94. MASTER AND SERVANT-Contributory Negligence. -In an action against a master for injuries received by a 16 year old employee, the question of whether plaintiff was guilty of contributory negligence held for the jury.-O'Connor v. Golden Gate Woolen Mfg. Co., Cal., 67 Pac. Rep. 966.

95. MASTER AND SERVANT Laborer's Lien.-A bartender, who is also required to keep books, is a laborer, within the statute creating a lien in favor of laborers on the property of their employers.-Lowenstein v. Meyer, Ga., 40 S. E. Rep. 726.

96. MASTER AND SERVANT-Negligence.-In an action to recover for the negligent killing of one who was employed under an engine as a klinker puller, a charge as to defendant's liability for not avoiding the injury after knowledge of deceased's negligence and perilous situation considered, and held not erroneous. -Morbey v. Chicago N. W. Ry. Co, Iowa,.89 N. W. Rep. 105.

97. MINES AND MINERALS Location Certificate.Where it is shown that a mining claim has been lo. cated in good faith, if language used in referring to natural objects and permanent monuments will im part notice to a subsequent locator, it is sufficient.Morrison v. Regan, Idaho, 67 Pac. Rep. 955.

98. MUNICIPAL CORPORATIONS — Vacation of Plat.-A street should not be vacated, with a plat; the owner of lots on one side of it not having so requested.Sarvis v. Caster, Iowa, 89 N. W. Rep. 84.

99. NAVIGABLE WATERS Accretions.-Under Civ. Code, § 1016, island which formed in navigable stream, and which by reason of accretions gradually joined the mainland, held to belong to the state and its grantees.-Glassell v. Hansen, Cal., 67 Pac. Rep. 964.

100. PARTIES-Defect of Parties Defendant.-A plea in abatement for defect of parties defendant, alleging that 256 persons, are necessary, does not show that it is impracticable to bring all such persons Into the suit. -Castle v. City of Madison, Wis., 89 N. W. Rep. 156.

101. PARTIES - Misjoinder.- Where plaintiff sued in. dividually and as assignee, but is entitled to recover in only one capacity, objection to the misjoinder of parties cannot be raised by demurrer.- Hornish v Ringen Stove Co., Iowa, 89 N. W. Rep. 95.

102. PARTITION-Exceeding Powers.-Where arbitrators appointed to partition certain real estate inter mingle in their award a determination of the rights of the parties in other property, the award must be set aside, under Rev. St. 1898, § 3552, subd. 4.-Frankfurth v. Steinmeyer, Wis., 89 N. W. Rep. 148.

103. PATENTS – Damages for Infringement.-Where, but for the patented feature, an article made and sold by an infringer would not be a salable commodity, the patentee is entitled to the whole profit obtained from such article.-Coddington v. Propfe, U. S. C. C., E. D. Pa., 112 Fed. Rep. 1016.

104. PAYMENT-Pleading.-A complaint for wages held not objectionable for not stating that the amount earned has not been paid.-Meating v. Tigerton Lum. ber Co., Wis., 89 N. W. Rep. 152.

105. PERPETUITIES - Suspension of Alienation.-A provision in a will devising real estate in trust, providing that it shall not be conveyed for 21 years, is not an unlawful suspension of alienation, within Rev. St. § 2039.-In re Kopmeier, Wis., 89 N. W. Rep. 134.

106. PHYSICIANS AND SURGEONS — Burden of Proof in Malpractice.-In a suit for damages for death caused by malpractice, the burden is on plaintiff to show want of skill and due care, and that the injury resulted therefrom.-Georgia Northern Ry. Co. v. Ingram, Ga., 40 S. E. Rep. 718.

107. PLEDGES-Certificate of Stock.- The transfer of a certificate of stock as collateral for a note, with power to sell on default, is a pledge, and not a mort. gage thereof.-Irving Park Assn. v. Watson, Oreg., 67 Pac. Rep. 945.

