withstanding this very lien might be upset, generally speaking, in favor of the trustee.

This is on the theory that by statute, possession is conclusive evidence of property, where there has been no recording so far as creditors are concerned.

There is next referred to § 47a, clause 2, which provides that a trustee "as to all property in the custody of the bankruptcy court shall be deemed vested with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings." Does this provision travel back through the preferential period or not? The court ruled that it did not, as "the purpose of the law was to fix the line of cleavage with reference to the condition of the bankrupt estate as of the time at which the petition was filed."

It must be conceded that this is true generally, but the question here was of exceptional instances of transfers within the preferential period. These are embraced by relation forward so as to come within "the condition of the bankrupt estate as of the time at which the petition was filed. Possession is evidence conclusive of title until recording and recording was not to cut out the whole or a part of that relation period.

It seems strange that this would depend upon state construction as to whether such contracts were regarded as conditional sales or as transfer of title with mortgage back. Bankruptcy act regarded in a practical way ought not to take into account a refinement like this, especially as by this ruling, there is not recognized the presumption of property in the bankrupt by the failure of the conditional vendor to record his contract.

We repeat that failure to record so far as ordinary creditors are concerned, virtually makes possession conclusive as to title, but the ruling is that this is not so as to a trustee in bankruptcy. Therefore it is a little hard to see that the trustee is given the rights of a creditor claiming a lien.

NOTES OF IMPORTANT DECISIONS.

CRIMINAL LAW.-CONVICTION OF LOWER KINDRED OFFENSE CHARGED IN INDICTMENT South Dakota statute provides that "the jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an intent to commit the offense." Under an indictment charging a defendant with the crime of assault with intent to do great bodily injury, no battery or personal violence was charged. Defendant was convicted of assault and battery and the Supreme Court of that state sustained the conviction. State v. Cotton, 155 N. W. 8.

This conviction was in accordance with instructions by the trial court, and the Supreme Court affirms the case upon the theory that though "battery" was not necessarily included in the indictment, but a simple assault was, yet as the statute prescribes the same maximum punishment for an assault as for an assault and battery, a verdict for the latter offense "could not, in any possible manner, prejudice the legal rights of the accused. Whether the unauthorized verdict finding the accused guilty of a crime not charged be called surplusage (as contended) is immaterial. It is merely void and cannot prejudice any of appellant's legal rights."

*

The logic of this decision is that one may be charged with a simple assault and be found guilty of another offense, if it fortuitously happen that the punishment for the two is the same. Assault and assault and battery are two as distinctly different offenses as are burglary and larceny, and while there may be burglary with intent to commit a felony, we do not think it true that under indictment, say for burglary with intent to commit a felony, e. g., rape, a defendant could be convicted of intent to commit rape.

That, however, would not be going quite as far as the South Dakota court goes in this case. There is an unlawful intent in an unlawful assault, while in assault and battery intent is swallowed up in criminal execution. To say assault and battery is but a form of speech, as unlawful battery comprises assault as part and parcel of the battery. There could be no battery without the assault. But, if the statute said assault and unlawful battery should be punished in the same way, it would be more evident instruction should not have told the jury the defendant could be found guilty of battery as an inclusive offense, when noth

ing but an assault was charged. Instructions are, in principle, deemed harmless when they are calculated to divert the jury to the consideration of an offense as to which a defendant is not on trial.

EMINENT DOMAIN-DAMAGES INCREASED BY USE OF PROPERTY WITH OTHER PROPERTY.-The question of proper elements in damages was considered in a condemnation case in the Federal Supreme Court, City of New York v. Sage, 36 Sup. Ct. 25.

It was said that "upon an inspection of the record it appears to us, as the language of the commissioners on its face suggests, that their report does not mean that the claimant's land had a market value of $11,948.90that it would have brought that sum at a fair sale-but that they considered the value of the reservoir (for which it was taken) as a whole and allowed what they thought a fair proportion of the increase, over and above the market value of the lot to the owner of the land."

