measurements in deeds. The reason is that parties are supposed to inspect land before purchasing it, and they can easily recognize visible monuments and thus acquire a definite idea of the boundaries of the land, which they could not do by measuring distances with the eye. 61 N. Y. 348.

Where a deed described the western boundary of the land sold as a line twenty-five rods from the boundary of the quarter section, and also as the highway on the western side of the premises sold, held, the latter description will control. Judgment affirmed. Opinion by PERKINS, J.Simonton v. Thompson.

PROMISSORY NOTE-UNCERTAINTY IN PLEADING DEFENSE.-A single paragraph of answer can not perform the double office of denying the cause of action and confessing and avoiding it. It must be one thing or the other, and its character must be determined from the general scope of its averments, 10 Ind. 485; and where the defense, set up in paragraphs of answer to a suit on a note, was that the defendant executed the paper without reading it and supposing it to be a contract in reference to washing machines, the paragraphs did not controvert the execution of the note, but set up matter in evidence thereof, and did not amount to a plea of non est factum. Neither did they allege facts sufficient to bar the action, the note being in the hands of a bona fide holder. Judgment reversed. Opinion by WORDEN, C. J.-Kimble v. Christie.

MORTGAGE CONDITIONAL OBLIGATION ΤΟ PAY MONEY.-Where a mortgage provided for the payment of $10,000.00, "to be paid by the mortgagor to the mortgagee when called on by said mortgagee, and the mortgagor does not agree to pay the above sum to no one else except said mortgagee; and the mortgagor expressly agrees to pay the sum of money above secured without any relief from valuation or appraisement laws;" and there was no note accompanying the mortgage, held, the mortgagor was not bound to pay the money absolutely, but only upon the condition of its being demanded by the mortgagee, and if the mortgagee failed to call for it, the mortgagor was not bound to pay it at all. The stipulation to pay without reiief, etc., must be taken in connection with what precedes it, and had reference only to payment when called on by the mortgagee. Judgment reversed. Opinion by WORDEN, C. J. Sebrell et al. v. Couch, Admr., etc.

PLEADING EVIDENCE-WRITTEN INSTRUMENTS-JUDG. MENTS.-The statute making copies of written instruments a part of the record, where they are the foundation of a pleading, does not make copies of other documents, not written instruments, a part of the record, though the pleading may be founded on them. A judgment is not a written instrument within the meaning of the statute, and a copy thereof need not be filed with a pleading founded upon it. 37 Ind. 281. And where a copy of a judgment is so filed, it does not become a part of the record in the case. 45 Ind. 134; 48 Ib. 527. To regard copies of documents, constituting evidence in the cause and filed with the pleading, as part of the pleading, would be to sanction pleading evidence instead of facts. Judgment affirmed. Opinion by WORDEN, C. J.-Wilson v. Vance Admr. et al.

BY

ACTION AGAINST ADMINISTRATOR- PRESUMPTION ADMINISTRATOR DE BONIS NON AGAINST SURETY ON BOND OF FORMER ADMINISTRATOR-PARTIES.-In an action against an administrator for an account and settlement, where no final account appears to have been had, it is the intendment of the law that no final judgment or decree was ever rendered therein. An action brought by an administrator d. b. n. against a surety on the bond of a former administrator d. b. n. of the same estate for assets wasted by him, is properly brought in the name of the last administrator. The next of kin can not call for an account and settlement without having an administrator before the court.-Landsdell v. Winstead.

VENDOR'S LIENS-SECRET LIENS.-1. The doctrine that a vendor has a lien on the land conveyed for the purchasemoney remaining unpaid, is repugnant to our statutes in relation to real estate, and is no part of the laws of this state. 2. The policy of our law is to discourage secret liens, and to require all instruments affecting the title of real estate to be entered of record. Judgment reversed. Opinion by MAXWELL, J.-Edmister v. Higgins.

