is strongly set against divorces. That state recognizes only one ground of divorce. It is easy to forecast what would be the decision of the courts of South Carolina upon the same question, the policy of South Carolina being identical with that of the state of New York. The laws of Missouri, as well as many other states, are much more liberal on the subject of "divorce," and one could easily forecast, if it were necessary to make a forecast, as to what would be the decision of the courts of those states upon the question of the public policy of recognizing the validity of decrees of divorce granted in other states upon orders of publication.

So that, after all the great fuss that has been made about the decision in the Haddock case, the several states are just where they were before that decision. No judge can refuse to grant a decree of divorce on an order of publication, nor can he refuse to proceed with the hearing of a divorce case, because of want of personal service, and if any court or judge should refuse to proceed with the hearing, in such a case he would very quickly be compelled by a proper writ, issued from an appellate court, to proceed to judgment in

the matter.

The opinion of the majority in the Haddock case will not be accepted by the profession as a finality. It is safe to predict that not many years will elapse before the same question will again be argued before the Supreme Court of the United Sta es in an effort to convince the court of its error. I say this, because the reasoning of the court is far from convincing one of the correctness of the conclusion reached by the court. The opinions of Mr. Justice Brown and Mr. Justice Holmes, dissenting, seem to me to be much more satisfactory and convincing than the opinion of the majority. Mr. Justice White concedes the validity of the decree in the principal case within the territorial limits of Connecticut, and it is difficult

to see how, under the constitutional provision that same decree could have any less force or effect in any other state of the union. Doubtless the great majority of the profession will agree with the statement of Mr. Justice Holmes in his dissenting opinion, when he says: "I am unable to reconcile with the requirements of the Constitution, Art. IV., Sec. 1, the notion of a judgment being valid and binding in the state where it is rendered, and yet depending for recognition to the same extent in other states of the union upon the comity of those states."

Aside from the disastrous effect upon innocent persons, it is to be regretted that a majority of the supreme court adopted the view that it has, for the decision seems to make an opening for attacks upon judgments in other civil cases, as being outside of the protection of the full faith and credit clause of the constitution. I feel safe in saying that the great majority of the profession will agree with Mr. Justice Brown in his statement that, "the action of the court in this case is a step backwards in American jurisprudence, and has virtually returned to the old doctrine of comity, which it was the very object of the full faith and credit clause of the constitution to supersede." M. N. SALE.

NOTES OF IMPORTANT DECISIONS. LIBEL-PUBLICATION OF IMPARTIAL REPORTS OF PRELIMINARY JUDICIAL PROCEEDINGS NOT PRIVILEGED.-Very few newspaper publications realize what great risks they take in publishing in advance of the trial, the preliminary affidavits, pleadings, motions and depositions filed in some pending judicial proceeding. The very recent case of Todd v. Every Evening Printing Co. (Dela.), 62 Atl. Rep. 1089, very forcibly illustrates the rule of law applicable thereto, wherein it was held that a preliminary affidavit, filed for the purpose of procuring a writ of capias ad respondendum, is not such a judicial proceeding that the publication of a fair and impartial report thereof is privileged within the law relating to libel. In this case the plaintiff was defendant in a certain case in which an affidavit of attachment had been filed against him with the usual averments that the defendant (plaintiff in this case) was indebted to the plaintiff in a certain sum.and had conveyed or was about to convey away all his property, with intent to hinder, delay and defraud his creditors. The defendant newspaper published this affidavit without any odious or unfair comment. The defendant in the attach