LIENS. MECHANICS. Continued. the value of the building to that of the whole should be first ascertained and applied to the satisfaction of the claims of the material man. Langford v. Mackay et al., 223 3. Sub-contractors.-Appellee served notice on appellants that they had been employed by the principal contractor to furnish materials to erect appellant's building, and that they would hold the building and ground liable for the amount due. At the time of the notice, appellant did not owe the principal contractor anything except the sum of $22.36, which they paid to appellees before suit brought. Held, that as it was not claimed that anything became due from appellants to the principal contractor, that they did not owe at the time the notice was served, appellees have failed to establish by proof their claim as subcontractors. Douglas et al. v. McCord et al., 278 MALICIOUS PROSECUTION. BURDEN OF PROOF. 1. Onus on plaintiff.-In an action for malicious prosecution, the onus is on the plaintiff to show that the criminal prosecution instituted by defendant was the offspring of malice and without any probable to justify it. Krebs v. Thomas, GENERALLY. 266 As to damages in action of malicious prosecution.-See DAMAGES. 2. Illegal act of justice.-Where appellant instigated the suing out of a State warrant against appellee, and the complaint on which it issued contained an accusation of larceny, and that only, and the justice of his own motion, changed the charge of larceny into one of "disorderly " conduct, and imposed a fine. Held, in an action for malicious prosecution that appellant could not be held responsible for these illegal acts of the justice, and when appellee chose to dismiss his suit as to the justice, it was error to overrule appellant's motion to exclude the evidence as to such acts. Frankfurter v. Bryan, 549 3. Malice not legal presumption from want of probable cause.— Malice is not a legal presumption from want of probable cause, and an instruction which invades the province of the jury by indirectly telling them that in the opinion of the court the facts and circumstances in the case would, with the want of probable cause, warrant the inference of malice, is erroneous. Frankfurter v. Bryan, 549 4. Motive. In an action for malicious prosecution, the motive of the defendant in instituting the prosecution is immaterial, if there was probable cause for making the arrest. Even if he was actuated by feelings of revenge or hatred and there was probable cause, he would not be liable. Leyenberger v. Paul, 635; Frankfurter v. Bryan, 549 5. Probable cause.-Probable cause is such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe or entertain an honest and strong suspicion that the person accused is guilty. Leyenberger v. Paul, 635 6. Suspicion distinguished from conviction.-In an action for ma LIENS. GENERALLY. Continued. licious prosecution, it is held to be enough if the facts and circumstances are sufficient to produce an honest and strong suspicion of the guilt of the accused. An instruction using the term conviction, instead of suspicion, would be erroneous, as it would require a higher degree of proof than the law requires. Keep et al. v. Griggs, 511 7. Where accusation includes offense of inferior degree.—If an accusation inclu les an offense of an inferior degree, the accused may be acquitted of the higher crime, and convicted of the lesser, and in an action of malicious prosecution, a conviction of such inferior offense will be considered as the proximate effect of the original accusation. In the case however of "disorderly" conduct and larceny, no two offenses could be more dissimilar. Frankfurter v. Bryan, MANDAMUS. GENERALLY. 549 1. What petition should allege.-A petition for a mandamus against a county board to compel them to furnish aid to build a bridge should allege that the town had raised one half of the neces sary funds. Such allegation can be traversed by denial in the answer and if the issue thus made be found for the defendant or admitted by demurrer, a mandamus ought to be refused. Supervisors of Kendall Co. v. The People, 210 2. When it will not lie.-A writ of mandamus will not lie against a county to compel it to reimburse a town for one half of the cost of building a bridge where the town built the bridge by virtue of § 111 (Road and Bridge Law) and accepted and paid for it out of the fands raised by the town. Supervisors of McHenry Co. v. The People, 204 MARRIAGE.-See BREACH OF PROMISE. MASTER AND SERVANT. 1. Employer not an insurer of machinery used.-The employer is not bound to provide absolutely safe machinery. He is not an insurer. The law imposes upon him only the obligation to use reasonable and ordinary care in providing suitable and safe machinery, implements and tools. W. St. L. & P. R'y Co. v. Fenton, 417 2. Negligence. Where appellee, an employe of appellant, was directed to perform certain work without directions as to the manner of performing the service, and he of his own will and inclination selected a mode that was dangerous when there was a way and a better way in which to do the work without injury. Held, that he did not use ordinary care and prudence and can not recover. Appellant can not be held liable for the voluntary acts of appellee by which he was injured. St. L. Bolt and Iron Co. v. Burke, 369 3. Quitting employment.-It was error for the court to permit appellee to set up a slight sickness which had not continued up to the time he left, as a justifying cause for leaving appellant's employ, since appellee had not been required to work when he was ill and had voluntarily resumed work on the next day. Mills v. Buffin, 111 MINES. 1. Negligence of agent.