and surgeons in the same general neighborhood in the same general line of practice ordinarily have and exercise in like cases. Sheldon v. Wright, Vt., 67 Atl. Rep. 807. 107. Pleading Amendment of Petition.An amended petition adopting no part of the original petition supersedes the same, and such original petition is no part of the record, and cannot be considered, unless introduced in evidence, as an admission of plaintiff.-Lane v. Choctaw, O., G. R. Co., Okla., 91 Pac. Rep. 883.

108.- -Motion to Strike.-Where a defendant in an action on contract pleaded ignorance and fraud, a reply setting forth the circumstances under which the contract was made was proper as against a motion to strike.-Old Settlers Inv. Co. v. Marshall Vinegar, Pickle & Soap Co., Iowa, 113 N. W. Rep. 326.

109. Sufficiency of Answer.-Where a paragraph of an answer presented a complete defense, and no reply was filed thereto, and the court overruled a demurrer to another paragraph of the answer, and plaintiff declined to plead further, his petition was properly dismissed.-Martin v. Smith, Ky., 104 S. W. Rep.

310.

110. Principal and Agent—Authority to Compromise.-Authority to an agent to sell goods does not carry with it authority to compromise differences arising between his principal and those to whom he sells goods by such authority to prove the same.-Scarritt-Comstock Furniture Co. v. Hudspeth, Okl., 91 Pac. Rep. 843.

111. Knowledge of Defective Premises.Knowledge of an agent of defects in leased premises is knowledge of the landlord, so far as affects the latter's liability for injuries from such defects.-Holzhauer v. Sheeny, Ky., 104 S. W. Rep. 1034.

112. Province of Court and Jury. Whereas an agency is created by a written instrument. the scope of authority is for the court, but the existence and scope of an agency implied from conduct of the parties and established by witnesses are for the jury.-American Car & Foundry Co. v. Alexandria Water Co., Pa., 67 Atl. Rep. 861.

113.- -Ratification.-Where one, in selling goods, did not purport to act as agent of a third person but rather in his own right as owner, the third person could not be bound thereby on the theory of ratification of an unauthorized act of his agent.-Ilfeld v. Ziegler, Colo., 91 Pac. Rep. 825.

114. Unauthorized Acts of Agent.-A principal cannot be deemed to have ratified an unauthorized act of an agent, unless he does so with full knowledge of all the facts.-Sill v. Pate, Ill., 82 N. E. Rep. 356.

115. Process-Service.-A person going into another state as a witness or as a party defendant in a suit therein, either nominally or as a defendant in interest, is exempt from process in such state while he is necessarily attending there in respect to such trial, at least in the absence of a state statute unequivocally abrogating such exemption.-Skinner & Mounce Co. v. Waite, U. S. C. C., D. Idaho, 155 Fed. Rep. 828.

116. Property-Revesting of Title. The owner of the soil, who has conveyed the timber, is not revested with the title by a verbal declaration of the owner of the timber that he surrendered it to him.-Warren v. Ash, Ga., 58 S. E. Rep. 858. 117. Railroads

Accident at

Crossing.

Railroad company crossing a much traveled highway must signal a train's approach and moderate the speed to a reasonable degree.Crane v. Pennsylvania R. Co., Pa., 67 Atl. Rep. 877.

118.- -Crossing Accident.-Plaintiff held negligent as a matter of law in approaching a railroad crossing at night, and attempting to cross in front of a rapidly approaching train, which he must have seen if he had exercised due care. -Atchison, T. & S. F. Ry. Co. v. Baker, Ind. T., 104 S. W. Rep. 1182.

119.- -Damages for Fires Set by Engine.Where there is a diminution in the value of land caused by negligent firing of growing timber by a railroad company, the measure of damages is the diminution of the market value. -Western & A. R. Co. v. Tate, Ga., 59 S. E. Rep.

266.

120.-Duty to Look and Listen.-Failure of one driving across railway tracks to look and listen held not negligence as a matter of law. -Elgin, J. & E. Ry. Co. v. Lawlor, Ill., 82 N. E. Rep. 407.

