work a forfeiture of a right of action, but the decision is based rather on the unreasonableness of the delay than on the failure to comply strictly with the requirements of the policy. Blossom v. Ins. Co., 64 N. Y. 162; Quinlan v. Ins. Co., 133 N. Y. 356. Moreover, "in the construction of contracts of insurance that interpretation is to be adopted which is most favorable to the insured." Ethington v. Ins. Co., 55 Mo. App. 129; Merrick v. Germania Ins. Co., 54 Pa. 277. Forfeitures are not favored in law and courts will not construe contracts so as to effect a forfeiture if they can reasonably do otherwise. Phoenix Ins. Co. v. Tomlinson, 125 Ind. 84.

MANDAMUS-TELEPHONES-COMPELLING INSTALLATION-BAWDY HOUSE.GODWIN V. CAROLINA TELEPHONE AND TELEGRAPH Co., 48 S. E. 636 (N. C.).— Held, that one who was avowedly a keeper of a bawdy house could not by mandamus compel the installation of a telephone therein.

A corporation, public in character, and holding a virtual monopoly, is bound to serve impartially and without unjust discrimination all who apply for its service. This rule is applied to telephone companies. Missouri v. Tel. Co., 23 Fed. 539; Tel. Co. v. Tel. Co., 4 Daly (N. Y.) 527; Tel. Co. v. Com.› 114 Pa. St. 592. Mandamus is the proper remedy for failure, Mahan v. Tel. Co., 93 N. W. 629; State v. Tel. Co., 93 Mo. App. 349, although superseded by statute in New York. Peo. v. Tel. Co., 41 N. Y. App. Div. 17. But mandamus will not lie where the ultimate object is unlawful or against public policy, or to compel unauthorized or illegal acts. Supervisors v. U. S., 18 Wall. 71; Chicot Co. v. Kruse, 47 Ark. 80; Ex parte Clapper, 3 Hill (N. Y.) 458. In view of this latter principle, the correctness of the decision in the principal case is indisputable.

MASTER AND Servant-Assumption of RISK-MASTER'S COMMAND.-HENRIETTA COAL Co. v. CampbelL, 71 N. E. 863 (ILL.)—Held, that a servant does not assume the risk involved in carrying out a direct command of the master, provided he exercises a reasonable degree of care.

The question here considered is one which has received much attention from the courts and the decisions have differed so widely that it is very difficult to lay down any satisfactory rule of law regarding it. The present case states the liability of the master more broadly than has been done in many jurisdictions. The decision, however, is not only in harmony with the previous Illinois cases cited therein but is also the rule in Missouri. Stephens v. Hannibal & St. J. R. Co., 96 Mo. 206. In many cases, on the other hand, it is held that if the master had no knowledge of the danger involved in obedience to his directions he is not liable. O'Neil v. O'Leary, 164 Mass. 287; The Pilot, 82 Fed. III. Nor is his liability increased by the fact that his command was accompanied, (as in the present case), by abusive and profane language. Williams v. Churchill, 137 Mass. 243; Coyne v. U. P. R. Co., 133 U. S. 370. When a servant cannot perceive, by the exercise of ordinary care, any danger in obeying the master's orders, he does not assume the risk. Eicholz v. Niagara Falls H. P. & M. Co., 174 N. Y. 519. He may recover even if it were apparent that some danger existed. Allen v. Gilman Co., 127 Fed. 609. But if the act is one which an ordinary prudent man would not undertake he cannot recover. Illinois Steel Co. v. Wierzbicky, 206 Ill. 201. The tendency of the later decisions seems to be in favor of the rule as laid down in Illinois and Missouri and to allow a servant to recover when he was exercising ordinary care in obeying the master's direct orders and injury resulted therefrom.

Shear & Red. Neg. 5th Ed. Sec. 186; cited with approval in Allen v. Gilman Co., supra.

PARTNERSHIP-REALTY-CONVERSION INTO PERSONALTY-EXPRESS AGREEMENT.-BARNEY V. PIKE, 87 N. Y. SUPP. 1038.-A partnership was formed to purchase marsh lands with the partnership capital, to be "reclaimed, and sold and converted into money" and to divide the proceeds, profits and losses among the partners in proportion to their several interests. Held, that the parties intended there should be an equitable conversion, and that the estate of the deceased partner passed under his will as personalty.

