$265. Undisputed proof of freedom of a ma-
chine from all discoverable defects overcomes
an inference or presumption of defects arising
from the sudden starting thereof, so as to leave
no question in that regard for the jury. Lillis
v. Beaver Dam Woolen Mills (Wis.) 1011.

§ 270. Evidence of plaintiff that machine
causing injury was defective, held admissible.-
Berger v. Abel & Bach Co. (Wis.) 410.

§ 270. In an action for the death of a fire-
man, caused by running the engine at an ex-
cessive speed over defective track, evidence that
the track was defective in a similar way at
other places, and that it had been made more
so by the recent use of large engines thereon,
held admissible.-Hackett v. Wisconsin Cent.
Ry. Co. (Wis.) 1018.

§ 270. In an injury action by a servant,
certain evidence held admissible.-Forseth v.
Iron River Lumber Co. (Wis.) 1036.

§ 271. That servants avoided the careless use
of gasoline while the master's foremen were
present might not render incompetent evidence
as to the general repute of a servant for incom-
petency as tending to bring notice to the master.
-Moering v. Falk Co. (Wis.) 402.

$271. Admissibility of general reputation of
a servant for incompetency stated.-Moering v.
Falk Co. (Wis.) 402.

$274. In an action for injuries to a switch-
man, evidence of a custom held admissible on
the issue of contributory negligence.-Hamilton
v. Chicago, B. & Q. Ry. Co. (Iowa) 363.

§ 274. Where an act done by a servant is not
negligent per se, evidence of the customary meth-
od of doing the act is admissible.-Hamilton v.
Chicago, B. & Q. Ry. Co. (Iowa) 363.

to sustain a finding that plaintiff was in the
line of duty when injured.-Rickers v. Mission
Furniture Co. (Minn.) 641.

§ 281. In an action for the death of a fire-
man, evidence held insufficient to show the fire-
man negligent.-Hackett v. Wisconsin Cent. Ry.
Co. (Wis.) 1018.

§ 281. In an action for the death of a fire-
man, caused by the negligence of the engineer in
running the engine at a dangerous speed, evi-
dence held insufficient to show that the fireman
co-operated or confederated with the engineer
in the performance of the negligent act.—
Hackett v. Wisconsin Cent. Ry. Co. (Wis.)
1018.

§ 285. Whether the proximate cause of an
injury to a servant in a mine falling into a hole
in a pathway was the absence of light there
held for the jury.-Kaukola v. Oliver Iron Min-
ing Co. (Mich.) 591.

§ 285. In an action for injuries to a serv-
ant, held a question for the jury whether the
accident occurred as testified to by plaintiff.-
Winkler v. Power & Mining Machinery Co.
(Wis.) 273.

§ 286. Whether a master by the exercise of
due care would have discovered the defect caus-
ing the injury and applied a remedy before the
accident is a question for the jury.-Winslow v.
Commercial Bldg. Co. (Iowa) 320.

§ 286. Whether the warning given servants
of danger is sufficient held a question for the
jury. Streicher v. Davenport Brick & Tile Co.
(Iowa) 327.

§ 278. In an action for the death of a serv-
ant, the evidence held to sustain a finding that
the place in which the servant was at work was
dangerous.-Streicher v. Davenport Brick &
Tile Co. (Iowa) 327.

$278. In an action to recover for death of
plaintiff's intestate, evidence held to justify a
finding that an unsafe method of work had been
adopted by defendants, thereby causing the
death of the intestate.-Johnson v. Oakes (Minn.)
633.

§ 278. In an action for injuries while oper-
ating an unguarded circular saw, evidence he'd
to sustain a finding that it was practicable to
guard the saw.-Rickers v. Mission Furniture
Co. (Minn.) 641.

$278. Evidence held to support a finding
that a master was negligent in maintaining a
defective footboard on an engine, which resulted
in the servant's injury.-Anderson v. Foley Bros.
(Minn.) 987.

§ 278. In a suit for injury to an employé
caused by a falling scaffold, evidence held not
to show any negligence on the part of his em-
ployer.-Ladwig v. Jefferson Ice Co. (Wis.) 407.
§ 281. In an action for injuries while oper-
ating an unguarded circular saw, evidence held

$286. In an action for personal injuries sus-
ant's packing plant, the question whether a
tained while operating a blood press in defend-
previous defect in the apparatus had been ade-
quately remedied held for the jury.-Holacek v.
T. M. Sinclair & Co., Limited (Iowa) 331.

mine were placed and kept at a dangerous place
§ 286. Whether lights in a passageway of a
for the safety and security of the workmen held
for the jury.-Kaukola v. Oliver Iron Mining
Co. (Mich.) 591.

