ELECTRICITY-RECOVERY OF PAYMENTS-MISTAKE OF FACT-ARMOUR PACKING COMPANY V. EDISON ELECTRIC ILLUMINATING CO. OF BROOKLYN, 100 N. Y. SUPP. 605.-Held, that where the customer of an electric company, who was unaware of the discrimination, paid the company in excess of that charged others for the same service and under the same circumstances, the payment was under a mistake of a material fact and the excess was recoverable.

The general rule is that a payment made by mistake of fact may be recovered, Rutherford v. McIxor, 21 Ala. 750. Lack of consideration is the true ground of the recovery. Little v. Derby, 7 Mich. 325. Knowledge of the facts, which disentitles the party from recovery must mean a knowledge existing at the time of payment. Kelley v. Solari, 9 Mees. and Wels, 54. It is no defense to an action to recover such money that the other party had the means of knowledge, but if money be paid in ignorance of a fact, which would have absolved the party paying it in law but not in morals and conscience, it would seem that there is not sufficient ground for recovery. Story on Contracts, Par. 422. There are minority dicta to the effect that only if the money be paid in ignorance of a material fact and without reasonable means of ascertaining it, is it recoverable, Peterborough v. Lancaster, 14 N. H. 382.

EMINENT Domain-ElemENTS OF DAmage-MeasURE OF DAMAGES.— RAUCK V. CITY OF CEDAR RApids, 111 N. W. (Iowa) 1027.—Held, that in a proceeding to condemn land for a public use, the true measure of damages is the value of the property as a whole in the condition it was in at the date of the condemnation. Deemer and Ladd, JJ., dissenting.

In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. Boon Co. v. Patterson, 98 U. S. 403. The value of the land taken is to be estimated irrespective of the benefit resulting to it from the proposed improvement, Cobb v. Boston, 112 Mass. 183, and a fortiori the estimate should be irrespective of the benefit resulting to adjacent lands. San Diego T. & L. Co. v. Neale, 78 Cal. 63. Some of the cases seem to lose the distinction between advanced prices caused by reason of the fact that the improvement was to be constructed and work done thereon, and advanced prices caused by the possible increase of value thereafter by reason of the prospective improvements having been constructed in that vicinity. Sanitary Dist. v. Langbran, 160 Ill. 362. It is the value at the time of taking, and not the value after the improvement is made, which should be considered. Mills on Eminent Domain, section 174; Burt v. Wigglesworth, 117 Mass. 302.

EVIDENCE-EXPERT TESTIMONY.-UNDERWOOD v. A. W. STEVENS Co., 112 N. W. 487 (MICH.).—Held, in an action for the burning of plaintiff's building by the operation of a traction engine by defendant's agents without a sparkarrester and with the damper open, it was proper to allow competent engineer to express an opinion as to whether the running of the engine past buildings with the damper open and no spark-arrester was a proper operation of the engine.

The rule is, that the opinion of experts as skilled witnesses is admissible in evidence in these cases in which the matter of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it, for the reason that the subject-matter so far partakes of the nature of a science, art or trade, as to require a previous habit, or experi

ence, or study in it, in order to acquire a knowledge of it. Rogers on Expert Testimony, page 17. The opinion of witnesses cannot be received when the inquiry is in relation to a subject-matter, the nature of which is such as not to require any peculiar habits of study in order to qualify a man to understand it. Smith Leading Cases, 286. In Teall v. Barton, 40 Barb. (N. Y.) 137, the defendants were engaged in removing a sunken boat from the channel of a canal by means of a steam dredging machine, in the vicinity of plaintiff's farm-buildings, without any spark-arrester or screen upon their smokestack. A question to a witness as to whether he considered it dangerous to use the dredge without a spark-arrester was properly overruled, as it was no question of science or unusual skill and, therefore, did not fall within the rule relating to expert testimony. An expert cannot testify as to what constitutes an engine properly constructed in the matter of a spark-arrester, but after a certain appliance has been identified as being ordinarily employed, a witness may state, as the result of his own experience, that cinders shown to him could not be emitted through such an appliance if an engine were properly constructed. Brush v. Long Island R. R. Co., 10 Me. Div. 535 (affirmed 158 N. Y. 742). Defendant called witnesses long connected with the fire department of Portland to whom he presented a plan of the buildings, their construction, material, etc., and asked whether or not in their opinion large fires in large wooden buildings make their own currents, frequently eddying against the winds. This testimony was excluded. State v. Watson, 65 Maine 74. The application of the general rule will be seen from the illustration in the cases similar to the principal case.