108. PRINCIPAL AND AGENT - Agent's Authority.Where person dealing with agent according to business usages is justified in presuming that the agent has authority to do a particular act, the principal is estopped to deny that the agent has such authority.Lebanon Sav. Bank v. Henry, Neb., 89 N. W. Rep. 169. 109. PRINCIPAL AND AGENT - Authority of Agent.Ostensible authority to act as agent may be inferred, if the party to be charged as principal affirmatively, intentionally, or by lack of ordinary care allows third persons to act on such apparent agency.- Faulkner v. Simms, Neb., 89 N. W. Rep. 171.

112. RAILROADS Unavoidable Accident.-Where a horse suddenly rushed against a locomotive while it was passing over a public crossing, and was killed, the company was not liable because its servants did not observe the requirements of the blowing and checking law. -Georgia & A. Ry. Co. v. Cook, Ga., 40 8. E. Rep. 718.

113. REFORMATION OF INSTRUMENTS-Mutual Mistake. -The denial of the defendant of the existence of a mutual mistake in a contract is not sufficient to defeat the claim of the other party for reformation, but in such case he must clearly show a real agreement, which the written contract falls to express or violates. -Fulton v. Colwell, U. S. C. C. of App., Third Circuit, 112 Fed. Rep. 831.

114. REPLEVIN-Proof of Title.-An affidavit of defense, in replevin, that defendant in possession of the goods as a carrier, and received them from another than plaintiff, and does not know who is owner, is sufficient to put plaintiff to proof of ownership.-Uncapher v. Baltimore & O. R. Co., U. S. C. C., E. D. Pa., 112 Fed. Rep. 899.

115. SALES-Cancellation of Order.-Where an agent, obtains an order for goods by fraudulent representa. tions, sending an order to him to cancel the same is Insufficient to effect a rescission.-Smith v. Columbia Jewelry Co., Ga., 40 S. E. Rep. 735.

116. TAXATION-Right to Construe Will.-In a proceeding for the appraisal of a testator's property un der the transfer tax act, the court has jurisdiction to construe testator's will.-In re Puters' Estate, 74 N. Y. Supp. 1028.

117. TRIAL-Evidence.-There being two issues, one of agency in fact and the other of apparent agency, evidence though bearing on only one, is properly admitted.-Domasek v. Kluck, Wis., 89. N. W. Rep. 139.

118. TRIAL-Failure to Disclose the Purpose of Evidence. Where counsel does not disclose the purpose of offered evidence, and admits that it is not the best evidence, it is not reversible error to reject it, even though it is competent.-Seldenspinner v. Metropolitan Life Ins. Co., 74 N. Y. Supp. 1108.

119. TRIAL-Failure to Object.-Where incompetent evidence is received without objection, a motion to strike out is properly denied.-Lindemann v. Brooklyn Heights R. Co., 74 N. Y. Supp. 988.

120. TRIAL-Inconsistent Findings.- Where special findings material to the issue are in harmony with a general verdict for plaintiff, it is error to award judg. ment for defendant on findings collateral to the issue.

-Citizens' Nat. Bank v. Larabee, Kan., 67 Pac. Rep. 546.

121. T&IAL-Instructions.-Where a case is submitted to the jury on a special verdict, it is error to tell them the legal effect of their answer on the question of contributory negligence.-Gerrard v. La Crosse City Ry. Co., Wis., 89 N. W. Rep. 125.

122. TRIAL-Instructions.-Where, in an action on a contract of guaranty, there were no instructions requested by counsel, or complaint made of those given, except one, which followed the decision of the su preme court on a former appeal, error assigned because the court did not fully instruct the jury cannot be sustained.-New Home Sewing Mach. Co. v. Simon, Wis., 89 N. W. Rep. 144.

123. TROVER AND CONVERSION Evidence.-Refusal by the agent of the vendee of a flock of sheep to search for a portion thereof which was lost held not to conclusively show a refusal on the part of the vendee to accept su h portion of the flock.-Tim Kinney & Co. v. First Nat. Bank, Wyo., 67 Pac. Rep. 471.

