estate mortgage against judgment creditors, who obtain their judgments after its record, since the whole not being tainted by any actual fraud, though dual in character and governed by different statutory regula. tions affecting its validity as against mortgagor's creditors, its several parts are separable.-CHEMUNG CANAL BANK V. PAYNE, N. Y., 56 N. E. Rep. 101.

46. FRAUDULENT CONVEYANCES-Tort Claimant.- A creditor, whose claim arises in tort, may attack a conveyance of the debtor's property as being in fraud of creditors.-MCINNIS v. WISCASSET MILLS, Miss., 28 South. Rep. 725.

47. GARNISHMENT-Answer-Sufficiency.-Where it is alleged that the garnishee, on the date of the levy of the execution, was indebted to the principal defendant, for services rendered, in a sum sufficient to satisfy plaintiff's judgment, without any other allegation of facts from which such indebtedness could be deduced as a conclusion of law, the defense of payment need not be affirmatively alleged in the garnishee's answer before it can be proved, but it may be shown under a general traverse.-ROBERTSON V. ROBERTSON, Oreg., 62 Pac. Rep. 377.

48. GUARDIAN AND WARD- Assignment of NoteAction. Where a note for money due a ward is taken by a guardian in his own name, an assignee of the note may sue thereon in his own name, since the legal title to the note was in the guardian before the transfer, and not in the ward.-JENKINS V. SHERMAN, Miss., 28 South. Rep. 726.

49. INSOLVENCY-Claims-Set-off.-An insolvent com. pany pleaded a debt owing by an insolvent partnership as a set off against a claim of an insolvent partner against the company, the amount of the set-off being larger than the claim. Held, that such set-off could not be allowed, as the claim of the insolvent partner was an asset of such insolvent creditor, which must be used to satisfy the demands of his personal creditors before paying the debts of the firm to which he belonged.-VERRY V. CLARK, Mass., 58 N. E. Rep. 151.

50. LANDLORD AND TENANT-Rent.-Where a lessee evicted from a part of the premises by the foreclosure of a prior deed of trust retaining possession of the remainder of the premises, his rent will be apportioned, and he will be required to pay a reasonable proportion of the rent for the land he holds.-CHEAIRS V. COATS, Miss., 28 South. Rep. 728.

51. LIFE INSURANCE Fraud Defense. Where defendant became a member of a mutual insurance company in 1889 by taking a six-year policy, and the com. pany made a general assignment for the benefit of creditors in 1891, and an action was brought on defendant's deposit notes by the assignee in 1897, the fact that the company's agent had misrepresented the condition of the company to defendant at the time of the issuance of his policy constituted no defense to the action, since he waived the fraud by retaining and enjoying the benefits of his contract.-SHERMAN V. FRASIER, Iowa, 83 N. W. Rep. 886.

52. LIMITATIONS

Vendor and Purchaser. - Where a vendor, after the death of the purchaser, took pos. session of the land sold, an action by the heirs of the purchaser to compel the vendor's heirs to convey the land to them, brought within fifteen years after possession was taken by the vendor, was not barred by limitation.-TRIMBLE V. SPICER, Ky., 58 S. W. Rep. 579. 53. LIMITATION OF ACTIONS-Mortgages-Debtor's removal from State.-Under Code, § 2748, declaring that if, after any cause of action shall have accrued in the State, the person against whom it has accrued shall reside out of the State, the time of his absence shall not be taken as part of the time limited for the com. mencement of the action, where a note was given in the State, secured by a mortgage on land therein, the period of the debtor's subsequent absence) from the State should not be computed as part of the time limited for the enforcement of the security against the land.-HUNT V. BELKNAP, Miss., 28 South. Rep. 751.

54. MANDAMUS Against Public Officers.-Proceedings by mandamus begun against the State comptroller to compel him to audit and draw a warrant upon the State treasury to pay an account claimed by relator against the State will be dismissed where the term of office of the official expires before final decision, and his successor in office is not made a party defendant, or notified to defend the proceedings.-STATE V. BLOXHAM, Fla., 28 South. Rep. 762.