Holding this view erroneous, the court goes on to say: "The decisions appear to us to have made the principles plain. No doubt, when this class of questions first arose, it was said in a general way that adaptability to the purpose for which the land could be used most profitably was to be considered; and that is true. But it is to be considered only as far as the property would have been offered for sale in the absence of the city's exercise of the power of eminent domain. The fact that the most profitable use could be made only in connection with other land is not conclusive against its being taken into account, if the union of properties necessary is so practicable that the possibility would affect the market price. But what the owner is entitled to is the value of the property taken, and that means what it fairly may be believed that a purchaser in fair market conditions would have given for it in fact-not what a tribunal at a later date may think a purchaser would have been wise to give, nor a proportion of the advance due to its union with other lots. The city is not to be made to pay for any part of what it has added to the land by thus uniting it with other lots, if that union would not have been practicable as has been attempted except by the intervention of eminent domain. Any rise in value before the taking, not caused by expectation of that event, is to be allowed, but we repeat, it must be a rise in what a purchaser might be expected to give."

This rule of damages would seem, or might be, difficult, sometimes to work out. It would

be easier where an entire tract under one ownership was to suffice for the whole taking contemplated. If there are separate ownerships the condemnation of some, or the contemplated condemnation of some, legitimately might appear to enhance the profitable use of other parts. If untaken property increases in price in view of a contemplated public work, why should not that which is taken? All market conditions are not what in ordinary times could be considered "fair," so far as in and about the contemplated improvement is concerned.

PRINCIPAL AND SURETY-RULE STRICTISSIMI JURIS NOT APPLICABLE TO CORPORATE SURETY.-In McKegney v. Illinois Surety Co., 155 N. Y. Supp. 1041, decided by Appellate Division of New York Supreme Court, it was held, that requirement that notice of default of principal should be sent by registered letter to the home office of a foreign corporation within 48 hours afterward, did not on failure so to do prevent recovery, where notice by ordinary mail was sent to its New York office within such period, this ruling being by three of the five judges, two dissenting.

*

The trial court's ruling in favor of the surety company was said to have "pushed the rule of strictissimi juris too far," because "the purpose of the clause * is to insure prompt notice to the surety of a default on the part of the contractor. Just how the notice is given is immaterial, so long as it is given and is received within the time specified in the contract." The objection was spoken of as being "too meticulous and frivolous to warrant serious consideration."

It is said, quoting from U. S. F. D. Co. v. U. S., 191 U. S., 191 U. S. 416, that "the rule of strictissimi juris is a stringent one and is liable at times to work a practical injustice, and ought not to be extended to contracts not within the reason of the rule, particularly when the bond" is undertaken for a profit.

But the dissentients contend that the requirement did extend to the contract by express agreement and the principle invoked has nothing to do with this case, the surety company at least having the right to contract in regard to "when, where and in what manner the notice should be given," and we do not see why it could not make something otherwise not a matter of substance to become such. It was fair, however, for the majority to construe the clause and say what was its purpose. The words of this clause seem, however, so plain as not to call for construction.

THE DOCTRINE OF SIMPLE TOOLS.

Introductory. In the consideration of this subject one should bear in mind that no person is ever relieved of the duty to exercise reasonable care, in the circumstances of the given situation, for the safety of others who are acting within their rights and whose safety may be endangered by his conduct; and that an employer is not excepted from this rule. The employer is required at all times, and in all circumstances, to exercise reasonable care for the safety. of his employes. What this requires of him in a given instance depends upon the circumstances-the dangerous character of the tools and appliances with which his employes are required to work. For instance, in the case of very dangerous appliances, the employer is required to take a great many precautions to guard his employes against being injured; while in the use of common, simple tools his duties are few and easily performed.

