tract with him. There was some other testimony that defendant had said he was glad plaintiff was going to L.; that he wanted such a man to look after his business. Held, in an action for services in going to L. to look after plaintiff's interest, that the question as to whether there was a contract of employment was properly left to the jury.-Parrish v. Bradley, (Mich.) 818.

3. In an action for services in going to L., and looking after plaintiff's business there, there was evidence that defendant had informed plaintiff that he was going to L. himself in a few days, but nothing was said as to the precise time when plaintiff should go to L., and he had no instructions as to his manner of procedure. Held that, while he might recover for a few days spent at L., he was not justified in remaining there 30 days, waiting for defendant, and could not recover therefor.-Id.

4. An instruction asked by defendant that it was plaintiff's duty to procure instructions as to the nature of the service expected of him, and that if he remained for days and weeks at L. without ask ing for instructions, he could not recover for the time so wasted, should not be modified by the addition that it is not necessary to plaintiff's right of recovery that there should have been a certain amount of money agreed on as the consideration for plaintiff's services, since the vital point of defendant's instruction is thus obscured.-Id. Contract of hiring--Members of family. 5. Plaintiff, when 16 years of age, went to reside with defendant, his brother, and to continue in his service until he was 21 years old, and continued in the service until seven months before reaching his majority, when he left his service. In an action to recover for the value of his services, plaintiff testified that defendant was to give him a good span of horses, harness and wagon when he became of age, while defendant testified he was merely to feed and clothe him, and send him to school during each winter. Held, that a verdict for the value of a span of horses, harness and wagon was supported by the weight of evidence.-Burkholder v. Burkholder, (Neb.) 145.

and had taken the contract for less than cost. The contractors, finding the amount due for labor exceeded the estimates, and to prevent the filing of liens against the railway, which they had agreed to prevent, demanded and obtained from D. the pay-rolls, and undertook to pay the hands employed by D. Held, that they were liable for the full amount of their wages to such hands, since the prevention of liens was a sufficient consideration for their agreement.-Carlile v. Dauchy, (Neb.) 1119. Injuries by servant to master's property.

14. In an action by a miller and mill-hand for services, where there is a claim for damages by defendants against plaintiff for negligence as miller, and there is some evidence of negligence, which is explained by plaintiff, and the evidence furnishes no sufficient basis for the jury to find any definite sum in favor of defendants, the issue of plaintiff's negligence is properly presented by the court's instruction that "plaintiff would only be liable, if he is liable at all, for the damage which followed or resulted to defendants as the natural and proximate result or consequence of his negligence; that is, the want of ordinary skill or knowledge. "-Brewer v. Wright, (Neb.) 159.

15. In such a case, when defendants charge willful damage to the mill machinery by plaintiff, cannot recover for damages to or destruction of it is proper to instruct the jury that "defendants machinery by plaintiff, unless the same was occasioned by the negligence or wrongful act of plaintiff; and if you find for defendants on this question, the measure of damages would be the cost of repairing said machinery and placing it in as good repair as it was immediately preceding such injury."-Id.

Torts of servant to third persons.

7. Where a woman of 25 years of age has lived for 6 years with her step-mother, from whom her father had been divorced, working as a dressmaker, and giving some of her earnings to her step-mother, and doing some of the household work, she cannot recover from her step-mother for services rendered. - Feiertag v. Feiertag, (Mich.) 414.*

8. In an action for wages by a step-daughter against her step-mother, evidence that plaintiff did not know that she was entitled to her wages after she came of age is incompetent.-Id.

17. The duty of the master to see to it that the machinery furnished for the use of his servants is reasonably safe does not require him to attend to the proper regulation of those parts which necessarily have to be adjusted in the course of the use, and with regard to the particular work to be done, dinary use of the machine.-Eicheler v. St. Paul and the adjustment of which is incident to the orFurniture Co., (Minn.) 975.*

wedge off the top of a high bank at whose foot plaintiff was working, without notifying him, warrants a verdict for injuries caused by the falling earth.-Stevenson v. Ravenscraft, (Neb.) 652.

18. Proof that defendant sent a force of men to

19. In an action for wrongful death of an engineer

10. In an action for wages by a step-daughter against her step-mother, with whom she had lived, giving her some of her earnings, and helping her in the household work, an instruction that a party to an action on a contract of employment is as competent as any other witness, if he knows the facts, to testify to the value of the services, is inapplicable.-Iď.