LICENSE TO SELL LIQUORS.-A party who takes out a license to sell liquor, in a city of the second class, under the authority of sec. 586, ch. 58, of the General Statutes, is not required to take out a second license under an ordinance of the city, in order to legally conduct his business during the time and at the place mentioned in the first license. Opinion by LAKE, C. J.—In re Schmitker.

MURDER IN FIRST DEGREE-PRESUMPTION OF Degree OF MURDER.-1. The words "deliberate and premeditated malice," in the statutory definition of murder in the first degree, were intended to restrict murder in that degree to cases where deliberation was shown to have taken place before the commission of the crime. 2. Where a homicide is proved, the presumption is that it is murder in the second degree. Judgment reversed. Opinion by MAXWELL, J.— Milton v. The State.

DEFENSE TO AWARD-ARBITRATORS AS WITNESSES.1. In an action on an award, the defendant may set up as a defense, that the arbitrators considered matters not submitted to them, or omitted to consider matters which were submitted, and may prove such matters in bar in an action on the award. 2. Arbitrators are proper witnesses to testify concerning what matters were presented before them, and whether or not they had considered all the matters so referred. Judgment reversed. Opinion by MAXWELL, J.Hall v. Vanier.

PRACTICE IN CASES OF MISDEMEANOR-COMPLAINT— POWERS OF SCHOOL BOARD TO DISCHARGE TEACHER.— 1. If the original complaint, in a case of misdemeanor appealed to the district court, be lost, the court may order a new complaint to be substituted, covering the same offense, as shown by the justice's transcript. 2. The district school board is specially vested by statute with the general care and management of the school, and the employment of teachers; and, as an incident to these powers, has a right to discharge a teacher for incompetency, or for any other sufficient cause, at the will and pleasure of a majority of its members. Judgment reversed. Opinion by LAKE, C. J.-Bays v. The State.

FRAUDULENT CONVEYANCE PROOF OF FRAUD. - 1. Where a vendee has participated in the fraud of a vendor, by accepting from him a conveyance of real estate with the intent to hinder, delay or defraud the creditors of such vendor, the conveyance will be void as to those creditors, even though full consideration has been paid for such property. 2. The question of fraudulent intent is one of fact and not of law, and the degree of proof necessary to establish fraud is the same in equity as at law. Judgment reversed. Opinion by MAXWELL, J.-Tootle et al. v. Dunn. ESTOPPEL.-If a company, incorporated with the exclusive privilege to establish and keep a ferry and wagonbridge across a river, within a certain district, stand by and silently see and permit other parties to construct and complete another wagon-bridge across the same river, within the same district, or acquiesce and consent to the erection thereof, it will, by reason of such silence or assent, be estopped from controverting by injunction, or otherwise, the right of the other parties to use and repair such bridge. Judgment reversed. Opinion by GANTT, J.-Fremont Ferry and Bridge Co. v. Dodge County.

PETITION IN REPLEVIN - CONSTRUCTION OF HERD LAW.-1. A petition in replevin should state, that the plaintiff is the owner of the goods sought to be recovered (or has a special property therein, stating its nature); that he is entitled to the immediate possession of such goods; and that

the defendant wrongfully detains the same. Where a petition is defective for want of a meterial averment, and such averment is supplied by the answer, the defect in the petition will thereby be cured. 2. The object of the law is to afford a speedy and inexpensive mode of ascertaining the damages sustained by trespass of stock upon cultivated lands. Courts construe proceedings of this kind with great liberality in all matters, except as to jurisdiction. Judgment aflirmed. Opinion by MAXWELL, J.-Haggard v. Wallen.

BASTARDY JUDGMENT-NEW TRIAL.-1. In an action for bastardy, on a verdict of guilty, it is the duty of the court to adjudge the defendant to be the reputed father of the bastard child; and a failure to do so will render the orders of the court for the support of the child erroneous. 2. Where, on the trial of a defendant under the bastardy act, an alibi was established by the testimony of two credible witnesses, in addition to that of the accused, as against the unsupported testimony of the mother of the child, the verdict of guilty should be set aside as being against the evidence. Judgment reversed. Opinion by LAKE, C. J.— Spurgeon v. Clemmons.