§ 286. In an action for the death of a switch-
it and a fuel company, caused by being crush-
man employed by a terminal company, against
the steps of which he was standing, and the
ed between the terminal company's engine, on
fuel company's box car loader which ran on the
opposite track, evidence held to sustain a non-
suit as to the terminal company, on the ground
that its negligence was not shown.-Fitzpatrick
Lake Superior Terminal & Transfer Co.
(Wis.) 1054.

V.

§ 287. That act which caused an injury to a
servant was performed by a superior in the dis-
charge of his duties does not, as a matter of
law, create the relation of fellow servants be-
tween the parties.-Benak v. Paxton & Vierling
Iron Works (Neb.) 461.

§ 287. Whether one of several employés is a
vice principal, or whether all are fellow serv
Benak v. Paxton & Vierling Iron Works
ants, held a mixed question of law and fact.
(Neb.) 461.

§ 287. Whether, in the exercise of ordinary
care, the master should not have discovered a fel-

low servant's incompetency, and whether the
master was negligent in failing to discharge him,
held to be for the jury.-Moering v. Falk Co.
(Wis.) 402.

288. Whether a servant in a mine assumed
the risk of danger in a pathway used by men
in the mine held for the jury.-Kaukola v.
Oliver Iron Mining Co. (Mich.) 591.

$288. Whether an employé assumed the
risk of dangerous machinery held a question for
the jury. Snyder v. Waldorf Box Board Co.
(Minn.) 450.

§ 288. Evidence held not to show as a mat-
ter of law that plaintiff was guilty of contribu-
tory negligence.-Snyder v. Waldorf Box Board
Co. (Minn.) 450.

$288. Whether a servant assumed the risk
which resulted in his injury held to be for the
jury.-Wickham v. Chicago, St. P., M. & O.
Ry. Co. (Minn.) 639.

§ 289. In an action against a master for the
death of a servant, evidence held to make the
question whether deceased contributed to his in-
jury one for the jury.-Streicher v. Davenport
Brick & Tile Co. (Iowa) 327.

incompetency at the time of the accident.-
Gregory v. Chicago, R. I. & P. R. Co. (Iowa)
797.

§ 296. In an action for the death of a rail-
way conductor, a charge on contributory negli-
gence held erroneous.-Steele v. Great Northern
Ry. Co. (Minn.) 978.

§ 296. In an action for negligent death of a
fireman, a charge on contributory negligence
that carelessness and negligence of the fireman,
no matter how slight, if it directly caused or con-
tributed to the accident, barred recovery held
erroneous. Hackett v. Wisconsin Cent. Ry. Co.
(Wis.) 1018.

$297. A request for the submission of a spe-
cial question held not to have properly request-
ed submission of the question of assumption of
risk.-Winkler v. Power & Mining Machinery
Co. (Wis.) 273.

ilton v. Chicago, B. & Q. Ry. Co. (Iowa) 363.

§ 289. A switchman riding on an engine held
not, as a matter of law, guilty of contributory
negligence in stepping off in front of it.-Ham-
ilton v. Chicago, B. & Q. Ry. Co. (Iowa) 363.

$289. Whether a servant in a mine injured
by falling into a hole in a pathway in the mine
was guilty of contributory negligence held for
the jury.-Kaukola v. Oliver Iron Mining Co.
(Mich.) 591.

§ 289. Evidence held not to show as a matter
of law that plaintiff assumed the risk of dan-
gerous and unguarded machinery.-Snyder v.
Waldorf Box Board Co. (Minn.) 450.

§ 289. In an action for injuries to a servant.
whether he was negligent in attempting to get
on the footboard of a locomotive held for the
jury.-Anderson v. Foley Bros. (Minn.) 987.
$289. Evidence held not to show as matter
of law contributory negligence of an employé
attempting in a certain way to pull off gear
wheels of a machine.-Novak v. Nordberg Mfg.
Co. (Wis.) 282.

§ 291. In an action for injuries from machin-
ery, unguarded in violation of Rev. Laws 1905,
§ 1813, its location, the character of the guards,
and the danger of the operator are to be consid-
ered.-Kerling v. G. W. Van Dusen & Co.
(Minn.) 235.

$291. In an injury action by a servant

against a railroad and its foreman, a certain
charge held correct.-Rathjen v. Chicago, B. &
Q. R. Co. (Neb.) 473.

§ 293. In an action for injuries to a servant,
a requested instruction held properly refused.-
Winkler v. Power & Mining Machinery Co.
(Wis.) 273.