11. So, also, an instruction that if defendant deceived plaintiff as to her legal rights, and thereby obtained possession of plaintiff's earnings, plaintiff is entitled to recover such money.-Id.

12. Also an instruction that, if plaintiff's earnings passed into defendant's hands after plaintiff came of age, without knowledge on her part that she was entitled to retain them, such payment was a mistake in law, and plaintiff was entitled to

recover.-Id.

Wages-Assumption of payment.

13. Contractors to grade the road-bed of a railway sublet a portion to one D. D. was insolvent,

was caused by the derailment of the engine in consequence of defects in the track; that the conductor had noticed the defects three days before, and them, but that no attempt to repair had been made, is sufficient to show that the injury resulted from defendant's negligence in permitting the defects to remain after notice.-Worden v. Humeston & S. R. Co., (Iowa,) 26.

had called the attention of the section boss to

of defendant's electric light towers, and trim the 20. Plaintiff, whose duty it was to go up to the top lights, was injured by the breaking of the cable of

an elevator, in which he was ascending one of such towers. There was evidence that, as plaintiff and the overseer were about to ascend, another employé informed them that the lights in that tower plaintiff to go up notwithstanding. Held, that the were already trimmed, but the overseer directed court properly refused to charge that if plaintiff's duty was only to trim lights, and the lights in the tower in question had already been trimmed, he was not in the performance of any duty when the

21. There being no claim that defendant's electric light tower, elevator, and cable were not properly constructed, but only that the cable had become rotten, of which defendant had knowledge, the court did not err in refusing defendant's requests to charge as to its liability in case the same were properly constructed.-Id.

22. Deceased was employed to remove hides from vats in a tannery, and put them in wash-wheels. The space between the vats and the wash-wheels was about four feet wide, and the wheels in the vats were eighteen inches from the sides. Deceased was accustomed to start one of the wheels in the morning, and, after it had run fifteen minutes, stop it, and take out the hides, when the wheel in the other vat would be started by an employé from the other side, and run fifteen minutes out of each hour. Deceased knew the time when the wheels would be started. Held, that it was not negligence to start the wheel in the vat at which deceased was not working without notice to him.-Baile v. Detroit Leather Co., (Mich.) 216. 23. In an action for damages resulting to a section hand by being thrown from a hand-car, owing to the breaking of a defective handle, when the evidence shows that the handle was unsafe for the purpose to which it was applied, and that it was the duty of the foreman who had the car in charge to see that it was kept in repair and furnished with new handles, it is for the jury to determine whether proper care had been used by the defendant in guarding against accidents from defects in the handle. Anderson v. Minnesota & N. W. R. Co., (Minn.) 104.

Fellow-servants.

24. Gen. Laws Minn. 1887, c. 13, making railroad companies liable to an employé for injuries caused by the negligence of a co-employé, applies only to those employés engaged in operating railroads, that business.-Lavallee v. St. Paul, M. & M. Ry. and so exposed to the peculiar dangers attending Co., (Minn.) 974.

25. A section foreman and a train conductor are

The vats were level with the floor, and the floor became very slippery as the hides were removed. Deceased, after being employed for about six weeks in removing the hides from the vats, during which time he had made no complaint as to the box, except that it was in his road, was found drowned in one of the vats. Held, that defendant was not liable, even if the accident was occasioned by the box, as deceased assumed the risks of his employment.-Balle v. Detroit Leather Co., (Mich.) 216.* Contributory negligence.

30. Plaintiff, a shoveler, was loading cars from a gravel-pit, under the direction of defendant's foreman. An embankment of earth had been formed by the removal of gravel under it, 12 or 13 feet high, and was frozen. While the foreman, with the knowledge of plaintiff, attempted to pry the bank down, plaintiff selected a place for continuing his work, from which the foreman was in full view, and which he considered far enough removed from the bank to insure his safety, though it should fall. As the bank began to fall plaintiff attempted to retreat further, stumbled over a clod of earth, fell, and was caught by the falling earth. Held, that defendant was not liable. PALMER, J., dissenting. Songstad v. Burlington, C. R. & N. Ry. Co., (Dak.) 755.

