he is guilty of negligence. This is a question for the jury to deter-
mine. (Wash.) Sullivan v. Wood & Co., 1047.
10. MASTER AND SERVANT-Contributory Negligence of Ser-
vant. If a servant assisting in the construction of a gas-tank is re-
quired to stand upon a narrow walk-around, twenty-six feet above
the ground, and underneath a girder that is being raised, and while
thus employed, and while he could not look up all the time, is injured
by the falling of a wedge used to adjust the girder, and placed in
position by the master, the question of the contributory negligence
of the master is for the jury. (Wash.) Sullivan v. Wood & Co.,
1047.
11. MASTER AND SERVANT-Assumption of Risk.-The de-
fense of assumption of risk is sustained when it is shown that the
danger of the servant was so open, obvious, and apparent that a man
of ordinary care and prudence, with the same knowledge and experi-
ence as such servant had, surrounded by similar conditions, would
not have taken the chance or risk of injury. (Wash.) Sullivan v.
Wood & Co., 1047.
12. MASTER AND SERVANT-Vice-principal.-If one who occu-
pies the place of a master undertakes to perform an act, it is the
act of the master for which he is liable, and his representative is
not transformed into a fellow-servant, merely because he assumed to
do a thing that might have been done by a fellow-servant. (Wash.)
Sullivan v. Wood & Co., 1047.
13. MASTER AND SERVANT-Safe Appliances-Command of
Vice-principal.-If, after objection by the servant as to the safety
of the appliance in use, he is assured of its safety by a vice-principal,
and directed and commanded to do what he was doing at the time
he was injured, the master is hable. (Wash.) Sullivan v. Wood
& Co., 1047.
14. MASTER AND SERVANT-Safe Appliances-Vice-principal.
An instruction that it is the duty of the master to furnish proper
and suitable appliances and to see that they are properly adjusted,
and that anyone to whom the master delegates such duty becomes
for such purpose the vice-principal, for whose negligent act the
master is liable, is proper if amply qualified with reference to the
facts in the particular case. (Wash.) Sullivan v. Wood & Co.,
See Constitutional Law, 17-24.
MECHANICS' LIENS-Mortgages-Priority.-A statute mak-
ing debts due for manual or mechanical labor a preferred claim
against the property of the debtor in the hands of an assignee or
receiver does not give such debts a preference over a prior mortgage
on such property. (Ind.) McDaniel v. Osborn, 354.
MILITIA.
See Insurrection.
See Cancellation of Instruments.
Mistakes as to the area or value of property, when do not justify
the cancellation of contracts, 235, 236.
cancellation of contracts because of mistakes in computation or
estimates, 236, 237.
cancellation of writings because of, 232.
conveyances, reforming because of, 240, 241, 244, 245.
for which contracts may be canceled, illustrations of, 234, 235.
for which cancellation of contracts may be granted, 232.
for which contracts will not be reformed, 233.
in auctioneer's memorandum, correcting in equity, 238.
in computations, when do not justify the cancellation of contracts,
in dates of instruments, correcting in equity, 237.
in describing real property, correcting in equity, 242, 243.
in estimates, when justify the cancellation of contracts, 236.
in including lands not intended to be in a conveyance, reforming
because of, 244.
in omitting easements, reservations, etc., correcting in equity,
244, 245.
in respect to the capacity in which a party has signed an instru-
ment, 239, 240.
in respect to the identity of property, reforming contracts because
of, 242.
in respect to the kind of instrument necessary to effect the pur-
pose of the parties, 239.
in respect to the legal effect of words used in writings, reforma-
tion of because of, 238, 239.
in respect to the nature or character of the estate to be con-
veyed, reforming writings because of, 240.
in the drafting of agreements, reformation because of, 229.
in the name of a party, correcting in equity, 238.
in the rate of interest, correcting contracts because of, 238.
in the terms of a lease, correcting in equity, 237.
in the time for the performance of a contract, correcting in
equity, 237.
in writings in omitting or inserting clauses, relief because of,
229.
in writings in respect to their contents, correcting in equity, 238.
in writings known to one party but not to the other, reforma-
tion because of, 231.
in written instruments, between what parties courts of equity
will interfere because of, 228.
innocent third persons not to be prejudiced by, 229.
mortgages, reformation of because of, 244.
must affect the substance of the contract to justify its reforma-
tion or cancellation, 234.
mutuality of, absence of as a ground for refusing reformation of
writings, 230, 231.
mutuality of essential to support reformation of writings be-
cause of, 230.
of law and fact, relief because of, 228.
of law, whether writing will be reformed because of, 229.
reformation of instruments because of will not be granted if
the instrument as reformed would not be operative, 232.
reformation of writings because of, general rules applicable to,
reforming conveyances because of, 240, 241.
