2. FOREIGN GOVERNMENT BOND-RIGHT OF STATE TO PROHIBIT SALE OF.
When a foreign government bond is coupled with conditions and stipu
lations which change its character from a simple bond for the payment
of money of a specified amount to a species of lottery ticket, a state stat.
ute prohibiting the sale thereof does not violate treaty stipulations nor
constitutional provisions. Ballock v. State, 559.
- Any device whereby money or any other thing is to be paid
or delivered on the happening of any event or contingency in the nature
of a lottery is a lottery. Ballock v. State, 559.
4. EFFECT OF, ON NON-RESIDENTS.
A statute prohibiting the sale of lottery
tickets within the state operates equally and alike upon resident and
non-resident foreigners, and as to the latter, it does not violate treaty
or constitutional provisions. Ballock v. State, 559.
5. PRIZE PACKAGE- GIFT ENTERPRISE.
-A scheme by which packages of
coffee contain on either end a pasted slip of paper containing the words
99 66
'one plate," "one plate,' one saucer," and which, when detached by
the buyer of a package of coffee and presented to seller, entitles the
former to two plates and a saucer in addition to the coffee, is within the
meaning of a statute prohibiting "any scheme or device by way of gift
enterprises of any kind or character." Long v. State, 606.
1. MANDAMUS TO REVIEW ACTION OF COURT. — Mandamus will not lie to
compel a judge to hear and determine a motion for the restoration of
money to a prisoner, who has been deprived of it by an officer at the
time of his arrest, when the money has subsequently been attached in
the hands of the officer, and the attachment suit remains undecided,
and the motion to restore has been overruled, on the ground that the
court has no jurisdiction to entertain it. Ex parte Hurn, 23.
2. MANDAMUS PROPER TO COMPEL ELECTION OFFICERS TO DETERMINE TIE
VOTE BY LOT. Where election officers, after certifying the result of
an election to be a tie vote, adjourn without determining by lot the
person entitled to the office, they may be compelled by mandamus to
reassemble and take the action required by law. Johnston v. State, 412.
8. MANDAMUS WILL NOT ISSUE TO A PUBLIC OEFICER, UNLESS the duty to
be enforced by it is the performance of some precise, definite act, or is
one of a class of acts purely ministerial and in respect to which the
officer has no discretion whatever, and the right of the party applying
for it is clear, and he is without other adequate remedy. American
Casualty etc. Ins. Co. v. Fyler, 337.
4. MANDAMUS WILL NOT ISSUE TO CONTROL AN EXECUTIVE OFFICER in
discharging an executive duty involving the exercise of discretion or
judgment. American Casualty etc. Ins. Co. v. Fyler, 337.
5. MANDAMUS WILL NOT ISSUE TO COMPEL AN EXECUTIVE OFFICER to per-
form an act, when the duty of performing it depends on the construc-
tion of a statute, and the officer has construed it as not requiring him
to perform the act, though the court may be of the opinion that his
construction of the statute is incorrect. American Casualty etc. Ins. Co.
v. Fyler, 337.
6. MANDAMUS WILL NOT ISSUE TO AN INSURANCE COMMISSIONER to compel
him to admit a foreign insurance company to do business in the state,
if he is vested by the statute with a discretion respecting the admis-
sion, and has construed the statute as not requiring him to admit such
company, though the court may not agree with him in his construction
of the statute. American Casualty etc. Ins. Co. v. Fyler, 337.
7. DEFINITION. A MINISTERIAL ACT is one which a person performs in a
given state of facts, in a prescribed manner, in obedience to the man
date of legal authority, without regard to the exercise of his own judg
ment upon the propriety of the act being done. American Casualty etc.
Ins. Co. v. Fyler, 337.
8. MANDAMUS. - AN ALTERNATIVE WRIT OF MANDAMUS MUST SHOW
UPON ITS FACE a clear right to the relief demanded, and the material
facts upon which the applicant relies must be distinctly set forth, so
that they can be admitted or denied; otherwise the writ may be
quashed. American Casualty etc. Ins. Co. v. Fyler, 337.
See INJUNCTION, 2; PLEADING, 3.
ALIMONY IS AN ALLOWANCE Made to a WOMAN on a decree of divorce for
her support out of the estate of her husband, and under exceptional
circumstances it may be decreed, once for all, of a sum in gross, or of
real estate absolutely, to the wife, and at all events alimony terminates
with the life of the husband. Adams v. Storey, 392.
MARRIED WOMEN.
See HUSBAND AND WIFE,
1. MASTER BOUND TO INSTRUCT INEXPERIENCED SERVANT IN REFERENCE
TO DANGEROUS MACHINERY. - A master who puts to work upon a
dangerous machine a servant known to be without experience in the par
ticular work, and without knowledge of the actual dangers attending it,
is bound to give him such instructions as will enable him to fully under.
stand and appreciate the danger attending the work and the necessity
for care. Ingerman v. Moore, 138.