121. Injunction to Person on Track.-A locomotive engineer has the right to assume that a person 10 feet away from the track, and not apparently deaf, will hear a whistle blown at a distance of 80 yards.-Cox's Adm'r v. Louisville & N. R. Co., Ky., 104 S. W. Rep. 728.

122. Negligence.-The negligence of a railway company in allowing combustible material to accumulate on its right of way held to be the proximate cause of the death of plaintiff's intestate.-Illinois Cent. R. Co. v. Siler, Ill., 82 N. E. Rep. 362.

123.- -Protection from Insults.-It is an insult for a conductor of a carrier to call a white man a negro, and dependent on the circumstances is actionable.-Wolfe v. Georgia Ry. & Electric Co., Ga., 58 S. E. Rep. 899.

124. -Separation of Races.-Where a conductor in enforcing Penal Code 1895, sec. 527, requiring conductors to separate white and colored passengers, mistakes a white man for a negro, the carrier is not liable if its employee used extraordinary diligence to prevent such mistake.-Wolfe v. Georgia Ry. & Electric Co., Ga., 58 S. E. Rep. 899.

125. Taxation.-A railroad company which though operated by another, still owns its line of railroad and has not parted with any of the franchises granted it, is liable to a franchiso tax.-Commonwealth v. Kinniconick & F. S. R. Co., Ky., 104 S. W. Rep. 290.

148. Witnesses-Cross Examination.-In an action for the death of plaintiff's intestate, who was killed by being run over by a street car objection to a certain question held properly sustained, as being improper cross-examination. Chicago City Ry. Co. v. Strong, Ill 82 N. E. Rep. 335.

149.-Impeachment.-Where it appeared a witness was coached while testifying, it was immaterial what particular questions she was coached on; the material question being whether she was coached.-Heath v. Hagan, Iowa, 113 N. W. Rep. 342.

The statute of frauds has been often so strictly construed as to work a fraud in some cases. This fact has led the courts gradually to relax from a strict construction to one which permits the circunstances of each particular case to be taken into consideration. This tendency is quite clearly illustrated in the recent case of Harrison v. Harrison, 113 N. W. Rep. 1042, where the Supreme Court of Nebraska specifically enforced a parol contract between a father and son whereby the former agreed to deed to the latter a farm on condition that he make his home with him.

The argument of the court is of exceptional merit, and is as follows: "In a brief of exceptional merit plaintiffs insist that this court has gone to extreme lengths in enforcing oral agreements for the conveyance of real estate, and that there is danger of wholly ignoring the statute of frauds and the statute of wills in a too liberal policy of allowing the title to real estate to be questioned or ordered transferred from one party to another on evidence which is wholly oral. It is said that there were special equities in the case of Kofka v. Rosicky, 41 Neb. 328, 59 N. W. Rep. 788, 25 L. R. A. 207, 43 Am. St. Rep. 685, and in Teske v. Dittberner, 63 Neb. 607, 88 N. W. Rep. 658, which appealed to the court for a relaxation of of the rigid rule requiring evidence of the clearest and most satisfactory character to justify a court in decreeing specific performance of an oral contract for the conveyance of real estate; but, as is well said in Kofka v. Rosicky, supra, the statute of frauds should not be so rigidly adhered to as to accomplish a fraud against one of the persons affected by the contract to which it is sought to be applied, and the discretion of the court ought to be applied to each par