LARCENY-PROPerty Lost.—State v. Levine, 66 Atl. 529 (Conn.)—Held, that where the finder of a bank check handed the same to defendant, inquiring whether he knew the owner, and the defendant to induce the finder to leave the check with him that he might convert it to his own use, falsely represented that he expected the owner to call at his store, and that he would give it to him, and upon its being left, converted it to his own use, he was guilty of larceny.

It has been held that in order to constitute larceny, the intent to steal must exist at the time of taking and it is not sufficient that he have the intent at the time of conversion. People v. Wilson, 39 N. Y. 459. The prevailing rule, however, is to the contrary. 12 Am. & Eng. Ency. Law. 772. So where one has obtained possession lawfully, it must have been gotten by false pretexts or fraud. Hermandez v. State, 20 Tex. App. 151. Or there must be some new and distinct act of taking without intent to convert to the use of the taker. Wharton Crim. Law, Vol. II, p. 437. In Tennessee it is held that lost property, as distinguished from mislaid, cannot be the subject of larceny; Lawrence v. State, 20 Tenn. 228; but the contrary view is generally taken. Comm. v. Tanner, 14 Grat. 635 (Va.).

INTOXICATING LIQUORS-REGulations-STATUTORY PROVISIONS-SUNDAY CLOSING. PEOPLE V. HENZE, 112 N. W. (MICH.) 491. A statute provides that all saloons be closed on Sunday, and declared that the word "closed" be construed to apply to the back door or other entrance as well as to the front door. Defeindant lived in a room above his saloon, which was reached only by an outside stairway. No liquors were ever served in this room.Held, that where the defendant went to his saloon on Sunday to get, his meals in the kitchen at the rear, and to attend to the fires and empty the

pans under the refrigerator, and admitted no other person, the saloon was not closed within the meaning of the statute.

This would seem to be following the general rule, though perhaps unfair on its face. The offense which the statute contemplates is the keeping open of a saloon on the Sabbath day. The object of the legislature was to remove all temptations from idle and dissolute persons who might be disposed to congregate at such places, and violate the Sabbath by any improper conduct. The law presumes an injury to the public by keeping open the doors of a saloon on the Sabbath day, or why prohibit it? The offense is complete under the law when it is established that the defendant has kept open a saloon on that day, without further proof of injury to individuals or the neighborhood. Hall v. State, 3 Ga. (Kelly) 18. A tippling house may be kept open night or day during the week, but on the Sabbath day the law says that it must be closed, absolutely closed, the front, sides and rear. It makes no difference as to whether any liquors be sold or not, the offense consists in its being open, not in selling or offering to sell, or giving it away. Harvey v. Harvey, 65 Ga. 568. Some states, however, look more to the spirit of the law, and it has been held that merely keeping open the doors of a tippling-house on Sunday is not an offense within the statute, forbidding such house to be kept open on Sunday, Potter v. City of Centralia, 47 Ill. 370. And see, Krorer v. People, 78 Ill. 284; Koop v. The People, 47 Ill. 327. In State v. Gregory, 47 Conn. 276, a charge that "if the room was ordinarily used for any other purpose of business, no matter what, it must be closed between those hours" (twelve o'clock Saturday night to twelve o'clock on Sunday night) no matter what other ordinary business it might be desired to carry on there, was held clearly contrary to the spirit of the law, and therefore erroneous.

LIBEL-WORDS LIBELOUS PER SE.-NEW YORK BUREAU OF INFORMATION V. RIDGWAY-THAYER CO., ET AL., 104 N. Y. SUPP. 202. An article, entitled "Bucket Shop Sharks,” reading: "One of M.'s most intimate friends and active lieutenants is K., founder of the New York Bureau of Information, now managed by his brother, K. K. is a tout, sleek enough in his methods to have corralled bankers and brokers of unimpeachable legitimacy as clients for the New York Bureau of Information. His portrait, until it was surreptitiously removed, was No. 295-G, in the Chicago Rogues' Gallery, and he has the distinction of having served a penal sentence for the larceny of goods from such masters of merchantry as Levi Z. Leiter and Marshall Field”— was libelous per se as to the New York Bureau of Information, whether the statements in regard to K. referred to the founder of the bureau or to his brother. Ingraham and Scott, JJ., dissenting.

