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stitute in the manner stated, or whether there was in this behalf a want of the requisite and proper skill and attention ordinarily bestowed in similar cases, held to be one of fact for the consideration of the jury.-Id.

3. An instruction to the jury that "the defendant was bound to possess and use all the knowledge, skill, and ability that was reasonably necessary to properly treat plaintiff, and, unless the evidence showed to the satisfaction of the jury that defendant, in the treatment of plaintiff, did use such knowledge, skill, and ability, they should find for the plaintiff, if they further found that the injuries complained of were the result of defendant's so failing to use such knowledge, skill, and ability," was erroneous, as being open to the construction that the burden of proof was upon the defendant to show these facts to the jury.-Id.

MANDAMUS.

Against treasurer to make payment in money, see Taration, 13. For issue of certificate of election, see Office and Officers, 2.

In general-When writ lies.

1. In all cases where full and ample relief may be had either by appeal, writ of error, or otherwise, from the judgment, decree, or order of a subordinate court, mandamus will not lie against a road overseer to compel him to remove obstructions from a public road; and the fact that the person aggrieved or complaining has, by neglecting to appeal when he might have done so, placed himself in such a position that he can no longer avail himself of its benefits, constitutes no ground for interference by the writ.-State v. Buhler, (Mo.) 68, 72.

To courts and judicial officers.

2. The Kentucky statute relative to the condemnation of lands for railroad purposes (1 Acts 1881, p. 83) provides that, on the filing of exceptions to the commissioners' report on the value of the land, the county court "shall forthwith cause a jury to be impaneled to try the issues of fact made thereby." Held, that the action of a county court in dismissing condemnation proceedings, on the land-owner's plea that the company had no right to maintain the proceedings, as its road had, by decree of a federal court, been placed in the hands of a receiver, is not ministerial, but judicial, in its nature, and mandamus will not lie to compel the impaneling of a jury to try the issues.-Shine v. Kentucky Cent. R. Co., (Ky.) 18.

3. Under the Kentucky act of April 11, 1882, § 6, a right of appeal is provided from

the decision of the county court in proceedings for condemnation for railroad purposes; and, where the county court has dismissed the proceedings on the ground that the company has no right to maintain them, mandamus will not lie to compel the court to impanel a jury.-Id. To state boards and officers.

commissioners of public printing by Rev. 4. The duties imposed upon the Missouri St. Mo. 1879, § 6594, in letting contracts for such printing, are not purely ministerial, but involve the exercise of such a degree of discretion as to place them beyond at the instance of a party claiming to be the control of a court by mandamus issued the lowest responsible bidder for such work.-State v. McGrath, (Mo.) 846.

Manslaughter.

See Homicide, 31-38.

MASTER AND SERVANT. Contributory negligence of servant, see Negligence, 13.

Liability of master-Contract of release.

1. An agreement entered into by one with a railroad, upon being employed as brakeman, to take upon himself all risks incident to his position on the road, and not to hold the railroad company liable for any injury he may sustain by accident or collision on the trains of the road, or by defective machinery or carelessness or misconduct of himself or any other employe of the company, is not binding on him so as to relieve the company from liability for an accident caused by its failure to repair its road.-Little Rock & Ft. S. Ry. Co. v. Eubanks, (Ark.) 808.

Defective appliances.

2. It is the duty of the employer to use ordinary care in providing for the use of the servant safe machinery, and premises in safe condition, but he is not an insurer; and if the employe knows of the danger, and, without objection, continues to use them, and injury results to him, he cannot hold the employer liable.-Needham v. Louisville & N. Ř. Co., (Ky.) 797.