55. MANDAMUS-Sheriff-Execution.-The fact that a party who owns a remainder after the dower interest of his mother in certain land acquires the interest of his mother subsequent to the levy of an execution on the land does not deprive him of his homestead rights, since the acquisition of the additional interest in the property does not devest the judgment creditor of his lien on the property.-WRIGHT V. BOND, N. Car., 37 S. E. Rep. 65.

56. MASTER AND SERVANT-Injury to Servant-Defect ive Machine.-Where a servant, knowing that a machine is defective, fails to notify his master, and, without knowing that the master has knowledge of its defective condition, operates the machine, and is injured thereby, he cannot recover for such injuries of the master.-THOMAS V. BELLAMY, Ala., 28 South. Rep. 707.

57. MECHANICS' LIENS -Persons Entitled.-Defendant contracted with B for the erection of a building on defendant's homestead. G loaned defendant money, which was used by the latter to pay B for labor and material furnished by him. Defendant and his wife executed their notes for the sum borrowed, and also executed a contract purporting to create a mechanic's lien on the premises in favor of G. Held, that G, not having "furnished labor or material," was not entitled to a mechanic's lien for the sum loaned.-FIRST NAT. BANK OF MUSCOGEE V. CAMPBELL, Tex., 58 S. W. Rep. 628.

58. MORTGAGES-Lien-Crops.-Under a mortgage of land, "together with the rents, issues, and profits thereof," the right of the mortgagor to dispose of the crops growing thereon is not devested by foreclosure proceedings until sale under the decree.-BANK OF WOODLAND V. CHRISTIE, Cal., 62 Pac. Rep. 400.

59. MUNICIPAL CORPORATIONS-Acquisition of LandLiability for Injuries.-Where a city acquires land for a water basin, and contracts with its former owner to provide a safe and convenient way of travel over or around a discontinued road thereon until a permanent road should be constructed, the contract is admissible, in an action against the city by one injured by its negligence in permitting a former road to get in bad condition, to show that the road was left open for public use.-D'AMICO V. CITY OF BOSTON, Mass., 58 N. E. Rep.

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61. MUNICIPAL CORPORATIONS · Injuries-Defective Street. A person has a right to go on the driveway of the street for the purpose of placing an article in a conveyance standing on such driveway, and his doing so is not in itself negligence contributory to an injury received from a defect in the driveway.-FINNEGAN V. CITY OF SIOUX CITY, Iowa, 83 N. W. Rep. 907. 62. MUNICIPAL CORPORATION Sewer-Pollution of Water. Where a city sued for damages in allowing its sewage to escape into a water course to the damage of a lower riparian owner impleaded the lessees of its sewer farm, charging that the escape of sewage into the water course was due to their negligence, and ask. ing judgment over against them for any liability adjudged against it, in the absence of allegations show. ing a contractual liability on the part of the lessees to

so care for the sewage as to prevent its escape into the water course the city could not exact indemnity from them, they being mere joint tort-feasors with defendant.-CITY OF SAN ANTONIO V. PIZZINI, Tex., 58 8. W. Rep. 635.

63. MUNICIPAL CORPORATIONS-Street Improvements -Contracts.-A requirement in a street-paving contract that the bidder shall give bond guarantying the work for one year from injury by ordinary use makes the contract and assessment void, as it increases the burdens of the property owner in making it necessary for the contractor to charge a higher price for the work, and is unauthorized by the statute providing for letting of contracts for street improvements.-ALAMEDA MACADAMIZING CO. v. PRINGLE, Cal, 62 Pac. Rep. 394.

64. NEGLIGENCE-Electricity-Fallen Wire-Injuries -Reasonable Care.-In an action for injuries occasioned by a fallen electric wire which had been blown down in a storm, an instruction that the defendant company could not excuse a delay in replacing such wire on the ground that they did not have a sufficient force to replace it sooner was erroneous, since the question whether the company exercised reasonable care was for the jury.-BOYD V. PORTLAND GEN. ELEC. CO., Oreg., 62 Pac. Rep. 378.

65. NEW TRIAL Misconduct of Jurors.-A verdict cannot be impeached by the testimony or declarations of jurors as to misconduct between them.-STULL V. STULL, Penn., 47 Atl. Rep. 240.

