II. COMPUTATION OF PERIOD OF (A) Accrual of Right of Action or De- 847. Where the judgment approving an administrator's final report including a fraudulent credit was set aside, and he was ordered to account therefor, his refusal to do so was a breach of his bond, on which limitations began to run from the date of his refusal to comply with the order.-Tucker v. Stewart (Iowa) 183. § 51. Under clause in mortgage, limitations held to run against all the notes secured upon default in payment of the first.-Green v. Frick (S. D.) 579. (B) Performance of Condition, Demand, and Notice. the nonresident cannot be rendered because the action was not commenced in time.-Slater v. Roche (Iowa) 925. V. PLEADING, EVIDENCE, TRIAL, $ 189. Where the complaint in a suit attacking the validity of an annexation of territory which did not raise the defense of limitations, to a city was dismissed on an oral demurrer the court should permit an amendment to the complaint alleging facts in avoidance of limitations.-Lutien v. City of Kewaunee (Wis.) 662. LIMITATION OF LIABILITY. Of carrier in respect to goods, see Carriers, §§ LINSEED OIL. § 65. The statute of limitations held to apply to bar a recovery though an accounting may be necessary, if the account can be taken in an action at law as well as in equity.-City of Centerville v. Turner County (S. D.) 605. (C) Personal Disabilities and Privileges. § 72. A right of action in equity to vacate a judgment approving the final report of an administrator, on the ground that it contains a fraudulent credit, held to accrue at once in favor of infant beneficiaries, and under Code, § 3453, to continue for the remainder of their In general, see Bankruptcy. minority and for one year thereafter.-Tucker v. Stewart (lowa) 183. (F) Ignorance, Mistake, Trust, Fraud, and Concealment of Cause of Action. 103. Where a county retained a commission for collecting a city's taxes in excess of that allowed by law, held, that limitations ran against each amount so retained from settlement with the city, and that back of six years the statute of limitations was a bar.-City of Centerville v. Turner County (S. D.) 605. § 103. City taxes collected by a county are held under an implied, and not an express, trust, and the statute of limitations applies to bar a recovery by the city of the excess commission retained by the county for making the collection.-City of Centerville v. Turner County (S. D.) 605. (H) Commencement of Action or Other Proceeding. Regulation of sale as denial of property rights, see Constitutional Law, § 87. LIQUIDATION. LIQUOR SELLING. See Intoxicating Liquors. LIS PENDENS. Pendency of other action ground for abatement, see Abatement and Revival, § 6. LIVE STOCK. Carriage of, see Carriers, § 230. LOANS. See Pawnbrokers. LOCAL ACTIONS. § 119. An action against a nonresident held not commenced until the completion of the service by publication.-Slater v. Roche (Iowa) See Venue, § 17. 925. § 119. An action to subject property of a nonresident to the payment of a foreign judg LOCAL ASSESSMENTS. ment held commenced, within the statute of lim- See Drains. §§ 70-91; Municipal Corporations, itations, when the property is attached.-Slater v. Roche (Iowa) 925. IV. OPERATION AND EFFECT OF § 167. Foreclosure by a vendor of contract of sale held barred as to installments, action to recover on which is barred.-Boynton v. Salinger (Iowa) 369. § 167. It is not necessary that there should be an express covenant in a mortgage to pay the debt secured to prevent its foreclosure being barred by the running of limitations against the indebtedness.-Green v. Frick (S. D.) 579. § 167. Foreclosure of a mortgage held not barred by the running of limitations against the indebtedness.-Green v. Frick (S. D.) 579. §§ 408, 513. LOCAL LAWS. See Statutes, § 93. LOCAL OPTION. Traffic in intoxicating liquors, see Intoxicating LOCATION. Of lines of land conveyed, see Boundaries, §8. LODGING HOUSES. See Innkeepers. LOOKOUTS. 170. An action aided by attachment against a nonresident on a foreign judgment held in rem, so far as the attachment is concerned, and the property levied on may be subjected to the judgment, though a personal judgment against On street cars, see Street Railroads, § 81. Causes of loss within insurance policy, see In- By physician or surgeon, see Physicians and surance, $$ 446, 457. Surgeons, § 15. Of goods by carrier, see Carriers, $$ 108-134. MALICIOUS PROSECUTION. II. WANT OF PROBABLE CAUSE. § 21. One in instituting a criminal prosecution acting on advice of attorney held immune from liability for malicious prosecution.-Topolewski v. Plankinton Packing Co. (Wis.) 554. § 21. Attorney consulted need not necessarily be public prosecutor, and a full and fair statement of all the facts does not call for facts reasonably discoverable.