31. While a "flying switch" was being made, part of the train being run upon a side track, and the rest in two sections, some distance apart, down the main track, deceased, a section foreman, attempted to cross the main track with the rear section of the train-the one which ran upon him-in full view, and not more than 25 or 30 feet from him. He crossed the track diagonally, with his back turned partly towards the rear section. The track in either direction was straight, and the view uncontributory negligence.-Elliot v. Chicago, M. & Held, that deceased was guilty of St. P. Ry. Co., (Dak.) 758.

obstructed.

26. The servant is bound to exercise care on his part to avoid danger and accident commensurate with the risks to which he is subjected in his employment; and such defects in an instrument which he is frequently using as are obvious to the senses, or with reasonable diligence ought to be discovered or kuown by him, he will be held to take the risk of.-Anderson v Minnesota & N. W. R. Co., (Minn.) 104.

27. The risk from an uncovered saw projecting over its frame and partly across a narrow passageway, over which a servant in a mill is obliged to go in the performance of his duties, being apparent, is assumed by the servant in accepting and remaining in the service.-Stephenson v. Duncan, (Wis.) 337.*

28. A complaint alleging that 10 days before the accident the servant requested the master to repair the defect, giving notice that he would not remain in the service unless the repairs were made at once, and that the master then promised to make such repairs, and thus induced the servant to remain in the service until the time of the accident, fails to show that the servant was injured within a reasonable period for the performance of the master's promise, and shows no cause of action, where it further alleges that the master had ample time and opportunity, and was able to repair the defect, between the time of the promise and that of the injury, but neglected to do so.-Id.

29. Deceased was employed to remove hides from vats in a tannery and put them in washwheels. A box containing ingredients used in tanning was placed next to the wash-wheels, leaving a space of level floor about sixteen inches wide, next to the vats, besides a gutter about six inches

33. A night car-repairer, employed to work on cars while on the tracks, was required to place a draft iron upon a car, which he directed to be switched onto a side track, where it was stopped at the place indicated by him. His assistant was absent, but plaintiff, knowing of such absence, and of the condition of the road, started to do the work himself, and in attempting to lift the iron to its place slipped on some ice and was injured. There were other employés near who were ready to and did assist him when called. Held, that the railroad company was not liable.-Way v. Chicago & N. W. Ry. Co., (Iowa.) 51.*

34. Where the agreement under which one is employed by a railroad company forbids him to uncouple cars while in motion, and he, having passed between stationary cars to uncouple them, remains there after the cars are wrongfully started until he is pushed into a cattle-guard, of which he knows, and is injured, he is guilty of contributory negligence in law, though he testifies that he was so absorbed in his duty that he forgot the cattle-guard, and that, knowing that the starting of a train sometimes loosens a tight car-pin, he attempted to remove the pin after the train started, and that but for this he could have stepped out and avoided the danger. Sedgwick v Illinois Cent. R. Co. (Iowa,) 35.

35. The plaintiff, a skilled mechanic, alleged negligence of the master in not having a movable table or platform, connected with a circular saw, properly secured in place. Held, that he was chargeable with contributory negligence in not paying any attention to the mode in which the same was secured; he knowing that the table was movable. Eicheler v. St. Paul Furniture Co., (Minn.) 975.*

36. In an action for injuries sustained by being thrown against a saw in defendants' saw-mill, at which plaintiff was at work, it appeared that plaintiff stood, while at work, on some loose boards

2. A man and wife, owners of an undivided half interest in a lot, gave a mortgage covering the entire lot, but without covenants of title or warranty. Pending foreclosure, the wife inherited the other undivided half interest. Held that, under How. St. Mich. § 8506, providing that on foreclosure in chancery the same estate shall vest in the purchaser as would have vested in the mortgagee if the equity of redemption had been foreclosed, the sub

Work and improvements.

ure to the purchaser under the mortgage.-Brennan v. Eggeman, (Mich.) 840.

to be made on claims.-Suessenbach v. First Nat. Bank, (Dak.) 662.

Patents-Adverse claim.

2. The interest of the grantee in a conveyance from locators is not an adverse claim within the meaning of Rev. St. U. S. §§ 2325, 2326, requiring adverse claims to be filed and asserted at the time the patent is applied for.-Id. Mining leases.