ACTION TO QUIET TITLE-EVIDENCE-PLEADING.-1. In an action to quiet the title to land, by one in possession, who alleges that the defendants conveyed the land to him, but have since destroyed the deed which was never recorded, plaintiff must show, by a preponderance of evidence, that a deed of the land running to him was not only executed and acknowledged by defendants, but also delivered to him by them or with their consent; and in this case the evidence is held insufficient to establish such delivery. 2. Under the complaint, the question whether the plaintiff had paid or furnished a consideration, and was entitled to a conveyance in the first instance, is irrelevant, and evidence upon that question was properly rejected; the only issue being, whether such a conveyance was ever in fact deilvered. Opinion by LYON, J.-Eiden v. Eiden and Wife.

MECHANIC'S LIEN-PARTY TO ACTION.—1. A subsequent purchaser or incumbrancer is a proper party to an action brought to enforce a specific lien for materials and labor. 2. The complaint alleges that plaintiffs furnished machinery of a certain value, used in repairing a certain mill; that such machinery was furnished at the request of J. H., and a portion of it at the request and upon the express orders of L. H.; that said mill then was and still is occupied by J. H., and " owned by one or both of said defendants in common or otherwise;" that L. H. claims some interest in or title to the lot on which the mill is situated; and that plaintiffs are not able to state what his precise interest or title is, but claim that, whatever it may be, it is subordinate to their lien. The complaint states the substance of the petition for a lien, and the date of its filing in the proper office, and demands a personal judgment against J. H. (but not against L. H.), and also that the amount claimed be adjudged a lien upon the mill building, machinery and fixtures, taking precedence of any interest of L. H. therein, and that the premises be sold, etc. Held, that upon the facts here alleged, L. H. is properly made a party defendant to the action. Opinion by LYON, J.Rice et al. v, Lucy Hall, imp.

MECHANIC'S LIEN-WHEN JUDGMENT MAY BE REOPENED.-Where a judgment to establish and enforce a mechanic's lien has been taken without making the person who owned the property at the commencement of the action a party, he will not be bound by such judgment, but may litigate the right of the judgment plaintiff in a subsequent action between the parties interested, brought to recover the possession or to quiet the title. McCoy v. Buick, 30 Wis., 551. 2. The court by which the lien judgment is rendered may, however, upon motion of such owner and upon a proper showing of facts, set aside the

judgment within a year after its entry, and admit the moving party to defend against the claim for a lien; and generally this course is best in order to avoid circuity of action and promote the interests of all parties concerned. 3. The statute makes a lien for work done or materials furnished in the construction of a building paramount to any other lien, which originates subsequent to the commencement of the building (R. S. ch. 153, § 1); and the judgment in a suit to enforce such a lien should not be re-opened on the motion of one who, before such suit was brought, had purchased the land at a mortgage foreclosure sale, merely on the ground that no part of the demand for labor and materials accrued before the execution and recording of the mortgage, it appearing that such mortgage was given after the building was commenced. Opinion by LYON, J.-Lampson v. Bowen.

ABSTRACT OF DECISIONS OF SUPREME COURT OF KANSAS.

January Term, 1877.