to

ticular case when the general rules and principles which govern the court will not furnish any exact measure of justice between the parties. The statute itself recognizes the right of a court of equity to establish a claim against or a right to a conveyance of real estate by oral evidence in providing that nothing in this chapter contained shall be construed to abridge the powers of a court of chancery compel the specific performance of agreements in cases of part performance.' Comp. St. 1905, c. 32, § 6. By a series of decisions, ending with In re Peterson, 111 N. W. Rep. 361, this court has firmly established the rule that oral contracts relating to interests in real estate will be specifically enforced when the evidence establishing such a contract is clear and satisfactory. In the case last cited it is said by Mr. Justice Letton: 'It is impossible to reconcile the views of the various courts of the United States upon the questions presented; but this court has adopted the rule in Kofka v. Rosicky, supra, and we are content to abide by the doctrine of that case as being the most apt to prevent injustice, and to do equity. In such a case, if the trial court, bearing in mind the ease with which claims may be presented when the other party to the alleged contract is dead, carefully scrutinizes the evidence and weighs the same, taking fully into consideration the nature of the claims and the known inaccuracy of memory with reference to oral statements made years before the time of the trial, we think the evil consequences to estates which may accrue and which the counsel for the defendant So strongly set forth may be greatly minimized. The difficulty of proving contracts made many years before, when the lips of both participants are sealed, one by death. and the other by the law, operates to the disadvantage of the claimant and it may prevent a just recovery in as many cases as the ease with which claims may be trumped up may operate to spoliate estates.' That this court does not stand alone in the rule adopted is shown from the following cases: Rhodes v. Rhodes. ? Sand. C. (N. Y.) 305;

Winne v. Winne, 166 N. Y. 263, 59 N. E. Rep. 832, 82 Am. St. Rep. 647; Twiss v. George, 33 Mich. 253; Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. Rep. 4, 43 L. R. A. 427, 74 Am. St. Rep. 490; Brinton v. Vancott, 8 Utah, 480, 33 Pac. Rep. 218; Davies v. Cheable, 31 Wash. 168, 71 Pac. Rep. 728; McCullom v. Mackrell, 13 S. D. 262, 83 N. W. Rep. 255; Bryson v. McShane, 48 W. Va. 126, 35 S. E. Rep. 848, 49 L. R. A. 527; Howe v. Watson, 179 Mass. 30, 60 N. E. Rep. 415."

NOTES OF IMPORTANT DECISIONS.

BY

MASTER AND SERVANT-DUTY OF MASTER TO WARN SERVANT OF DANGER OF EMPLOYMENT-ASSUMPTION OF RISK SERVANT.-In the case of Hefferman v. Fall River Iron Works Co., 83 N. E. Rep. 5, the Massachusetts Supreme Judicial Court sustains the well-known doctrine of the duty of the master to disclose to the servant the dangers incident to his employment. Piaintiff was hired to work as a laborer for defendant. He was set to work cleaning the cylinders of cards which were being set up in the mill. The "licker-in," as it was called, was covered with paper, and plaintiff testified that he did not know what it was. In attempting to clean the cylinder as he had been instructed to do, the stick which plaintiff was using slipped, and his hand went down between the "licker-in" and the cylinder, resulting in the injuries complained of. A verdict was directed for defendant. In reviewing the evidence, the court says that there was evidence warranting a finding by the jury of due care on the part of plaintiff and of "negligence on the part of the defendant in failing to warn or instruct him of the danger when he was set to work on the card on which he was injured. ** * ** There was evidence tending to show that the plaintiff was cleaning the cylinder in the manner in which he had been told to clean it, so far as any instruction at all had been given him, and we do not see, therefore, how it could be ruled as a matter of law that he assumed the risk. According to his testimony ne did not know or appreciate the danger, and unless he did he could not be said to have as

sumed it. How much weight his testimony was entitled to was, of course, for the jury to say."

This decision is in line with a long line of decisions holding the master in duty bound to warn the servant of the dangers of the employment, for, as is aptly said, the servant cannot be said to assume a risk of which he is ignorant. Had the jury found that plaintiff had been warned of the dangers incident to his employment, an instruction that he had assumed the risk would have relieved defendant of liability. Having failed to warn the servant of the dangers of his employment, the master must respond in damages.

The duty of the master is an active duty. It has ever been held that the master must keep pace with scientific development as it affects his business and keep himself and foreman informed of latent danger, even though it be scientific information, if it be readily attainable. Hyrell v. Swift & Co., 78 Mo. App. 39.