66. PARTNERSHIP Dissolution-Receiver.-In a suit for the dissolution of a partnership it is proper to ap point a receiver, if necessary to protect the property involved, or if the members of the firm cannot agree on an adjustment.-FLEMING V. CARSON, Oreg., 62 Pac. Rep. 274.

67. PARTNERSHIP - Garnishment.-Where those having a contract for the erection of a building, not being able to complete the same, for want of funds, contracted with creditors that certain persons should take charge of the work, provide the necessary labor and material, and complete the building,-pro rata advances to be made by the creditors, such agreement did not create a partnership.-FEWELL V. AMERICAN SURETY CO., Miss., 28 South. Rep. 755.

68. PLEADING-Corporation-Corporate Existence.Where defendant, in his answer in an action by an al. leged corporation, admitted the execution of the contract sued on, but raised the question of plaintiff's corporate existence, only, by averring lack of knowl edge or information sufficient to form belief, the estoppel of defendant's right to deny the corporate existence created by his admission of the contraet, if any, was waived by failure to demur to the answer.LAW GUAR. & TRUST SOC., LIMITED, OF LONDON, v. HOGUE, Oreg., 62 Pac. Rep. 380.

69. PLEDGES - Sale of Property-Bona Fide Purchaser. Where an attorney, by attaching certain stock held in pledge, becomes aware that the pledgor has an interest above that for which it is pledged, and afterwards sells such stock for the pledgee at public sale to the plaintiff in attachment, without notice to the pledgor, such purchaser cannot hold the stock, on being tendered his bid and interest, on the ground that he is a bona fide purchaser, since he is chargeable with the attorney's knowledge of the pledgor's claim.-MC. CUTCHEON V. DITTMAN, N. Y., 58 N. E. Rep. 97.

of a public corporation is required to act with reference to the authority, limitations, and restrictions imposed upon such officers and agents by the legislation authorizing the organization and government of such corporation.- LINCOLN & DAWSON CO. IRR. DIST. V. MCNEAL, Neb., 83 N. W. Rep. 847.

72. PUBLIC LAND-Patents-Boundaries.-A patent in which the outside lines are fixed and certain by courses, distances, and natural objects is not rendered void by the uncertainty of the exclusion from the boundary granted.-WEST V. CHAMBERLAIN, Ky., 58 S. W. Rep. 584.

73. PUBLIC OFFICER-Resignation - Parol Proof.Where a statute creating a county office does not re. quire a written resignation of an appointee, a resignation and its acceptance by the county commissioners may be shown by parol evidence, over objection that it can only be proved by the commissioners' records.JOHNSON V. GRISWOLD, Mass., 58 N. E. Rep. 157.

74. BAILROAD COMPANY Surface Waters. - Under Const. § 242, providing that "municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them," and also independent of the consti. tution, a railroad company which, in constructing a fill, interrupts the natural drainage of surface water, or, after making a culvert through such a fill, fails to keep it open, so as to food the premises of an upper proprietor, is guilty of an actionable wrong.-STITH V. LOUISVILLE & N. R. Co., Ky., 58 S. W. Rep. 600.

75. SALES TO CARRIER-Inspection and Rejection.If no place of delivery is specified in the contract of sale, and there are no circumstances showing a different intent, the general rule is that the articles sold are to be delivered at the place where they are at the time of the sale, and that their delivery to the proper carrier is a delivery to the buyer, and that the title passes to him subject to his right of inspection and rejection of the goods on arrival, if found not to be in accordance with the contract. The buyer, however, unless otherwise agreed, assumes the risk of deterioration in the goods necessarily incident to the course of transportation. MOBILE FRUIT & TRADING CO. v. MCGUIRE, Minn., 83 N. W. Rep. 833.

76. TAXATION-Payment-Recovery.-Where plaintiff voluntarily paid taxes on certain land in the district of C during the pendency of proceedings to have such land put into the township of G, he could not thereafter recover the taxes so paid on the ground that they were excessive, there being no claim that they were illegal.-ODENDAHL V. RICH, Iowa, 83 N. W. Rep. 886.