MASTER AND SERVANT-FELLOW SERVANTS.-PAYNE V. GEORGETOWN LUMBER Co., 42 So. 475 (La.).-Held, that employees in a saw-mill who are not co-associated in the same work are not fellow servants.

This decision reaffirms Merritt v. Victoria Lumber Co., 111 La. 159, but is contrary to the general rule as to who are fellow servants; i. e., all serving a common master and engaged in the same general business, although in different departments. Cooley on Torts [3rd Ed.], 1071. In England the rule extends to every member of an establishment. Abraham v. Reynolds, 5 H. & N. 143. In Massachusetts, Shaw, C. J., early held that an engineer could not recover for an injury in consequence of the negligence of a switch

man. Nicholas Farwell v. Boston & Worcester R. R., 4 Met. 59; and later cases declared a carpenter and a switchman, a laborer and trainmen, fellow servants. Gilman v. Eastern R. R. Co., 10 Allen 233; Gilshannon v. Stony Brook R. R., 10 Cush. 228. And in Lehigh Valley Coal Co. v. Jones, 86 Pa. 432, it was said not to be essential that workmen should be engaged in the same particular work to be fellow servants. But contra to the rule, in Toledo, etc., R. R. Co. v. O'Connor, 77 Ill. 391, a laborer and an engine driver were held not to be fellow servants; and so as to a section man and a foreman, Union Pacific R. R. Co. v. Erickson, 41 Neb. 1. In Ohio a conductor and an engineer were declared not to be fellow servants. Little Miami R. R. Co. v. Stevens, 20 Ohio 415; and the same conclusion was reached in Chicago, Milwaukee & St. Paul Ry. Co. v. Ross, 112 U. S. 377, but under strong dissent.

MASTER AND SERVANT-INJURIES TO SERVvant-AssumpTION OF RISK.— LYON V. CHARLESTON & W. C. Ry., 58 S. E. 13 (S. C.)—Held, where a flagman injured while uncoupling cars under the order of the conductor, which duty was within his employment, he assumed the risk. Gary, A. J., dissenting.

An employee cannot recover for an injury resulting from one of the usual risks or hazards connected with the business into which he has entered, and which the law will consider he assumed when undertaking the duties of the position. Woodworth v. St. Paul M. & M. R. R. Co. (C. C.) 18 Fed. 282. This rule is practically settled in the U. S. But he may contract to the contrary, Foster v. Pussey, 14 Atl. 545. A railroad brakeman assumes all the ordinary risks of the employment, Chicago R. I. & P. Ry. Co. v. Clark, 108 Ill. 113, but where a master coerces a servant into entering a dangerous employment the servant does not assume the risk, Wells & French Co. v. Gortorski, 50 Ill. App. 445. Again, the master may, if he chooses, carry on his business with an old machine rather than a new one, and a threat to discharge a servant unless he will perform the stipulated service, is not coercion, Sweeny v. Berlin & Jones Envelope Co., 101 N. Y. 520. The dissenting opinion on the main case is a very strong one and he bases his opinion on the fact that the distinction between contributory negligence and assumption of risk is not a very shadowy one as the U. S. Supreme Court laid down in Schlemmer v. Railroad, 27 Sup. Ct. 407, but distinct and clear.

MASTER AND SERVANT-INJURIES TO THIRD PERSONS-LIABILITY OF MASTER-SAVANNAH ELECTRIC Co. v. WHEELER, ET AL., 58 S. E. 38 (GA.).—Held, that allegations that the company knowingly placed in charge of one of its passenger cars a conductor of bad character, who was drunk and armed with a pistol, and that a homicide occurred in the manner indicated in the preceding note, were not demurrable.