§ 293. Facts held to warrant an instruction
as to lack of intelligence of an employé, making

§ 297. In an action for the death of a switch-
man on a terminal engine by being caught be-
tween the engine and the box car loader of a
fuel company which ran on a parallel track op-
negligence by decedent held not inconsistent
with another special finding.-Fitzpatrick v.
Lake Superior Terminal & Transfer Co. (Wis.)
1054.

IV. LIABILITIES FOR INJURIES TO
THIRD PERSONS.

(A) Acts or Omissions of Servant.
street held to have acted outside the scope of
$ 302. A chauffeur injuring a person on the
his employment so that his employer was not
liable therefor.-Steffen v. McNaughton (Wis.)
1016.

§ 311. Liability of negligent servant to an-
other servant held to rest on the obligation to
so conduct himself as not to injure another.-
Brower v. Northern Pac. Ry. Co. (Minn.) 10.

§ 311. Locomotive engineer, negligently fail-
ing to protect water gauge with the usual
guard, held liable to fellow servant injured by
its explosion.-Brower v. Northern Pac. Ry.
Co. (Minn.) 10.

§ 311. A complaint, alleging that an engineer
so negligently replaced a broken water gauge
that the fireman was injured, states a cause of
action against the engineer.-Brower v. North-
ern Pac. Ry. Co. (Minn.) 10.

(C) Actions.

330. In an action against a street railway
company for the death of a person struck by a
car, certain evidence as to the competency of
the motorman held relevant.-Fisher v. Waupa-
ca Electric Light & Ry. Co. (Wis.) 1005.

MATERIALITY.

Of alteration of written instrument, see Alter-
ation of Instruments, § 2.

MATERIALS.

$294. In an action for injuries to a serv-
ant, a charge using words conjunctively held
not erroneous, in view of the undisputed evi-

see Mechanics' Liens.

MAXIMS.

MAYOR.

Duties, see Municipal Corporations, § 170.
Grounds for removal, see Municipal Corpora-
tions, § 156.
Liability for imprisonment in excess of juris-
diction, see False Imprisonment, § 7.
Petition for removal, see Municipal Corpora-
tions, § 159.

MECHANICS' LIENS.

§ 253. In an action to enforce a subcontrac-
tor's lien, the owner is entitled to all deduc

II. RIGHT TO LIEN.

(B) Services Rendered and Materials Fur-

nished.

$48. A manufacturer of brick held not en-
titled to a mechanic's lien for material which
it refused to turn over to the owners of the
building on the contractor's order.-A. E. Short-
hill Co. v. Etna Indemnity Co. of Hartford,
Conn. (Iowa) 613.

§ 48. Ordinarily "to furnish" means to de-
liver, or to supply, and, in mechanic's lien law,
to deliver or supply for use in the making of the
improvement or erection of the building.-A. E
Shorthill Co. v. Etna Indemnity Co. of Hart-
ford, Conn. (Iowa) 613.

(E) Subcontractors, and Contractors'

Workmen and Materialmen.

$94. It is not the purchasing of, or con-
tracting for, material which charges the build-
ing with a lien, but it must be furnished to the
owner, or to some one sustaining the relation
of contractor.-A. E. Shorthill Co. v. Ætna In-
demnity Co. of Hartford, Conn. (Iowa) 613.

$96. An owner, in employing person to erect
a building, clothes him with authority to pro-
cure necessary labor and material to carry out
his contract.-A. E. Shorthill Co. v. Etna In-
demnity Co. of Hartford, Conn. (Iowa) 613.

$110. Under a building contract, held that,
the contractor's authority having terminated be-
fore delivery of material, no lien existed as
against the owners.-A. E. Shorthill Co. v. Et-
na Indemnity Co. of Hartford, Conn. (Iowa)

613.

III. PROCEEDINGS TO PERFECT.
Lien on railroad property, see Railroads, § 159.
Notice of lien on railroad property, see Rail-
roads, 159.

Service of notice of lien on railroad company,
see Railroads, § 159.

§ 122. St. 1898, § 3315, requiring a state-
ment of the amount due in a subcontractor's
notice of lien, is satisfied when the person serv-
ed with notice can determine therefrom the
correct amount.-West Allis Lumber Co. v. Pbt-
ter (Wis.) 498.

$132. Under building contract, delivery of
a car load of brick held not to be an independent
purchase in computing time for filing of a me-
chanic's lien.-A. E. Shorthill Co. v. Etna In-
demnity Co. of Hartford, Conn. (Iowa) 613.

§ 132. Delay in delivering material for build-
ing held not so unreasonable as to deprive the

materialman of the benefit of the sale in com-

puting time for filing a lien.-A. E. Shorthill
Co. v. Etna Indemnity Co. of Hartford, Conn.
(Iowa) 613.

