executors living at the time must join in the sale, 3 Day 384.

When a deed was executed by two executors during the lifetime of third and it did not appear that he had given his assent, the deed was held ineffectual as a conveyance. 9 N. Y. S. 389.

General opinion seems to be where one executor acts and it is expressly or impliedly assented to by the others it is valid. Banus v. Drake, 50 N. C. 153; Silverthorn v. McKinister, 12 Pa. (2 Jones) 67; Dunn's Ex'rs v. Renick, 40 W. Va. 549.

RAILROADS-PUBLIC HIGHWAYS-SHIFTING OF CARS.-LONG V. MISSOURI PAC. RY. Co., 91 S. W. (Mo.) 1012.-Held, that "shunting" cars and "flying the switch" across public highways without warning is negligence, per se.

This doctrine is by no means settled. Some jurisdictions hold that it extends to trespassers where there is no public highway. Patton v. East Tenn., V. & G. R. Co., 89 Tenn. 370. Contra,-Wright v. Boston & A. R. Co., 142 Mass. 396. The general rule seems to be that the question of negligence is to be left to the jury. Delaware, L. & W. R. Co. v. Converse, 139 U. S. 469; Chicago, R. I. & P. R. Co. v. Digman, 56 Ill. 487. Some jurisdictions hold that contributory negligence on the part of the traveler does not preclude his right of recovery. Penn R. Co. v. McGirr, 61 Md. 108. Contra,— Haley v. N. Y. Central & H. R. R. Co., 7 Hun. 84.

RAILROADS INJURIES ΤΟ PEDESTRIANS LIABILITY ΤΟ TRESPASSERS.BROWN V. BOSTON & M. R. R., 64 ATL. 194 (N. H.). A trespasser, an old and partially deaf woman, while walking on defendant's track was killed by an express train. Neither engineer nor fireman saw trespasser on the track. Held, that a railroad company is liable for negligently killing deceased while she was walking by the track, even though she was a trespasser, providing she was in the exercise of due care and the defendant's servants failed to exercise due care to discover her presence in such a situation, when circumstances existed which would have put a person of average prudence on inquiry. Young, J., dissenting.

There seems to be no other decided case which carries to such an extent the doctrine promulgated by this case. On the other hand, the weight of authority is to the contrary. The well settled general rule is that railroads are liable for injuries to trespassers only when the railroad has been guilty of gross negligence. Western & A. R. R. v. Meigs, 74 Ga. 857; Richmond & D. R. Co. v. Tay, 106 N. C. 404. This rule is usually construed to mean that the trespasser in order to recover must show that the persons in charge of the train saw him and after seeing him failed to exercise reasonable diligence to prevent the injuries. Gherkins v. Louisville & N. R. Co., 30 S. W. 651 (Ky.). Another class of cases holds that the only duty a railroad company owes a trespasser is to refrain from wantonly and wilfully injuring him. Ill. Cent. R. R. v. Eicher, 202 Ill. 556.

RAILROADS-CROSSING ACCIDENT-CONTRIBUTORY NEGLIGENCE.-SANGUINETTE V. MISS. RIVER, ETC., Ry. Co., 95 S. V. 386 (Mo.).—Held, where a person, familiar with the railroad crossing, was being driven in a vehicle by another, but did not look for an approaching train, he was guilty of contributory negligence as a matter of law and an action for his death would not lie.

In the absence of statute, the general rule in the United States is that there is no presumption of negligence on the part of a railroad company for an injury to a non-passenger. Cooley on Torts, 2nd Ed., p. 797. The care required by the latter, however, is such as an ordinarily prudent man would exercise under like circumstances. Phila. R. R. Co. v. Publes, 67 Fed. 591; Wilds v. Hudson River R. Co., 29 N. Y. 315. But in the application of this rule the courts are somewhat in conflict. Most courts hold that it is sufficient to look in both directions for an approaching train. Rodrian v. N. Y., etc., R. R. Co., 125 N. Y. 526; Chicago B. & G. R. Co v. Van Pattern, 74 Ill. 91. The Federal Courts agree that the traveler must stop, also Dunning v. Bond, 38 Fed. 813. The fact that the occupant of a vehicle is driven by another does not relieve him. Durkee v. Delaware & H. Canal Co., 88 Hun. 471; Dean v. Penn. R. Co., 129 Pa. 514. Many states hold that where a crossing is particularly dangerous, the degree of care is more imperative. Thomas v. Delaware L. & W. R. Co., 8 Fed. 729. Wilas v. Hudson River Co., 29 N. Y. 315. Missouri formerly held that it was not necessary to "stop, look and listen." Zimmerman v. Hannibal St. J. R. Co., 71 Mo. 476. The weight of authority to-day is that this is not negligence per se, but is only evidence thereof. Terre Haute I. R. Co. v. Voelker, 129 Ill. 540; Winslow v. Boston & A. R. Co., 11 N. Y. 83.

