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and she broaght action to recover damages. Held, that it was not sufficient
for plaintiff to allege a failure merely, on defendant's part, to select competent
servants, but she should have charged a want of care and diligence in the
selection of defendant's servants ; also that the mere allegation that defendant
allowed its employees to neglect their duties, and to suffer and cause deceased
to be injured, was not sufficient to charge liability on defendant. lb.

26. The plaintiff, a deck hand on the steamboat A., was injured by the

explosion of the boiler of the steamlxMit R., while the boats were near each
other. The defendant was owner of the steamboat A, but had an agreement
with the owner of the steamboat R. that each should employ the men and
manage his own boat, and at the end of the season the profits of the boats
should be divided between them. In an action to recover damages for such
injury, held, (1) that the defendant and the owners of the R. were partners,
and each responsible for the negligence of the officers and crew of eacli boat ;
(2) that the plaintiff and the crew of the R. were not fellow-servants within
the rule exempting the master from liability for injuries sustained by a fellow,
servant 1870. Omiu^jr v. JDa«<(ii(>» (15 Minn. 519), U, 154.

27. sfTldAiio*. In an action by a servant against the master, to recover

damages for injuries occasioned by the negligence of a co-servant, held, that
evidence of particular acts of carelessness and negligence on the part of the
co-servant was admissible to show that the master had reuined said co-servant
in his service after he knew, or ought to have known, that said servant was
careless and negligent. 1871. PitUburg, Fori Wayne, ete,, R, R, Co. v. Ruby
(88 Ind. 294), X, 111.

28. A x«o«iv«r operating a ndlroad is answerable in his official capacity for
an injury to a servant employed on the railroad by reason of the negligence of
the receiver, or the negligence of his agents in a position superior to that of
the servant ; and in determining the receiver's liability and the servant's right
to recover, the same rules are to be observed as would be applicable were the
company exercising the same powers of operating the road. 1870. Meara*9
Admr. v. Holhrook (20 Ohio St. 187), V, 638.

29. For i^tnrlM from defeotlTe machinery and applianoei. The legal impli-
cation is, that the employer will adopt suitable instruments and means with
which to carry on his business, and where injuries to servants or workmen hap-
pen by reason of improper and defective machinery and appliances used in the
prosecution of the work, the employer is liable, provided he knew or might
have known, by the exercise of reasonable care, that the apparatus was unsafe
1870. Gibson v. Paeifle R. R. Co. (46 Mo, 168), II, 497.



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252 MASTER AND SERVANT.

30. An employee of a railway company cannot recover for an injury

Bastained ]i>y reason of an -alleged defective brake, anless it is shown that the
company was negligent, either in providing the machinery which caused the
injury, or in selecting the mechanics whose duty it is to keep it in good order.
1870. Wond&r v. Batimore and Ohio E. R, Co, (82 Md. 411), lU, 143, and naU,
147.

31. Plaintiff was injured, while in the discharge of his duty as brake-
man of a freight train, by an awning projecting from a station-house, to the
daugerons position of which the attention of the company's agent had been
called. In an action against the company, it did not appear that plaintiff knew
of the danger. Ifeld, that he could recover ; but that $10,000 was excessive
damages, the loss of an arm being the extent of the injury. 1869. llUfiau
Central R, R. Co. v. WelcJ^ (52 lU. 188), IV, 598.

32. A release of all claims arising from the injury, signed by the brake-
man, in consideration of a small sum, would be a bar to an action, unless
obtained by false representations, lb.

33. A brakeman on a railroad, in the discharge of his duty, while des-
cending a defective ladder on a freight car, fell, and was crushed by theenginey
so that amputation of his legs was necessary. Held, that the company was
liable unless the brakeman was negligent, or anless he knew, or might have
known of the defect in the ladder, which was a question for the jury ; but that
$18,000 was excessive damages, because, after deducting expenses, this sum,
at interest, would produce, annually, more than the brakeman could have
expected to earn, had he not been disabled. 1870. The Chicago d Northwest-
&rn RaUway Co. v. Jackson (55 111. 492), VIII, 661.