VI. WAIVER, DISCHARGE, RELEASE,
AND SATISFACTION.

(A) Waiver of Right to Lien.

§ 210. An extension of credit by one entitled
to a mechanic's lien for a reasonable time, and
not to a definite date later than the period fixed
by law for commencing the lien action, will
not per se waive the lien.-Thien v. Brand (Wis.)
999.

VII. ENFORCEMENT.

tractor might insist upon.-West Allis Lumber
Co. v. Potter (Wis.) 498.

§ 254. In an action to enforce a subcontrac
tor's lien, damages for nonfulfillment of the sub-
contract may be pleaded as a counterclaim un-
der St. 1898, § 4264.-West Allis Lumber Co.
v. Potter (Wis.) 498.

§ 254. In proceedings to obtain a mechanic's
lien, defendant could set off a demand for the
amount of plaintiff's board furnished him in the
course of the work.-Thien v. Brand (Wis.)
999.

subcontractor to manufacture an item of ac-
§ 279. A fraudulent design on the part of a
count for the purpose of extending his time for
filing a lien will not be presumed; but, on
the contrary, good faith will be presumed.—A.
E. Shorthill Co. v. Etna Indemnity Co. of Hart-
ford, Conn. (Iowa) 613.

§ 281. In a proceeding to foreclose a me-
chanic's lien, evidence held to support a finding
that the building erected by plaintiff was not
built as provided by the contract.-Marchand
v. Perrin (N. D.) 1112.

VIII. INDEMNITY AGAINST LIENS.

§ 313. A building contractor's bond, given by
a company organized for the purpose of furnish-
ing security for hire, is to be interpreted by
rules applicable to guaranty insurance.-A. E.
Shorthill Co. v. Etna Indemnity Co. of Hart-
ford, Conn. (Iowa) 613.

§ 313. If a contractor's bond given by a
surety company is susceptible of two construc-
tions, the one favorable to the obligee should
be adopted.-A. E. Shorthill Co. v. Eina Indem-
nity Co. of Hartford, Conn. (Iowa) 613.

§ 315. A bond to prevent mechanics' liens
held not to require the owners of the building
to notify the surety that the contractor was
purchasing materials on credit.-A. E. Short-
hill Co. v. Etna Indemnity Co. of Hartford,
Conn. (Iowa) 613.

§ 315. A building contract, authorizing own-
ers to withhold payment sufficient to satisfy
liens, held not to require such withholding in or-
der to charge the contractor's surety.-A. E.
Shorthill Co. v. Etna Indemnity Co. of Hart-
ford, Conn. (Iowa) 613.

$315. Failure of the owners of a building to
notify the contractor's surety as to changes in
plans and specifications held not to release the
surety from liability for mechanics' liens.-A.
E. Shorthill Co. v. Etna Indemnity Co. of
Hartford, Conn. (Iowa) 613.

§ 317. A surety on a building contractor's
bond cannot except to a judgment against it for
the amount of mechanics' liens before the same
has been discharged by the owners, where it
in the action to enforce the lien.-A. E. Short-
has joined in presenting issues for determination
hill Co. v. Etna Indemnity Co. of Hartford,
Conn. (Iowa) 613.

MEDICAL EXAMINERS.

See Physicians and Surgeons, § 6.

MEDICAL JURISPRUDENCE.

See Physicians and Surgeons.

MEMBERS.

Of building and loan associations, see Building
and Loan Associations.

181-221.

fendant for certain stock delivered to defendant.
-Todd v. Bettingen (Minn.) 443.

III. CONSTRUCTION AND OPERA-

TION.

Parties Therein.

§ 17. A complaint for money received held
not objectionable as an attempt to recover dam-
ages, instead of a certain definite sum.-Todd v.
Bettingen (Minn.) 443.

MONOPOLIES.

I. VALIDITY AND EFFECT OF
GRANTS.
Grants of special privileges or immunities, con-
stitutional prohibition, see Constitutional Law,
§ 205.

II. TRUSTS AND OTHER COMBINA-
TIONS IN RESTRAINT
OF TRADE.

17. A contract by which an agent for the
sale of patented patterns agreed not to sell or
handle any other patterns during the term of
the contract is not in restraint of trade, in vio-
lation of section 1770g, added to St. 1898 by
Laws 1905, c. 506, § 2.-Butterick Pub. Co. v.
Rose (Wis.) 647.

MORTGAGES.

Authority of agent to extend time of payment,
see Principal and Agent, $ 100.
Deduction of mortgage debts from valuation of
property for purpose of inheritance tax, see
Taxation, §§ 860, 895.