77. TRIAL-Evidence-Expert Testimony. -The value of attorney's services, for which an action is brought, cannot be established by requiring the reporter to read the portion of the testimony of a witness relating to the time consumed and the services performed, and then asking an expert to state the value of such services. FAIRBANKS, MORSE & Co. v. WEEBER, Colo., 62 Pac. Rep. 369.

78. TROVER AND CONVERSION-Measure of Damages.The measure of damages for conversion of a buggy by one buying from a purchaser under a conditional sale, giving such purchaser the right to use the buggy, is its value at the time of the conversion, not exceeding the amount due under the original contract.-WOODS V. NICHOLS, R. I., 47 Atl. Rep. 211.

79. TRUSTEE Denial - Compensation.-One cannot claim compensation as trustee where he denied the trust, though he kept the fund safely.-STONE v. FARNHAM, R. I., 47 Atl. Rep. 211.

80. TRUSTS - Conveyances by rustee. Where two grantors, each owning an individual moiety in realty, convey it to one of them in trust for the other and certain third parties, imposing no active duties on such trustee, such conveyance, under the statute of uses, passes both the legal and equitable estate of the grantors to such third persons, leaving the trustee

without any title which he can convey as against the latter. JORDAN V. PHILLIPS & CREW Co., Ala., 28 South. Rep. 734.

81. TRUSTS-Trustee-Qualifications. Under a testamentary trust to invest a fund and pay over the income, the fact that the estate is being administered under New Jersey court), while the trustee appointed is a Pennsylvania corporation, is not an obstacle to the execution of the trust by the designated trustee, since the trustee may be required to give security within the jurisdiction of the court for due perform. ance of the trust and for accounting before the New Jersey court.-IN RE SATTERTHWAITE'S ESTATE, N. J., 47 Atl. Rep. 227.

82. USURIOUS CONTRACT-Action to Set Aside.-Code, § 2630, providing that usurious contracts cannot be enforced either at law or in equity, except as to the principal sum due, does not prohibit a court of equity, in a suit by a borrower for relief against a usurious contract, from granting such relief on condition that the complainant repay the borrowed money, with legal interest thereon.-LINDSAY V. UNITED STATES SAVINGS & LOAN CO., Ala., 28 South. Rep. 717.

83. USURY-Payment of Usury Under Form of Attor ney's Fee. An attorney's fee paid to a creditor, in addition to legal interest, as a consideration for forbearance in the collection of a judgment, may be recov. ered as usury paid.-FIDELITY TRUST & SAFETY-VAULT Co. v. RYAN, Ky., 58 S. W. Rep. 610.

84. VENDOR AND PURCHASER-Advancement by Third Person-Vendor's Lien.-Where a third person advances money, at the vendee's request, to his vendor, in payment of the purchase price of realty, without a transfer of the vendor's lien notes, such third person may be subrogated to the vendor's rights, and enforce his lien, there being no intervening equity, since equity will keep the lien alive, as though it had been assigned as security for the advancement.-SCOTT V. LAND, MORTGAGE, INVESTMENT & AGENCY CO., LIMITED, OF AMERICA, Ala., 28 South. Rep. 709.

85. VENDOR AND PURCHASER-Contract to ConveyRescission. Where a grantee was induced to purchase real estate by the vendor's fraudulent statements respecting water rights appurtenant to the property, such grantee is entitled to maintain a suit to rescind the contract and recover the consideration paid, without waiting until improvements he had undertaken to utilize the water rights had been actually interfered with.- PERRY V. BOYD, Ala., 28 South Rep. 711.

86. VENDOR AND PURCHASER - Contract to Convey Land.-Vendor contracted for the sale of his farm, agreeing to deliver "a deed of such farm, including the stock and tools belonging thereto," for which the purchaser was to pay a part in cash, and give his note secured by a mortgage on the farm for the balance. Held, that the agreement to give a mortgage on the farm did not include a mortgage on the stock and tools thereon.-HALLETT V. TAYLOR, Mass., 58 N. E. Rep. 151.