MUTUAL BENEFIT INSURANCE-SUICIDE-BY-LAWS AS FORMING PART OF THE CONTRACT OF INSURANCE.-A question of interest to fraternalists is discussed in Benes v. Supreme Lodge, Knights and Ladies of Honor (Ill.), 83 N. E. Rep. 127. The benefit certificate sued on provided that if the member should comply with all laws of the society then in force, or that should afterwards be enacted, the society would pay a specified sum upon his death. A law of the society provided that if any person died by his own hand within five years after becoming a member, the certificate should thereby be rendered void. In this case, the member was shown not to have known of this law. He died by his own hand within five years, and suit was brought on the benefit certificate. The certificate was held void, the court saying: "Persons belonging to a mutual benefit association, or а fraternal beneficiary society, as it is denominated by our statute, are conclusively presumed to know what the provisions of the laws adopted by the association are, where such laws are a part of the contract of insurance. Such an association is founded upon the mutual rights and obligations of all its members, and if a beneficiary could be permitted to recover in a manner other than according to the written terms of the contract which those insured enter into, mutuality among the members would soon cease." Citing, Bacon on Benefit Societies (3rd Ed.), par. 81, and May on Insurance, vol. 2, par. 552.

low the law. But in certain circumstances equity will allow a set-off where it would not be allowed at law. Thus where debts are not mutual a court of equity will yet permit a set-off where irremediable injustice would otherwise be wrought. Insolvency has been held in several cases to constitute ground for equitable set-off."

The principle is settled that where legal estates are concerned equity will follow the law relating to the canons of descent. Thus the English Court of Chancery will always follow the law relating to primogeniture, though the rule there involved is utterly antagonistic to the principles of equity, in that it gives the whole estate to the oldest son, leaving the other children portionless. But that court will sometimes avoid the rule though with a disclaimer of any intention of violating legal principles. Thus, to quote the example given by Mr. Snell, if an oldest son should prevent his father from executing a proposed will devising one estate to a younger brother, by promising to convey such estate to such younger brother, and the estate should accordingly descend at law to the oldest son, a court of equity will interpose and say, "True it is, you, the oldest son, have the estate at law, in other words, the legal estate; that we don't deny or interfere with, but precisely because you have it, you will make a convenient trustee for your younger brother, who is in our opinion, equitably entitled to it."

Likewise where equitable estates are concerned, courts of equity will in general adhere to rules of law applying, while refusing to be bound by them. In accordance with this principle the English courts held at an early day that a use in fee would descend according to the same rules as a legal estate in fee, and that the husband would be entitled to curtesy in such a use. Dower proceedings are also generally decided according to rules of law.10

(6) Brewer v. Norcross, 17 N. J. Eq. 226. (7) Doane v. Walker, 101 Ill. 643; Dade v. Irwin, 43 U. S. 383.

In the case of trust deeds equity will ordinarily observe the rules of law in construing the words of limitation found therein. "In general, in courts of equity the same construction and effect are given to perfect trust estates as are given by courts. of law to legal estates. The incidents, properties and consequences of the estates are the same. The same restrictions are applied as to creating estates and bounding perpetuities and giving absolute dominion over property." But where the trust estate is still executory and it appears that the parties intended that the rules of law should not apply, a court of equity will follow the rules of law only where the intentions of the parties can at the same time be fulfilled..

The maxim is most commonly invoked in connection with in connection with statutes of limitation. Those statutes expressly apply only to legal actions. But from the earliest times equity has acted in accordance with such statutes. Lord Redesdale remarked in one case, "I think it is a mistake in point of language to say that courts of equity act merely by analogy to the statutes; they act in obedience to them.12 That is ordinarily true where equity has jurisdiction concurrently with courts of law. Thus in an early New York case the court observed that "Where there is a concurrent jurisdiction in the courts of law and equity the rule must be the same, and the statute of limitations may be pleaded with the same effect in the one court as in the other." But its falsity in regard to matters exclusively within the scope of equity is apparent when one considers the frequent variations from the terms of the statute.

Circumstances often occur when equity will relieve against the operation of the statute. Frequently by reason of laches. equity will abridge, though it will seldom extend the period fixed by the statute. The operation of the rule has been well ex

(11) Dibrell v. Carlisle, 48 Miss. 691.
(12)
(13)
(14)

Hovendon v. Annesley. 2 Sch. & Lef. 625. Murray v. Coster, 20 Johns, 576, 585. Meath v. Phillips Co.. 108 U. S. 553; Williamson v. Monroe, 101 Fed. Rep. 322.