divorce if it was procured through the excusable neglect of the defendant, where such motion is made promptly and within the time allowed by the statute. Simpkins v. Simpkins, 641.

7. MARRIED WOMEN-LIABILITY FOR EXPENSES OF DIVORCE PROCEEDING. A statute providing that in divorce proceedings "the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on or defend the suit," including costs, and may award execution therefor or direct such sums "to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver," clearly indicates that such proceedings are to be maintained at the cost of the wife, unless the court shall relieve her therefrom by an order for expense money to be paid by her husband. Wolcott v. Patterson, 456. & DIVORCE-JUDGMENT WITHOUT AWARD OF ALIMONY-EFFECT OF.-A judgment in a divorce suit settling the property rights of the parties, without an award of alimony, is, after the time of appeal has elapsed, as final as any other kind of a judgment, except so far as the power to modify it may be reserved to the court itself, or is given by statutory provisions. In such a case, in the absence of any such reservation or power, the court has no jurisdiction to make an order or supplemental decree granting alimony for the support of the wife and children. Howell v. Howell, 70.

DIVORCE-ALIMONY-MODIFICATION OF ORDER.-The statutory provi ion authorizing the court, from time to time, to modify its orders for the maintenance and support of the wife and children, contemplates that the right to alimony, as well as other property rights, shall have been presented and litigated in the action for divorce, and established by the judgment. If the right to alimony has been thus established, the amount may be changed by a modification of the order; otherwise there can be no modification, for there is nothing to modify. Howell v. Howell, 70.

10. ALIMONY-CONCLUSIVENESS OF DECREE.-A wife who, in her action for divorce, fails to show by her complaint in what her husband's estate consists, or that it is within the jurisdiction of the court, cannot, after obtaining a decree of absolute divorce, with a large sum as alimony, have the decree vacated or amended on a bill of review, on the ground that the court failed to set apart to her one-third of her husband's estate as by statute provided. Wood v. Wood, 42.

11. ALIMONY IN GROSS.-An allowance of alimony in gross by consent of the parties at the time the decree of divorce is rendered is not error. Wood v. Wood, 42.

See DOWER, 1.

MARRIED WOMEN.

See HUSBAND AND WIFE; TAXES, 2

MARSHALING SECURITIES.

See MORTGAGES, 5, 6.

MASTER AND SERVANT.

L. Independent CONTRACTOR'S LIABILITY FOR NEGLIGENCE.-The owner, and not the independent contractor, is liable for injury arising from neg. ligent construction of the work if the owner retains and exercises the AM. ST. REP. VOL XLIIL-63

right to direct the manner in which the details of the work shall be performed, but the contractor is liable if the power of the owner to direct the construction is confined to the result of the work without any control over the manner in which it is done. First Presbyterian Congregation v. Smith, 808.

2 INDEPENDENT CONTRACTORS—NEGLIGENCE - LIABILITY AFTER ACCEPTANCE OF WORK.-If an employee at the time of assuming possession of work from an independent contractor knew, or ought to have known, or from a careful examination could have known, that there was any defect in the work, he is responsible for any injury caused to a third person by defective construction. First Presbyterian Congregation v. Smith, 808.

8. INDEPENDENT CONTRACTORS-LIABILITY FOR NEGLIGENCE AFTER AcceptANCE OF WORK.-If an accident happens or injury is sustained after work done by an independent contractor has been accepted by the employer, and he has resumed possession, no recovery can be had by a third party against the contractor for negligence in the construction of the work. First Presbyterian Congregation v. Smith, 808.

4. NEGLIGENCE-MACHINERY.-In an action by an employee against his master to recover for personal injury, the test of liability is not danger, but negligence, which can never be imputed from the employment of methods or machinery in general use in the business. Reese v. Her shey, 795.

5. NEGLIGENCE - MACHINERY. -The use of machinery without a guard being the ordinary custom of the trade is not prima facie negligence on the part of the master in case of injury to the servant, and can only become negligence if the servant's inexperience is such that he ought to have been given special instructions concerning its use, and such instructions were not given. Reese v. Hershey, 795.

6. NEGLIGENCE-EVIDENCE-In an action by an employee against his mas ter to recover for personal injury caused by the temporary removal of a safety guard of machinery, evidence is admissible to show that the same kind of machinery was used without guards in other factories where the employee had previously been employed, and that the guard in question was not in general use in the business. Reese v. Hershey,

795. 7. DUTY OF SERVANT-LIABILITY OF MASTER.-Fellow-servants owe to their master a diligent and watchful care over his business, and to each other a vigilance and caution for their own safety. The master is not liable for the consequences of their unfaithfulness to him unless he continues them in his employ with knowledge thereof, nor is he liable when he has violated no duty owing by him to them. New Pittsburgh Coal ete Co. v. Peterson, 327.