HON. ALBERT H. HORTON, Chief Justice. 66 D. M. VALENTINE, Associate Justices. 66 D. J. BREWER,

EVI

NEW TRIAL SURPRISE - NEWly DiscovERED DENCE EVIDENCE.-1. In an action in which there have been two trials, and the material question in issue is, whether 200,000 hedge-plants were delivered by the plaintiffs to one of the defendants, and on the second trial one M. is produced for the first time by the plaintiffs as a witness in their behalf, and M. testifies that he was present at the alleged delivery, gives evidence of the conversation had by the parties at the time, corroborates plaintiffs' witnesses, and defendants introduce evidence that said witness was not present at the time, and after a verdict for the plaintiffs, defendants file a motion for a new trial on account of surprise, which ordinary prudence could not have guarded against, supported by affidavits that they had no knowledge of M.; that his name was not mentioned on the former trial; that they were surprised at his evidence; that at the trial they had not time to prepare a defense thereto, and that if a new trial was granted, they could and would produce two or three witnesses to testify that no such man as M. was present or about at the time of the conversation: Held, that this court will not reverse the action of the district court in refusing a new trial. 2. Where several witnesses testify on a trial, in support of the plaintiffs' cause of action, to the effect that 200,000 hedgeplants were delivered on or about April 9th, 1873, to one of the defendants by plaintiffs, the acceptance thereof, and to their being in good condition at the time, and the defendants, after a verdict against them, ask for a new trial because of newly discovered evidence, which they could not with reasonable diligence have ascertained and produced on the trial, and the newly discovered evidence is the sworn statement of H. that one of said witnesses told him in the latter part of April, 1873, that said defendant had refused to accept the hedge-plants, excepting 75,000, because they were damaged; that said witness then told H. the plants were damaged by frost, and wanted H. to see the defendant and try to have him come and get the rest of the plants: Held, that such newly discovered evidence is not sufficiently material, to authorize the supreme court to reverse the order of the district court overruling the application for a new trial therefor. 3. The refusal of the court to overrule certain questions calling for conclusions of law of a witness, where the witness in response states acts and conversations, instead of giving any opinion of his own, is not necessarily such error as to cause a reversal of a judg ment, even when the questions are asked in reference to the material issue in the case. The proper practice, however, is, under such circumstances, to allow only such interrogatories as will call forth all the particulars of the transaction, including the lesser and minor details. Opinion by HORTON, C. J.-Taylor et al. v. Thomas et al.

THE United States Supreme Court has adjourned till the second Monday in October, the time fixed by law. During the term the court disposed of 350 cases, four cases being left over undecided.

The Central Law Journal.

SAINT LOUIS, MAY 25, 1877.

CURRENT TOPICS.

THE experiment of a state bar association bids fair to be successful in Iowa. It was to be expected that it would succeed in that soil if anywhere; for the bar of that young state have, with the aid of an enterprising publisher, succeeded for a number of years in maintaining a good law journal; so that the Western Jurist is now the oldest law publication in the United States except two. There is one characteristic feature of the Iowa State Bar Association which distinguishes it from several other organizations of this kind,— it does not think that the chief end of such a society is to eat a big dinner and get drunk once a year. We have in our mind one or two bar associations which live to just about the same purpose as Shylock's unthrifty servant:

"The patch is kind enough, but a huge feeder,
Snail slow in profit, and he sleeps by day

More than the wildcat."

The Bar Association of Iowa had a regal feast this year; but it was a feast of reason and a flow, not of bowl, but of soul. Public sentiment in that state would not have tolerated any other.

Two questions were discussed with a great deal of earnestness and ability. The first was, "Shall the association as a body petition the next General Assembly to enact a reasonable fee-bill or system of costs to be taxed against the losing party in civil actions?" Mr. Rogers, of Davenport, who had been trained under the New York practice, supported the measure. He contended (and in our judgment, his views can not be answered) that, where a man is driven to law to vindicate his rights, and succeeds, it is an absolute denial of justice not to oblige the defendant to pay the reasonable costs and charges, other than the mere fees of the court officers, to which he has been put in order to obtain what was due him. We think, however, that the argument was not carried far enough. A great deal of the litigation which is prosecuted against wealthy individuals and corporations is in the nature of blackmail. In such cases there is the highest reason and justice in awarding to the defendant, so unjustly harrowed, all the expenses which he has reasonably incurred in his defense. Judge Nourse, of Des Moines, opposed the resolution. This measure, said he in substance, is for the benefit of litigants, and not for the benefit of lawyers. The average legislator is proverbially jealous of the lawyer. He can not understand that the labor of a lawyer's brain is of any more value than the labor of the man who shovels dirt into a wheelbarrow. Lawyers are able to take care of themselves in the matter of their fees without the aid of a law of this kind. If Vol. 4.-No. 21.