87. VENDOR AND PURCHASER- Payment in P'ersonalty. Where a vendor in part payment of realty agrees to receive certain personalty, which on deinand his vendee refuses to deliver, his remedy is a recovery of the possession of the personalty by replevin, or an action for its value, and not an action to recover the purchase price of the land.-CHAMBERLAIN V. WOLF, Iowa, 83 N. W. Rep. 893.

88. VENDOR AND PURCHASER-Purchase Money-Con. veyance to Lender.-When a vendee of land is in possession under a bond for title, and, being indebted to the vendor for a balance of the purchase money, procures a third person to pay such balance to the creditor, agreeing that such third person shall receive from the vendor title to the land in his own name, and hold it until the debtor shall have paid to him the full amount so advanced, such vendee is, immediately on the payment of such balance, entitled to a conveyance of the land, and a verbal agreement that the deed so

held shall be security for certain supplies thereafter to be furnished is invalid and cannot be enforced.PIERCE V. PARRISH, Ga., 37 S. E. Rep. 80.

89. WAREHOUSEMEN Contract Damage - Neg. ligence. Where a warehouseman contracted to deliver wheat, damage by the elements excepted, it was no defense to an action for the warehouseman's fail. ure to deliver the wheat on demand that it had been partly destroyed and partly damaged by fire of incendiary origin, without negligence on the part of de. fendant, since the exception, "damage by elements excepted," should be construed as synonymous with "act of God."-POPE V. FARMERS' UNION & MILLING Co., Cal., 62 Pac. Rep. 384.

90. WATERS-Irrigation-Storage-Priorities.-Where defendant completed its storage reservoirs several years before plaintiff commenced the construction of its reservoir, the fact that plaintiff's ditch was first built, and had a priority of water for irrigation over defendant's ditches, and was originally part of a plan which included a storage reservoir, does not permit plaintiff to tack its storage use onto its irrigation use, so as to give its reservoirs priority over those of defendant, since priority of water for irrigation use does not carry priority for storage use, but to gain such storage priority plaintiff must have completed its whole plan with reasonable diligence.-NEW LOVE. LAND & GREELEY IRRIGATION & LAND CO. v. CONSOLIDATED HOME SUPPLY DITCH & RESERVOIR CO., Colo., 62 Pac. Rep. 366.

91. WATERS Liability of Railroad Company for Changing Flow.-Under Const. § 242, providing that "municipal and other corporations, and individuals invested with the privilege of taking private property for public use, shall make just compensation for property taken, injured or destroyed by them," a railroad company is liable for the flooding of plaintiff's land by the construction of a culvert under its track, which was made necessary by the accumulation of surface water resulting from the construction of a platform by defendant changing the natural flow of the water, and this is true whether the common law rule or the civil law rule as to surface waters prevails in Kentucky.LOUISVILLE & N. R. Co. v. BRINTON, Ky., 58 S. W. Rep.

604.

92. WATERS AND WATER COURSES-Pollution by Salt Mining-Injunction.-Where a salt manufacturer adjacent to a flowing stream draws water therefrom in such quantity as to diminish its flow, and in using it in his operations renders the rest of the stream so salty as to unfit it for use by lower riparian owners, such use of the stream is such an unreasonable one as entitles lower riparian owners to restrain it, since they are entitled to a fair participation in the use of such water, which cannot be abridged by the convenience or necessity of the business of an upper riparian owner.— STROBEL V. KERR SALT Co., N. Y., 58 N. E. Rep. 142.

93. WILLS-Probate-Foreign Wills.-A nuncupative will by notarial act, executed in the State of Louisiana by writing the same on the records of the notarial acts of a notary-the records being by the laws of that State irremovable therefrom-was not revoked by the removal of the testatrix to the State of Mississippi.PRATT V. HARGRAVES, Miss., 28 South. Rep. 722.