3^ Where business is dangerous. The plaintiff was a boy fourteen years
old, employed in defendant's factory to tend machinery, and on the second day
of his employment, while standing in his proper place, tending a drawing-
machine, his left hand was caught in the cogs of a machine standing in dan-
gerous proximity, and badly injured. Held, that instructions to the jury
embodying the following principles were correct : That, if plaintiff was of
sufficient age and intelligence to understand the nature of the risk to which he
was exposed, and had reasonable notice of the dangerou.^ nature of the service
which he was performing, the defendants were not Mable; but that, if the
defendants knew or had reason to know the peril tu which plaintiff was
exposed, and failed to give sufficient or reasonable notice of it, and if
plaintiff, without negligence, from inexperience, or reliance upon the direc-
tions given him, failed to perceive or appreciate the danger, and was injured
in consequence, the defendants were liable. 1869. Coomb$ v. Ifeuf Bedford
Cordage Co. (102 Mass. 572), III, 506.

35. Bnrdeu of proof — presumption of care. Plaintiff's intestate, a brake-
man on a freight train, was killed on defendant's railroad. The accident
occurred while deceased was assisting in making what is termed a " flying
switch," which is considered extra hazardous. Deceased was seen to stand
upon a car for the purpose of uncoupling it while in motion, and immedi-
ately afterward his lifeless body was found under the advancing cars-



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MASTEB AND SERVANT. 253

There was no evidence as to what took place daring the interval; bat it
appeared that the car on which the deceased stood was not sapplied with
the usual ladder or handle. Held, (1) that plaintiff was not bound to raise,
by his proof, more than a reasonable presumption of negligence on the
part of defendant, and that if it appeared that the brakeman, by the exer-
cise of due care, had from time to time discharged his duty without injury,
this might raise a fair presumption against defendant, and it would be for
it to show that his negligence or some circomstance which it could not
control contributed to or caused the accident ; (2) that it was a question for
the jury as to how deceased got under the cars, or what caused him to fall, and
they might presume care and caution on his part to save himself from harm ;
(8) ** that if the danger or defect was known to the employee, or might have
been known by the use of ordinary care, and there was no inducement to
remain, by promisee to remove, secure or remedy the same, it would seem but
reasonable that he assumed the risk and should not recover.'' 1870. Oreen-
IsqfY, IlUnoii Central R. R. Co. (89 Iowa, 14), IV, 181.

36. For i^Jorias raoeiTed by one while aiding serrant. At a station
where defendants' train of cars had stopped, the engine, tender and one car ran
down to the water-tank in charge of the fireman, who asked a boy ten years
old, standing there, to put in the hose and turn on the water. While the boy
was climbing upon the tender to comply with the request, some detached cars
belonging to the train came down with ordinary force, and struck the car next
to the tender, whereby the boy was thrown down and crushed to death. In an
action by the parents of the boy, held, that the defendants were not liable.
1871. Flower v. I%e Penntyhania R, R.Go,(Q» Penn. St. 310). VIII, 251.

37. The conductor of a train ordered a boy standing by, and who was

not in the employ of the railroad company, to uncouple the cars. The boy
refused, but on being threatened by the conductor, uncoupled the cars, and in
doing so was ii^ured. Held, that the railroad company was not liable. 1878.
New Orleane, etc, R, R. Co, v. Barriecm (48 Miss. 112), XII. 856.

38. Where a minor agreed to work for a oertain time and not to leave
without giving two weeks' notice, but did leave without giving such notice,
held, that the damage occasioned the employer could not be deducted from the
wages. 1870. Deroeher v, ConUnental MUU {58 Me, 217) AV^^iOfi.
See COHSPIBAOT ; Nuibancb.

MECHANICS LIEN.