124. TRUSTS-Establishment.-In a suit to have a resulting trust declared of property purchased by the committee of a lunatic, title thereto being taken in her own name, and not in the lunatic's, plaintiffs must prove that all of the consideration belonged to the lunatic.-Storm v. McGrover, 74 N. Y. Supp. 1032.

125. USURY-Intent.-A note providing for interest at 10 per cent. per annum before and after judgment, where there is no evidence of a corrupt intent to receive an unlawful rate of interest, is not a usurious contract.-Anderson v. Creamery Package Mfg. Co., Idaho, 67 Pac. Rep. 493.

126. USURY- Renewal Note.-A renewal note for one due may include as principal accrued interest remainIng unpaid.-'Stanford v. Coram, Mont., 67 Pac. Rep. 1005.

127. VENDOR AND PURCHASER - Bona Fide Purchaser. -Obligee in bond for title having paid purchase money notes to the holder, he had a complete equity In the land, bɔth against the vendor and one to whom he had conveyed the land after the execution of the bond. - Georgia State Building & Loan Assn. v. Faison, Ga., 40 8. E. Rep. 760.

128. VENDOR AND PURCHASER Evidence. - In an action on a contract of a father to convey a farm to a son, plaintiff's case need only be established by a fair preponderance of the evidence.-Hutton v. Doxsee, Iowa, 87 N. W. Rep. 79.

129. VENDOR AND PURCHASER - Land Contract. Where a contract for the sale of land binds the purchaser to pay all taxes and assessments, and he makes such payment, he can recover the same from the vendor on establishing the inability of the vendor to convey title.-Missouri, K. & T. Ry. Co. v. Pratt, Kan., 67 Pac. Rep. 464.

130. VENUE-Action for Conversion Against an Officer. -An action for conversion, if against an officer who acted by virtue of his office, must be tried in the County where the cause of action arose, as required by Code Civ. Proc. § 983, subd. 2.-Murphy v. Callan, 74 N. Y. Supp. 1009.

131. WATERS AND WATER COURSES-Necessary Par ties.-Under Rev. St. 1898, §§ 2602 2604, riparian owners on a lake are necessary parties defendant in a suit for the abatement of a dam at the outlet of the lake, where they claim to have acquired a prescriptive right to have the artificial level of the lake created by the dam maintained.-Castle v. City of Madison, Wis., 89 N. W. Rep. 156.

132. WATERS AND WATER COURSES - Suit to Quiet Right. In a joint suit by several landowners to quiet right to water for irrigation, the fact that plaintiffs held their lands in severalty held immaterial, and that hence there was no such variance between evidence and declaration as justified a nonsuit,-Miller v. Lake Irr. Co., Wash., 67 Pac. Rep. 996.

133. WILLS-Construction.-A devise of realty to one for life, and "at his death” to his children and grand. children, held to vest the estate at the death of the life tenant, there being then no grandchildren, in his children born during his life, to the exclusion of a grandchild born after his death.-Akerman v. Aker. man, N. H., 51 Atl. Rep. 252.

134. WILLS-Construction.-A will construed as giv ing a remainder man of all the property mentioned therein and then owned by the testatrix, and whose life tenant under the will died before testatrix, no part of certain after acquired property which the remain. der-man claimed under Code, art. 93, § 321.-Bourke v. Boone, Md., 51 Atl. Rep. 396.

135. WILLS Cutting Down an Estate Previously Given. Where an estate is given in one part of a will in decisive words, it cannot be cut down by subsequent words unless equally decisive.-In re Peters' Estate, 74 N. Y. Supp. 1028.

136. WILLS-Mental Incapacity. — Evidence of tes tator's incapacity, offered by the caveator of a will, must be confined to the time of the execution of the will; but evidence on the part of the caveatee may cover any period of time before or after the execution of the will.-Jones v. Collins, Md., 51 Atl. Rep. 398.

127. WILLS-Residuary Devise.-A devise of all the residue of testator's realty, described as one sixth interest in certain property, held to pass after-acquired interest therein.- Williams v. Brice, Pa., 51 Atl. Rep. 376.