3. In an action by an employe against his employer, to recover for an injury received from the dangerous condition of the premises where he was required to work, the employe must aver want of knowledge on his part of the defect.-Bogenschutz v. Smith, (Ky.) 800.*

4. The acceptance by a railroad company of a flat car loaded with lumber, which projects 18 inches from the end of the car, does not entitle a brakeman who is in

jured thereby in coupling such car to a box car to an instruction that the company is, as matter of law, guilty of negligence. Louisville & N. R. Co. v. Gower, (Tenn.) 824.*

5. In an action against a railroad company to recover for the death of an employe, the only evidence introduced by plaintiff to prove the alleged negligence in the construction of a "switch" or "frog" being that the switch rail was a little lower than the other rail, and his witnesses not stating that this was a defect that could be remedied, and defendants proving that it was necessary to have the switch rail lower than the main rail, held, that a finding for plaintiff must be set aside. Little Rock & Ft. S. Ry. Co. v. Eubanks, (Ark.) 808.

Maxims.

Falsus in uno, see Criminal Practice, 42.

MECHANICS' LIENS.

Nature and acquisition of

1. One who, having furnished material to a contractor engaged on work for a county, delivers his attested account to the county judge, and notifies the contractor that he has done so, does not thereby acquire a lien upon the money due the contractor for the work, and he will be postponed, in the distribution of the fund, to partial assignees of the contractor's claim, who took their respective assignments prior to the date of the delivery of his acCampbell v. Hildebrandt, (Tex.)

count.

243.

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2. If the principal contractor is liable to the owner in damages, for breach of contract in putting up the building, to an amount exceeding what is due on the contract price, a subcontractor, who by statute is entitled to have the owner, upon notice from him, retain enough to pay him from what is due to the contractor, provided the contractor himself has a lien, can claim nothing. Parrish v. Christopher, (Ky.) 603.

Mines and Mining. Dower in mines, see Dower, 2.

Misnomer.

In order of publication, see Writs, 7, 8.

MORTGAGES.

See, also, Chattel Mortgages.

Crops, mortgage of, see Crops.

Payment of, see Subrogation, 1. Redemption, see, also, Judicial Sales, 1. What constitutes.

1. N. executed a writing, agreeing to deliver possession of certain town lots when H. should pay him a sum of money and interest on the money for two months, and that his receipt for the money should make the deed executed to him for the lots void. It appeared from parol evidence that H., having the right, at the time the writing was executed. to buy the lots from another within a certain limited time, applied to N. to pay the money and take title to the lots; agreeing that if he, H., did not repay the money within a specified time, the property should be N.'s; and, the obligor having paid the money, the writing was executed in pursuance of the agreement. Held, the writing constituted a conditional sale, and not a mortgage.-Hubby v. Harris, (Tex.) 558.

Deed absolute in form.

2. A deed made by a purchaser at an execution sale to a third party, at the request of the judgment debtor, to secure money borrowed by the judgment debtor from the third party in order to redeem from the execution sale, although absolute in form, will be treated in equity as a mortgage.— Robinson v. Lincoln Sav. Bank, (Tenn.) 656.*

3. Where one conveyed her interest in land to another by a deed absolute in form, but the grantee at the same time executed to her a written agreement binding himself to reconvey the land to her so soon as he might realize from the rents a sum sufficient to repay him what he had paid out in redeeming the land from an execution purchaser, held, the two instruments should be considered together, and, being so considered, constituted a mortgage.-Frey v. Campbell, (Ky.) 368.* Validity.

to B., gets C. to execute a mortgage, with 4. Where A., having mortgaged his land description blank, for the same amount, on

200 acres of his land, and then fills in a description which calls for 200 acres out of a tract of 900 acres, and gets B. to exchange it for his own mortgage, B. being ignorant of the mode in which the second mortgage was made, a court of equity will sustain the mortgage from C. to B.-Brown v Maury, (Tenn.) 175.

Requisites.