State laws giving a lien on vessels for labor performed and materials fur

nished in their construction are constitutional, and the enforcement of such

liens belong to the Sute tribunals. 1868. Fheter v. The Riehard Bueteed (100

. 409), 1, 125; Sheppard v. SleeU (48 N. Y. 58), lU, 660.

See Baju lb uftct; Jubibdiction.

MERCANTILE AOENCT— 6Sm Slakdbr ahd Libkl.

MILLS AND MILL OWNERS— /S^ Wateb and Wathb^x>ur8V8.



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254 MINES — MOBTGAGES.

MINEa
Bj a decree in partltioii, th« mahkoe of an estate containing a ooa)
deposit was severed from the trnderljing mineral, and the parte were allotted
to different heirs without limitation. HM, that the mineral-owner was liable
to the snrface-owner for injury to buildings, etc, upon the surface, caused bj
not leaving proper supports in mining the coaL In such a case all the coal
belongs to the mineral-owner, but the maxim iie utere tuo ut alienum non
kddoM applies. 1871. Jone$ v. Wagner (66 Penn. St. 429), Y, 885.

MISTAKE.

L Pa3riii«nt mder mistake of ieots. Where monej is paid bj apartj under
the belief that facts are different from what thej actuaUy are, and the partj is
not in truth bound to paj the money, he is entitled to have the same refunded
if duly diligent in giving noUoe of the mistake. 1869. Oitmmu' Bank of BtA-
Hinore v. GfrajfUn 031 Md. 009), 1, 66.

2. A Tolantary payment, with a knowledge of all the Im^ cannot be
recovered back, although there was no dtfbt ; a payment, under a mistake of
fact, may. 1878. il(iafiM v. i{MeM (68 N. G. 184), XU, 637.

3 If one, knowing that he has no daim upon another, sues out legal pro-
cess against him and seizes his person or property, and the defendant, acting
upon the false representations of the plaintiff, and not being able at the time,
by reasonable diligence, to know or to prove that such repreeenta(Cions are
false, pays the demand, he may recover it back in a subsequent action. Jb,

4. In an notion for the pnroiiase pfioe of land, where the defendant set
up as a defense that the land conveyed was not the land which he intended
and agreed to purchase, a charge to the jury, that, if the defendant was negoti>
ating for one thing and the plaintiff was selling another, and their minds did
not agree as to the subject-matter of the sale, there would be no contract by
which the defendant would be bound, though there was no fraud on the part
of the plaintiff, is correct. 1869. Kyle v. Kavanagh (108 Mass. 856), IV, 500.

MORTeAOBS.
I. Of real estatb.
n. Of pebsonal profsbtt.

I. Of real estate.

1. Parol evldenoe. Where a mortgage is given for a specified sum. It is com-
petent to prove by parol evidence that it was given to indemnify the mort-
gagee for becoming security for the mortgagor on a note. 'l870. Kimball v.
Myers (21 Mich. 276), IV, 487.

2. When deed absolute is mortgage — parol evldenoe. Plaintiff bought
land with money borrowed from the defendant, and then conveyed It to defendant
by deed absolute ; but both parties understood that the conveyance was intended



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MORTGAGES. 255

as securitj for the loan. Held, that on parol proof of these facts plaintiff was
entitled to maintain a bUl in equity to redeem the land as from a mortgage.
1872. Ccmpbea y. Dearborn, (109 Mass. 180), XII, 671.

3. A deed absolute on its face but made to secure the payment of

money is in efl^ct a mortgage. 1870. Klink v. Ptim (4 W. Va. 4), VI, 268.

4i A mortgage does not conTey the legal title, and a defendant in eject-
ment cannot set up a mortgage with which he Is not connected as an outstand-
ing Utle. 1870. Woodsy. Hilderbrand(AR Uo,^M),ll,^l%.

6. A mortgage Is not within the clause of a fire policy prohibiting, without
consent, any change in the title or possession of the property, whether by
sale, voluntary transfer or oonveyance. 1870. Hartford Fire Ins. Co, ▼. Waish
(54 111. 164), V, 115.