2 SERVANT OF MATURE YEARS, WHEN ENTITLED TO INSTRUCTIONS CON.
CERNING DANGEROUS MACHINERY. - While the rule which requires an
employer to give proper instructions to his servant in reference to dan-
gerous machinery is most frequently applied in cases where persons of
immature years are employed about dangerous machinery, the same
principle governs where the person so put to work is of mature years,
but without experience in the particular work, and without knowledge
of the actual dangers attending it. But the fact that the person injured
is of mature years is a matter for the careful consideration of the jury
in determining whether he fully understood and appreciated the dan-
gers of his position. Ingerman v. Moore, 138.
3. JURY TRIAL-WHETHER SERVANT EXPERIENCED IN WORK QUESTION
FOR JURY WHEN. — Where it appears that an employee in a saw-mill
was injured while running a scantling-machine and saw, in attempting
to remove slivers from under the saw, by reason of his sleeve catching
on a concealed set-screw fixed upon and projecting from a shaft located
below the saw, the fact that he had been employed in the mill for nearly
two years, and had been working as an assistant on the scantling.
machine, in putting the lumber in place to be sawed, for about nine
months, and had, in the absence of the foreman, upon different occa-
sions, run the machine for eighteen days in all, does not warrant the
court in declaring as matter of law that he was experienced in the work
he was doing, and had knowledge of the set-screw and of the danger of
placing his hand where he did while the machine was running, but his
experience and knowledge of the machine are questions of fact for the
jury. Ingerman v. Moore, 138.
EMPLOYER LIABLE FOR NEGLIGENCE OF HIS SUPERINTENDENT. — The
fact that the owner of a saw-mill did not manage the mill in person, and
did not personally employ or have communication with a servant
injured while at work upon dangerous machinery, does not absolve him
from liabibility for the negligence of his superintendent or foreman in
putting the servant to work without proper instructions. Ingerman v.
Moore, 138.
5. FELLOW-SERVANTS. — All who are servants of a common master, engaged
in the same general business, subject to the same general control, and
paid out of a common fund, are fellow-servants, without regard to rank
or grade, and whether the element of personal control enters into the
consideration or not, in respect to all acts done in the common service,
unless the duty performed by them is such as properly belongs to the
master as such, in which case they take the place of the master, and he
is chargeable with their acts as if done by him personally, with all the
knowledge which the law imputes to him. Georgia Pacific R'y Co. v.
Davis, 47.
6. MASTER IS NOT ORDINARILY RESPONSIBLE CRIMINALLY for the act of his
servant or agent, unless he has in some way participated, or counte-
nanced or approved it. Commonwealth v. Stevens, 647.
7. MASTER IS NOT CRIMINALLY RESPONSIBLE for the sale, by his servant,
of liquor to a minor, if he had instructed all of his servants not to make
any sales to minors, nor to persons under twenty-five years of age, but
had left his servants to determine the question of minority from the
appearance of customers applying for liquors, and one of his clerks had
made an innocent mistake in judging of a customer's appearance. It
cannot be affirmed as a matter of law that the test of appearance is un-
reasonable. Whether it was or not, and whether its imposition indi-
cated bad faith or negligence, the jury should be left to determine.
Commonwealth v. Stevens, 647.
See RAILROAD COMPANIES; STATUTES, 11, 12,
Bic utere tuo ut alienum non lædas. Barrett v. Southern Pac. Co., 186.
MECHANICS' LIENS.
See CONTRACTS, 10.
MILLS AND MILL-DAMS.
See EASEMENTS, 2; WATERCOURSES.
MISTAKE OF LAW, RECOVERY OF MONEYS PAID UNDER.-Fees paid by a
county to a public officer, under a mistaken belief on his part and that
AM. ST. REP., VOL. XXV.-63
of the county that he was entitled to them by law, cannot be recovered
by the county, for the reason that its mistake was one of law, on ac
count of which no recovery can be had. Painter v. Polk County, 489.
MODIFICATION,
See JUDGMENTS, 6.
1. FORECLOSURE OF JUNIOR MORTGAGE AS RES JUDICATA. — One holding a
senior mortgage, the superiority of which is not drawn in question by
a bill to foreclose a junior mortgage, is not divested of his prior right
by the ordinary decree of foreclosure against him therein, nor will his
superior right be placed in issue by making him a party to such bill,
and alleging therein that he claims title to the premises by deed or other-
wise. Buzzell v. Still, 777.
2 MERGER.— Where first, second, and third mortgages exist against the
same property, and the third mortgage is by deed absolute on its face,
an assignment of the first mortgage to the third mortgagee will not
merge the first and third mortgages. Buzzell v. Still, 777.
See CHATTEL MORTGAGE; CORPORATIONS, 7, 8; COVENANTS, 3, 4; INSANE
PERSONS; POWERS.
1. Office and Officers — REMOVAL OF MUNICIPAL OFFICER, WHEN DISCRE-
- When the tenure of a municipal office is at the pleasure of
the appointing body, its power to remove is discretionary, and may be
exercised without notice or hearing. Carter v. City of Durango, 294.
