ter to comply with his statutory duty. In a strong dissenting opinion Judge Thayer takes an opposite view. St. Louis Cordage Co. v. Miller, 126 F. 495. As to whether acquiescence by the servant under the above conditions will be regarded in law as a waiver of compliance by the mas ter of a statutory duty, the courts differ. That there is no waiver and that the servant is entitled to recovery for an injury arising from the breach seems to be "the rule in England, Illinois, Indiana, Missouri, Wiscon sin and Tennessee. Some of these courts even hold that the servant's contributory negligence will not affect his recovery. On the other hand, the courts of Massachusetts, New York, Michigan, Alabama and Colo rado agree that the risk arising from the breach of a statutory duty can be assumed as readily as that resulting from a common law obligation. . . . It is submitted, that when a statutory duty is imposed on an employer for the protec tion of his servants, the better rule is that the servant does not waive compliance by the master, and assume the resulting risk by continuing in the master's service. The proposition is submitted on the following grounds: First, that the master is placed under a positive statutory duty which the servant has a right to presume will be per formed. Quackenbush v. Wisconsin Ry.; Railway Co. v. Archibald, 170 U. S. 665. Any disregard of this duty is not a mere omission, but a tort, as it is a direct violation of a positive law. The master is, therefore, guilty of a wrong before any injury accrues to his servant. It is contrary to principle to allow the master to take advantage of his own wrong when the injury does accrue, be cause there may have been a tacit acquies cence in the master's wrong on the part of the servant. The master ought not to be allowed to rely upon his own neglect of duty as a defense against injuries arising from such neglect, especially when the more mani fest the neglect, the more . certain the' de fense. Second, any other construction would be against public policy in that it would in effect nullify the statute. Durant v.
Lexington, 97 Mo. 62. The primary ob ject of the statute is to secure proper pro tection to employés. If we adopt the doc trine of waiver, "the statute would furnish the employé little protection. The mere refusal of the owner to furnish the safeguards provided by the statute would then be suffi cient to exonerate him from liability if the employe continued in his employment and sustained injury." Hochstetter r. Mosley, 8 Ind. App. 442. IN an article entitled "Corporation of Two States/' in the Columbia Law Review for June, Professor Joseph H. Beale, Jr., of the Harvard Law School, discusses several interesting questions. For example: When the consolidation of corporations of two States takes place not by means of a charter granted by a single State, but by permission given by both States, the posi tion of the corporation is rather difficult to determine. In neither State, it is clear, is it a foreign corporation. Since two States, as we have seen, cannot create a single cor poration, the consolidated body must at least constitute as many corporations as there are States concerned, each corporation being subject to the laws (as for instance those concerning taxation) of its own State, and having the powers of the constituent corpor ation of that State. And so where one of the States forbade a mortgage, such mort gage given by the consolidated corporation was void as to the property in that State. Are these separate corporations merely the original corporations, which by the con solidation have been permitted to form an extra-legal business combination, or is there in addition a new corporation, or rather a set of new corporations, each succeeding to the business of an old corporation without effecting a dissolution of it, or entirely super seding it? This question is not easy to an swer. It has been urged by high authority that the permission to consolidate, not being accompanied by a new charter from any one State, does not create a corporation; that the consolidated body formed in accordance with the permission of the States concerned