5. A mortgage was acknowledged before a deputy-clerk, and the principal clerk, in writing out the certificate, failed to set forth the facts, and include the indorsement of acknowledgment made on the

Partition, mortgagee as party, see Parti- mortgage by the deputy. Heid, that the tion, 2.

mistake may be corrected, under the Ken

Power of sale.

tucky act of May 10, 1884, relative to the First Nat. Bank of Cincinnati v. Thomas, curing of such defects, although the act | (Ky.) 12.* was passed subsequently to the bringing of the suit, and the lien under the mortgage is good. - Edmunds v. Leavell's Adm'r, (Ky.) 134. Description.

6. A mortgage described the lands as "being 200 acres of a tract [described by metes and bounds] containing 600 acres, more or less. Said 200 acres lie west of the H. pike." There were in fact 900 acres belonging to the mortgagor lying west of the pike. Held, that the description was sufficient, and would convey two-ninths of the tract west of the pike. TURNEY, C. J., and CALDWELL, J., dissenting.-Brown v. Maury, (Tenn.) 175.

Mortgagee in possession-Rent.

7. The grantee in an absolute deed that is shown to be a mortgage, being a mortgagee in possession, is to be held to the care that a provident owner would exercise in the management of the land; and, when he rents it out, he is to be charged with what appears from the evidence to be a reasonable rent, even though he may not have received so much, especially when he keeps no account showing his receipts.Frey v. Campbell, (Ky.) 368.

Foreclosure-Defenses.

8. In a suit to foreclose a mortgage executed by defendants, husband and wife, the wife may aver in her answer that she did not execute the mortgage as charged, and that she never conveyed, nor intended to convey, the land described in the mortgage, and allege fraud and collusion on the part of her husband and complainant to procure her signature and acknowledgment, and she is not required to assert this defense by a cross-bill. Genthuer v. Fagan, (Tenn.) 351.

11. The power to make a sale under a deed of trust given to secure the payment of a debt may be exercised although the right of action on the debt is barred, and although the rights of a third person as purchaser of the equity of redemption have intervened. Such purchaser, therefore, cannot, because the debtor has made a new promise sufficient to postpone the bar of the statute so far as he is concerned, and because a sale has been made under the power after the right of action on the debt. but for the new promise, would be barred, assert a right in the land paramount to the right of the purchaser at the sale under the power.-Fievel v. Zuber, (Tex.) 273.*

MUNICIPAL CORPORA

TIONS.

See, also, Counties; Schools and School-Dis-
tricts.

License power, see Licenses, 1, 2.
Limitation of actions against, see Limita-
tion of Actions, 5, 17.

Railroad, ordinance regulating moving of
cars, see Railroad Companies, 8.

Street, establishment of, see Highways, 1, 2.
Taxation, for aid to railroads, see Railroad
Companies, 20.

special assessment, who liable for, see Estates.

public improvements, sale for, see Judicial Sales, 10.

Powers of.

1. A license upon attorneys at law, or any other profession, calling, or trade, may be imposed by a municipal corporation acting under legislative authority; and it is no valid objection to the license that it is imposed upon one profession or trade. and upon no other. -Bullitt v. City of Paducah, (Ky.) 802.

9. In a suit to foreclose a mortgage against a husband and wife, in which the wife, by her answer, denies the execution by her of the mortgage as charged, and alleges collusion and fraud by her husband 2. In an action by a municipal corporaand complainant in obtaining her signature tion on the bond of a public weigher, conand acknowledgment, testimony of the ditioned for the payment of money by him wife and other witnesses is admissible to for the exclusive privilege of weighing cotprove that complainant admitted to her, in ton on the public scales, the plea that the their presence, that she never agreed to ordinance providing the scales, and the give the mortgage sought to be enforced; contract awarding the privilege of weighand such confession, if proved, is conclu-ing, were ultra vires, is not available to the sive proof that there was no mortgage by her, notwithstanding her signature and acknowledgment.-Id.

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sureties; the contract being executed, and
the weigher having got the benefit he con-
tracted for.-Town of Monticello v. Cohn,
(Ark.) 30.
Ordinances.