2 OFFICE AND OFFICERS - AUTHORITY OF CITY COUNCIL TO REMOVE OFFI-
CER IS QUASI JUDICIAL. The city council is primarily a legislative and
administrative body, but it may be clothed with quasi judicial authority
in connection with removals from municipal offices. Carter v. City of
Durango, 294.
& OFFICE AND OFFICERS - POWER OF CITY COUNCIL TO REMOVE OFFICER.
The possession or exercise of judicial power by the city council is not a
prerequisite to its authority to remove all its officers. The possession
of such power is only necessary in cases of removal from offices which
are of the essence of the corporation, and which can only take place for
cause, upon notice and investigation with opportunity to be heard. Its
possession by the council is not necessary in cases of removal from office
to which the occupant is appointed at the pleasure of the council. Car-
ter v. City of Durango, 294.
OFFICE AND OFFICERS - REMOVAL OF MUNICIPAL OFFICER. — THE MOTIVES
ACTUATING city councilmen in removing an officer from an office, the
tenure of which is at its pleasure, are not ordinarily subject to judicial
inquiry, and in the absence of fraud or deception, courts will not inter-
fere with the declaration of discretionary municipal pleasure by the
council. Carter v. City of Durango, 294.
OFFICE AND OFFICERS - POWER OF CITY COUNCIL TO REMOVE FROM OF-
FICE CANNOT BE CURTAILED BY ORDINANCE. — It is not within the power
of a municipal corporation, by ordinance or by-law, either to extend
or restrict the discretionary authority conferred on the city council by
statute in the matter of the removal of municipal officers. Carter v
City of Durango, 294.
6. NOTICE TO AGENT OF CITY AS NOTICE TO CITY. The rule that notice to
the agent of a party, whose duty it is, as such agent, to act upon such
notice, or to communicate it to his principal in the proper discharge of
his trust as agent, is legal notice to his principal, applies as well to
the agents of corporations, both municipal and private, as to those of
private persons. Burditt v. Porter, 763.
7. MUNICIPAL CORPORATION IS NOT ANSWERABLE FOR THE NEGLIGENT ACT
OF ITS SERVANT while engaged in excavating for the foundation of a
school-house, though such negligence caused an injury to a person on an
adjacent highway not within the limits of the school-house lot. How
ard v. City of Worcester, 651.
8. MUNICIPAL CORPORATION IS NOT ANSWERABLE FOR THE NEGLIGENCE OF
ITS SERVANTS While they are engaged in a work purely for the benefit
of the public. Howard v. City of Worcester, 651.
9. LIABILITY OF, FOR NEGLIGENCE OR TORT. - Municipal corporations proper,
such as villages, towns, and cities, incorporated by special charters or
voluntarily organized under general laws, are liable to individuals in-
jured by their negligent or tortious conduct, or that of their agents, in
respect to corporate duties; but in regard to public involuntary quast
corporations, such as counties, townships, school or road districts, or
the like, the rule is otherwise, and they are not so liable, unless made
so by statute. Elmore v. Drainage Commissioners, 363.
10. MUNICIPAL CORPORATION IS LIABLE TO AN ACTION FOR DAMAGES re-
sulting from the negligent or improper construction or maintenance by
it of a dam or reservoir which it was authorized by statute to make
and maintain. The rule is otherwise when due and reasonable precau-
tions are taken, and nothing is done wantonly or negligently, so as to
cause unnecessary damages. Aldworth v. City of Lynn, 608.
11. DUTY IN CONSTRUCTING BRIDGES. - A city, in the construction of
bridges across its streets, is required to provide against such casualties
liable to occur from overflow as a cautious and prudent man should
foresee and anticipate. Bradford v. Mayor of Anniston, 60.
12. LIABILITY FOR DEFECT IN STREET. The owner of an animal injured
while being driven along the public street by stepping into a hole
therein caused by rain may, if free from negligence, recover from the
city, when it appears that the defect was known thereto, and had ex-
isted so long that it might have been repaired in the exercise of reason-
able diligence, and that it failed to do this, or to give any notice or
warning to the public. In such case, the fact that the street force was
busy in repairing other damage done by the rain will not excuse the
liability, in the absence of proof that by reasonable diligence an extra
force could not have been employed. by the city for such emergency.
Bradford v. Mayor of Anniston, 60.
13. NOTICE to a street overseer of a defect in the street is notice to the city.
Bradford v. Mayor of Anniston, 60.
14. MUNICIPAL CORPORATION, RIGHT OF TAX-PAYER TO RECOVER FOR DE-
STRUCTION OF HIS PROPERTY BY FIRE, THROUGH FAILURE OF CON-
TRACTOR TO FURNISH WATER. If a water company enters into a
contract with a municipal corporation, whereby the former agrees, in
consideration of the grant of a franchise and of a promise to pay cer-
tain specified prices for the use of hydrants, to construct water-works
of a specified character, force, and capacity, and to keep a supply of
water required for domestic, manufacturing, and fire protection pur.
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