-Topolewski v. Plankinton Packing Co. (Wis.) 554. § 21. Person commencing a prosecution on advice of attorney which proves wrong does not act in bad faith because of a presumption that every one knows the law.-Topolewski v. Plankinton Packing Co. (Wis.) 554. § 24. The fraud which will take a judgment of conviction out of the rule rendering it probable cause is fraud extrinsic, not in respect to matters litigated and passed upon at the trial. Topolewski v. Plankinton Packing Co. (Wis.) 554. MANDAMUS. I. NATURE AND GROUNDS IN GEN ERAL. an action at law.-State v. Farrington (Neb.) § 1. A mandamus proceeding in Nebraska is 91. § 3. Mandamus held to lie by a county to compel the county auditor to file a lien statement, necessary to perfect the county's lien for money expended on a drainage improvement.State v. Johnson (Minn.) 479. § 4. An order extending the time of payment, which by its terms stands as a supplemental decree, is a final order, and reviewable only by appeal.-Horning v. Kendrick (Mich.) 650. § 12. Mandamus will not lie to enforce an illegal claim.-Edwards V. Auditor General (Mich.) 853. II. SUBJECTS AND PURPOSES OF RELIEF. (B) Acts and Proceedings of Public Off cers and Boards and Municipalities. Effect of previous decisions of courts, see Courts, $ 89. $ 63. Duty of completing work, imposed upon an officer who left it unperformed, held to devolve upon his successor, who may be compelled by mandamus to perform it.-State v. Johnson (Minn.) 479. § 77. Title to an office cannot be tried by mandamus.-State v. Quinn (Neb.) 388. § 77. Mandamus held to lie to compel an officer whose term has expired to deliver to his successor the books, papers, etc., belonging to the office, and possession of the office room.State v. Quinn (Neb.) 388. Service of process on insurance commissioner, see Insurance, § 26. § 151. In mandamus to compel a county auditor to file a lien statement under the drainage statute after the time limited therefor, the owners of the land affected are proper parties respondent.-State v. Johnson (Minn.) 479. § 151. All persons having a special interest in the subject-matter are proper parties respondent in mandamus.-State V. Johnson (Minn.) 479. § 160. An order for service of a writ of mandamus held a sufficient compliance with Rev. Laws 1905, § 4560, as amended by Laws 1909, c. 408.-State v. Brotherhood of American Yeomen (Minn.) 404. § 160. An order of court directing service of an alternative writ of mandamus held not insufficient, as not allowing respondent 30 days in which to answer, as provided by Laws 1907, c. 345, § 19.-State v. Brotherhood of American Yeomen (Minn.) 404. § 24. Where a criminal prosecution results in conviction and judgment without collateral See Mandamus. MANDATE. fraud, the judgment is probable cause, though To lower court on decision on appeal or other it be reversed on appeal.-Topolewski v. Plank inton Packing Co. (Wis.) 554. proceeding for review, see Appeal and Error, §§ 1198-1210. MARRIED WOMEN. See Husband and Wife. MARSHALING ASSETS AND SE- § 3. A junior mortgagee in the mortgage covering nonhomestead property held not entitled to compel the senior mortgagee in a mortgage covering the homestead and other prop; erty to resort first to the homestead.-Bankers' Life Ass'n v. Engelson (Iowa) 951. MASSES. (A) Nature and Extent in General. § 90. A master is bound to use reasonable care to protect a servant from injury.-Winslow v. Commercial Bldg. Co. (Iowa) 173. § 93. While an employer may employ contractors to do the work which the law requires of him, he cannot delegate to them the exercise of that care which the law imposes upon him personally.-Winslow v. Commercial Bldg. Co. (Iowa) 173. (B) Tools, Machinery, Appliances, and Places for Work. §§ 101, 102. It is a master's duty to provide a servant acting within the scope of his employment with a safe place to work.-Bayles v. Savery Hotel Co. (Iowa) 808. $$ 101, 102. A master using dangerous machinery is bound to exercise reasonable care to maintain it in a reasonably safe condition.Deary v. Hecla Co. (Mich.) 846. §§ 101, 102. An employer must provide a reasonably safe place to work and reasonably safe appliances to work with, and he is liable for the proximate consequences to the servant from omission so to do.-Massy v. Milwaukee Electric Ry. & Light Co. (Wis.) 544. § 107. The liability of the master for failure to furnish the servant a reasonably safe place for work refers to those dangers which inhere ing in a place merely by the negligence of a in the place, as distinguished from those arisfellow servant.-Galloway v. J. W. Turner Improvement Co. (Iowa) 1033. § 107. A master is under no duty to provide a safe place to work where the dangers from the place of work arise from the changing conditions in the progress of the work.