REORGANIZATION OF MUTUAL INSURANCE COMPANIES.-HUBER V. MARTIN, 105 N. W. 1031 (WISCONSIN).-Held, that a statutory scheme for the reorganization of a mutual insurance company and the transfer of its assets, including an accumulated surplus, to its successor, is in conflict with the constitutional inhibition against laws impairing the obligation of contracts and in violation of the provisions of the Federal Constitution as to the equal protection of the laws and the deprivation of property without due process of law.

SECURITIES-SALE OF PLEDGED STOCK-CONTENT V. BANNER.-76 N. E. 913 (N. Y.).-Held, that where a stockbroker advances all the money and buys securities for a customer, a written notice to the customer to take up the securities so bought, or supply margins for carrying them, and stating that unless he does so before a certain date the broker will sell the stock for his account and hold him responsible for the amount, is defective, where it contains no statement as to the time or place of the sale, and that, in the absence of any agreement dispensing with notice, a sale on the "curb" constitutes a conversion though the customer has failed to respond on the date stated.

TORTS-MASTER AND SERVANT-EMPLOYER'S LIABILITY TO SERVANT.-BANNON V. N. Y. CENT. & H. R. R. Co., 98 N. Y. SUPP. 770. While one acting as foreman attempted to move a tie across the railroad track, a train struck the tie and injured a member of the crew.-Held, that the foreman was then acting as a fellow-servant and that the employer was not liable to the workman for his negligence under employer's Liability Act, Laws 1902, p. 1748, c. 600. Law recognizes that employee may have two duties; those of a superintendent and those of an ordinary workman. Kellard v. Rooke, 192 B. D. 585; Cushman v. Chase, 156 Mass. 342. If the act is within the duty of a servant, the one doing it, regardless of his rank, is a fellow-servant of the one injured by its negligent performance. Geoghegan v. Atlas S. S. Co., 146 N. Y. 369;

The Deep Mining & Drainage Co. v. Fitzgerald, 21 Col. 533; Fitzgerald v. Houkomp, 44 Ill. App. 365. A workman cannot recover from his employer for an injury caused by the negligence of the foreman or superintendent in the performance of such work as properly pertains to a servant. Stockmeyer v. Reed, 55 Ala. 259.

There is a minority doctrine that although the character of the act may be that of a fellow-servant, the master is liable to the servant for an injury caused by the act of the foreman. Texas & P. Ry. Co. v. Miss., 243 S. W. 328; Russ v. Wabash Western Ry. Co., 112 Mo. 45.

TELEGRAPHS-DELAY IN DELIVERING MESSAGE-WHAT LAW GOVERNS.WESTERN UNION TEL. Co. v. LACER, 93 S. W. 34 (KY.).-Held, that the liability of a telegraph company for delay in delivery of a message sent from one state into another, is governed by the law of the state in which the message is sent, though the mistake which caused the delay was made by an agent of the company in the other state.

The fact that the initial and terminal points of a message sent by telegraph are not in the same state is not material in an action against the company to recover damages for a breach of its common law duty to use proper care to effect a prompt and correct transmission and delivery. Western Union Tel. Co. v. Mellon, 96 Tenn. 66. There is a proper distinction drawn between an action brought to recover a penalty and an action brought to recover damages, for a mistake made in another state. If the action is brought to recover a penalty, it will fail as the penal laws of a state do not extend beyond its boundaries. Western Union Tel. Co. v. Pendleton, 122 U. S. 347. On the other hand a telegraph company which undertakes to correctly transmit a message to another state is liable in the state where the message is sent for damages for breach of its contract in the other state. Kemp v. Western Union Tel. Co., 28 N. C. 661.

WILLS EVIDENCE OF UNDUE INFLUENCE-DECLARATIONS OF TESTATOR.WETZ V. SCHNEIDER, 96 S. W. 59 (TEXAS).-Held, that declarations, made before or after the execution of the will, by a testator, are not admissible as evidence of undue influence, or of the truth of the facts stated by him, but only as manifestations of his mental condition. James, C. J., dissenting.

