garded as an incompetent employé for whose acts the employer is liable, where the incompetency is manifested in his not having suffi- cient capacity to understand and obey rules requiring him not to disturb other parts of the machinery with which he had nothing to do, and he, by violating unese rules, imperils the safety of his fellow- employés. (Maitland v. Gilbert Paper Co., 137.)
7. MASTER AND SERVANT-ASSUMPTION OF RISK.-The doctrine of assumption of risk has no application where the law requires the adoption of new devices to save life or limb, and the employé, either ignorant of that fact or expecting daily compliance with the law, continues in the service with the appliances formerly in use. (Greenlee v. Southern Ry. Co., 734.)
8. MASTER AND SERVANT-ASSUMPTION OF RISKS BY REMAINING WITH AN INCOMPETENT FELLOW-SERVANT.— If an engineer notifies his employer of the incompetency of a fire- man, but is induced to continue in the service on the promise that such fireman will be removed, he does not assume the risk of injury from the incompetency of the fireman by remaining in the em- ployment a reasonable ume, relying on the promise that the fireman will be removed. (Maitland v. Gilbert Paper Co., 137.)
1. MAYHEM AND MAIM ARE EQUIVALENT WORDS and mean the privation of the use of a limb or member of the body, by which one is rendered unable to defend himself or annoy his ad- versary. Hence, the biting of an ear does not constitute a maiming. (State v. Johnson, 769.)
2. MAYHEM-INDICTMENT.-The malicious biting by one of the ear of another cannot be charged in an indictment as done with intent to maim, as biting of an ear does not constitute mayhem. (State v. Johnson, 769.)
3. MAYHEM — INDICTMENT — CONVICTION OF INFERIOR OFFENSE.-Under an indictment charging the malicious biting by one of the ear of another, with intent to maim, the accused may be properly convicted and punished for the inferior offense of aggra- vated assault and battery. (State v. Johnson, 769.)
MAYHEM-INDICTMENT-VARIANCE.-The unlawful bit- ing of an ear, with intent to disfigure, is not an offense inferior to that of biting it with an intent to maim under the statute. An in- dictment charging the biting to have been done with intent to maim is not supported by evidence of biting with an intent to disfigure. In such case, there is a material variance between the proof and the allegation. (State v. Johnson, 769.)
MECHANIC'S LIEN-PERSONAL LIABILITY.-An owner of property who fails to have recorded his contract with the original contractor is not thereby made personally liable to a subcon- tractor. (Madera Flume etc. Co. v. Kendall, 177.)
2. MECHANICS' LIENS-BONA FIDE PURCHASERS.-A me chanic's lien holder is not a purchaser within the meaning of a stat- ute providing that unrecorded conveyances shall be void as against subsequent purchasers in good faith and for a valuable considera. tion whose conveyances are first duly recorded. (Mathwig v. Mann, 47.)
3. MECHANIC'S LIEN.-A NOTICE OF A CLAIM for a me chanic's lien which states the name of the contractor and of the
owner of the property, but omits to state the name of the person for whom the claimant furnished material, is fatally defective. (Madera Flume etc. Co. v. Kendall, 177.)
4. MECHANIC'S LIEN.-A NOTICE OF A CLAIM for a mechanic's lien required to be made and filed for record cannot be amended or reformed. The notice of the claim must be perfect when filed. (Madera Flume etc. Co. v. Kendall, 177.)
5. MECHANIC'S LIEN ATTACHES, WHEN, TO TITLE OR INTEREST ACQUIRED WHILE CONTRACT IS BEING PERFORMED.-If one in possession of land falsely represents that he owns it, or has an interest therein to which a lien can attach, and materials for improvements are furnished to him on the strength of such representations, but he afterward acquires a life estate in the land and more materials are furnished under the same contract, a lien for all of the materials attaches to the life estate. (Floete v. Brown, 434.)
6. MECHANIC'S LIEN-ORAL CONTRACT.-The fact that a contract is oral does not relieve the claimant of a mechanic's lien from complying with the provision of the statute requiring every person to state in his claim or notice of lien the facts specified in the statute. (Madera Flume etc. Co. v. Kendall, 177.)