6. Action by mortgagee^ A mortgagee without possession or right of pos-
session cannot maintain an action of trespass qiutre elausum fregU, against a
stranger for breaking and entering the mortgaged premises. 1869. Gooding
▼. 8hea (108 Mass. 860), IV, 568.

7. A second or third mortgagee, though not In possession, nor having

the right of possession, may maintain an action against a stranger to recover
the value of fixtures by him removed from the mortgaged premises, without
regard to the sufficiency of his security, and although the mortgagor had sued
defendant for the same act. lb,

8. AssnmptiOA by mortgagee of prior mortgag«i A. deed, which was in
equity a mortgage, contained a stipulation whereby the mortgagee assumed
and agreed to pay a prior mortgage. Held, that after the cancellation and dis-
charge of the second mortgage, the prior mortgagee could not enforce the
stipulation against the second mortgagee. 1872. Ghrns^g v. Rogers (47 N. T.
288), Vn, 440.

9. Notice to mortgagee of tax sale. The mortgagee, being the legal owner
of the land mortgaged, is the person to whom notice must be given by the
sheriff of a levy ai^d sale of such land for unpaid taxes. 1878. WkUehurst ▼.
Goiilitf (69 N. C. 449), Xn, 655. .

la Release of part of mortgaged premises. A mortgage upon several lots
is a common burden, and if the mortgagee, with knowledge that the mortgagor
has aliened a portion of the lots, releases one of the other mortgaged lots, he
thereby discharges the aliened lots to the extent of the pro rata value of the
portion released. 1869. laylor v. Short (27 Iowa, 861), 1, 280.

11. But if the mortgagee could show that the mortgage was no lien on

the released part, and that the owners of the other portion sustained no injury
by such release, it would be otherwise. lb.

12. Merger — unrecorded assignment — priority of liens. J. M. gave a mort-
gage on real estate to M M., who, on the same day, duly assigned it to plaintiff .
Subsequently, and after maturity of the mortgage, J. M. conveyed in fee the
same premises to M. M., the mortgagee. M. M. thereafter conveyed the
premises to the defendant. The mortgage was duly recorded soon after Its
date. The assignment and the deed from J. M. to M. M. were not recorded



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256 MORTGAGES.

until after the date of the conveyance to the defendant. Nor was the asedgn-
ment recorded antil after defendant's deed. In an action to foreclose the mort-
gage. hM, (1) that the oonyejance of the mortgaged premises to the mort-
gagee did not merge the mortgage ; (2) that the defendant was not entitled to
protection as a bona fide purchaser without notice of the assignment ; and (8)
that the lien of the plaintiffs mortgage was not invalidated bjr reason of his
neglect to have the assignment recorded until after the recording of the deed to
the defendant. 1870. Purdy v. EuntingUm (42 N. Y. 884), I, 532,

13. 'Wher« property has been leased subsequent to the execution of a
mortgage thereon, the mortgagee on entry for condition broken may treat the
tenant as a trespasser and bring ejectment even without notice : but if the
mortgagee receives rent from the tenant the relation of landlord and tenant
will be created between them, but the tenancy will only be from year to year.

1871. QarUide v. Outley (58 111. 210). XI, 59.

14i Lessee of mortgaged premises holding over by -virtue of mortgage^
L. sold his premises to S., but remained in possession, under a lease from S., to
expire on the 1st of April following, and^ook a mortgage on the premises from
S., conditioned for the payment of $4,000 purchase-money on or before the Ist
of April, being the date of the expiration of the lease. At the expiration of
the lease L. held over by virtue of the mortgage, payment of which was not
tendered until after the time named, and then refused. Held, that a formal
entry under the mortgage was not essential ; that the unaccepted tender, after
the time named for payment, did not terminate the estate of L. under the mort-
gage, nor extinguish the lien thereof ; and that L. could not be ejected. 1869.
8hiM9 ▼. Lazea/r (84 N. J. 496), m, 256.