-Dunn v. Great Lakes Dredge & Dock Co. (Mich.) 833. § 108. Failure to equip a ripsaw with a divider which would have effectually prevented plaintiff's injury held a violation of Code Supp. 1907, § 4999a2, and therefore negligence per se.-Obenchain v. Harris & Cole Bros. (Iowa) 960. § 108. In an action for injuries to an embelt on a pulley with his hands, it was error to ployé in an elevator in attempting to shift a refuse to instruct that it was the duty of deshifters.-Sorseleil v. Red Lake Falls Milling fendant, if practicable, to have furnished belt Co. (Minn.) 903. $108. The term "workshop," as defined by Laws 1907, c. 356, § 2 (Rev. Laws Supp. 1909, § 1797-3), includes a grain elevator.-Sorseleil Gifts for prayers or masses, see Charities, §§ v. Red Lake Falls Milling Co. (Minn.) 903. 16, 22. MASTER AND SERVANT. Declarations by employé as evidence against employer, see Evidence, § 242. I. THE RELATION. (C) Termination and Discharge. § 108. Rev. Laws 1905. § 1814, requiring the owner of any factory, mill, or workshop to furnish belt shifters, if practicable, applies to the owners of grain elevators.-Sorseleil v. Red Lake Falls Milling Co. (Minn.) 903. § 111. Comp. Laws, § 5511, held to impose an absolute duty on railroads to equip their cars with safety coupling devices; and the test is whether cars can be coupled and uncoupled Termination of agency, see Principal and Agent, by the use of the device provided.-Wight v. § 41. Michigan Cent. R. Co. (Mich.) 414. to (D) Warning and Instructing Servant. $150. Defendant, operating a sewer trench machine, held pot owe plaintiff, an experienced man, the duty of warning him that the engineer, a fellow servant, in charge of the machine might, through negligence, start the machine without a signal.-Galloway v. J. W. Turner Improvement Co. (Iowa) 1033. § 150. The employer was liable for injuries caused by the nonperformance of his foreman's duty to warn his servant of the dangers of doing work in a certain manner; the foreman being a vice principal as to such duty.-Asheraft v. 1. § 217. A servant did not assume the risk of Davenport Locomotive Works (Iowa) 1111. $153. An employer held bound to warn an inexperienced servant of the danger in doing certain work-Ashcraft v. Davenport Locomotive Works (Iowa) 1111. 155. It is a master's duty to warn a serv ant of known hidden dangers.—Bayles v. Savery Hotel Co. (Iowa) 808. § 155. The duty of the master to warn a servant ordinarily relates only to those nonobvious dangers which are not known to the servant and which are or ought to be known to the master-Galloway v. J. W. Turner Improvement Co. (Iowa) 1033. injuries by a defect in a machine of which be had no knowledge, and the existence of which he had no reason to suspect.-Deary v. Hecia Co. (Mich.) Sta $217. An employé assumes the ordinary risks of the business which he knows, or, as an ordiDarly careful and intelligent man, ought to anticipate.-Massy v. Milwaukee Electric Ry. & Light Co. (Wis) 544. § 218 A minor employé, at least if he has reached the age when he may be lawfully employed, assumes the risks resulting from open and obvious dangers-Schumacher v. Turtle Press Co. (Wis.) 46. § 157. Warning of the ripsaw operator tion of risks as to dangerous agencies by an in $218. General rule stated as to the assump against the liability of the saw "kicking back" did not constitute a warning of the danger re-experienced minor employé.-Schumacher v. Tut sulting from a board being thrown forward and tle Press Co. (Wis.) 46. backward bringing his hand in contact with $219. An employé injured by a rock falling the saw. Obenchain v. Harris & Cole Bros. on him from a steam shovel dipper while he (Iowa) 960. was working on pipes near the car into which rock was being loaded, held to have assumed the risk of injury from such cause so as to bar a recovery-Dunn v. Great Lakes Dredge & Dock Co. (Mich.) 833. § 157. Where the only warning a foreman could have given an employé was that which he already had, the foreman's failure to warn him of the danger held not negligence.-Dunn v. Great Lakes Dredge & Dock Co. (Mich.) 833. (E) Fellow Servants. (G) Contributory Negligence of Servant. $235. A servant injured by a defect in a machine held not negligent for failure to disover the defect.-Deary v. Hecla Co. (Mich.) 846. 177. A servant's foreman in unloading iron plate being his fellow servant in doing the actual work of unloading and selecting and using clamps for that purpose, the employer $238. Where there is a comparatively safe was not liable for such foreman's negligence in and a more dangerous way of discharging a doing such work.