plish is held, in Griffith v. Lexington Terminal R. Co. (Ga.), 4 L. R. A. (N. S.) 854, to assume the risk, although the danger is due to the master's negligence.

An employee sent to remove a pile of lumber is held, in McCormick Harvesting Mach. Co. v. Zakzewski (Ill.), 4 L. R. A. (N. S.) 848, to assume the risk of injury from its fall because the lumber is covered with ice and defectively piled, where the defects are plainly obvious to him, notwithstanding they are due to the master's negligence.

A brakeman on a railroad is held, in Johnson v. Boston & M. R. Co. (Vt.), 4 L. R. A. (N. S.) 856, to assume the risk of injury from a low bridge and ice hanging therefrom, which, to his knowledge, is a usual condition.

The owner of a team, who is employed to remove a rubbish dump, is held, in Lindsey v. Hollerback & M. Contr. Co. (Ky.), 4 L. R. A. (N. S.) 830, to assume the risk of injury to the team in attempting to drive it down a steep incline with a scraper attached, although assured by his employer that it

is safe.

Where a servant knows and appreciates the dan ger of the act which he undertakes, he is held, in Chicago G. W. R. Co. v. Crotty (C. C. A., 8th C.), 4 L. R. A. (N. S.) 832, to assume the risks of injury, or to become chargeable with contributory negligence, | as the case may be, although he undertakes it under the direction of his superior.

Attempting dangerous work in obedience to orders is held, in Choctaw, O. & G. R. Co. v. Jones (Ark.), 4 L. R. A. (N. S.) 837, not to involve an assumption of the risk if it was not fully appreciated.

Knowledge of defective conditions is held, in Tuckett v. American Steam & Hand Laundry (Utah), 4 L. R. A. (N. S.) 990. to be insufficient to make an assumption of the risk by an employee, if the danger is imperfectly appreciated.

Failure to repair defects within a definite time is held, in Andrecsik v. New Jersey Tube Co. (N. J. Err. & App.), 4 L. R. A. (N. S.) 913, to make a continuance of work thereafter amount to assumption of risk.

The duty of an employee in a steel mill to warn other employees when a heat is to be blown is held, in Illinois Steel Co. v. Ziemkowski (Ill.), 4 L. R. A. (N. S.) 1161, to make the former a vice principal with respect to that matter.

Injury to a child invited by an employee to ride on a wagon, but who falls off, is held, in Foster-Her

bert Cut Stone Co. v. Pugh (Tenn.), 4 L. R. A. (N. S.) 804, not to make the master liable.

A general employee assisting a third person without the master's knowledge or consent, in making repairs on the premises, is held, in Sherwood v. Warner (D. C. App.), 4 L. R. A. (N. S.) 651, not to make the master iable.

The possessory right of the locator of a mining claim before applying for a patent is held, in O'Connell v. Pinnacle Gold Mines Co. (C. C. A., 9th C.), 4 L. R. A. (N. S.) 919, to go upon his death, by descent from the locator, subject to probate jurisdiction, and the heirs are held not to take directly from the government, as its beneficiaries.

The owner of an interest in a mining claim, who has been excluded by a co-owner, is held, in Davidson v. Fraser (Colo.), 4 L. R. A. (N. S.) 1126, to be entitled to adverse his application and maintain an action in support thereof.

A widow's right to redeem, under her unassigned dower, from a mortgage, is held, in Hays' v. Cretin (Md.), 4 L. R. A. (N. S.) 1039, not to be lost by her husband's giving a second mortgage in which she did not join.

A modification of the obligation made between a mortgagee and a subsequent grantee who has assumed the debt is held in Fanning v. Murphy (Wis.), 4 L. R. A. (N. S.) 666, to release the mortgagor.

The power of a municipality to contract debts for corporate purposes is held, in Luther v. Wheeler (S. C.), 4 L. R. A. (N. S.) 746, not to be implied.

A proceeding to punish the violation of a municipal police ordinance which is not a statutory offense is held, in Fortune v. Wilburton (C. C. A., 8th C.), 4 L. R. A. (N. S.) 782, to be a civil, and not a criminal, proceeding.

A municipality is held, in Cunningham v. Seattle (Wash.), 4 L. R. A. (N. S.) 629, not to be liable for damages done by a horse kept for a fire department, which escapes through the negligence of its em ployees.

Liability for negligence in handling an automobile on a highway so as to frighten a team of horses is sustained in McIntyre v. Orner (Ind.), 4 L. R. A. (N. S.) 1130.