94. WILLS-Property Bequeathed-Merger.-A testator directed a transfer to a trustee of all his stock in a certain company, which was not to be sold until his wife's death, and, after directing a sale of the rest of his property, expressed a determination that his in terest in such company be retained during his wife's life, and the dividends paid to her. By a codicil be confirmed his will, except as to such stock, which he gave to his wife. Held, that loan certificates of such company, belonging to testator, and partaking of the nature of stock, passed under such codicil to the wife, since such certificates were a part of the investment reserved to the wife, and presumably were included in the codicil.-IN RE CONLEY'S ESTATE, Penn., 47 Atl. Rep. 238.

a recent case before the Supreme Court of Tennessee-J. M. James Co. v. Continental National Bank-wherein many questions involving that particular form of action came up for determination, the defendant made the defense that the action is one of slander within the meaning of the statute of that State, providing that "actions for slanderous words spoken shall be commenced within six months after the words spoken." But the court reviewing the authorities, which are numerous on both sides of the question, held otherwise, and to the effect that such action is not one for slander by word of mouth.

An illustration of the difficulty which often besets the legislator who aims to suppress combinations, and of the cloudiness which seems to exist in the judicial mind in regard to suits growing out of such legislation, is furnished by Bradstreet's Journal, wherein attention is called to a decision recently rendered by the Appellate Division of the New York Supreme Court. Some time ago it seems that one of the supreme court justices granted an order upon the application of the attorney-general appointing a referee to act under the so-called Donnelly anti trust law in securing evidence upon which the attorney-general could base an action to annul the charter of the American Ice Company. The appellate division has handed down a decision vacating the order on the ground that the State anti-trust law was framed to prevent, through a civil action, the formation of trusts, but that a civil action could not lie against a trust which existed before the proceedings were commenced against it. The court also held that the officers of the company could not be compelled to testify as to matters in regard to which their answers might subject them to prosecution under the federal law or the law of another State. The court reached the decision vacating the

LIMITATIONS OF ACTIONS-BAR WHEN COMPLETE-ENACTMENT EXTENDING PERIOD ON CONTRACT.-In Ireland v. Mackintosh, 61 Pac. Rep. 901 decided by the Supreme Court of Utah it appeared that M gave I his promissory note dated January 2, 1862, due one day after date. At that time and up to March 20, 1897, the statute of limitations on notes, etc., was four years, but at said last-mentioned date the act of the legislature changed the period of limitation to six years. August 30, 1898, action was commenced on the note. Defendant pleads in bar the four-years statute. Plaintiff contends that that statute was expressly and by necessary implication repealed by the amendatory act; that the bar previously existing was removed thereby, and the right of action on said note revived. It was held that the bar of the statute was complete at the expiration of four years from the maturity of the note; and that the subsequent passage of an act by the legislature increasing the period of limitation could not operate to affect or renew a cause of action already barred. It was held further that a new promise made after a cause of action is barred does not revive the former obligation, but creates a new one, which in its turn is subject to a bar by lapse of time as an original promise. And that although the bar of the statute of limitations may be waived unless pleaded, yet, until the bar is waived by some act of the party in whose favor it has accrued, the right to interpose it as a defense exists; and, once having accrued, it becomes a vested right, which cannot be taken away by legislative enactment.

MASTER AND SERVANT-INJURY TO SERVANTASSUMED RISKS-NOT IN LINE WITH DUTYKNOWLEDGE OF SERVANT'S EXPERIENCE.-The federal courts have recently decided some interesting cases involving the liability of master for injury to servant.

In Ellsworth v. Metheney, 104 Fed. Rep. 119, decided by the United States Circuit Court of Appeals, Sixth Circuit, it was held that a coal miner who, during the poon hour, while not engaged in work, goes to a different part of the mine, for the purpose of mere companionship with another miner, is not, while so absent, engaged in the line of his duty so as to impose upon the employer the duty of a master to see that the entry through which he passes from and to the part of the mine where he is employed is kept in a safe condition for his passage. It was

further held, however, that where the miners in a coal mine, with the knowledge and implied consent of the owner, are accustomed to use the passages or entries in the mines as a place for congregating or passing to and fro during the hours of recreation, it is negligence in the owner to introduce and extend along such an entry an electric wire which is dangerous to the life of those who come in contact therewith, without properly insulating or inclosing the same, or giving notice of the danger to those who, he should reasonably apprehend, are likely to be brought in contact with it, and such negligence will render him liable for the death of a miner who, in the accustomed use of the premises, and without knowledge of the danger or negligence on his own part, is killed by coming in contact with such wire.

