WILLS (Continued).

that such marks were not made by the same person who wrote the signature to the will, from an examination of the signature of the testator appearing on the will. The ground of the decision is that such marks do not constitute "writings" within the meaning of the statute permitting the comparison of writings by experts. The general similarity of statutes on this subject renders probable the adoption of this construction of the statute. Compare the case of Lansing v. Russell, 3 Barb. Ch. 325, where experts were allowed to testify their opinion of the genuineness of a mark, made by a person in place of a signature. This latter case is held not applicable to the case in hand.

An uncle verbally agreed with his nephew, a boy of fourteen, and with the boy's mother and guardian, that if the Contract boy would accompany him, the uncle, from Ireto Devise land, to the uncle's American home, and there assist him, and accept his care and instruction, he would treat him as a son and will to him all his property. For seventeen years the boy faithfully fulfilled his agreement, but the uncle died intestate, without any rights in innocent third parties intervening. Under these facts the Supreme Court of California holds in McCabe v. Healy, 70 Pac. 1008, that the nephew was equitably entitled to the estate subject only to administration. See, however, Maddison v. Alderson, L. R. 8 App. Cas. 467, where the facts were very similar, but a different decision was reached. The principle upon which the court proceeds in the case in hand is thus stated by Pomeroy (Specific Performance, p. 268): "Courts of equity will, under special circumstances, enforce a contract to make a will, or to make a certain testamentary disposition; and this may be done even when the agreement was parol, where, in reliance upon the contract, the promisee has changed his condition and relations so that a refusal to complete the agreement would be a fraud upon him." The relief is not in the nature of ordering a will made, but of regarding the property as impressed with a trust. One judge dissents on the ground that the plaintiff can be compensated by the value of his services. "There is nothing,' he says, "in the nature of such services to justify the conclusion or inference that they cannot be compensated for in money."

WITNESSES.

It is generally provided by statute in the various states that to the general rule that husband and wife are not permitted to testify against each other, there is the Competency exception that they may so testify in the case of violence attempted, done or threatened by the one upon the other. California has legislation providing substantially as indicated. In People v. Curiale, 70 Pac. 468, the Supreme Court of that state holds that violence before marriage is not within the exception, but that they are still incompetent to testify in regard to it. See State v. Evans, 138 Mo. 116. In this latter case the court reaches the result upon a very technical basis: "A wife is only admitted to testify concerning criminal injuries to herself, a wife; not to a woman who was not, at the time of the injury, the wife of the defendant."

The Supreme Court of Florida holds in Chapin v. Mitchell, 32 Southern, 875, that the law prohibiting a party to an Transaction action or proceeding, or person interested in the with Deceased event, from testifying as a witness in regard to

Person any transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, does not prohibit the admission in evidence in favor of either party of the shop books and books of account of either party, in which the charges and entries shall have been originally made. Nor, it is said, does it prohibit the introduction in evidence of the suppletory oath of the party in connection with such books of account, to the effect that the articles charged therein were delivered, or the items of labor and services therein charged were actually performed, and that the entries were made at or about the time of the transaction, and are the original entries, and that the charges have not been paid.

SUBSCRIPTION PRICE, $3.00 PER ANNUM. SINGLE COPIES, 35 CENTS.

Edited by members of the Department of Law of the University of Pennsylvania under the supervision of the Faculty, and published monthly for the Department by BOYD L. SPAHR, Business Manager, at S. W. Cor. Thirty-fourth and Chestnut Streets Philadelphia, Pa. Address all literary communications to the EDITOR-IN-CHIEF; all business communications to the BUSINESS MANAGER.

DEPARTMENT NOTES.

Election of Professor Mikell, December 2, 1902.-William E. Mikell, assistant professor in the Law Department of the University of Pennsylvania from 1899 to 1902, has been appointed a full professor in the department. Born in Sumter, South Carolina, to which state his ancestors came from England in 1682, Mr. Mikell was educated in the South. He was graduated from the Military Department of the University of South Carolina in 1890, with the degree of Bachelor of Science, afterwards taking a special course in law at the University of Virginia, under the eminent John B. Minor. In 1894 he was admitted to the bar of South Carolina, but two years afterwards came to Philadelphia and engaged in legal work. In 1897 he was appointed instructor in law. Since that time he has devoted himself entirely to his work in the Law School. In 1899 he was appointed assistant professor and took charge of the courses in

295

Criminal Law and Blackstone's Commentaries. In 1902 he was given charge of the course on Contracts of the second year. Mr. Mikell has recently published the first part of a compilation of Cases in Criminal Law; the second part is now being issued.