One alighting from a street car, going behind it, and stepping onto another track, where he is struck by another car going in the opposite direction, is held in Hornstein v. United Railways Co. (Mo.), 4 L. R. A. (N. S.) 729, to be negligent.

The right of a parent to sue a child for support is denied in Duffy v. Yordi (Cal.), 4 L. R. A. (N. S.) 1159, where another child is furnishing the support already.

A wife's right, on separation, to partition the homestead, was denied in Grace v. Grace (Minn.), 4 L. R. A. (N. S.) 786, where the husband had made a settlement on her in a divorce suit.

A note to this case reviews all the other authorities on partition of homestead.

All the other authorities as to right of way on share are callated in a vote to this case.

Means of knowledge, without actual knowledge, of a change in a firm, is held, in Gross v. Breckenridge Bank, to exonerate the retiring members from liability on a subsequent renewal of the firm note.

One who periodically appears at a hotel to treat patients is held, in State v. Davis (Mo.), 4 L. R. A. (N. S.) 1023, to be practising medicine within the State, although he lives in another State, from which his medicines are forwarded.

The power of a receiver of a corporation to sue in a foreign jurisdiction, even with leave of the court, is denied in Fowler v. Osgood (C. C. A., 8th C.), 4 L. R. A. (N. S.) 824.

A license to sell intoxicating liquors, which is by statute transferable, is held, in Deggender v. Seattle Brew. & Malt. Co. (Wash.), 4 L. R. A. (N. S.) 626, to be an asset in case of a receivership.

A member expelled from a church for the fraudulent purpose of diverting its property in violation of the trust is held, in Hendryx v. People's United Church (Wash.), 4 L. R. A. (N. S.) 1154, to be entitled to equitable relief, although the rules allow the expulsion without trial.

A bill of review because of newly discovered evidence is held, in Safe Deposit & T. Co. v. Gittings (Md.), 4 L. R. A. (N. S.) 865, to be maintainable in the lower court after a decision on appeal.

A purchaser is denied, in Edgemoor Iron Co. v. Brown Hoisting Co. (Del. Sup. Ct.), 4 L. R. A. (N. S.) 858, the right to recoup against the price of a machine the amount he has been compelled to pay for personal injuries to a servant caused by defects in the machine.

Notes, mortgages and other evidences of indebtedness from residents of the State to a non-resident creditor are held, in Gilbertson v. Oliver (Iowa), 4 L. R. A. (N. S.) 953, not to be subject to succession taxes at the debtor's residence.

The liability of a telegraph company to an undisclosed principal of the addressee, is denied in Western U. Teleg. Co. v. Schriver (C. C. A., 8th C.), 4 L. R. A. (N. S.) 678.

Fraudulent intent is held, in W. R. Lynn Shoe Co. v. Auburn-Lynn Shoe Co. (Me.), 4 L. R. A. (N. S.) 960, to be necessary to make unfair competition by the use of names so as to make the trade think the goods of one person are those of another.

A marketable title to land is held, in Howe v. Coates (Minn.), 4 L. R. A. (N. S.) 1170, to mean a title free from reasonable doubt.

The right of the legislature to create a public right of way along the banks and beds of streams for fishing purposes is denied in Hartman v. Tresise (Colo.), 4 L. R. A. (N. S.) 872, under the constitu tional provision as to taking property for public use without compensation. All the other authorities as to right of way on shore are collated in a note to this case.

The election by a widow, for nine years, to accept the terms of her husband's will, which dealt with certain land in her name as if it were his, which her heirs had acquiesced in for eight years after her death, is held, in Hoggard v. Jordan (N. C.), 4 L. R. A. (N. S.) 1065, to preclude her administrator from dealing with the land as hers to pay debts.

A devise subject to a life tenancy to named children" and their children forever" is held, in Straw

to vest the fee in the first takers as heirs.

A buyer's right to retain goods and defeat action for the price because the goods do not comply with

the contract is denied in American Theater Co. v. Siegel, C. & Co. (Ill.), 4 L. R. A. (N. S.) 1167.

The constitutional privilege against incriminating evidence is held, in State v. Duncan (Vt.), 4 L. R. A. (N. S.) 1144, to be waived if not claimed.

: 0:

Bequests for Masses Legal.

