inadequacy of the legal remedy. Hammond v. Foreman, 48 S. C. 175 (26 S. E. Rep. 212). The contract sought to be enforced must be fully and clearly proved in all its parts. Dewey v. Spring Valley Land Co., 98 Wis. 83 (73 N. W. Rep. 565). Particular complaint in an action for specific performance held sufficient. Oliver Min. Co. v. Clark, 69 Minn. 75 (71 N. W. Rep. 908). Particular bill to enforce performance of a contract to buy land and to foreclose a vendor's lien, held not multifarious. Proctor v. Plumer, 112 Mich. 393 (70 N. W. Rep. 1028). S. Dak. Comp. Laws, § 4927, construed and applied-pleading performance of conditions precedent-particular complaint held sufficient. De Ford v. Hyde, 10 S. Dak. 386 (73 N. W. Rep. 265). Where a defendant permits a contract required to be in writing to be proved by parol, he waives the defense of the statute of frauds. Pike v. Pike, 69 Vt. 535 (38 Atl. Rep. 265). A vendor, defending against an action for specific performance, cannot for the first time raise the objection on appeal that the land to be conveyed was a homestead and his wife did not join in the contract. Wilson v. Riddick, 100 Ia. 697 (69 N. W. Rep. 1039). Upon the death of a vendor seeking specific performance by a cross bill, in an action brought by his vendee to recover earnest money paid, it is proper to substitute his executors as parties and they may dismiss the bill although the vendor's devisees are not parties. Scott v. Davis, 141 Mo. 213 (42 S. W. Rep. 714). Where a vendee asking for specific performance and general relief is barred as to the former on account of the statute of frauds, he may enforce a lien on the land for partial payments of the purchase money which he has made. Devore v. Devore, 138 Mo. 181 (39 S. W. Rep. 68). Where a vendor is entitled to specific performance, it is proper to render a decree that, on the vendee's default in payment of the price that the premises be sold and judgment entered against him for any deficiency. Loveridge v. Shurtz, 111 Mich. 618 (70 N. W. Rep. 132). Where both parties to the action are insisting upon specific performance but one raises objections as to the title of the other, which are subsequently withdrawn, it is then too late for the other to refuse performance as a matter of right. Kahn v. Chapin, 152 N. Y. 305 (46 N. E. Rep. 489). Where a conveyance of land

has been specifically decreed interest may be allowed on the purchase price from the time of the decree to the completion of the transaction, the purchaser having possession but refusing to pay, pending an action concerning the land but not affecting the vendor's right to the price. In re Blair's Estate, 178 Pa. St. 582 (36 Atl. Rep. 179). See Ballards' Law Real Prop., Vol. V, § 809. A deed made in pursuance of a decree of specific performance of a contract of a deceased person, should be recognized by the proper court, although made after the time given for its execution by the decree, where injustice would result by a refusal to do so. In re Blair's Estate, 178 Pa. St. 582 (36 Atl. Rep. 179). Pa. Laws 1899, p. 157, authorizes the Orphans' courts to decree specific performance of certain contracts in case of death of vendor or vendee. A purchaser who has been guilty of such default as to authorize a forfeiture of all his rights under his contract, cannot erforce specific performance of the same without proof of waiver of forfeiture by the vendor. Foot v. Bush, 100 Ia. 522 (69 N. W. Rep. 874). Specific performance of a contract to convey land worth $3,000.00 for $2,375.00 will not be refused on the ground of inadequacy of price. Ketcham v. Owen, 55 N. J. Eq. 314 (36 Atl. Rep. 1095).

STARTING FIRES.

EPITOME OF CASES.

Sec. 839. Destruction of insured property-Rights of parties. An insurance company who has paid a loss on a building destroyed by fire negligently started by another, may join with the owner in an action against such party for his negligence, though they seek to recover not only the value of the building in excess of the policy, but damages to the owner's business proximately caused by defendant's negligence. Fairbanks v. San Francisco & N. P. Ry. Co., 115 Cal. 579 (47 Pac. Rep. 450). Citing, Swarthout v. Railway Co., 49 Wis. 625 (6 N. W. Rep. 314); Crandall v. Transportation Co., 16 Fed. Rep. 75; Home Mut. Ins. Co. v. Oregon R. Nav. Co.,

20 Or. 569 (26 Pac. Rep. 857; 23 Am. St. Rep. 151). Where property partially insured was destroyed by the negligence of a railroad company and the insurer paid to the insured the amount of the policy and took from him an assignment of his cause of action against the railroad to the extent of the insurance paid, the right of the insurer to recover from the railroad the amount of the insurance paid is not affected by any judgment rendered in an action between the insured and the railroad company, although the insurer had knowledge of its pendency. Omaha & R. V. Ry. Co. v. Granite State Fire Ins. Co., 53 Neb. 514 (73 N. W. Rep. 950). Me. Stat. 1895, ch. 79, whereby Rev. Stat. ch. 51, § 64, was so amended that the liability of railroad corporations in case of injury to property by fire communicated from a locomotive engine in the use of the corporation was limited to the excess of the injury suffered by the property owner over the net amount of insurance recovered, if received before damages are assessed, and which provides that if the insurance is not recovered before the damages are assessed the policy shall be assigned to the railroad corporation, which may maintain an action thereon, or prosecute an action already commenced by the insured, with all the rights which the insured originally had, is constitutional and applies to a policy of insurance existing on the property before the passage of the statute. Leavitt v. Canadian Pac. Ry. Co., 90 Me. 153 (37 Atl. Rep. 886; 38 L. R. A. 152).