Mistakes, which afford grounds for the reformation of writings, 230,
231.
with respect to extrinsic facts which do not justify the cancel-
lation of contracts, 232.
with respect to the legal effect of words used in writings, reforma-
tion of because of, 238, 239.
1. MONOPOLIES-Statutory Construction.-Chapter 158 of the
Laws of Kansas of 1891, prohibiting combinations to prevent com-
petition among persons engaged in buying and selling livestock, is
superseded by the general anti-trust act of 1897, and is no longer in
force. (Kan.) State v. Wilson, 479.
2. MONOPOLIES-Dealing in Livestock.-An agreement among
the members of an association which practically controls the business
of buying and selling cattle at a great commercial center that they
will make no purchases or sales for others for a commission less than
fifty cents on each head of cattle handled, creates a restriction in
the full and free pursuit of a lawful business and constitutes a trust
within the terms of chapter 265 of the Laws of 1897 of Kansas; and
the exaction of such a commission by a member of the association is
a misdemeanor, and a contract to pay it is void. (Kan.) State v.
Wilson, 479.
1. DEEDS as Security-Parol Evidence to Show.-An agreement
by a grantee in a sheriff's deed, made at the time the certificate is
outstanding to purchase the latter and hold the title to the land as
security for the money paid and other debts of the owner, may be
shown by parol evidence. (Iowa) McElroy v. Allfree, 412.
2. DEEDS as Mortgages-Parol Evidence.-A conveyance, abso
lute upon ist face, may be shown by parol to have benn intended as
security, and if so shown is a mortgage. (Iowa) McElroy v. All-
free, 412.
3. MORTGAGE, FORECLOSURE-Effect of Omitting a Grautee.
The foreclosure of a mortgage to which the grantee of the mortgagor
is not a party is ineffective, and a sale thereunder does not transfer
title to the mortgaged premises. (Cal.) Burns v. Hiatt, 157.
MORTGAGE.-An Ineffectual Attempt to Foreclose a Mortgage
does not extinguish the lien, but leaves the parties as they were be-
fore. (Cal.) Burns v. Hiatt, 157.
MORTGAGE, Assignment of by an Ineffectual Foreclosure.-
One who purchases at a foreclosure sale void because the grantee of
the mortgagor was not made a party becomes the assignee of the
mortgage. (Cal.) Burns v. Hiatt, 157.
6. MORTGAGEE'S RIGHT of Possession Where He Enters Under
a Void Foreclosure.-If a foreclosure and sale thereunder are void
because the grantee of the mortgagor was not a party thereto,
but the purchaser enters into possession peaceably, though without
the consent of the mortgagor, and claiming title under the sale,
such purchaser has such right to retain possession that he cannot
be disturbed therein at the suit of the mortgagor or of his successor
in title, without first paying, or offering to pay, the mortgage debt,
though it is barred by the statute of limitations. (Cal.) Burns v.
Hiatt, 157.
7. MORTGAGEE in Possession, Who is and Right of.-Where
for any reason foreclosure proceedings are void, the mortgage con-
tinues alive for the benefit of the mortgagee, or the purchaser at the
foreclosure sale as his assignee, who, if he peaceably and in good
faith, under color of the foreclosure proceedings, though without the
consent of the mortgagor, enters into possession of the mortgaged
premises, obtains possession thereof in a lawful manner and becomes
a mortgagee in possession with all the rights incident thereto, and
cannot be dispossessed without payment of the debt. (Cal.) Burns
v. Hiatt, 157.
Quieting Title Against Mortgagee.
8. A MORTGAGOR or His Successor in Interest cannot Quiet His
Title Against the Mortgagee without paying, or offering to pay, the
mortgage debt, though it is barred by the statute of limitations.
(Cal.) Burns v. Hiatt, 157.
9. MORTGAGE.-A mortgagor has the right to insist that the
mortgagee shall not, by releasing the land which should pay the debt,
throw upon him a personal liability therefor. (Cal.) Crisman v.
Lanterman, 167.