7. MECHANIC'S LIEN-ENFORCING AGAINST PART OF A SYSTEM FOR SUPPLYING AND DISTRIBUTING WATER.-If a canal is projected in sections, two only of which are completed, and, when so completed, a pre-existing pipe line is used in connection therewith, and the owner has a pre-existing system of reservoirs and ditches, all intended to collect, store, and supply water for irrigation, one who has contracted to supply materials or perform work upon one of the sections of such canal may claim and enforce a lien thereon without including the contemplated parts of the canal which have not been constructed, or the pipe line, or such other property of the owner forming part of the general system, but existing before, and capable of being used independently of, the canal. (Pacific R. M. Co. v. Bear Valley Irrigation Co., 158.)
8. MECHANICS' LIENS MORTGAGES PRIORITY.-AIthough a statute provides that a mechanic's lien shall have priority over any lien originating subsequently to the commencement of the construction of the building, such mechanic's lien is not superior to the lien of a mortgage, executed prior to, but recorded after, the commencement of such construction. (Mathwig v. Mann, 47.)
9. MECHANICS' LIENS-MORTGAGES-PRIORITY.-If mortgages are both executed and delivered, and the money which they are given to secure is advanced, before the commencement of the construction of a building on the mortgaged premises, liens for labor and material used in such building are subject to the liens of the mortgages, though the latter are not recorded. (Mathwig v. Mann, 47.)
10. LIENS-LESSEE AND MECHANIC-PRIORITY.-The lien of a lessee of a life estate is superior to a mechanic's lien for materials furnished prior to the lease, where the lease was made before the statement of the mechanic's lien was filed and after the expiration of the time during which the statute would protect a mechanic's lien without a statement, and where the lessee had no actual notice of such lien. (Floete v. Brown, 434.)
MINES AND MINING.
See Cotenancy, 1-8.
1. MORTGAGES-POWER OF SALE-DEATH OF MORTGA- GOR.-A power of sale contained in a mortgage does not cease nor become inefficacious upon the death of the mortgagor. (Carter v. Slocomb, 714.)
2. MORTGAGES-POWER OF SALE-EXERCISE OF AFTER DEATH OF MORTGAGOR.-A sale of land by a mortgagee, made after the death of the mortgagor, under a power given by the mort- gage, though without notice to the heir, is valid. (Carter v. Slo- comb, 714.)
3. MORTGAGE-AGREEMENT TO PAY TAXES.-A separate agreement by a mortgagor to pay taxes on the lands mortgaged not incorporated in the contract of mortgage does not forfeit or other- wise affect the mortgagee's right to collect the interest stipulated for in such mortgage. (London & S. F. Bank v. Bandmann, 179.)
4. MORTGAGE-WAIVER OF RIGHT OF THE MORTGAGEE ARISING FROM A FORBIDDEN, AGREEMENT TO PAY TAXES.-Where the laws of a state provide that the mortgagee shall pay taxes on his mortgage interest and that any agreement to the contrary shall deprive the mortgagee of all right to collect interest, the mortgagor, after paying interest in accordance with a forbidden agreement, cannot complain. (London & S. F. Bank v. Bandmann, 179.)
5. MORTGAGE CHANGE IN THE FORM OF THE DEBT.- A statute providing that a mortgage shall not be created, renewed, or extended except by a writing executed with the formalities re- quired in the case of a grant of real property, does not prevent the mortgage from continuing to operate as security for indebtedness, the form of which has been changed by giving a new note therefor, though but for the giving of such new note the pre-existing evi- dence of indebtedness would be barred by the statute of limita- tions. (London & S. F. Bank v. Bandmann, 179.)
6. MORTGAGE-CHANGE IN THE FORM OF THE DEBT- STATUTE OF LIMITATIONS.-A change in the form of a debt secured by a mortgage does not satisfy it. Though such debt was evidenced by notes which have become barred by the statute of lim- itations, yet if new notes have been given therefor, so that the mort- gagee still retains a right of action on them, the mortgage can be foreclosed irrespective of the lapse of time, where the mortgage describes no particular notes, but purports to be to secure "the present indebtedness" of the mortgagor to the mortgagee and such advances as may thereafter be made by the latter to the former. (London & S. F. Bank v. Bandmann, 179.)