Resignation of Professor Carson, March 3, 1903.-Hampton L. Carson, LL. D., resigned his professorship March 3, 1903; he having accepted in January the appointment as attorney-general of the state of Pennsylvania. Mr. Carson was elected professor of law in 1895. From the fall of 1896 until the spring of 1900 he conducted the courses in Contracts. At this time the increasing pressure of his private practice compelled him to ask for a leave of absence. This was granted in the expectation that he would be able to return and take up his duties in the department. His appointment as attorney-general prevented the fulfillment of this expectation. His resignation was, therefore, accepted by the trustees, with expressions of regret and also with congratulations on his appointment.

Mr. Carson was born in Philadelphia about fifty years ago. He was educated in this city, being graduated from the College and the Law Department of the University of Pennsylvania. He immediately entered into the active practice of his profession and soon became well known for his ability as a lawyer and his eloquence as an orator. He has had a most varied practice, criminal as well as civil. For many years he was an active member of the law firm of Jones, Carson & Beeber. He is the author of the well known "History of the Supreme Court of the United States," and has also made many valuable contributions to the periodical literature of the law, notably the articles which have appeared from time to time in the pages of this review.

As an orator Mr. Carson has long been eminent, and has been called upon for addresses not only upon legal topics, but on occasions of historical and social importance. He has delivered addresses before many bar associations, and at college commencements. At Lafayette College, where he delivered the commencement oration in 1898, the degree of LL. D. was conferred upon him.

At the opening of the Law School Building in 1900 he delivered the dedicatory oration for Price Hall. He has been a most generous friend to the Biddle Library, to which he has donated a large number of valuable books.

RAILROADS REGULATION BY STATE-ABROGATION OF COMMON-LAW RULE AS TO FELLOW SERVANTS-VALIDITY OF CONTRACT EXEMPTING FROM LIABILITY UNDER IOWA STATUTE.O'Brien v. Chicago & N. W. Ry. Co., 116 Fed. Rep. 502 (Circuit Court, N. D. Iowa, C. D. June, 1902). This is a case decided under Sections 2071 and 2074 of the Iowa State Code and Chap

ter 49 of the Acts of the 29th General Assembly, Section 2071, headed, "Liability for Negligence or Wrongs of Employes,' which provides substantially, that every corporation operating a railway in the state of Iowa shall be liable for damages sustained by any person, including employes, and "no contract which restricts such liability shall be legal or binding."

Section 2074, headed, "Contract or Rule Limiting Liability," provides substantially that no contract shall exempt any railway company from the liability which would exist had no contract

been entered into.

Chapter 49 of the Acts of the 27th General Assembly amends Section 2071 of the Code by adding the provision that no contract of indemnity entered into prior to the injury, between the person injured and such corporation, shall constitute a bar to an action brought under the provisions of this section.

This action was brought by the personal representative of an "express messenger" killed in an accident brought about through the negligence of the defendant company's employes. Upon entering the employ of the express company the deceased had signed an agreement exonerating the company from liability for any injuries which might be sustained by him while in the employ of the company. By virtue of the contract between the express company and the railway company, this agreement had accrued to the benefit of the defendant company.

Upon demurrer the question arises whether this agreement is a legal bar to the right of action declared on by plaintiff, and, in view of these legislative enactments, it was held by Judge Shiras, judge of the 8th U. S. Circuit, Northern District of Iowa, that it was not.

The case is important as deciding: (1) The right of a state through whose legislative consent alone a railroad company derives the right to construct and operate a railroad within its territory, to attach to such consent conditions for the protection of the lives of its citizens, though employes of the railroad, and as one of such conditions, to abrogate as to railway companies, by a general law applicable to all companies operating roads within the state, the common law rule which exempts a master from liability for injuries resulting from negligence of fellow servants.

(2) The validity of a contract exempting from such liability under the Iowa statute.

On the authority of Railway Co. v. Voight, 176 U. S. 498, 1900, it is settled that one occupying the position of an express messenger, under the circumstances surrounding deceased at the time of his death, cannot be considered a passenger, but occupies the position of an employe of the railway company. In this case it was said: "That the relation of the express messenger to the transportation company seems to us to more