This decision, which is based upon the fact that the articles of partnership amounted to an express agreement that realty should be treated for all purposes as personalty, is in harmony with all the decisions in this country. Maddock v. Astbury, 32 N. J. Eq. 181; Mallory v. Russell, 71 Iowa 63. Where there is no such agreement, it is held in England, that there is an “out and out" conversion for all purposes, the real estate, upon death of a partner, going to his personal representatives. Essex v. Essex, 20 Beav. 442; Darby v. Darby, 3 Drew. 495. The American rule, adhered to in all the states, is that partnership realty is treated in equity as personalty so far as is necessary to pay debts and adjust equities between the partners, and that the remainder descends to the heir as real estate. Shanks v. Klien, 104 U. S. 18; Lowe v. Lowe, 13 Bush. (Ky.) 688

RAILROADS-REMOVAL OF TRESPASSERS-LIABILITY FOR INJURY.-POWELL v. ERIE RAILROAD Co., 58 ATL. 930 (N. J.).—A trespasser, while attempting to board a moving railroad car, released his hold because of a brakeman's throwing pieces of coal at him. Held, that the company was not liable for injuries to him resulting therefrom. Hendrickson and Vroom, JJ., dissenting.

The general rule is that a railway company is liable to a trespasser forcibly ejected by its servants from one of its trains while moving at a dangerous speed. R. Co. v. Reagan, 52 Ill. App. 488; Carter v. Ry. Co., 98 Ind. 552. See also Rounds v. R. Co., 64 N. Y. 129. And a similar rule, without regard being had, however, to the degree of speed, was enunciated in Ry. Co. v. Mother, 5 Tex. Civ. App. 87; while, in an action for injuries received by a trespasser, it has been held that the only question to be submitted to the jury was whether or not the trespasser was pushed from the train by a brakeman while it was in motion. Thurman v. L. & N. R. Co., 34 S. W. 893. Where one got upon a car, intending to ride without paying, the conductor ordered him off with a show of force, and he was hurt, it was held to be a question for the jury whether he was in fault in jumping, and that his fault in getting on did not constitute contributory negligence. Kline v. R. Co., 37 Cal. 400. And when a boy boarded a moving freight train, and was ordered off while the train was moving at a lower rate of speed than when he boarded it, it was held a question for the jury whether the conductor's acts constituted negligence and would render the company liable. Thompson v. R. Co., 72 Miss. 715. In the principal case the court says: "It is absurd to say that by merely gaining a foothold upon the moving train he could impose a duty upon the railroad company either to permit him to ascend or to stop the train for his convenience," but the decision seems to be based upon the theory that the throwing of the coal did not actually force the trespasser to leave the train.

WATERS RIPARIAN RIGHTS-IRRIGATION.-CLEMENTS v. WATKINS LAND Co., 82 S. W. 665 (Tex.).—Held, that, as irrigation is not a natural use of water, a riparian proprietor cannot exhaust the supply for such purposes as against irrigation rights of lower proprietors.

This decision is noteworthy in that it practically aligns the State of Texas with the common law rule, and squarely repudiates the doctrine of prior appropriation developed and prevailing in a group of the arid states headed by Colorado. Oppenlander v. Ditch Co., 18 Colo. 142; Stowell v. Johnson, 7 Utah 215; Moyer v. Preston, 6 Wyo. 308; Bliss v. Grayson, 24 Nev. 422. Farnham on Waters and Water Rights, sect. 604, says: "The Texas courts have carried the right to use water for irrigation purposes further than it has been carried elsewhere, and further than can be supported either by principle or authority." See also Rhodes v. Whitehead, 27 Tex. 304. The present case, while not entirely lacking support in the Texas courts, overrules the established doctrine in that state. Tolle v. Correth, 31 Tex. 365, established the doctrine that the rule of reasonable use will permit the exhaustion of the water supply for irrigation as against other artificial uses, when the need of irrigation is great and that of other artificial uses relatively unimportant. The broad position of the court while attacked in Fleming v. Davis, 37 Tex. 173, and criticised in Mill Co. v. Ferris, 2 Sawy. (U. S.) 176, was followed in the later decisions, the doctrine being limited, however, so that the right to irrigate would be subordinate to the right of a lower proprietor to be supplied for domestic purposes. Baker v. Brown, 55 Tex. 377; Irrigation Co. v. Vivian, 74 Tex. 170; Barrett v. Metcalf, 12 Tex. Civ. App. 247.