This decision points out the distinct line of cleavage between those cases which hold that declarations of the testator are admissible as evidence and the cases which hold that such declarations are not admissible, when the question of undue influence is in issue. On the one hand, such declarations are not admissible for the purpose of proving the truth of the statements they contain, whether or not these statements indicate constraint exercised upon the testator. Under such circumstances, being made before or after the execution of the will, these statements would be mere hearsay evidence. Westfall v. Wait, 73 N. E. 1089 (Ind.). This objection fails, however, when such statements were contemporaneous with the execution of the will, for in such case they are of course part of the res gesta. Jackson v. Kniffen, 3 Am. Dec. 390 (N. Y.). On the other hand, declarations made within a reasonable time before or after the execution of the will, are admissible, but only for the purpose of showing the condition of the testator's mind and his susceptibility to the alleged undue influence. Lucas v. Cannon, 76 Ky. 650; Robinson v. Hutchinson, 26 Vt. 38. And there must be other direct evidence of the exercise of undue influence before such declarations can be received. In re Hess' Will, 48 Minn. 504.

ALUMNI AND SCHOOL NOTES.

Completed registration figures in the Law School show the considerable increase of 139 men over the previous enrollment, despite the fact that there has been a falling off this year in the attendance at other university law schools, Harvard having lost

34. The total registration, including students in other departments who elected law work, is 620. A year ago the corresponding figure was 481. This year's figures are the highest in the history of the School. The number of regular students is 289, an increase of 11 over last year. The enrollment in the First Year Class cannot be compared strictly as yet with the number given for the same class last year. The figures for the two years follow:

The following new appointments are announced:

Charles P. Sherman, D. C. L., Instructor in French and Spanish Codes; Macgrane Coxe, B. A., of New York City, Lecturer on Bankruptcy; Gordon E. Sherman, Ph. B., Instructor in Comparative Constitutional Law and in the German Code; Edward A Harriman, LL.B., Instructor in Comparative Administrative Law.

Debaters to represent the Law School in the University trials for the Yale-Harvard team were selected November 6th. Messrs. Slade, '07, Cosgrove, G., Maher, '07 and Whitman, '07, were picked by the judges and will represent the Law Department in the Inter-department trials. The topic under discussion was the same as that for the Yale-Harvard debate, and is as follows: Resolved, That further restriction of immigration is undesirable

By the further restriction of immigration is meant the application of additional tests with the object of materially diminishing the number of immigrants to the United States.

The annual reception for the students of the Law Department

was held at Dwight Hall, Thursday evening, October 18th, by the Yale Law School Y. M. C. A. President Hadley and Dean Rogers were present, each making short addresses. Charles W. Evarts, '07, was Chairman of the Reception Committee.

"Lincoln and Jefferson, exponents of the two great parties," was the interesting subject of a fine address delivered before the Kent Club and friends in Hendrie Hall, November 5th, by Judge Lyman B. Munson. Judge Munson was a member of the class of 1851 in the Law School and is therefore privileged to number himself among the three or four "oldest living graduates." He was appointed a United States judge by President Lincoln during the month previous to the latter's assassination. He was a

firm and close friend of Lincoln and was well acquainted with the inside of things during the Lincoln regime.

'65.-Judge William B. Stoddard was the candidate for Attorney-General on the Democratic state ticket for Connecticut, but was defeated by the Republican nominee.

'75.-Mayor John P. Studley of New Haven was elected Judge of Probate of New Haven County on the Republican ticket.

'85.-Hon. Stiles Judson, the Republican candidate for reelection as state senator from Stamford, Conn., was returned to the capitol by an increased majority.

'93.-John Q. Tilson, was re-elected to the legislature of Connecticut, from New Haven, by a handsome majority and is being prominently mentioned as the next Speaker of that house.

'94.-George P. Breckenridge has removed his offices from No. 271 Broadway to the Mutual Life Building, Nos. 32 Liberty Street and 32 Nassau Street.

'94.-John K. Berry and G. O. Redington have formed a partnership for the general practice of law under the firm name of Redington & Berry with offices at 15 William Street, New York.

'96.-Joseph C. Sweeney has been promoted to the position of trial counsel for the New York, New Haven and Hartford Railroad Company, with offices at Providence, R. I.

'96.-Charles B. Waller, of New London, Conn., was elected on the Republican ticket as state senator from the eighteenth district.

'98.-William B. Boardman has been appointed Assistant Attorney for the New York, New Haven and Hartford Railroad