3. Plaintiff was the owner in fee of premises in which was a range of mineral discovered and worked by defendants. Under an agreement defendants were limited to work the range to a certain point on the land. About half the distance had been worked when a solid wall of rock was

struck against, at which the crevice they were following abruptly ended and the yield of ore stopped. Another shaft was sunk about 45 feet ahead, and in the general direction of the range. From this shaft a drift was made in the same general direction, and finally a crevice was struck in which mineral was again found. This was only a few rods from the point where the crevice "pinched out." The crevice, before it reached the barrier, and after the barrier was passed, was of the same general character. There was no change in the rock, and the mineral found on both sides of the barrier was alike. Held not a new discovery of ore so as to relieve defendants from the limitation prescribed in the original entry.-Raisbeck v. Anthony, (Wis.) 72.

sion becomes that of owner, and gives notice of his rights as such to the subsequent mortgagee of the vendor or the lessor, who takes his mortgage subject thereto.-Smith v. Gibson, (Neb.) 360.

Recording.

4. Though the general index required by Rev. St. Wis. § 759, to be kept in the office of the register of deeds, and in which a mortgage has been entered, does not contain a description of the mortgaged land, as required by the statute, yet, where the mortgage has been transcribed in the proper record book of the office, the defect is cured, and the registry is complete from the time the mortgage is so transcribed. Following Lumber Co. v. Ritchie, ante, 345.-Lane v. Duchac, (Wis.) 962. be presumed that the entry in the general index 5. In the absence of proof to the contrary, it will and the actual recording of the mortgage were simultaneous.-Id.

6. The fact that the entries in the record are not

made in consecutive order, either as to number or date of receipt, as required by the statute, does not necessarily impeach the index so as to destroy the validity of the registry. If it is made to appear that the entry of the mortgage therein was made the mortgage was transcribed on the records and at a later date, the same presumption arises that the registry completed at that date.-Id.

7. Entries in the grantee's index, required by section 760, need not be made in the order in which the instruments were received, as the statute does not so provide.-Id.

Assignment of debt and mortgage.

Conveyances.

5. A claim, concerning which all the laws, rules, regulations, and customs applicable have been complied with, is alienable property before the patent is issued.-Suessenbach v. First Nat. Bank, (Dak.) 662.

6. Where the locators of a claim convey a portion of it, neither they, nor those claiming under them with notice of such conveyance, can, after obtaining a patent, deny the equitable title of the grantee to the portion conveyed.-Id.

Minors.

See Guardian and Ward.

MORTGAGES.

See, also, Chattel Mortgages.

What constitutes-Deed absolute.

9. In an action to foreclose a mortgage securing a non-negotiable note, allegations that plaintiff paid the mortgagee the whole amount due thereon, "for and in consideration of which," the mortgagee said plaintiff all her right, title, and interest in and "then and there sold, assigned, and delivered to to said contract and mortgage, and the amount due thereon," sufficiently aver the transfer of the securities to plaintiff, his ownership thereof, and his right to maintain the action. Morris v. Peck, (Wis.) 623.

10. Where an attorney is accustomed to make mortgage loans for his client, the act of charging to the client the amount of a loan made by the attorney of his own funds, and secured by mortgage, is a sufficient transfer of the note and mortgage, though they remain in the attorney's hands, and the client is not informed of the transaction until long afterwards.-Lane v. Duchac, (Wis.) 962.

Transfer of mortgaged property.

12. A father held a mortgage on his son's land for $5,300. The son sold and deeded the land to him for $8,500, its full value, and received $3,200 in cash. The mortgage notes were not surrendered, nor was the mortgage satisfied of record. Held, that the deed operated as an assignment of the equity of redemption, and the father was not liable, as a mortgagee in possession, to account to junior lienholders for the rents and profits from the time he took possession after delivery of the deed.-Gray v. Nelson, (Iowa,) .66.

13. The mortgagor of timber lands and a farm conveyed the timber lands, with a reservation of half the timber, and afterwards engaged in lumbering thereon in partnership with the grantee. Foreclosure proceedings having been commenced, and an injunction from lumbering operations obtained, the mortgagor and grantee attempted to raise money to pay the mortgage, (the mortgagor offering to remortgage his farm,) but failed. The mortgagee then agreed with the grantee that the time of payment should be extended; that the farm buildings should be insured; that the grantee should give additional security; and that the foreclosure should be discontinued. The mortgagor procured insurance, and transferred the policy to the mortgagee. Held, that a finding that the agreement was without the mortgagor's knowledge or consent was not warranted, and that the extension of time did not release the farm from the mortgage.--Griffin v. Walter, (Mich.) 843. Merger.