Duty of Employer Generally.-There can be no doubt that it is the duty of the employer to exercise ordinary care to furnish his employes with reasonably safe tools, and to exercise ordinary care to maintain them in a reasonably safe condition, regardless of whether they are, or are not, simple tools.1

The contrary, however, has been held in the following language: "The 'common' tool rule may be said to be a relaxation of the general rule, which makes it the duty of a master to exercise reasonable care to provide reasonably safe tools and appliances for his servants, since the general rule has no application where the tools and appliances furnished are of simple nature, easily understood, and in which the defects, if any, can be easily and readily observed by the servant. It is only in cases of machinery and appliances which are recognized as being in their nature dangerous to employes using them, that the employer

* * *

(1) Harris v. Kansas City S. R. Co., 146 Mo. App. 524, 124 S. W. 576; Philip Carey Roofing & Mfg. Co. v. Black, Tenn., 1914, 164 S. W. 1183.

owes the duty to the employe of looking out for his safety."2

The Missouri case of Harris v. Kansas City S. R. Co., supra, after laying down the rule in accordance with the view first above stated, continued as follows: "Unless: it be in a case where the appliance and the contemplated use thereof are so very simple and commonplace that an ordinarily prudent person would not reasonably anticipate the danger entailed." These facts, however, merely bear upon the question of what constitutes reasonable care, and not upon whether reasonable care is a duty owed to the employe.

Duty and liability must be distinguished in this respect. The employer may be relieved from liability for a negligent act by the contributory negligence of the injured employe, but his duty was and is the same regardless of the question of liability.

Duty of Employer to Inspect Simple Tools.-The general rule is that an employer is required, not only to exercise ordinary care to provide reasonably safe and suitable tools and appliances for the use of the servant in the first instance, but to make such reasonable inspection thereof from time to time as the nature of the use and the character of the tool or appliance may require to keep it in reasonably safe condition for their intended use."

However, the courts have adopted, as an exception hereto, the rule that employers owe no duty to inspect simple tools.*

It is held to be a part of the doctrine of assumption of risks that the duty of in

(2)

Ohio Valley R. Co. v. Copley, Ky., 1914, 166 S. W. 625. (3) Sullivan v. Indianapolis, C. & W. Traction Co., Ind. App., 1914, 103 N. E. 860.

(4) Herricks v. Chicago & E. I. R. Co., 257 Ill. 264; Stirling Coal & Coke Co. v. Fork, 141 Ky. 40, 131 S. W. 1030, 40 L. R. A. (N. S.) 837; Cooney v. Portland Terminal Co., Me., 1914, 92 Atl. 178; Wachsmuth v. Shaw Electric Crane Co., 118 Mich. 275. 76 N. W. 497; Koschman v. Ash, 98 Minn. 312, 108 N. W. 514, 116 Am. St. Rep. 373; Miller v. Erie R. Co., 21 App. Div. 45, 47 N. Y. Supp. 285; Chicago, R. I. & P. R. Co. v. Lillard, Okla., 1914, 141 Pac. 8; O'Brien v. Missouri, K. & T. R. Co., 36 Tex. Civ. App. 528, 82 S. W. 319; Bougas v. Eschbach-Bruce Co., 77 Wash. 347, 137 Pac. 472.

spection by an employer, of the appliances used by his employes, does not extend to the small and common tools in every day use; "of the fitness of which the employes using them may reasonably be supposed to be competent judges."5

In Longpre v. Big Blackfoot Milling Co." the court said: "It is not the duty of a

The

railroad company or other persons engaged in great industrial enterprises to inspect, much less to test, every tool or appliance put into the hands of an employe. This duty arises only when the appliance is of such a character that a man of ordinary prudence would, under the same circumstances, make the inspection as a precaution against injury to his servant. master is not required to inspect simple appliances, such as hammers, saws, spades, hoes, lanterns, push sticks, and the like, the character and use of which are understood by all alike. A tool of this class is so simple in its construction and so well understood by men of ordinary intelligence that it would seem absurd to say that the master should make a careful inspection of it before he commits it to the hands of his ser

plaintiff was that he should be deemed to have assumed it."

It has been held that an employer owes no duty to inspect a pick which was reasonably fit in the first instance.s

The duty of inspection, however, arises from the primary obligation to exercise ordinary diligence to provide safe instrumentalities. Whenever an inspection is fairly incidental to such diligence, it must be made."

The question is not whether the employer owes the duty of reasonable care, that duty he always owes, but whether the duty of reasonable care requires that inspection of the tools be made.