8. FELLOW-SERVANTS.-If one servant is injured by the negligence of another servant while they are directly co-operating with each other in a particular business in the same line of employment, or their duties bring them into habitual association so that they may exercise mutual influence upon each other, promotive of proper caution, and the master is guilty of no negligence in employing the servant causing the injury, the master is not answerable to the other servant suffering therefrom. Chicago etc. R. R. Co. v. Kneirim, 259. 9. FELLOW-SERVANTS Employees serving a common master, engaged in the same common pursuit, and in accomplishing

- VICE-PRINCIPAL.

the same common object, are fellow-servants. The mere fact that one of them has power to employ or discharge the others does not make him a vice-principal. New Pittsburgh Coal etc. Co. v. Peterson, 327. 10. VICE-PRINCIPAL.-A foreman may be, and ordinarily is, but a mere fellow-servant. The burden is upon an injured servant to show by allegations in his complaint that such foreman, whose negligence caused the injury, is a vice-principal and not a fellow-servant. New Pittsburgh Coal etc. Co. v. Peterson, 327.

11. VICE-PRINCIPALS.-The question as to whether an employee is a viceprincipal or a fellow-servant must be determined by ascertaining whether the act performed or duty omitted is one, the doing of which is charged upon the master, and by him delegated to the servant. If it is the servant is a vice-principal, and the master is liable for injury resulting from such act or omission by such servant, provided the injured serv. ant is free from negligence and has not assumed the hazard. New Pittsburgh Coal etc. Co. v. Peterson, 12. VICE-PRINCIPALS.-Whether an employee is a vice-principal or a fellow. servant does not depend upon his rank, but upon the fact as to whether the duty omitted or the act performed by him is one owing from the master to the injured servant, the discharge of which the master has conferred upon the negligent servaut. New Pittsburgh Coal etc. Co. v. Peterson, 327.

13. VICE-PRINCIPALS-LIABILITY OF MASTER.-A servant injured by the negligence of another servant must show by his complaint that some duty of the master to him has been violated in order to hold the latter liable, and, if such duty is one, the discharge of which has been delegated by the master to a servant, not only the duty but the delegation of it, as well as its violation, must be alleged and shown by the com plaint. New Pittsburgh Coal etc. Co. v. Peterson, 327.

14. THE DELEGATION OF A DUTY WHICH THE MASTER OWES TO HIS SERV ANT OF EXERCISING REASONABLE AND ORDINARY CARE AND DILIGENCE in providing and keeping in repair reasonably safe machinery and ap pliances cannot relieve him from liability to a servant injured by the failure to exercise such care and diligence on the part of another serv. ant to whom the duty has been delegated. Chicago etc. R. R. Co. v. Kneirim, 259.

15. ASSUMPTION OF RISK BY MINOR SERVANT.-In working in a dangerous place an adult servant must take ordinary care to observe and ascertain what dangers and defects are incident to his service, and if, by the use of such care, he ought to observe and comprehend such dangers or defects, he assumes all risk by continuing in the employment; but whether a minor servant is of sufficient age, intelligence, discretion, and judgment to bring him within the operation of this rule is a ques tion of fact for the jury. Luebke v. Berlin Machine Works, 913. 16. MINOR SERVANT'S KNOWLEDGE OF DANGER, HOW DETERMINED.-A minor servant, in working in a dangerous place, must, as much as an adult, exercise the degree of intelligence, knowledge, and judgment actually possessed by him. The question, however, in such a case, is not what the minor, in fact, knows or comprehends as to the danger to which he is exposing himself, but what he, in view of his age, intelligence, discretion, and judgment, ought to know and understand. Luebke v. Berlin Machine Works, 913.

See DAMAGES, 3, 4; ELEVATORS; RAILROADS, 8-13.

MECHANIC'S LIEN.

1. CONTRACT NOT TO FILE.-A building contract under which the contractor agrees to keep the lot and building free from mechanics' liens, and any and all manner of charges, precludes the principal contractor, subcontractor, or any other person from filing and foreclosing any lien or charge against the building. Fidelity etc. Life Assn. v. Jackson, 789. 2. SECRET AGREEMENT AGAINST.- A materialman who furnishes material on the order of the record owner of land, without knowledge of a secret conveyance thereof to another, or of a verbal agreement between the vendor and purchaser that the former is to build a house on the land for the latter, and not to allow any mechanics' liens to be entered against it, is not bound by such conveyance or agreement, and is entitled to a mechanic's lien against the property. McCollum v. Riale, 816.