NEGLIGENCE-IMPUTED NEGLIGENCE.-DOCTOROFF V. METROPOLITAN ST. RY. Co., 105 N. Y. SUP. 229.-Held, that where the servant was riding on a truck, driven by his master at the time of the servant's injury in a collision between the truck and one of defendant's street cars, the negligence of the master, if any, was not imputable to the servant.

In general the concurrent negligence of third parties is no defense. Getty v. Consolidated Gas Co., 96 Md. 683. But in the case of public conveyances in Thorogood v. Bryan, 8 C. B. 115, it was said that the plaintiff

being a passenger voluntarily, was so far identified with the carriage that want of care on the part of the driver would bar plaintiff's action. And this doctrine has been followed in some of the states. See Lockhart v. Lichtenthaler, 46 Pa. St. 151. But has been overruled in England, The Bernina, L. R., 12 Prob. Div. 58; and repudiated by the United States Supreme Court, Little v. Hackett, 116 U. S. 366; the weight of authority being strongly against it. Eaton v. Boston, etc., R. Co., 11 Allen (Mass.) 500. And as to private conveyances, Doctoroff v. Metropolitan St. Ry. Co., supra, is in harmony with the general trend of the more recent decisions. Cooley on Torts (3d Ed.), 1473; Hoag v. N. Y. Cent., etc., R. Co., III N. Y. 199. But if the driver is under plaintiff's control, his negligence is imputable. Read v. City and Suburban Ry. Co., 115 Ga. 366. Or if two are engaged in a joint enterprise and each has an equal right to direct movement of the vehicle. Boyden v. Fitchburg R. Co., 72 Vt. 89. However, in Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, it was held that the contributory negligence of a master is imputable to servant; and of a husband to wife in G., C. & S. F. Ry. Co. v. Greenlee, 62 Tex. 344. And the doctrine of Thorogood v. Bryan, supra, is approved as to private conveyances in Prideaux v. City of Mineral Point, 43 Wis. 513.

NEGLIGENCE IMPUTED NEGLIGENCE-PARENT AND CHILD.-ATCHISON, T. & S. F. Ry. Co. v. Calhoun, 89 Pac. 207 (OKLA.)—Held, that in an action by an infant of tender years, in its own right, for personal injuries arising from negligence of a railway company, the fault or negligence of its mother or a third party, if any, contributing to such injury, cannot be imputed to the child.

In this country much conflict exists in the law on this subject. In England, the negligence of the custodian is imputed to the infant and recovery is denied. Waite v. Northeast R. Co., El. Bl. & El., 719; Singleton v. Eastern Counties R. Co., 7 C. B. (N. S.) 287. In the United States the leading case in harmony with the English rule is Hartfielder v. Roper, 21 Wend. (N. Y.) 615, where it was held that a child of two years who was run over while playing in the public street, was not entitled to recover for the negligent injury, because of the negligence of the parents in thus exposing him to injury. This case has been followed in several states: Casey v. Smith, 152 Mass. 294; Cumberland v. Lottig, 95 Md. 42; Leslie v. Lewiston, 62 Me. 468. But in at least twenty-three states its doctrine has been repudiated: inter alia, see Robinson v. Cone, 22 Vt. 213; Erie Pass. Ry. Co. v. Schuster, 113 Pa. St. 412; Chicago City Ry. Co. v. Wilcox, 138 Ill. 370. In a suit by the parent in his own behalf for an injury to the child, the plaintiff's contributory negligence is a defense. Williams v. Texas, etc., Co., 60 Tex. 205; Tucker v. Draper, 62 Neb. 66. But the negligence of one parent will not defeat the action of another. Atlanta, etc., Ry. Co. v. Gravitt, 93 Ga. 369; contra, Toner v. South Covington, etc., St. Ry. Co., 109 Ky. 41.

PARTITION-SCOPE OF INQUIRY.-ROLB V. EVERETT, 65 ATL. (N. J.) 732.-Held, that in a suit for partition the court would not determine the validity of a tax title asserted by defendant, but would hold the case to await the decision of a court of law as to the validity of such title.

Bills for partition of land must allege a seisin in possession in both complainant and defendant. Culver v. Culver, 2 Root (Conn.) 278. Bolin v. Jacquelin, 22 N. Y. Supp. 193. At common law neither title nor right to