-Where deceased was the agent of appellant, an owner of a coal mine, and was engaged in superintending the mining of coal, and as such agent, failed to put catches on the brake and thus comply with the statutory duty imposed upon an owner, agent or operator of a coal mine by the sixth section of the act of 1879, for the safety of persons employed in a coal mine, and in consequence of such failure was killed. Held, that his widow and heirs can not recover damages from the owner because of his death. Deceased was appellant's agent, and it was as much his duty as that of appellant to place catches on the brake, and in failing to do so, they failed to comply with the provisions of the statute and are in pari delicto, and the maxim that no man shall take advantage of his own wrong applies. Beaucoup Coal Co. v. Cooper, MISTAKE. IN WRITTEN INSTRUMENT. 373 1. Evidence.-Where a party seeks to rectify a written instrument on the ground of mistake, the evidence must be such as to leave no fair and reasonable doubt upon the mind that the instrument does not embody the final intentions of the parties. Douglas et al. v. Grant, 273 2. Rectification.-Rectification can only be had where both parties have executed an instrument under a common mistake and have done what neither of them intended. A mistake on one side may be ground for rescinding but not for correcting or rectifying an agreement. Douglas et al. v. Grant, 273 MORTGAGES. GENERALLY. 1. Foreclosure-Fraudulent object.-Where from the evidence it appeared that appellant's object in procuring a foreclosure of a mortgage was fraudulent. Held, that he was not entitled in a court of equity to claim damages for loss arising from a state of affairs which he by his fraudulent conduct, contributed to bring upon himself. Panton v. Collar, 160 2. Verbal release.-Where it was claimed that a certain mortgage was released by a verbal agreement between the mortgagor and mortgagee, and such agreement was without consideration. Held, that if such an agreement could bind the parties to it, it certainly could not bind a person not a party to it, unless that person was induced by the promise made, to purchase property, invest his money or do some act prejudicial to his interest. Snell v. Palmer, LIEN. 337 3. Priority of-Where a lien of a material man is prior to that of an equitable mortgagee as to the building, and subject to it as to the land, and a sale of the premises is necessary, the proportion of the value of the building to that of the whole should be first ascertained and applied to the satisfaction of the claims of the material man. Langford v. Mackay et al., 223 MUNICIPAL CORPORATIONS.-See CITIES, TOWNS AND VILLAGES. NEGLIGENCE. CONTRIBUTORY NEGLIGENCE. 1. Want of ordinary care.-A plaintiff who by his own want of ordinary care has contributed to the injury complained of, can not recover, no matter what the degree of defendant's negligence may have been, provided it is short of that which raises an inference of a willful and intentional wrong. C. B. & Q. R. R. Co. v. Dougherty, 181; Union Railway & Transit Co. v. Kallaher, 400 2. Walking on railroad track.-The negligence of deceased in going upon the track, and while there not looking for the known danger, materially and directly contributed to the injury. As between the negligence of deceased and defendant's servants, there was no substantial difference. The verdict was therefore against the evidence. C. B. & Q. R. R. Co. v. Olson, GENERALLY. 245 3. Against evidence.-As the evidence shows that the coal cars were dumped in the morning, and after being dumped appellant had no control over them, and the accident happened in the afternoon, appellant can not be held responsible for the action of the railroad company with which it had nothing to do. St. L. Bolt and Iron Co. v. Burke, 369 As to negligence in mines.-See MINES. As to statutory presumption of negligence.-See PRESUMPTIONS. 4. Comparative negligence.—If a plaintiff exercises ordinary care under all the circumstances of the case, and the defendant is negligent, though not to the extent of being grossly so, plaintiff may recover, although his care is not of that extreme degree denominated great care or such as men of extraordinary caution and prudence might have used. C. B. & Q. R. R. Co. v. Dougherty, 56 5. Definition of negligence.-Negligence is the failure to exercise the care required by law. C. B. & Q. R. R. Co. v. Dougherty, 181 6. Entire conduct to be considered.-Where the negligence with which the evidence tended to charge plaintiff was to be found mainly in his conduct before he saw the danger, i. e., in his standing in the street waiting for a car without looking or listening or taking any precaution to ascertain whether danger was approaching or not, until it was too near for him to escape, an instruction upon the question of plaintiff's negligence which limited the jury to the consideration of plaintiff's conduct after he saw his danger, was erroneous. The attention of the jury should have been directed to his entire conduct on the occasion, as well before as after he discovered the car approaching. C. W. D. R'y Co. v. Hariland, 561 7. Injury to children while trespassing.-The owners of private grounds are liable for injuries to children, although trespassing at the time, where from the peculiar nature and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such injury to flow therefrom as actually happened. Coppner v. Penn. Co., 600 8. Knowledge of defect in sidewalk.—If a sidewalk is of such a character that extra care must be taken to pass over it safely, a party, 9. Known danger.-Where danger is actually known or apparent 10. Material circumstances.-The fact that plaintiff was an old 561 11. Province of jury.-Negligence is a question of fact to be proved, 286 12. Walking upon railroad track.-Where there is no excuse or 13. What is "due care" in a child.-A child, who uses such care as NOTICE. EXEMPTION. 1. Duty of officer.-Where certain property is by law exempt from 2. Notice of limitation.-Notice to a shipper of the adoption of a VOL. XIL 45 |