REVIEWS.

American Advocacy. By Alexander H. Robbins, Editor of the Central Law Journal. Central Law Journal Co., St. Louis, 1904. Sheep, pages 295.

By reason of the thoroughness of his course of study and his ability to grasp widely and deeply the fundamental principles of legal science, the young practitioner may find himself at the outset of his career equipped with the essentials that go to make up a master in the law. But neither the curriculum of the school nor instruction in the office can inculcate in him those qualities which will assure him success as an advocate; these can come from experience alone. The purposes which this book serves are to bring the young attorney, who in all probability fails to appreciate it, to a realization of this fact and to enable him to profit by the lessons learned by others in the hard school of active practice. Though the author avowedly bases his work upon the English text of Mr. Richard Harris, he has skillfully pruned away all that is inapplicable to our judicial system and has ably expanded the residuum to cover those matters wherein our methods differ from those of England. It is easy to find excuse for the grounds of criticism that suggest themselves; it is obviously impossible in so short a work to deal in detail with all the questions that are pertinent; that the language is in places somewhat wanting in clearness is doubtless attributable to the nature of the subject; objection to the great number of metaphors resorted to is the expression of personal taste. Succinctly and comprehensively the book treats of the actual conduct of a case in and out of court, and of the ethical principles incident to legal practice. The young lawyer will do well, not casually to read it through, but to possess it, that he may, by repeated consultations, familiarize himself with its contents. W. M. M.

Clark's Accident Law (Street Railways).

Ellery H. Clark of the Boston Bar.

Second Edition. By
Keefe-Davidson Co.,

St. Paul, Minn., 1904. Sheep, pages 607.

A glance into almost any number of the New York Supplement will show a sufficiently convincing raison d'être for this edition of the Accident Law of Street Railways, which supplements Mr. Clark's work on the Street Railway Law of Massa

chusetts. While the origin of the main principles of this subtopic of carriers lies in the distant past, and the major doctrines have, for the most part, been thoroughly crystallized, nevertheless the constantly increasing facility for urban transportation, and the corresponding multiplication of accidents, have given rise to a host of modern "border-line'' cases. The author states that "practically every case of importance (in the United States and State reports) finds a place in this volume." Granting this to be true, one cannot help speculating as to how long such a book will be possible-especially when it is considered that there are probably more cases on this division of the law in New York alone, yearly, than there were in all the long period of the English stage-coach, where, as we understand it, many of its fundamental theories were formulated. However this may be, Clark's Accident Law of Street Railways will for some time to come, at least, be of great practical value to the profession, especially to its younger members. G. S. A.

The National Bank Act, with All its Amendments Annotated and Explained. By John M. Gould. Little, Brown & Co., Boston, 1904. Buckram, pages 288.

The fact that more than seven hundred titles appear in the table of cases cited in this book is suggestive of how important this branch of the law has become in modern litigation. The volume contains the provisions of the National Bank Act of 1864, with all the amendments, including those of 1903, inserted in their proper places. The sections of the Act are taken up seriatim, each one being given a black-letter heading, and followed by cross references, explanatory notes and citations to the adjudged cases on the particular point of law involved. Among those sections upon which the annotation is especially thorough may be noted those dealing with "Penalty for Unlawful Interest, "Personal Liability of Shareholders," "Taxation" and "Penalty for Official Malfeasance." The appendix contains the constitution of the American Bankers' Association, and the constitutions and rules of the clearing houses of the cities of New York, Boston and Chicago. The work will be of much practical value, not only to the lawyer, but to any one whose business brings him into contact with banks and banking. W. D. E.

Vance on Insurance. By William Reynolds Vance, Professor of Law in the George Washington University, Washington, D. C. Hornbook Series. West Publishing Co., St. Paul, Minn, 1904. Sheep, pages 683.

The law of insurance has, because of its modern origin, offered to the bench an unparalleled opportunity for the exercise of individual reasoning and judgment, necessarily not based