Sec. 840. Contributory negligence. The plaintiff must show by a fair preponderance of the evidence, that defendant was negligent, and that he himself was free from any negligence approximately contributing to the injury. Miller v. Miller, 17 Ind. App. 605 (47 N. E. Rep. 338); Chiagco & E. R. Co. v. Bailey, 19 Ind. App. 163 (46 N. E. Rep. 688). In Indiana it is held that the burden is upon the plaintiff, to show his want of contributory negligence. Wabash R. Co. v. Miller, 18 Ind. App. 549 (48 N. E. Rep. 663); Louisville, N. A. & C. Ry. Co. v. Carmon, 20 Ind. App. 471 (48 N. E. Rep. 1047; 50 N. E. Rep. 893). The owner of a house roofed with shingles sixty feet distant from a railroad, is not guilty of contributory regligence in allowing falling leaves to accumulate on its roof, on account of which fire was started. Louis

ville & N. R. Co. v. Malone, 116 Ala. 600 (22 So. Rep. 897). Particular evidence held sufficient to authorize the submission of the question of contributory negligence to the jury. Richmond v. McNeill, 31 Or. 342 (49 Pac. Rep. 879). Particular special finding of facts held insufficient to show that plaintiff was free from contributory negligence. Louisville, N. A. & C. Ry. Co. v. Roberts, 18 Ind. App. 538 (47 N. E. Rep. 839); Cameron v. Oberlin, 19 Ind. App. 142 (48 N. E. Rep. 386); Wabash R. Co. v. Miller, 18 Ind. App. 549 (48 N. E. Rep. 663); Louisville, N. A. & C. Ry. Co. v. Carmon, 20 Ind. App. 471 (48 N. E. Rep. 1047; 50 N. E. Rep. 893).

Sec. 841. Liability of railroads for fires-Negligence. A railroad company which places on its side track cars owned and used by one having a contract to supply it with wood, does not thereby become liable for injuries resulting from fire kept by the contractor in one of the cars used for cooking purposes. Leavitt v. Bangor & A. R. Co., 89 Me. 509 (36 Atl. Rep. 998; 36 L. R. A. 382). In Nebraska it is held that, when fire is set out by sparks from a passing locomotive, negligence may be inferred, and the burden of proof is upon the company to establish that the locomotive was not faulty in construction and was properly equipped and operated. Rogers v. Kansas City & O, R. Co., 52 Neb. 86 (71 N. W. Rep. 977). The same is held in Virginia. Kimball v. Borden, 95 Va. 203 (28 S. E. Rep. 207). The rule that negligence is presumed from the mere fact that an engine set out a fire is a rule of evidence, and is therefore unaffected by the allegations of the complaint. If the plaintiff narrows his averment to a charge of negligence in the operation of the engine, he can still make out a prima facie case by showing that the engine did in fact set the fire. But, so long as the pleading remains unamended, the plaintiff can recover only for the negligence specified; and the defendant is not required to rebut any other presumption of negligence as it would be under a complaint charging negligence generally. Mathews v. Great Northern Ry. Co., 7 N. Dak. 81 (72 N. W. Rep. 1085). Proof that a railroad company permitted inflammable material to accumulate upon its right of way which was discovered to be on fire within a few minutes after the passing of one of

its trains, is sufficient to raise the presumption that the fire was started by the negligence of the company. Richmond v. McNeill, 31 Or. 342 (49 Pac. Rep. 879). Where a railroad company negligently permits combustibles to accummulate on its right of way which are set on fire by sparks from an engine, it cannot escape liability by showing its exercise of all proper precautions to prevent escape of sparks from its engines. Chicago & E. R. Co. v. Bailey, 19 Ind. App. 163 (46 N. E. Rep. 688). The origin of a fire being fixed upon a railroad company, it is presumptively charged with negligence and must assume the burden of proving that it had used the proper precautions for confining sparks and cinders. Patteson v. Chesapeake & O. R. Co., 94 Va. 16 (26 S. E. Rep. 393). Where a statute (N. J. Gen. Stat., Vol. 2, p. 2668) recognizing the right of railroad companies to use fire in the propelling of their trains, enacts certain regulations in respect to the precaution to be taken to prevent the escape of fire from the smokestacks of their engines, it is held that such legislative regulations define and limit the duty of the companies in respect to the precautions required against such escape of fire. West Jersey R. Co. v. Abbott, 60 N. J. L. 150 (37 Atl. Rep. 1104). A special verdict must state facts from which a conclusion of negligence can be drawn. Luhr v. Michigan Cent. R. Co., 16 Ind. App. 562 (45 N. E. Rep. 796). Particular facts held insufficient to show that a fire destroying a building originated by a spark from a passing locomotive. Lake Erie & W. R. Co. v. Naron, 18 Ind. App. 193 (47 N. E. Rep. 691).

Sec. 842. Liability of railroads for fires-Action against receiver. Construing and applying Mass. Pub. Stat., ch. 112, § 214, providing that "every railroad corporation and street railway company shall be responsible in damages to a person or corporation whose buildings or other property may be injured by fire communicated by its locomotive engines, and shall have an insurable interest in the property upon its route for which it may be so held responsible, and may procure insurance thereon in its own behalf," it is held that the statute is remedial and must be construed liberally; and an action under it may be maintained against a receiver of an