16. Of railroad. A railroad company authorized by their charter to mort-
gage "all or any part of their road, property, rights," etc., executed and
delivered a mortgage of "all the road, property, rights," etc, "now held or
hereafter to be acquired." Held valid as to subsequently acquired property.
1870. PhUadei/phia, WUmingUm db Baltimore R, R, Co, v. Wodpper (64 Penn.
St. 866), III. 596.

II. Of PER80KAL PROPERTY.

16. Possession by mortgagor with power to selL A mortgage of gooda
containing a provision allowing the mortgagor to retain possession of them»
and to sell them ** in the usual retail way," but requiring him to " pay over
the money received therefor to the mortgagee as the goods are sold," is, npou
its face, a valid mortgage. Brinksrhoff, Ch. J., and Welch, J., dissented.
1870. KUine v. KaUenb&rger (20 Ohio St. 110), V, 680.

17. A mortgage by a buggy-maker of "ten new buggies," without deliverj
of possesfiion, he having more than ten on hand at the time, held, ineffectual to
pass title to any particular buggies or to any interest in tbe buggies on hand ;
and the mortgagee cannot maintain an action for the recovery of ten new
buggies in the possession of the mortgagor, or his personal representative.

1872. Blakely v. Pdiriek (67 N. C. 40), XII, 600.

18. Sale of mortgaged property — oonTorsion. A mortgagor of chattels in
possession has a right before default to sell and deliver the mortgaged property



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MORTGAGES - MUNICIPAL CORPORATIONS. 257

subjbct to the mortgage, and if the purchaser dispose >f it again before default
in payment, and before demand of possession, he wil not be liable for conver-
Bion. 1870. Hathaway v. Brayman (42 N. Y. 822), 1, 624.

19. A chattel mortgage contained a condition that if, at any time, the

mortgagee should feel himself *' unsafe " or "insecure," he might take imme-
diate possession of the property wherever it could be found. The mortgagor,
without the knowledge or consent of the mortgagee, sold the property to an
innocent yendee. In an action by the mortgagee against the vendee to recover
the property, hM, (1) that trover would lie ; (2) that the mortgagee need not
prove, as a condition precedent to his recovery, that other property covered by
the mortgage was insufficient to satisfy the debt, or that he had been unable
to reduce such other property to possession ; and (8) that the question, whether
the mortgage was duly acknowledged and recorded, should not be submitted
to the jury. Lawbbnob, Ch. J., McAllister and Thobitton, J J., dissented.
1870. BaUey v. Godfrey (54 111. 607), V, 157 ; see Hathaway v. Brayman, supra,

20. Discharge in bankruptcy. The defendant gave the plaintiff a mortgage
on his household furniture, and afterward filed his petition for discharge in
bankruptcy. Under an agreement between the creditors and the mortgagee,
that portion of the furniture exempt by law from the operation of the bank-
rupt act was separated from the rest, and duly set off to the bankrupt by the
assignee. The mortgage was declared fraudulent as against creditors, and the
proceeds of the furniture not exempt were realized by the assignee. The
mortgagee never proved his debt in the bankruptcy proceedings, and the bank-
rupt was discharged. HM^ that the discharge did not affect the mortgagee's
right to hold the property thus set off, and that he might replevy it. 1870.
Tuedey ▼. BoHman (108 Mass. 668), IV, 676.

See Bankruptcy ; Insttrakcs ; Pre-emption ; Railroads ; Uburt.

MUNICIPAL CORPORATIONS.
L General and miscellaneous principlbs.
n. Bt-laws and ordinances.
ni. Rights and LiASiLrriEs.

1. As to struts and highways.

2. Sewers,

8. Fire department.
IV. Assessments for local improvements.
V. Municipal aid to railroads.

I. QSNKRAL vAND MISCELLANEOUS PRINCIPLES.

1. Acts creating municipal corporations are public acts, of which courts will
take notice without proof, 1871. PrsU v. McDonald (7 Eans. 426), XII, 428.