we propose such a measure to the legislature, it will be viewed as a covert scheme for the enriching of lawyers at the expense of their clients. Other speakers expressed similar views; and the weight of sentiment drifted this way so strongly, that the resolution was indefinitely postponed.

The next question, "Shall the association petition the next General Assembly in favor of a law requiring two years, or any other fixed term of study in all cases, before admission to the bar?"-called forth a still more animated discussion. Dr. Hammond, Chancellor of the Law Department of the Iowa State University, spoke in favor of the proposed measure. He believed the only barrier against overrunning the bar with incompetent persons was a fixed term of study. Two years were named in the resolution, because it was thought that, in the present state of public sentiment, a longer term could not be had. If it could be obtained, he would prefer three years. If this could not be had, he wanted two; and if this were denied, he wanted one. Several others expressed in strong terms similar views. Judge Nourse was of a contrary opinion. He declared emphatically that many of the brightest ornaments of the bar could never have reached its portals, had such a requirement been insisted upon. He himself, under such a rule of exclusion, could never have battled his way into the profession; and he modestly confessed the bar might, in that instance, have been benefited by the rule. This confession, however, is entitled to about the same weight as that of an innocent man who pleads guilty to a crime. Judge Nourse would adorn the bar of any court in the Union. When speaking in a court of justice, he seems the very embodiment of organized power. Poverty, he continued in substance, is the crowning necessity of a law student. If he possesses sufficient toughness of material, this hardens him into iron; if not, he faints and falls by the wayside, and the bar is thus benefited by the law of the survival of the fittest. Judge Cole spoke in the same vein. He had instructed nearly a thousand law students, and many who had achieved the greatest success in after years had come to the bar after short terms of study. He did not want to see a rule adopted that would discourage the hopes of those who are struggling for a foothold in life. The glory of our country, and particularly of the West, was that the poorest boy might rise to eminence, equally with the wealthiest.

In the course of the debate some disparaging remarks were indulged in in regard to law schools. In reply to these, Dr. Hammond asserted that the obstacle which makes it impracticable for the Iowa University Law School to make its compulsory course longer than one year, is the fact that young men are constantly graduated into the bar from law offices almost without any preparatory study at all. While such an easy road remained open, they could not be expected to choose volun

tarily the severe discipline of a two years' course in a law school. To this Judge Nourse warmly retorted, saying, in substance, that the law schools were exerting a deleterious influence upon the bar. He had never known of an instance where a young man who had attended the requisite term at a law school and paid his dues, no matter how great a blockhead, had been refused a diploma. We are sorry that this statement was made. We know that it is not the case with the Saint Louis Law School. Here, the candidates are examined by a committee of able lawyers who are not connected with the school. At the term which has just closed the examination extended over a term of three days, the session lasting six hours each day. A considerable number are each year refused diplomas. We have trustworthy information that the examination is equally severe at the Boston University Law School, where the compulsory term of study has now been happily extended to three years. As between the law offices and the law schools, there is much good ground for recrimination on both sides; but we are satisfied that much more good is to be expected in the future from the latter than from the former.