-Ashcraft v. Davenport Loco-duty, it is negligence for the servant to select motive Works (Iowa) 1111. the more dangerous.-Wight v. Michigan Cent. R. Co. (Mich.) 414. $177. A master is not liable for negligence of a fellow servant in the common employment.-Massy v. Milwaukee Electric Ry. & Light Co. (Wis.) 544. § 240. A brakeman injured while attempting to uncouple cars held guilty of contributory negligence as a matter of law.-Wight v. Mich 185. Negligence of a fellow servant in re-igan Cent. R. Co. (Mich.) 414. pairing a machine so as to make the same reasonably safe held the negligence of the master. Deary v. Hecla Co. (Mich.) 846. 185. A distinct and independent employé to whom is delegated the duty to disconnect and make safe electric wires on which others must work is ordinarily a vice principal, and not a fellow servant with the linemen and other like workmen.-Massy v. Milwaukee Electric Ry. & Light Co. (Wis.) 544. § 189. Authority to hire and discharge men, though not a criterion of vice-principalship, is a proper circumstance_bearing on that question. Bayles v. Savery Hotel Co. (Iowa) 808. $ 190. The negligence of one employed as general manager in charge of the business at a warehouse in starting a freight elevator held the negligence of a fellow servant.-Helgeson V. E. B. Higley Co. (Iowa) 769. $ 190. An employe's foreman held a fellow servant in doing certain work and selecting and using appliances therefor, but a vice principal for the purpose of warning plaintiff of the danger of doing the work.-Ashcraft v. Davenport Locomotive Works (Iowa) 1111. (F) Risks Assumed by Servant. § 213. An employé in a foundry held to assume the risk of moving by means of a crane a large cope.-Kraczek v. Falk Co. (Wis.) 30. § 213. An employé in a foundry held to assume the risk of moving a crane without signals. Kraczek v. Falk Co. (Wis.) 30. § 216. The likelihood of human infirmity in his fellow workmen is one of the risks assumed by an employé.-Massy v. Milwaukee Electric Ry. & Light Co. (Wis.) 544. (H) Actions. Presumptions on appeal, see Appeal and Error, $930. § 262. In an action for injuries to a servant, an allegation of assumed risk held not to allege that plaintiff assumed the risk of perils created or enhanced by defendant's negligence, Obenchain v. Harris & Cole Bros. (Iowa) 960. while unloading goods from a freight elevator $265. The fact that an employé was injured caused by the sudden starting thereof held not to raise a presumption of the master's negli gence.-Helgeson v. E. B. Higley Co. (Iowa) 769. 265. The doctrine of res ipsa loquitur held not to apply to make the master liable for injuries by the falling upon plaintiff of a piece of iron plate being raised by means of a clamp attached thereto by the clamp coming loose.-Ashcraft v. Davenport Locomotive Works (Iowa) 1111. § 265. The burden is upon the servant in an action for injuries to show that the defect in the appliance proximately caused the injury in addition to showing a defect for which the master Locomotive Works (Iowa) 1111. was responsible.-Ashcraft v. Davenport § 265. In an action for injuries to a minor employé whose hand was crushed in a rotary press, he had the burden of showing that defendant by ordinary care ought to have seen the rolls might probably injure him, and to have known he should be warned, and that defendant did not sufficiently warn him of the danger.-Schumacher v. Tuttle Press Co. (Wis.) 46. For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER § 270. In an action for injuries to an inexperienced servant while unloading iron plates from a car by a clamp attached thereto in order to raise the plate coming loose and letting it fall upon plaintiff, testimony held admissible to show defendant's knowledge of the danger in using the clamps, and its duty to warn plaintiff thereof.-Ashcraft V. Davenport Locomotive Works (Iowa) 1111. § 276. A servant does not make out a cause of action for injuries by defective appliances by merely showing a possibility that the accident happened from that cause, if the facts are clear ly consistent with the theory that the accident resulted from some other cause.-Ashcraft V. Davenport Locomotive Works (Iowa) 1111. chinery, the question of defendant's negligence evidence held to present a question for the jury $288. In an action for the death of an em§ 276. In an action for injuries to a serv-ployé by coming in contact with dangerous maant, evidence held to sustain a verdict that the chinery, the question of assumption of risk was proximate cause was negligence of the master. properly submitted to the jury-Peterson v. Dougherty v. Minneapolis Steel & Machinery Co. Merchants' Elevator Co. (Minn.) 534. (Minn.) 136 276. In an action for injury to an employé, evidence held not so clearly against the verdict for plaintiff as to justify reversal of an order denying a new trial.