3. Section 18 of article 4 of the charter of St. Louis provides that the mayor shall state to the council, when assembled in special session, the objects for which they

have been convened, and their action shall
be confined to such objects. Held, that
the mayor could not enlarge the scope of
legislation by stating in his message calling
such session that "he was not averse to
submitting any measure" during the ses-
sion, if deemed of public interest, and that
an ordinance passed at the submission of
the mayor during the session was void.—
City of St. Louis v. Withaus, (Mo.) 395.
Contracts of.

4. A city made a contract for the im-
provement of a street, by which the con-
tractor was to look to the abutting owners
for payment, except in the case of the in-
tersections of crossing streets. In a suit
against the property owners it was held
that the city had no power to bind them,
and, in another suit against the city, it was
held that the contractor had no claim
against it for the price. In an action by
the contractor for authority to remove the
improvements made, except at the street
intersections and in front of the lots whose
owners had paid, held, that the contractors
could not succeed without tendering repay-
ment for the amounts paid them for the in-
tersections and by the property owners.—
Hahn v. Town of Bellevue, (Ky.) 132.

Liability for negligence.

5. The owner of a town lot was engaged
in blasting stone thereon in such manner
that a piece of stone was thrown over into
the street, so as to injure one who was pass-
ing by. Held, the person so injured could
not recover of the city for the injury on
the ground that it had permitted the owner
to carry on his blasting operations.-
James' Adm'x v. Town of Harrodsburg,
(Ky.) 135.*

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Municipalities, liability for negligent blast-
ing, see Municipal Corporations, 5.
Master's negligence, see Master and Serv-
ant, 2-5.

Pleading and proof. see Pleading, 5.
Railroad, negligence of, see Railroad Com-
panies, 7, 9.

ringing bells, etc., see Railroad Com-
panies, 8.

running trains in cities, see Railroad
Companies, 5.

in stock-killing cases, see Railroad
Companies, 18.

Ordinary and reasonable care.

1. Ordinary care is that degree which is
exercised by ordinarily prudent persons
under similar circumstances. Needham
Louisville & N. R. Co. (Ky.) 797.

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2. Explaining to a jury the "care of a
man of ordinary prudence" as "just such
care as one of you, similarly employed,
would have exercised under the circum-
stances, " is erroneous.-Louisville & N. R.
Co. v Gower, (Tenn.) 824.
Proximate cause.

3. It is no defense to an action for dam-
age done to plaintiff's land, abutting on a
river, by the operation of a jetty built in
the river by defendant, that defendant
could not have foreseen the result.—Ar-
mendaiz v. Stillman, (Tex.) 678.
Province of court and jury.

4. In an action against a railroad com-
pany to recover for its willful neglect, re-
sulting in the death of plaintiff's intestate,
the question of willful neglect is not a
question of law, but a mixed question of
law and fact, which it is the peculiar prov-
ince of the jury to determine, especially
as to the degree of it.-Needham v. Louis-
ville & N. R. Co., (Ky.) 797.

Evidence.

5. Under Mansf. Dig. Ark. § 5226, giving
a right of action to the next of kin to re-

cover damages for causing death of a rela- | crossing; that defendant did not and could
tive through negligence, it is admissible
for the plaintiff, the mother of deceased, to
give evidence tending to show that she was
dependent upon him for support.-Little
Rock, M. R. & T. Ry. Co. v. Leverett,
(Ark.) 50.

6. In an action against a railroad com-
pany for negligence causing an injury to
a passenger, the burden of proof shifts to
the defendant upon proof of an accident
occurring to the train, and consequent in-
jury to the passenger.-Louisville & N. R.
Co. v. Ritters' Adm'r, (Ky.) 591.*

7. Evidence showing that plaintiff, a
child 19 months old, somehow got in front
of a street car, and was run over by it, but
showing nothing beyond this as to the
circumstances of the accident, is sufficient
to sustain a verdict against the railway
company, the company not calling the
driver of the car to rebut by his testimony
the presumption of negligence arising from
the facts.-Galveston City R. Co. v. Hewitt,
(Tex.) 705.