THE address of Rev. Geo. F. McGoun, D. D., before the Iowa State Bar Association, at Des Moines, was one of the happiest efforts of the kind which has ever been pronounced.. It bristled all over with thought, sparkled with wit, and was at times really eloquent. A theologian, however learned, might well have been excused for not handling with strict accuracy the technical terms of the law; but the success of Dr. McGoun in this particular was a striking illustration of what may be the effect of thorough culture and general reading. When Dr. Eliot, Chancellor of the Washington University, delivered the other day to the graduating law students their diplomas, he said to them, among other things: "It will be your privilege to defend accused persons when they are innocent," forgetting the rugged precept which Professor Washburn used to lay down with emphasis to his classes: "Your duty is to see that every man has his rights." Dr. Eliot's maxim would oblige every lawyer to decide in advance upon the guilt or innocence of his client, and its operation would in many cases deprive innocent men, against whom a popular outcry had been raised, of the benefit of able and courageous counsel. No such blunder marred the address of Dr. McGoun. He everywhere exhibited a thorough appreciation of a lawyer's duty, and of the benefits conferred upon society by a learned, upright and fearless bar.

IN THE case of Lowe et al. v. Williams, in error to the Supreme Court of Nebraska, decided at the last term of the United States Supreme Court, Mr. Chief Justice Waite delivered one of his brief opinions, as follows: "The act of March 2, 1867, (14 Stats. 558), provided for the removal of causes

from the state courts to the circuit courts under certain circumstances, when due application was made before the final hearing or trial of the suit.' This we held in Stevenson v. Williams, 19 Wall. 575, to mean before final judgment in the court of original jurisdiction, where the suit is brought.' To the same effect are Vannevar v. Bryant, 21 Wall. 43, and Fashnacht v. Frank, 23 Wall. 419, decided since. The act of March 3, 1875 (18 Stats. 471), under which the removal was attempted in this case, requires the petition to be filed 'before the final trial.' The decisions under the act of 1867 are, therefore, equally applicable to that of 1875. The petition for removal was filed in the appellate court, and, of course, long after the final judgment in the court of original jurisdiction. Under these circumstances we consider that, while a federal question is presented by the record, it is one that has already been settled, and needs no further argument. The motion to dismiss is therefore denied, but that to affirm is granted."

SINCE the judgment upon the rehearing in the cases of Town of South Ottawa v. Perkins, and Board of Supervisors of Kendall County v. Post, in error to the Circuit Court of the United States for the Northern District of Illinois, reported in 4 Cent. L. J. 442, reversing the previous decision of the court, reported ibid. p. 132, the court has made further directions as follows: "The court below, on re-trying the case, must itself be satisfied whether the law in question was or was not constitutionally passed, and the vote entered on the journals, and instruct the jury accordingly. The evidence or means of ascertaining this fact must be such as is legally applicable to such a case according to the laws of Illinois. But, strictly speaking, the issue is more properly referable to the court than to a jury. That it may be so framed, the judgment will be amended, directing the court below to award a venire de novo, or to allow the parties to amend their pleadings, as they shall be advised, in order to refer the trial of the issue to the court instead of the jury."

THE Governor of the State of New York has lately issued his assent to a number of bills which had been passed by both houses of the legislature, and his action in regard to two of them has provoked much hostile comment, while, in the third case, his authority was sought to be intimidated by riot. The first of these bills was one permitting women to hold seats in school boards, etc., and was vetoed by the governor for two reasons: First, that such legislation was in his opinion neither necessary nor proper; and secondly, that as the constitution of the state did not permit women to vote, it could not be presumed that it was the intention of the framers to allow a certain class to be elected to positions for which they had not the right to vote. The second bill, which was unable to receive the assent of the executive, was for the appropriation of a sum of money for the establishment of a county law library. The gov

ernor considered that it was an unequal law; that if one county obtained public funds for its library, the other counties in the state would have reasonable grounds to complain, and would not be slow to petition for like favors. The result would be that every county in the state would in time possess a law library, supported from the state treasury. In addition to this, the governor, in returning the bill without his assent, fortified his veto by apt analogy and a sensible suggestion. "There is no more reason," he said, "for supplying lawyers with their books, than for supplying doctors and clergymen with theirs, or farmers and mechanics with their implements and tools. The convenience and advantage which the lawyers and judges will have from these libraries may be obtained by voluntary associations, and by contributions from those who are to be benefited by them." This argument can not easily be controverted; it is certainly no answer to it to say that, while the state cares nothing about a person's theology or his knowledge of medicine, ignorance of the law excuses no one. The third bill was for the appropriation of a large sum of money for the completion of the state capitol, for the construction of which enormous sums had already been voted and allowed. The governor refused to be a party to what appears to have been another great scheme for the plunder of the public treasury, and a sufficient number of the members were found to sustain his action.