14. Under Code Iowa, § 3329, providing that, where the vendor of real estate has given a bond to convey the same on payment of the purchase money, the purchaser may, in default of payment, be required to foreclose his interest; and section 3330, providing that in such cases the vendee, for the purposes of foreclosure, shall be treated as a mortgagor, a transaction in which a mortgagee takes a conveyance of the legal title, and executes a bond to reconvey to the mortgagor on payment of the debt, is a mortgage; and a mortgage subsequent to the previous lien, and prior to such transaction, does not require priority, in the absence of an intent to effect a merger.-McElhaney v. Shoemaker, (Iowa,) 58.

15. A father held a mortgage on his son's land, amounting to $5,300. The son then sold and deeded him the land for $8,500, its full value, and received $3,200 in cash. The mortgage notes were not surrendered, nor was the mortgage satisfied of record. The father acted in good faith, and had no notice of any attachment liens on the land in favor of the son's creditors. Held, that there was no merger. -Gray v. Nelson, (Iowa,) 566.* Payment.

16. Plaintiff conveyed four acres of a tract to her son. C. recovered a judgment against plaintiff and her son, and subsequently the son conveyed the four acres to a coal company. Prior to this judgment and conveyance, the son mortgaged the four acres to T. The four acres, and thirty acres owned by plaintiff, were sold on C.'s judgment. The T. mortgage was foreclosed, and the four acres sold upon the decree. The purchaser redeemed from the sale on the C. judgment. Thereupon plaintiff and one B. entered into a contract under which B. was to acquire the certificate of sale, and extend the time of redemption to plaintiff. Defendant recovered judgment against the coal company, the owner of the four-acre tract, and subsequently caused execution to be issued, and the tract to be sold upon the judgment. Held, that the redemption made by plaintiff as to the decree of foreclosure of the mortgage, and as to the judgment, was not payment thereof, nor operated as such, so that they could not be enforced against the property, and hence defendant was not entitled to hold the land freed from such incumbrances.Beeckman v. Butler, (Iowa,) 593.

17. Where a mortgagor pays the amount of the debt to one who he knows has not possession of the papers, and who undertakes merely to procure a release from the mortgagee, the mortgagor as

Decree.

20. The doctrine that a plaintiff in foreclosure cannot recover a judgment on default larger than the amount prayed for, has no application to a case where plaintiff, defendant having appeared, recovers only the specific debt, less payments, which he claimed in his complaint, the error consisting only in computing the amount unpaid. In such case defendant should call the attention of the trial court to the error, or at least demand that plaintiff remit the erroneous excess; otherwise he cannot avail himself of the error on appeal from the judgment.-Morris v. Peck, (Wis.) 623.

21. A mortgage to plaintiff to secure several notes covered two separate lots, and recited that one lot was pledged only as security for the first note. This lot was afterwards sold to defendant. None of the notes being paid, plaintiff brought suit to foreclose, the petition making the mortgage an exhibit, and reciting the sale to defendant. There was a judgment by default, providing for sale of both lots for payment of the entire debt. Held that, as such judgment granted relief to which plaintiff was not entitled under his petition, defendant could, without showing any excuse for his default, insist upon having the judgment properly modified, so as to limit the liability of his lot according to the terms of the mortgage.-Mickley v. Tomlinson, (Iowa,) 311.

22. Where a mortgage covers an exempt homestead and additional lands, the mortgagor is entitled, on foreclosure, to have the non-exempt property first sold and applied to the satisfaction of the mortgage debt.-Horton v. Kelly, (Minn.) 1031.

23. In a proceeding for the foreclosure of a mortgage, to which the grantor of the present plaintiff was a party, T. answered that she was the owner in fee-simple of part of the land, by virtue of a warranty deed executed by the mortgagor, and of record prior to the execution of the mortgage. By agreement of all the parties, a decree of foreclosure was rendered, finding that her land was not subject to the mortgage, November 12, 1879. More than one year after that time the parties to the action, excepting T., agreed that the decree might be vacated, and the cause reinstated. Plaintiff filed an amended petition, new pleadings being filed by all the parties to the agreement to vacate the decree. June 25, 1881, a new decree was rendered, by which the real estate was declared subject to the mortgage, which was foreclosed, and the land ordered sold. Neither T. nor her attorneys nor agents were notified of these latter proceedings, and she had no knowledge of them. Held, that the district court had no jurisdiction as against her to enter the last decree, and as to her