8. ON THE DEATH OF THE OWNER OF PROPERTY the right to file a mechanic's lien thereon terminates. Tubridy v. Wright, 776.

4. DESTRUCTION OF BUILDING BEFORE COMPLETION.-Materialmen and la borers are not entitled to a mechanic's lien on land for materials furnished or labor performed on a building thereon destroyed before its completion. Goodman v. Baerlocher, 893.

5. FILING AND DOCKETING CLAIM.-The right to a mechanic's lien is secured by delivering a claim therefor to the proper officer, within the time prescribed by statute, and leaving it with him to be filed. Such right is not prejudiced by the officer's failure to perform his duty, as docketing the claim is not a prerequisite to securing the lien. Goodman v. Baerlocher, 893.

6. PARTIES.-A mortgagee of land on which a building is erected subsequently to the mortgage is not bound or affected by proceedings to enforce a mechanic's lien against the building unless made a party. Russell v. Grant, 563.

7. MORTGAGE PRIORITY.-The lien of a mortgage for the purchase price of land cannot be displaced or postponed by a mechanic's lien for material furnished for a building thereon which attaches simultaneously with the acquisition of title by the mortgagor and the execution of the mortgage. Russell v. Grant, 563.

8. JUDGMENT OF FORECLOSURE-COLLATERAL ATTACK.-A stranger whose interests are about to be prejudiced by the enforcement of a judgment foreclosing a mechanic's lien may show that it was rendered without jurisdiction. Russell v. Grant, 563.

9. Suit Inter PARTES.-A proceeding to enforce a mechanic's lien is a suit inter partes, and not in rem. Russell v. Grant, 563. 10. JUDGMENT OF FORECLOSURE-PARTIES.—No valid judgment can be rendered establishing and foreclosing a mechanic's lien, unless the contractor who erected the building is made a party. Russell v. Grant, 563,

MERGER.

See MORTGAGES, 9; VENDOR AND PURCHASER, 7.

MINES.

MINING CLAIMS-LOCATION OF.-An association of not less than eight parsons may locate a mining claim not exceeding one hundred and sixty Bores. It is not necessary that a discovery should be made on each twenty acre tract, nor that each twenty acre tract should be marked off

the surface of the ground, nor that work should be done, nor improvements made on each twenty acres. It is sufficient that one hundred dollars be expended in work or improvements on the whole claim within any one year. McDonald v. Montana Wood Co., 616.

MISDEMEANOR.
See HOMICIDE, 5.

MISJOINDER.

See PLEADING.

MISTAKE.

See ADVERSE POSSESSION, 1, 2; BROKERS; EQUITY, 4, 5; MORTGAGES, 11.

MORTGAGES.

1. TIMBER AS PART OF MORTGAGE SECURITY-LIABILITY OF PURCHASER. A purchaser from a mortgagor of timber standing on the mortgaged premises and forming a valuable part of the mortgaged security, with constructive notice of the mortgage at the time of his purchase, and with actual notice of its existence and of the insolvency of the mort gagor at the time he commences to cut such timber, is liable to the mortgagee for the value of the timber taken, in the event that upon foreclosure and sale of the mortgaged premises the proceeds are not sufficient to satisfy the mortgage debt. Webber v. Ramsey, 429.

2 RECORD OF AS NOTICE OF LIEN ON TIMBER.-A record of a mortgage of land on which is growing timber is constructive notice to the purchaser of the timber from the mortgagor of the lien of the mortgagee thereon. Webber v. Ramsey, 429.

8. IMPAIRING SECURITY.-A mortgagee has a right to the whole security to meet the amount of his mortgage encumbrance, and cannot be compelled to take a part. Webber v. Ramsey, 429.

4 STATUTE OF LIMITATIONS.-While the relation of mortgagor and mortgagee continues, neither party in possession can interpose the statute of limitations as a defense against the other, and neither the mort gagor nor his grantee can defeat the mortgagee's right of action by retaining possession and paying taxes. Norris v. Ile, 233.

& MARSHALING SECURITIES-PRIMARY FUND FOR PAYMENT OF MORTGAGE. If the owner of mortgaged lands sells portions of them to third parties, retaining part of them himself, unless the purchaser took cum onere, the portion so remaining in the mortgagor becomes the primary fund for the payment of the mortgage, and the portions sold are liable in the inverse order of their alienation. Merchants' Nat. Bank v. Stanton, 491.

6. MARSHALING SECURITIES-HOMESTEAD-MORTGAGES.-If a man and wife execute a mortgage on their homestead and other lands, and afterward voluntarily convey, with covenants of warranty, a portion of the mort. gaged premises, the land remaining, although the homestead, becomes the primary fund for the payment of the mortgage, as they have no equitable right to insist that their homestead shall be protected to the displacement of this countervailing equity of their grantee. Merchants' Nat. Bank v. Stanton, 491.