7. MORTGAGES — ASSIGNMENT · RECORD - NOTICE.-The record of an assignment of a mortgage is constructive notice to all persons of the rights of the assignee, as against any subsequent acts of the mortgagee affecting the mortgage, save only as ex- cepted by statute. A second mortgagee, or the assignee of his mortgage, is not within the statutory exceptions. (Robbins v. Lar- son, 572.)
8. MORTGAGES - ASSIGNMENT - RECORD-NOTICE SECOND MORTGAGEE.-A statute providing that "the recording of the assignment of a mortgage shall not, in itself, be deemed notice of such assignment to the mortgagor, his heirs or personal repre- sentatives, so as to invalidate any payment made by them, or either of them, to the mortgagee," applies only to the parties therein named, and not to a second mortgagee or his assignee. (Robbins v. Larson, 572.)
9. MORTGAGES- ASSIGNMENT – NOTICE - RIGHTS OF FIRST AND SECOND MORTGAGEES.-If the assignee of a first AM. St. REP., VOL. LXV.-61
mortgage has had his assignment duly recorded before the execu tion of a second mortgage, the assignee of the latter is not entitled to have the former canceled on the ground that, subsequent to the assignment of the first mortgage, it was paid to the mortgagee without actual notice of the assignment. (Robbins v. Larson, 572.)
10. JUDGMENT-FORECLOSURE-SERVICE OF PROCESS— PERSONAL JUDGMENT AGAINST ONLY ONE DEFENDANTVALIDITY OF DECREE AS TO ALL.-If a decree in a mortgage foreclosure suit, where the plaintiff asks a judgment of foreclos ure against all of the defendants, is entitled as against all of them, recites due and legal service, adjudges them all to be in court, but in default, finds that a foreclosure is proper, and orders the land to be sold, it must, though personal judgment is given against only one, and his right of redemption alone is cut off, be held good to some extent, at least, as against all of the defendants, in a proceeding which expressly ignores or denies its existence, but which is not a direct attack upon it. (Day v. Goodwin, 465.)
11. MORTGAGES-FORECLOSURE—EXTINGUISHMENT LIEN.-If a mortgage given upon one tract of land to secure a debt due and payable as an entirety, is, under the power contained in the mortgage, foreclosed upon default in payment for less than the amount due, the lien of the mortgage is thereby extinguished. Under such mortgage, there can be but one foreclosure, and that exhausts the mortgage, which is no longer security for any part of the debt. (Loomis v. Clambey, 576.)
12. EXECUTION SALE-WHEN RELATES TO THE DATE OF A MORTGAGE.-If a judgment is recovered upon a bond secured by a mortgage, and a fieri facias is issued and a sale made thereunder of the mortgaged premises, the title relates to the date of the mortgage, and hence divests the title of grantees of the mortgagor subsequent to its execution, though such grantees were not parties to the action. (Morris v. Campbell, 880.)
See Crops; Deeds, 9; Husband and Wife, 1; Insurance, 60; Mechanic's Lien, 8, 9.
1. MUNICIPAL CORPORATIONS HAVE SUCH CAPACITIES and powers, and such only, as are expressly granted, and such as may be implied as essential to carry into effect those expressly granted. All doubtful claims to power are resolved against the corporation. (Markley v. Mineral City, 776.)
2. MUNICIPAL CORPORATIONS – POWER TO ACQUIRE LAND FOR DONATION PURPOSES.-A municipal corporation has no power, by deed of purchase, to legally acquire title to, and hold real estate for, the sole purpose and with the sole intent of donating it to persons or corporations to procure the construction and operation of manufacturing plants within the municipality. (Markley v. Mineral City, 776.)