MORTGAGE-Release of by Subsequent Trust Deed.-Whether
a trust deed to secure the same indebtedness already secured by a
mortgage accomplishes a merger of the mortgage, or, as it may be
termed, a novation of securities, is a question of the intention of the
parties, to be derived from their acts. (Cal.) Crisman v. Lanter-
man, 167.
11. MORTGAGE, When not Released by a Subsequent Trust Deed.
If a trust deed given to secure indebtedness already secured by a
mortgage provides that in case of a sale under the deed which does
not realize enough to pay all the indebtedness, the parties shall have
the same remedies to enforce the indebtedness as if the deed of trust
had not been executed, the mortgage is not released, nor does it merge
in the trust deed. (Cal.) Crisman v. Lanterman, 167.
12. MORTGAGE, Release of, Purporting to Reserve Right to Pur-
sue the Mortgagor.-Where a paper declares that, without in any man-
ner waiving the right to assert against the estate of a deceased mort-
gagor the unpaid balance of the principal and interest on a certain
promissory note, the undersigned does remise, release, relinquish and
discharge from said mortgage and from the lien thereof the mortgaged
lands, the persons executing such paper are estopped from denying
that it releases the mortgage against a person who had purchased such
lands at a sale by the terms of which the purchase price was to be
paid only upon a certificate of an abstract company that they were
free from encumbrances, and it was paid after receiving such certifi-
cate and applied to the satisfaction of indebtedness and for the bene-
fit of the persons executing such release. (Cal.) Crisman v. Lan-
terman, 167.
13. SALE, Application of Proceeds of Powers of Executors.—If
a sale is made under a trust deed, and by the terms of the sale the
property sold is to be free from encumbrances and the same property
is also subject to a pre-existing mortgage to secure the same lebts, and
the proceeds of the sale are sufficient to pay the mortgage debts, a
release of the mortgage executed by the executors of the mortgagee
is binding, although by an agreement not assented to by the purchaser,
an application of such proceeds has been so made as to leave part of
the mortgage debt unpaid. (Cal.) Crisman v. Lanterman, 167.
See Chattel Mortgages; Mechanics' Liens; Subrogation.
1. MUNICIPAL CORPORATIONS-Negligence of Officers.—-A
municipal corporation is not liable under the common law for the loss
of private property by fire caused by sparks from a steam roller used
by the city officers in repairing street pursuant to a duty imposed
upon the city by general law. (Mich.) Alberts v. City of Mus-
kegon, 633.
2. MUNICIPAL CORPORATIONS Streets-Open Trapdoors.—
A city is liable to a pedestrian for an injury sustained by a fall into
an open and unguarded trapdoor situated upon the sidewalk of one
of the principal streets of the city in constant use by pedestri-
ans, although such door had been opened but a few moments at the
time of the accident. (Wash.) Hayes v. City of Seattle, 1062.
Relinquishing Control of Streets.
3. MUNICIPAL CORPORATIONS-Relinquishing Control of
Streets.-Municipal corporations have no power to barter or contract
away the present or future control of their streets, alleys or other
public places, and they are under a continuing duty to keep them
safe. (Ind.) Vandalia R. R. Co. v. State, 370.
4. MUNICIPAL CORPORATIONS-Power to Contract Away Gov-
ernmental Power.-A municipal corporation has no power, by con-
tract, ordinance or by-law, to cede away, limit, or control its legis-
lative or governmental powers, or to disable itself from performing
its public duties. (Ind.) Vandalia R. R. Co. v. State, 370.
5. MUNICIPAL CORPORATIONS-Contracts-Streets-Railroad
Crossings. A contract between a railroad company and a municipal
corporation by which the former agrees to construct a viaduct across
its tracks at a street crossing in consideration that the latter will
construct the abutments and approaches and keep them and the via-
duct in repair for all time, is beyond the power of the city and void.
(Ind.) Vandalia R. R. Co. v. State, 370.
6. MUNICIPAL CORPORATIONS-Contracts for Street Paving.
A contract made by city officers for paving streets after refusing all
bids made after advertisement, and, upon further negotiations with
the two lowest bidders, they receiving lower bids from them, will
not be set aside, or its performance enjoined at the suit of a tax-
payer who is not injured, but in fact benefited thereby. (S. C.)
Dillingham v. City Council of Spartanburg, 917.
7. MUNICIPAL CORPORATIONS-Contracts for Street Paving
-Indemnity Bond.--If a city making a contract for street paving
in its call for bids, requires that the contractor to whom the award
is made shall furnish a bond to guarantee the faithful performance
of the work and to defend, indemnify and save harmless the city
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