The New York Court of Appeals has decided that Joseph Hughes, of New York city, had a right to bequeath in his will that after his real estate had been sold and the amount divided among the legatees that "three equal parts thereof to the trustees of St. Francis Hospital, in the city of New York, for the benefit and use of the Blessed Virgin Mary

Purgatorial fund of said hospital." This was the only controversy, and the validity of the will was the only question presented. The action was brought for the construction of a will of Joseph Hughes, deceased. The court reversed the judgment of the Ap pellate Division and Special Term and judgment was directed for the plaintiff, declaring the bequest valid with costs payable out of the fund to all parties appearing in this court by separate attorneys and filing briefs. Judges Cullen, Willard, Bartlett, Hiscock and Chase concurred in the opinion. Judges Gray and Edward T. Bartlett dissented.

The opinion reads as follows:

"There was not, at the time, in existence in the city of New York, a corporation by the name of the St. Francis Hospital, but there was a hospital building and grounds known to the public as St. Francis Hospital, which was owned and conducted by a society known as the Sisters of the Poor of St. Francis, who, by chapter 201 of the Laws of 1866, was incorporated under that name, having for its object, as stated in that act, the gratuitous care of the sick, aged, infirm and poor.' The act further provided that no misnomer of said corporation shall defeat any gift or devise, provided the intent shall sufficiently appear that an estate or interest was made to be vested in said corporation.' That the defendant, the Sisters of the Poor of St. Francis, was popularly or generally known and designated by the public as St. Francis Hospital, was found as a fact by the trial court and it was conceded by counsel upon the argument of this case that the testator intended that his devise should be paid over to the trustees of that corporation. It was contended, however, on the part of the respondents that the gift was void for the reason that the sisters had never maintained in the hospital a Blessed Virgin Mary Purgatorial fund;' that the only possible object of such a fund was the saying of masses for the spiritual welfare of the souls of the dead in purgatory, and that the sisters, as such corporation, had no power to act as trustees for such a fund or purpose, and that it was not for a corporate use.

"It

But we

may be conceded that if the devise was to the sisters in trust for the benefit of others that they, under the statute by which they were incorporated, were not empowered to execute the trust. entertain the view that no trust was created by the will so far as the bequest to the sisters' corporation is concerned. There was a gift to the executors of the real estate situated in the State of New York, in trust to sell and dispose of at public or private sale, but this was for the sole purpose of division designated by the testator. It was an imperative power of sale vested in the executors, thus operating to

convert the real estate into personalty for the purpose of division. Three-fourths of the fund so derived from the sale of the real estate was given to the St. Francis Hospital, so-called, but which in fact was the sisters' corporation. This bequest, as he states in his will, was for the benefit and use of the Blessed Virgin Mary Purgatorial fund of said hospital.' There is no gift to the corporation in trust no direction for investment or for the payment over of any income or portion of the fund for the use and benefit of any person in being. It is, therefore, quite apparent that no trust was created with reference to the proceeds of the sale of the real estate. As we have seen, there was a gift and devise to the corporation. In terms, it is an absolute gift, but there is added thereto the clause already quoted, for the benefit and use of the Blessed Virgin, etc., which, it is contended, operates to cut down the absolute bequest to a conditional gift limited to a specific purpose, for which the sisters had no power to use it.

"In the case of Clarke v. Leupp, 88 N. Y. 228, Tracy, J., in delivering the opinion of the court, says: 'It is well settled by a long succession of wellconsidered cases that when the words of the will in the first instance clearly indicate a disposition in the testator to give the interest, use and benefit of the estate absolutely to a donee it will not be restricted or cut down to any less estate by subsequent or ambiguous words inferential in their intent.'

"In Lambe v. Eames, L. R., 10 Eq. Cas. 267, it is said: 'Whenever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention to cut down the absolute gift as the prior act does to make it.'

"In Clay v. Wood, 153 N. Y. 134, Gray, J., says: 'Where there is an absolute gift of real or personal property, in order to qualify it or cut it down, the latter part of the will should show an equally clear intention to do so by the use of words definite in their meaning and by expressions which must be regarded as imperative.'

"Are the words used by the testator definite in their meaning, showing an imperative intent on the part of the testator not to make the gift absolute? It seems to us not. It says that the bequest is for the use and benefit of the Purgatorial fund of the hospital. He merely adds it to the Purgatorial fund. He makes no imperative or other direction with reference to the use that should be made of it, but leaves it as the fund of the hospital to be disposed of by the authorities thereof. It turns out that there was no such fund in exisetnce and that the only use that could be made of such a fund was the saying of masses for the spiritual welfare of the souls of the