3. MUNICIPAL CORPORATIONS-POWER TO ACQUIRE LAND FOR DONATION PURPOSES.-If a municipality pays out Its corporate funds for the purchase of land to be donated by it to a person or corporation as an inducement to build and operate manufacturing plants within the corporate limits, the money is unlawfully expended, and the deed taken by the city purporting to convey such land is void. (Markley v. Mineral City, 776.)
4. MUNICIPAL CORPORATIONS-POWER TO ACQUIRE LAND FOR DONATION PURPOSES-RIGHT TO RECONVEYANCE.-If a municipality has purchased lands with its corporate funds, and has donated it to a person as an inducement for him to
construct and operate manufacturing plants within the municipality it is not entitled to maintain an action in a court of equity to compel a reconveyance of the land to it with possession, together with a cancellation of its own conveyance. In such case, the court will not aid either party, but will leave them where they have placed them- selves. (Markley v. Mineral City, 776.)
STREETS-PARTIAL OCCUPANCY AND USE OF.-The fact that a street was never worked or fitted for travel clear to the south line thereof does not prevent the municipality from working and fitting it for travel up to such line whenever it may choose. (Madison v. Mayers, 127.)
STREETS--MUNICIPAL CORPORATIONS, RIGHT TO IN. A city has a right to maintain a suit to prevent an abutting prop- erty owner from removing stone, earth, and other materials from within the limits of a street and from impairing an embankment situated therein, or from making it more difficult or expensive to fit the whole width of the street for travel. (Madison v. Mayers, 127.)
7. MUNICIPAL CORPORATIONS-SIDEWALK AS A PART OF THE STREET-AUTHORITY OF CITY.-A sidewalk is a part of the street, and the authority of a city over a street extends over the sidewalk as a part of the street. (Frankfort v. Coleman, 412.)
8. MUNICIPAL CORPORATIONS-RIGHT TO FORBID THE FILLING IN OF A LAKE.-Though a city has been given power to enact ordinances for the benefit of trade, commerce, and health, and to provide for the abatement and removal of nuisances, it is not thereby authorized to restrain the filling in of a lake not constituting any part of the public street. (Madison v. Mayers, 127.)
9. MUNICIPAL CORPORATION-SIDEWALKS-PROPERTY OWNER'S LIABILITY.-A municipal corporation may, upon proper notice, require an abutting property owner to construct a sufficient sidewalk in front of his premises, and, upon his failure to do so, may itself construct such walk and assess the cost thereof against his property, but it cannot recover indemnity from him for money paid out on a judgment against it for injury caused by his negligent con- struction of the sidewalk. (Wilhelm v. Defiance, 745.)
10. MUNICIPAL CORPORATIONS-NUISANCES-DUTY TO SUPPRESS.-The duty of the peace officers of a city to suppress a public nuisance maintained therein is a public, as distinguished from a strictly corporate duty, and the failure of such officers to perform such duty does not render the municipality liable therefor. (Mayor etc. of Wilmington v. Vandergrift, 256.)
11. MUNICIPAL CORPORATIONS ORDINANCES TO PRE- VENT NUISANCES.-Town authorities have authority to prohibit by ordinance the keeping of hogpens in the town to such an extent as they may deem necessary to prevent nuisances to the public, and they are the sole judges of the limits to be prescribed, unless such ordinance is clearly unreasonable. (State v. Hord, 743.)
12. MUNICIPAL CORPORATIONS-ORDINANCE TO PRE- VENT NUISANCES-DISCRIMINATION.-A municipal ordinance forbidding any citizen in a town from keeping hogpens within one hundred yards of the residence of another is reasonable and valid and not void as making unjust discrimination. (State v. Hord, 743.) 13. MUNICIPAL CORPORATIONS-NUISANCE-ORDINANCE UNNECESSARY.-If an act is a public nuisance at common law, the failure of the city in which such act is committed to legislate upon it or to forbid it is not a neglect of duty. (Mayor etc. of Wil- mington v. Vandergrift, 256.)
14. MUNICIPAL CORPORATIONS - NUISANCE-COASTING- LIABILITY FOR.-Coasting on the public street of a city in such
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