2. The acceptance of a special charter by a municipal corporation, authoriz-
ing it to perform a strictly governmental duty, does not create a contract
between the corporation and the State that it shall be performed, nor make the
corporation liable for an omission to perform, or a negligent performance of it.
187L Hewison v. City of New Haven (87 Conn. 475). IX, 842.



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258 MUNICIPAL COEPORATIOXS.



3. Thm U^hUtiiii hm bo pofwvr to compd a m«dci|Md oarpm mikm to imtmi
a deU for local i mpw fgmcuU, without its eoonai. 1889. PmpU t. Mm^^r^
0U^ €f Ckieaffo (51 m. 1 7). H, 278.

^ TighMag kigk w aya . Gbies and towns are mder ao obUgatioa to JIgkt
bighwajB at night. 187L BmrndaU t. BuMem Bmlrmd C0. (108 MaM. 27f]^
Vm,327.

5. Niiaairn A town eovinefl baa no power to order the deiiioliti<m of a
bailding aa a noiaanee, i^ere the nniaaace ia not canaed bj the erectioB bat
bj the peraona who reaort thithflc 1868. JKZZn-T. J9«rc&(32Tex.90e),T,3«t

6. DniaiDg land. Where a mnnidpal corporatioB ia proceeding to drain its
landa bj the oonatraction of artiikial fhannela in the directifMi of land adjoin-
ing the corporation, to the permanent injory of sodi adjoining^ land, the owner
thereof may restrain the eonatmction of anch <^>^iiii^i« bj injonctioo. 1870.
Pettigr^w r. BcanniOe (25 Wia. 223), m, 5a

7- A municipal corporation can aoqoiie the right to turn a stream of

water upon the landa of another, to the injory thereof, onlj by an exerdae of
the power of eminent domain. lb.

8. Wbarrea. The charter of a city aathorixed it to establish wharres and
pablic landings, to fix the rate of wharfige and to regulate the anchorage and
mooring of all boats within the dty. Hdd^ that the city had the power to
forbid a person owning a lot abutting npon a riTer, and upon which no wharf
or public landing had been established, to use sach lot sa a wharf or l^iutiwg
without permission of the dty and the payment of wharfige. 1871. (Xsf tf
JhOmque r. Stout (32 Iowa, 80), Vn, 171.

9. Iflaxketa — oootraot agsinat poblio pottcy. The pUintilTooBtTacted with
the authorities of a village to build a market-house, and to put it under their
control for ten years, in consideration that they would pay over the rents
thereof to him, appoint a person to superintend it, permit no other market-
house to be erected or used, nor certain artides ppedfied to be sold elsewhere
in the Tillage during the said ten years. In an action for breach of contract,
held, that the said contract was against public policy and Toid. 1871. O^ v.
TheViUage of Kalamazoo (28 Mich. 344), IX, 80.

10. Whsa a town ia dMded and a new town created out of a part of the
territory, the latter is not bound to contribute toward Uie payment of debts
contracted before the division, in the absence of any statute to Uiat effect.
1872. Town cfDepere v. Town o/BelUtme (81 Wia. 120), 21,608, and noU,m>L

It. PnbUc aqnarea. A dty holds title to its pablic squares m tmM for the
public, and they are not liable to sale on execotiona against the corporation for
its general indebtedness. 1870. Bantom v. Bool (29 Iowa, 68), IV, 105.

12. By an exerdae of the right of eminent domain, the legislatare may

confer upon a dty the power to acquire absolute title to land for a public
park, on compensation made to the owners, but the dty holding the land in
trust for the public cannot convey it without legialative sanction ; and an act
of the legislatare aatiiorising sach conveyance is valid, onleas it operates to
divest the lien of Ixmds for the payment of which the land is pledged, in which



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MUNICIPAL OOBPORATIONS. 259

CMe it U unoonttitational and void m impairing the obligation of oontraotf .
1871. The Brooklyn Park OonmiuUm&rs v. ArmHrang (46 N. T. 284), VI. 70.



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