8. Evidence of the condition of a railroad
track 21 months after the accident is inad-
missible. Little Rock & Ft. S. Ry. Co. v.
Eubanks, (Ark.) 808.

9. Plaintiff, in an action to recover for
personal injuries resulting from defend-
ant's negligence, cannot show that he has
a wife and children; and, where defendant
objected to such evidence, stating, as the
ground of the objection, that plaintiff must
recover, if at all, for damage sustained by
him individually, and not that sustained
by his family, held, that the admission of
it by the trial judge, with the remark that
he did not take that view of it, was preju-
dicial.-Louisville & N. R. Co. v. Gower,
(Tenn.) 824.

Contributory negligence.

10. A person is not guilty of contributory
negligence in not being on the lookout for
an excavation in a public street. especially
if the street was in good condition when
he passed over it last.-City of Houston v.
Isaacs, (Tex.) 693.

Railroad cases.

11. A railroad company is not liable for
causing the death of one who goes upon
its track at a point where there was no
public crossing, and from which he might
have seen an approaching train, and so
near to the train that those in charge of it
could not, by the exercise of the highest
degree of care, have saved him from being
run over.-Texas & N. O. Ry. Co. v. Bar-
field, (Tex.) 665.*

12. Where, in an action by a widow for
damages for the death of her husband,
caused by his being run over at a street
crossing by defendant's train, the evidence
shows that there were three tracks at the

not see the train till he was on the middle
track, and when he saw it, his horse's feet
being on the further track, he whipped
him to get across; that defendant's train
was going between 15 and 30 miles an hour,
though by the city ordinances limited to
6 miles; that the engineer had a view for
from one to three hundred yards of the
perilous position of deceased; that deceased
could not have heard whistle or bell if he
had stopped, and none was sounded,—
there is no such contributory negligence
shown by it as will sustain defendant's de-
murrer to the evidence.-Donohue v. St.
Louis, I. M. & S. Ry. Co., (Mo.) 2 S. W. 424;
rehearing denied, 3 S. W. 848.

13. Contributory negligence must be af-
firmatively proved, as it will be presumed
that the injured party was in the exercise
of due care until the contrary is made to
appear. And it is not sufficient to estab-
lish contributory negligence on the part of
a brakeman, who was afterwards injured,
that he exchanged places with one of his
fellow-brakemen without orders from the
conductor, although it is probable he would
not have been injured had he not done so.
-Little Rock & Ft. S. Ry. Co. v. Eubanks,
(Ark.) 808.

14. In an action for damages for causing
the death of an employe, a switchman,
brought against a railroad company, an in-
struction to the effect that, if the defects in
the road where deceased was thrown down
and mortally injured by defendant's cars
were easily and readily seen, and deceased
had been accustomed to working there, and
in attempting to uncouple cars while in
motion received the injuries which caused
his death, plaintiff was not entitled to re-
cover, is rightly refused, where there is no
evidence that he knew of the condition of
and it also appears that he was injured on
the track at the place where he was injured,
R. & T. Ry. Co. v. Leverett, (Ark.) 50.
a dark and stormy night.-Little Rock, M.

15. In an action against a railroad for
negligence resulting in the death of appel-
lant's intestate, it appeared that a locomo-
tive drew a box car to the head of a switch,
and, after giving the car an impetus for-
ward, the locomotive moved off, and the
car continued at a rapid rate of speed, down
grade, and without the control of any one,
until it ran over and killed the intestate,
who was walking on the track seeking em-
ployment in feeding and watering stock
loaded in the cars. A portion of the track
traversed by the car ran through a town,
and persons were in the habit of passing
over it by the tacit consent of the railroad.
Held, that the evidence made out a prima
facie case of negligence, and the lower
court erred in directing a peremptory in-
struction for the railroad.-Shelby's Adm'r

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