-Stuelpnagel v. Paper, Calmenson & Co. (Minn.) 281. $276. Evidence held to show that the proximate cause of the injury to a chainman in a foundry was the negligence of a fellow servant. -Kraczek v. Falk Co. (Wis.) 30. § 278. In an action for injuries to a servant caused by the sudden starting of a freight elevator, evidence held not to justify a finding that the general manager of the employer negligently started the elevator.-Helgeson v. E. B. Higley Co. (Iowa) 769. § 278. In a servant's action for injuries while working about a sewer digging machine, evidence held not to show a violation of the master's duty to furnish a reasonably safe place for work.-Galloway v. J. W. Turner Improvement Co. (Iowa) 1033. § 278. In an action for injuries to a servant while unloading iron plates from a car by the clamp attached to a plate by which it was raised coming loose and letting it fall upon plaintiff, evidence held not to show that the clamp was defective.-Ashcraft v. Davenport Locomotive Works (Iowa) 1111. § 280. The evidence was sufficient to sustain the jury in finding that respondent did not assume the risks attending the work in which he was engaged.-Dougherty v. Minneapolis Steel & Machinery Co. (Minn.) 136. § 288. In an action for injuries to a minor employé whose hand was crushed in a rotary printing press, at which he was at work, evidence held to present a question for the jury as to his assumption of risks resulting from open and obvious dangers.-Schumacher v. Tuttle Press Co. (Wis.) 46. § 289. In an action for injuries to a servant, plaintiff held not negligent as a matter of law. Bayles v. Savery Hotel Co. (Iowa) 808. $289. In an action for injuries to a servant while operating a ripsaw, whether plaintiff was negligent held for the jury.-Obenchain v. Harris & Cole Bros. (Iowa) 960. § 289. In an action for the death of an employé by coming in contact with dangerous machinery, the question of the employé's contributory negligence was properly submitted to the jury.-Peterson v. Merchants' Elevator Co. (Minn.) 534. § 291. In an action for injuries to a servant while unloading iron plates from a car by a clamp attached to a plate to raise it coming loose and letting it fall upon plaintiff, an instruction held erroneous as making defendant liable for the manner in which the clamps were used by plaintiff's co-employés.-Ashcraft v. Davenport Locomotive Works (Iowa) 1111. § 291. In an action for injuries to an employé held, that an instruction was erroneous as to the burden of proof.-Schumacher v. Tuttle Press Co. (Wis.) 46. § 294. In an action for injuries to a servant, an instruction on vice principal, requiring that the latter must have authority to hire and discharge men, and direct what work they should do, and where and how they should work, held erroneous only in that it imposed an undue burden on plaintiff.-Bayles v. Savery Hotel Co. (Iowa) 808. § 296. In an action for injuries to a brakeman while attempting to uncouple cars, an instruction held erroneous on the issue of con 281. The evidence was sufficient to sustain the jury in finding that respondent was not guilty of contributory negligence.-Dougherty v. Minneapolis Steel & Machinery Co. (Minn.) 136. § 284. In an action for injuries to a servant, whether the work he was engaged in at the time of his injury was within the scope of his employment held on the evidence for the jury. Bayles v. Savery Hotel Co. (Iowa) 808. § 286. Certain evidence in an action for in-tributory negligence.-Wight v. Michigan Cent. jury to a servant held not to warrant sub- R. Co. (Mich.) 414. mission of a certain issue of negligence.-Butler v. Globe Plumbing & Heating Co. (Iowa) 954. § 286. Whether a ripsaw plaintiff was employed to operate could have been practically equipped with a divider held for the jury. Obenchain v. Harris & Cole Bros. (Iowa) 960. § 286. Where the testimony in a servant's injury action conflicted as to whether the employer warned an inexperienced servant of the danger in doing certain work, the question of whether he was warned was for the jury.-Ashcraft v. Davenport Locomotive Works (Iowa) 1111. § 297. In an action for personal injuries to a servant from a steel box falling upon him while helping unload it from a truck, the answer to a special question held not inconsist ent with the general verdict for plaintiff.-Mal kowski v. Olfs (Mich.) 199. IV. LIABILITIES FOR INJURIES TO Liability of municipal corporations for torts of (A) Acts or Omissions of Servant. § 286. In an action for the death of an em- § 304. Owner of automobile held liable for ployé by coming in contact with dangerous ma-injuries to a team, if the driver thereof was in |