139. WILLS-What Law Governs.-A will is governed by the law in force at testator's death, and not at its execution. In re Kopmeier, Wis., 89 N. W. Rep. 134. 140. WITNESSES Communication with Physician Waived.-Under Code Civ. Proc. § 836, the heirs of a deceased patient, in a proceeding to set aside the probate of his will, have the right to examine a physi cian as to facts obtained while attending the deceased professionally.-Pringle v. Burrows, 74 N. Y., Supp. 1055.

141. WITNESSES - Impeachment. It is proper to show, on cross-examination of a witness for the prosecution, that he entertained hard feelings towards the defendant.-People v. Milks, 74 N. Y. Supp. 1042.

142. WITNESSES - Instruction to Jury.-On a prose. cution for rape, an Instruction held erroneous for requiring the jury to disregard all the testimony of a witness who had testified falsely in part, unless fully and strongly corroborated.-Lanphere v. State, Wis., 89 N. W. Rep. 128.

143. WITNESSES-Memorandum.- One who, immedi ately after his conversation with another, makes a memorandum of it and the next day has it copied, and signs the copy, and sends it as a report to his superior officer, may refresh his recollection by referring to such copy.-Edwards v. Gimbel, Pa., 51 Atl. Rep. 357.

144. WITNESSES-Testimony.-Testimony is no part of record, unless made so by bill of exceptions.— Edwards v. Gimbel, Pa, 51 Atl. Rep. 357.

145. WITNESSES-Unskilled Practice.-The cross-examination of a physician, sued for unskillful practice, as to whether he had a licence, held not improper, on the ground that he was not required to procure a license, because of practice in the State before the act requiring license.-Challis v. Lake, N. H., 51 Atl. Rep.

260.

146. WORK AND LABOR-Quantum Meruit.-Architect held not entitled to recover on a quantum meruit for work done under contract, after having been expressly directed not to do such work.-De Prosse v. Royal Eagle Distilleries Co,, Cal., 67 Pac, Rep. 502.

to return a verdict for the defendant, to estimate the degree of care which a prudent man should exercise. Crook v. Jadis, 5 Barn. & Adol. 909; Vaughan v. Menlore, 3 Bing. *468; Railroad Co. v. Spearen, 47 Pa. 300, 86 Am. Dec. 544; Ireland v. Plank Road Co., 13 N. Y. 526; Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. There are some authorities which seem to announce a different rule. Thus, in some cases, the rule is stated as follows: "The question of negligence is one of mingled law and fact, to be decided as a question of law by the court where the facts are undisputed or conclusively proved, but not to be withdrawn from the jury where the facts are disputed and the evidence conflicting." Gogg v. Vetter, 41 Ind. 228, 13 Am. Rep. 322; Canal Co. v. Murphy, 9 Bush, 522. These cases, and others in which similar expressions are made, will be found to be cases where the facts were not only not disputed, but from which the only inference deducible conclusively showed that the plaintiff had not made out, a case of negligence at all. The court, after admitting this exception, says: "This is as far as the rule ought reasonably to be extended, and in cases where the negligence of the defendant is to be determined, nothwithstanding there may be no conflict in the testimony, that party, in our judgment, is entitled, under the organic law, to the verdict of a jury, unless waived, to the effect that he has not exercised that degree of care that the law exacts under all the circumstances of the case, before he can be compelled to respond in damages."