THE veto power vested in the executives of the nation and the states has been often assailed. But the decided weight of opinion, and the ablest of political thinkers have perceived in it the most salutary check which can be placed upon inconsiderate and bad legislation. In England, it is true, it has fallen into disuse, having been exercised but once in that country during the last two centuries. The variety of interests represented in Parliament, and the conservative element which predominates there, have been recognized as sufficient to dispense with it, while the influence of public opinion has discouraged its employment. Yet, as Mr. Burke has eloquently said, while its repose is the preservation of its existence, its existence may be on some occasion the safety of the state. The power of veto by the President was placed in the federal Constitution by a unanimous vote of the convention, and has with us been exercised on many occasions, notably during the administrations of Tyler and Johnson. Being not absolute, but qualified, it can not be looked upon as a despotic power, and public opinion has never called for its abrogation. It exists in most, if not all, the state constitutions. It may thwart the majority will as exercised through the people's representatives; but the majority are not always right, and if they can approach to anything like unanimity, they are able to override it. In this day of hasty legislation it might well be exercised more often, and we can but echo the opinion of Story, that the real danger is that the executive will use the power too rarely.

LIABILITY OF CORPORATIONS FOR INJURY TO SERVANTS FROM THE NEGLIGENCE OF FELLOW-SERVANTS.

The rule that the master is not responsible to his servant for injuries caused by the negligence of fellow-servants is one very generally maintained by the courts; but the application of the rule is often difficult. Especially is it so in the cases where servants undertake to hold corporations liable for injuries caused by other servants in the employment of the same corporations. The chief difficulty arises in determining who are servants of the corporation and who are principals, as to the party injured.

Judge Cooley holds that the difference in the grades of servants makes no material difference, so long as the party injured and the party whose negligence causes the injury are in the same general employment.

The decisions of the Supreme Courts of Kentucky, Indiana and Wisconsin are, in the main, to the effect that a servant may recover for injuries caused by the negligence of a servant of a higher grade in the employ of the same master; and it would appear that the courts of some of the other states are not disinclined to discard a rule which so often works manifest injustice, and to follow in the same course.

In Kieley v. The Belcher Silver Mining Company, 2 Cent. L. J. 705, the rule laid down with regard to the liability of a corporation to its servants is so explicit and so manifestly just that it can not fail to meet the approval of the courts.

The language there used is this (the italics be-" ing our own): “The maxim, ‘respondeat superior,' proceeds upon the principle that the wrongful act of the servant, done in the course of his employment, is, in contemplation of law, the act of the master himself; and the principle is founded upon public policy and convenience. The master chooses his servant, and directs and controls him in his work. It is the master who is doing the work, through the instrumentality of a servant."

And again: " Nor will it be denied that, if the servant has contracted to serve in any specified branch or department of his master's general business, he assumes the risk arising from the negligence of those of his fellow-servants, not his superiors in authority, who are engaged in the same department, whose conduct he has an opportunity of observing, and to some extent protecting himself, by the exercise of his own care and prudence, from the consequence of their negligence. But it seems apparent that any rule which goes further, and throws upon the servant any risks other than those which are the natural and ordinary incidents to the work which he agrees to do, and which he might fairly anticipate as likely to accompany his undertaking, is unjust and indefensible. Such a rule, we think, is the one in question, when so construed as to include in the term, fellow-servants engaged in a common employment,' all who are employed by the same master, though laboring in separate and distinct departments of his