In Louisville & N. R. R. v. Miller, 104 Fed. Rep. 124, decided by the United States Circuit Court of Appeals, Sixth Circuit, it was held that it is the duty of a master who has actual notice that a servant is inexperienced in the work for which he is employed to use reasonable care in cautioning and instructing such servant in respect to the dangers he will encounter, and how best to discharge his duties, and he is not relieved from such duty by the fact that the servant solicited the employment and represented himself to be competent; nor does the servant by reason of such fact assume the risk from dangers of the employment of which he is ignorant and as to which he has been given no instruction, although they are ordinary hazards of the service, unless they are so obvious that even an inexperienced man would escape them by the exercise of ordinary care. It appeared that plaintiff applied for employment as a switchman in railroad yards, stating that be had no experience in the work. He was assigned, on his request, without pay, to service under foreman as a "cub" or learner, where he worked five days, at the end of which he induced the foreman to recommend him by letters as competent for service as a regular switchman, upon which he was employed by the yardmaster, who knew the length of his experience, and assigned to duty without further advice, warning or instruction. Four days later he was injured in attempting to make a coupling between cars of different construction, which could only be safely coupled in a certain way, of which he was ignorant. There was evidence that not less than four weeks' service as a learner could properly qualify a person to safely handle the various kinds of cars which ordinarily came into the yards. It was held that it could not be said, as a matter of law, that plaintiff assumed the risk, it not appearing that the danger in making the coupling was obvious to an inexperienced man, and that a verdict for plaintiff on the ground that the railroad company failed in its duty to give plaintiff proper instruction would not be disturbed.

In Felton v. Girardy; 104 Fed. Rep. 127, decided by the United States Circuit Court of Apdeals, Sixth Circuit, it was held that a servant impliedly assumes the risks incident to the service he contracts to perform, and, in the absence of knowledge to the contrary, the employer may assume, as between them, that one applying for a particular employment possesses the skill and judgment requisite to the safe and proper performance of his duty; but if the employment be dangerous, as known to the master, who has also reason to know that the servant, from his youth, feebleness, incapacity, or inexperience, does not appreciate the dangers, the servant cannot, even with his own consent, be required to assume the risk therefrom, unless he is eautioned and instructed sufficiently to enable him to comprehend them, and to do the work safely, with proper care on his own part, and the same rule applies where a servant is directed to do a temporary work outside of his regular employment, the danger from which is not obvious. It appeared that plaintiff's intestate was employed as a boilermaker's helper in the repair shops of defendant railroad company. During a holiday, when most of the other employees were absent, he was directed by the foreman of the shops to go into the firebox of a locomotive engine, which had steam up, and tighten the plug in a leaking flue of the boiler. The plug was a screw plug, and in attempting to drive it with a hammer he broke the threads, so that the plug was forced out by the pressure, and he was scalded to death by the escaping steam and water. It was shown that two kinds of plugs were used in leaky flues, one being screwed into the flue and the other driven; but it did not appear that deceased knew such fact, and there was evidence tending to show that the repairing of such plugs was the work of an experienced boilermaker, who could have told which kind the one to be repaired was, and that it should have been tightened with a wrench. There was also testimony that deceased objected to doing the work while the boiler was hot, saying he did not know what to do, or how to do it, but that he was ordered back without instructions. It was held that on such evidence a motion to direct a verdict for defendant was properly overruled. It was further held that a statement by one applying for work in the boilermaker's department of railroad repair shops that he "had had experience in that kind of work," where he was employed only as a helper, did not justify the foreman in requiring him to do work which required the skill and knowledge of an experienced boilermaker to do with safety to himself, without giving him proper instructions, and he cannot be held, as matter of law, to have assumed the risk in doing such work.

INSURANCE-ON BUILDING AND STOCK-PREMIUM PAYABLE IN A GROSS SUM-BREACH OF CONDITION.-Southern Fire Ins. Co. v. Knight, de