Delivery in escrow, see Escrows, & 9.
Fixtures as between mortgagee and mortgagor
or others, see Fixtures, §§ 18, 19.
Ratification of execution by agent, see Princi-
pal and Agent, § 166.

Right of mortgagee to reformation of deed, see
Reformation of Instruments, § 26.

Mortgages by or to particular classes of persons.
Railroad companies, see Railroads, § 197.
Mortgages of particular species of, or estates or
interest in, property.

See Homestead, § 115.
Personal property in general, see Chattel Mort-
gages.

Railroad property, see Railroads, § 197.

I. REQUISITES AND VALIDITY.
(A) Nature and Essentials of Conveyances
as Security.

Consideration of mortgage of homestead, see
Homestead, § 115.

§ 32. A deed absolute on its face may be
shown to be in fact a mortgage.-Ruch v. Ruch
(Mich.) 52.

§ 36. One who comes into court seeking re-
covery on the ground that an apparent absolute
title is only a mortgage must produce the fact
showing it.-Coates v. Marsden (Wis.) 1057.

(C) Execution and Delivery.

Acknowledgment as proof of execution of mort-
gage, see Acknowledgment, § 52.
Conclusiveness of certificate of acknowledg-
ment, see Acknowledgment, § 55.
Delivery of mortgage of homestead, see Home-
stead, § 115.

Sufficiency of evidence to impeach acknowledg-
ment, see Acknowledgment, § 62.

the mortgagor, and at his death, his sole heir,
§ 144. A tax title, though held by a son of
held valid as against the mortgage.-Wilson v.
Godfrey (Iowa) 875.

(D) Lien and Priority.

151. A mortgagee held the absolute owner
of a mortgage and note, and not holder thereof
as collateral only.-Live Stock Nat. Bank of
Sioux City v. Collins (Iowa) 172.

$154. The recording of a chattel mortgage
held not to give notice to a subsequent mort-
gagee of the realty.-Peoria Stone & Marble
Works v. Sinclair (Iowa) 772.

§ 154. A recital in a real estate mortgage
held not to give the mortgagee notice of a chat-
tel mortgage.-Peoria Stone & Marble Works v.
Sinclair (Iowa) 772.

$154. Where the records of a sale of a city
lot for taxes was duly entered on the books be-
fore a mortgage on the property was given, the
the lien thus created.-Wilson v. Godfrey (Iowa)
mortgagee has at least constructive notice of

875.

§ 186. A mortgagee in a mortgage recorded
as a chattel mortgage held to have the burden
of proving that a subsequent real estate mort-
gagee had actual notice thereof.-Peoria Stone
& Marble Works v. Sinclair (Iowa) 772.

V. ASSIGNMENT OF MORTGAGE OR
DEBT.

§ 249. A purchaser of land held to have dealt
with the land and not as payer of a mortgage
thereon, so that, having paid the mortgage to
the owner of record, who had previously assign-
ed it, he was not liable to the assignee.-City
Bank of Portage v. Plank (Wis.) 1000.

VI. TRANSFER OF PROPERTY MORT-
GAGED OR OF EQUITY OF
REDEMPTION.

Estoppel to deny assumption of mortgage, see
Estoppel, 32.

§ 280. Evidence held not to show that a
grantee in a deed accepted it with knowledge of
a clause therein under which he assumed the
mortgage on the property.-Demaris v. Rodgers
(Minn.) 457.

§ 280. Clause in a deed by which grantee as-
sumes a mortgage, inserted therein by fraud of
the grantor. is not binding on the grantee.-
Demaris v. Rodgers (Minn.) 457.

§ 288. Where one purchases part of a tract
of land subject to the mortgage thereon, with-
out assuming the payment thereof, the two parts
should bear their proportionate share of the in-
debtedness.-Dillivan v. German Sav. Bank
(Iowa) 350.

$290. The Iowa court has not adopted the
rule that when mortgaged premises are sold in
parcels, the foreclosure decree should direct sale
in the inverse order of alienation.-Dillivan v.
German Sav. Bank (Iowa) 350.

§ 294. A charge as to the controlling ques-
tion in the case, and the burden of proof in a
suit by a mortgagor to recover a surplus re-
ceived by the mortgagee on the sale of a part
of the mortgaged property deeded to him by
the mortgagor, above the amount credited on the
debt, held confusing and erroneous.-Coates v.
Marsden (Wis.) 1057.

§ 294. General rules stated as to sufficiency
of evidence and burden of proof as to fraud in
the transfer of mortgaged property to the mort
Igagee.-Coates v. Marsden (Wis.) 1057.