MUNICIPAL CORPORATIONS - VALIDITY OF ORDINANCE PUNISHING A CRIME ALREADY PUNISHABLE BY THE Laws of thE STATE.—Quite an important decision was recently handed down by the Supreme Court of Wisconsin in the case of Ogden v. City of Madison, 87 N. W. Rep. 568, on the interesting subject stated in the subcaption to this note. In this case it was held that the validity of a municipal ordinance prescribing punishment by fine and imprisonment as those convicted of keeping baudy houses is not affected by the fact that the state law makes the same act a penal offense and provides for its punishment. There is some conflict of authority on this point. Some cases hold that when the ordinances and state law prescribe a penalty for the same act a conviction under one is a complete bar to a conviction under the other. State v. Cowan, 29 Mo. 330; State v. Welch, 36 Conn. 215; State v. Thornton, 37 Mo. 360; Cassell v. City of Savannah (Ga. 1900), 35 S. E. Rep. 147; Duryee v. Mayor, 96 N. Y. 477. The weight of authority, however, seems to hold to a contrary doctrine, in line with the decision of the court in the principal case. State v. Newman, 96 Wis. 258, 71 N. W. Rep. 438; Mayor v. Allaire, 14 Ala. 400; State v. Lee, 29 Minn. 445, 13 N. W. Rep. 913; Wong v. Astoria, 13 Oreg. 538, 11 Pac. Rep. 295; State v. Robitshek, 60 Minn. 123, 61 N. W. Rep. 1023, 33 L. R. A. 33; McInerney v. City of Denver, 17 Colo. 302,

29 Pac. Rep. 516. The only theory upon which the rule announced by the weight of authority can be sustained is that what may be a felony or misdemeanor under the statute, when dealt with by a city by ordinance loses its criminal aspect because of its local character, and the greater necessity for more stringent police regulation in cities. The reason of the rule is also well stated in the case of McInerney v. City of Denver, supra: "Whatever may be the gravity of the offense against a state law, the fact that the legislature authorizes the city to deal with the same subject by ordinance indicates that to the legislative mind the act also properly constitutes one of those petty offenses regarded as local injuries. The public welfare, requiring the maintenance of peace and good order as well as careful sanitary regulations in cities and towns, renders summary proceedings in many cases a necessity. And we are not now prepared to inaugurate the revolution that must follow the announeement of the doctrine that a jury trial is an indispensible requisite."

ATTORNEY AND CLIENT-RIGHT OF FEMALE TO GAIN ADMISSION TO THE BAR.-The subversion of the rights and liberties of women is rapidly becoming matter of academic interest only. Slowly, as it must be, of necessity, woman is gradually breaking the chains that have fettered her freedom in professional, business and political life. The absurd injustice of throwing down the bars to ignorant men of inferior races and permitting them to enjoy all the rights of business, professional and political life, while refusing the same privileges to women of high culture and training and possessed of property interests which they cannot defend or advance in any effective manner, is being recognized in every state. This is a question of law, not of sentiment. An interesting phase of this question arose in the case of In re Maddox, 50 Atl. Rep. 487. The controversy was over the right of a woman to practice law in Maryland. The statute applicable to this subject deals throughout with the masculine gender. Another provision in the statute provided that "the masculine gender includes all genders, except where such construction would be absurd or unreasonable."

The court first entered into a preliminary argument to show that the right to practice law is not a natural right inherent in everyone, and that therefore a female was not entitled to admission to the bar independent of legislative author. ization. This question, however, was conclusively settled to that effect by Justice Bradley in Bradwell's case, 16 Wall. (U. S.) 142, 21 L. Ed. 446.

The court then took up the question of authorization under the Maryland statute, holding that since, at common law, females were not eligible to practice law, statutes in derogation thereof were to be strictly construed, and that therefore females were not authorized to practice law un

* * *

der the Maryland statute because of its use of the masculine gender throughout, showing the intention of the legislature to restrict the right to practice law to male citizens. The court said: "The rules of the common law and the usages of Westminister Hall from time immemorial excluded women from practicing as attorneys; and those rules, if not those usages, were ingrafted on our own jurisprudence more than a century and a quarter ago, and are a part of that system to-day, unless changed by positive legislation. It would be unreasonable to ascribe to the word 'he,' as used in the act of 1898, a meaning which includes a female, under the rule of interpretation which declares that the masculine shall include all genders, because by doing so the policy, the principle, and the practice of the common law, actually appropriated by us as a part of our system of judicature, would be subverted and revolutionized by a mere conjectural inference. To abrogate a longstanding and heretofore uninvaded and unquestioned doctrine of the common law merely because a rule of interpretation, adopted more from a superabundance of caution or as a matter of convenience than from any real necessity, declares that the masculine shall include all genders would attribute to the legislature an intention which we find nothing to indicate ever existed." This rule is sustained by the following authorities: State v. Boyd, 2 Gill & J. 365; Re Goodel, 39 Wis. 232, 20 Am. Rep. 42; Robinson's Case, 131 Mass. 376, 41 Am. Rep. 239; Re Stoneman (N. Y. S), 53 Am. Rep. 325; Re Bradwell, 55 Ill. 535.