Duty of Employe.-The rule that all persons must exercise reasonable care for

their own safety applies to employes in the use of simple tools. This is the extent of his duty, however. He is bound to take notice only of defects open to the observation of a reasonably prudent person.10

He is not bound to look for hidden or latent defects or dangers or for those requiring special skill, for their detection, which he does not possess. He may rely upon the safety of the implements, machin

stand its character and uses that he himself has."

A carpenter, with four or five years' experience, was injured by a small piece of steel flying from the head of a chisel, which, with a hammer, he was using to cut rivets, and striking him in the eye. It appeared that he frequently used a chisel in the same manner, and that the head of the chisel was battered and "mushroomed." It was held that the employer was under no obligation to inspect the chisel, the condition of which would ordinarily be as apparent to an employe as it would be to an employer, and the risk of particles flying from a chisel when struck by a hammer would be so obvious to an ordinarily intelligent and experienced mechanic such as the

for his use in rendering the services contemplated by his employment, unless the defects and dangers are such as may be ascertained by an ordinarily prudent man in the exercise of ordinary care for his own safety.11

It has been declared that a cant hook is a simple tool or appliance, but that it could not be held, as a matter of law, that any defective condition thereof is so obvious that the employe using the same is charged with notice of it. "The defect," said the court, "might readily have been discovered if search had been made, but plaintiff was

(7) Cooney v. Portland Terminal Co., Me., 1914, 92 Atl. 178.

(8) Toth v. Osceola Consol. Min. Co., Mich., 1914, 146 N. W. 668.

In the case of Crader v. St. Louis & S. F. R. Co.1 it appeared that the plaintiff was injured by a particle of steel which flew from a pin maul, with which he was working, when it was struck by a hammer in the course of its use for the purpose intended. The court held that the doctrine of simple tools did not apply, "for the reason that the tool here in question inhered with a defect, if plaintiff's evidence be true, which plaintiff could not have discovered by such an examination thereof as he would be required to make to discover defects or insufficiencies therein."

In this respect the court continued: "There are many cases in which recovery has been denied the servant for injuries received by reason of defects or insufficiencies in common tools, as where the servant's means of knowledge was equal to or greater than that of the master, with respect

to the condition of the tool, or where the servant was charged with a duty to repair. But obviously the instant case does not fall within the principles governing such cases."

"The reason for exempting the master from liability in cases of this character rests upon the fact, well known to everybody, that deterioration being the necessary result of using a chisel, punch, cutter and similar tools for the purposes for which they are intended the duty of inspection and repair in such a case is incidental to the duty of the employes who use the tool in their common employment. The ordinary use of such a tool necessarily batters it, although that fact does not necessarily make it an unsafe tool."14

The foregoing reason for the rule is not at all satisfactory. The principles of law applicable to the use of simple tools are no different than those applicable to the use of other tools. The duty of inspecting tools, when inspection is necessary, is not taken from the employer and imposed upon the employe. The employe is under the duty only of observing such defects, and taking precautions against being injured thereby, as are obvious to him in the exercise of reasonable care.

The rule is evidently founded upon the fact, at least the supposed fact, that defects in a simple tool are obvious to all persons handling it, and if the employer was negligent in not discovering its defective condition and preventing its use by the employe, the employe was equally negligent, the defects being obvious to any prudent man, in failing to notice the condition of the tool and taking the necessary precautions against injury.

"The reason for the rule is that any

tools rule depends for its application upon the fact of an obvious defect, and not merely upon the fact of a common tool. The title of the rule, no doubt, is due to the fact that defects in simple tools are generally obvious.

Reason for the Simple Tools Rule.-The Court of Appeals of Kentucky has said:

(12) St. Louis, I. Mt. & S. R. Co. v. Brown, Ark., 1914, 169 S. W. 940.

(12) Mo. App., 1914, 164 S. W. 678.

would be as obvious to the servant as to the master, and the underlying reason in all the cases for holding the master accountable for injuries resulting from imperfect or defective tools and appliances is that the servant is ordinarily presumed to have no knowledge of the dangers incident to their use."15

(14) Ohio Valley R. Co. v. Copley, Ky., 1914, 166 S. W. 625.

(15) Vanderpool v. Partridge, 79 Neb. 165, 112 N. W. 318, 13 L. R. A. (N. S.) 668.