The principal case opposed to the doctrine laid down in this case is that of In re Leach, 134 Ind. 665, 34 N. E. Rep. 641, 21 L. R. A. 701. In Indiana the statute (Rev. St. 1881, § 962) declared that certain persons, "being voters," could become members of the bar; yet the court held that women, though not voters, could be admitted to practice law, because they were not excluded by the statute. In other words, though the persons who were entitled to admission to the bar were defined, other and different persons, not within the definition, could also be admitted, is not in terms excluded. The court in the Maryland case in commenting on this statement of the rule, said: "Precisely the reverse of this is the correct method of reasoning. It is, as we have shown, within the power of the legislature to say who may be admitted to the bar. When the legislature does say who may be admitted to the bar, it of necessity excludes all persons who do not come within the designated class. Take the Code of this state as it stood before the adoption of the act of 1898. It declared that male citizens of the state were eligible. According to the peculiar reasoning of the Indiana case, though the statute distinctly confined the right of admission to male citizens, women could have been admitted, because they were not excluded by an express prohibition. The doctrine is that, un

der a statute applicable to a particular class, everybody else, though actually outside the class, is included within the class, because not specifically excluded from the class. This is obviously fallacious. The fallacy lies not only in asuming that all persons other than those described by the legislature have the right to practice law, but in deciding that a designation of a particular class does not of itself necessarily exclude every person not within the class."

It might be mentioned that after the decision in this case Miss Maddox, the petitioner, immediately prosecuted her appeal to the legislature with complete success. Within a few weeks after this decision a law was passed admitting women to the practice of law in the state of Maryland, a success more remarkable in view of the fact that Maryland is a state of the southland where the sentiment against women's entry into business, commercial and political life is most severely frowned upon.

RIGHTS OF A COVENANTEE UPON BREACH OF WARRANTY AGAINST INCUMBRANCES.

By virtue of a covenant the covenantee has certain remedies upon breach thereof, depending upon the nature and scope of the covenant and the injury resulting therefrom. As a rule, the law allows an adequate remedy for a partial or complete failure of title or other character of a breach. As a rule, no right of action accures to the covenantee against incumbrances who has been placed in possession by the grantor until there has been an eviction by the adverse claimant. For, until this takes place, the grantee has the quiet and peaceable enjoyment of the premises as fully and completely as though no incumbrance had existed.1 And this is the case though at the time of executing the covenant the incumbrance was in existence whereby the covenant becomes at once technically broken.2 But the authorities make a distinction on this point when the incumbrance is a paramount title in the state where the land is situated, or in the United States. And as a rule the statute of limitations will not run against the state or the general gov

1 Cheney v. Straube, 35 Neb. 521, 53 N. W. Rep. 479; Northern Pac. Ry. Co. v. Montgomery, 86 Fed. Rep. 251; Wyatt v. Dunn, 93 Mo. 459, 2 S. W. Rep. 402; Thompson v. Brazile, 65 Ark. 495, 498; Red v. Hollister, 20 Neb. 112, 29 N. W. Rep. 189; Troxell v Johnson, 52 Neb. 46, 71 N. W. Rep. 968; Siebert v. Bergman, 91 Tex. 411, 44 S. W. Rep. 63; Claflin v. Case, 53 Kan. 560, 36 Pac. Rep. 1062.

2 Siebert v. Bergman, 91 Tex. 411, 44 S. W. Rep. 63