vania railroad, known as the foundry building, space in the yard for neces-
sary stock and materials, the joint use of the pattern shop with the first party
hereto, the engine room adjoining the foundry. To have and to hold the
premises aforesaid unto the lessee from the 15th day of May, 1880, for the
term of one year then next ensuing, he yielding and paying for the same
unto the said lessor or its assigns, the rent or sum of $500, payable monthly.
It is further agreed, that the second party hereto shall pay fifteen cents per
hour for the steam furnished to his engine by the first party hereto, and he
shall have the right to use the tools in the pattern shop, but in consideration
therefor, the first party hereto shall have the use without charge, of the
power of the engine of the second party whenever they shall require it in the
pattern shop." Construed to mean that the lessor had not agreed to furnish
steam and the lessee had not agreed to take any, but that for whatever steam
the lessor might necessarily furnish, the lessee, if he used it, should pay at
the rate of fifteen cents per hour. Penn Iron Co. v. Franklin Diller, Penn.,

624.

LEGISLATURE.

The legislature has authority to confirm the acts of a town discontinuing a strip
of land upon the side of a town way. Spaulding v. Nourse, Mass., 855.

LIBEL.

Evidence objections to.] Upon the trial of an action for libel the defend-
ant, for the purpose of showing the occasion and provocation of the alleged
libel, put in evidence a pamphlet which the plaintiff had caused to be pub-
lished and circulated concerning him previous to the publication complained
of. The pamphlet was received for that purpose, but not as evidence of the
facts therein stated. Afterward, while the plaintiff was giving evidence on
his own behalf, he was shown the pamphlet and asked: "Are the facts
stated in that pamphlet - those that are stated upon your personal knowl-
edge- true?" The defendant objected to the question, but the objection
was overruled and he answered: "They are." The pamphlet contained many
allegations of fact which were wholly incompetent and irrelevant to the
issue, and extremely prejudicial to the defendant. Held, that the court erred
in permitting the question to be answered. Hinman v. Hare, N. Y., 412.

LICENSE.

Revocation - grant of land.] An unqualified grant of land will operate as a
revocation of a license to enter upon the land and take away any part or pro-
duct of the soil. Barry v. City of Worcester, Mass., 854.

LIEN.

Lumber - pulp.] A lien is given for cutting, peeling and piling poplar lum-
ber by the cord, for pulp, under the statute authorizing a lien for "cutting,
hauling, rafting or driving logs or lumber." Bondur v. Le Bourne, Me., 621.
See ATTACHMENT, 95.

MALICIOUS PROSECUTION.

In an

Probable cause - evidence given on trial of another complaint.]
action of malicious prosecution in making a complaint in order to obtain a
warrant to search for certain intoxicating liquors in possession of the plain-
tiff, who was charged with an intent to sell the same contrary to law, evi-
dence taken upon a subsequent trial for a different offense, having no tend-
ency to justify the complaint, affords no evidence of probable cause and is
properly rejected. Falvey v. Faxon, Mass., 482.

MANDAMUS.

1. To compel collection of tax.] Mandamus will lie against the mayor and
common council of the city of Rahway, compelling them to raise and collect
by tax, as other city taxes are levied and collected, the deficiency as reported
to the said common council by the board of water commissioners of said city,
on application of a water bondholder, to whom interest on bonds is due.
State v. Mayor, etc., of Rahway, N. J., 604.

2. Discretion - unreasonable delay.] Application for a mandamus may, in
the discretion of the court, be denied when the delay in moving it is unrea-
sonable, although it is within the time given for the commencement of
actions; but after that time, when the delay is unexplained, it ought not to
be granted. People v. Chapin, N. Y., 447.

3. Transfer of stock.] Mandamus will not lie to compel the secretary of a
private corporation to allow a stockholder to transfer his stock on the books
of the corporation. Tobey v. Hakes, Conn., 260.

4. Judicial officer-particular decision.] A writ of mandamus will not
lie to compel an officer exercising judicial functions to reach any particular
decision or to set aside a decision already made. People v. Chapin, N. Y.,
447.

See BOSTON, 851; RAILROAD, 198; TELEPHONE COMPANY, 717.
MARRIAGE.

1. Charging separate estate facts must be averred - mechanic's
lien.] In order to sustain a common-law action against a husband and wife
with a view of charging the wife's separate estate, facts must be averred in
the narr. and proved on the trial sufficient to bring the case within the act.
So, also, when the intent is to charge a married woman's realty by a "mechan-
ic's lien" for improvements or repairs, like facts must be averred in the claim
and proved upon the trial of the scire facias. Fenn v. Early, Penn., 147.
2. Alimony.] A wife whose husband has deserted her is not entitled to alimony
when the desertion was caused by acts of cruelty on the part of the wife.
Harvey v. Harvey, N. J., 821.

3. Divorce- cruel and abusive treatment.] Where a husband had a loath-
some disease upon him before he married, and intentionally withheld that fact
from his wife, and the knowledge of the fact when brought home to her was
calculated to make her miserable, cause her mental pain, anguish and suffer-
ing-Held, that such conduct constitutes cruel and abusive treatment within
the meaning of the divorce law. Leach v. Leach, Me., 89.

4.

"utter desertion."] The court is not authorized to grant a divorce
for "utter desertion" where there is only a denial of sexual intercourse.
Steward v. Steward, Me., 39.

5. domicile. The statutory prohibition against granting a divorce, if the
parties have never lived together as husband and wife in this Commonwealth,
is not avoided by a transitory cohabitation here, but requires a domicile in
the State. Weston v. Weston, Mass., 250.

6. Husband's rights to wife's choses in action-accounting.] At com-
mon law the husband had the right to make the wife's choses in action his
own by reducing the same to possession, and her money became absolutely
his own. That was the law of this Commonwealth in 1852. The subsequent
legislation affecting the rights of married women can have no effect upon such
rights, as between husband and wife, as had become vested prior thereto. It
is for the probate court, in the first instance, to determine for what the exec-
utor shall account, and whether he has failed in his duty to compel others to
account, and this court has no jurisdiction to compel a party to account for
money due the estate in advance of any proceedings in the probate court for
that purpose. Cummings v. Cummings, Mass., 226.

7. Gift to wife for gratuitous services.] The husband is, as a general rule,
entitled to receive payment for the services of his wife, but in the event of
such services being rendered gratuitously, he has no such right, and if, later,
she is recompensed by a voluntary gift, her husband is no more entitled to it
than a stranger. Patton v. Conn, Penn., 464.

MARRIED WOMAN.

See MARRIAGE, 147.

MASTER AND SERVANT.

1. Left service - justification.] An assault, without a battery, may or may
not be a sufficient justification for a servant in leaving his master's employ-
VOL. IX. 119

ment before the expiration of the term of service, but when a master, without
any provocation, commits an assault upon his servant and thereby puts him
in fear of injury, it is a good excuse for leaving. Bishop v. Ranney, Vt., 760.
2. Right to discharge- sufficiency of reason- good faith.] Where a
contract for employment reserves to the employer the right to discharge for a
cause specified, and makes him the sole judge of the sufficiency of the reason
for discharge, it does not give him the right to discharge without a reason.
In such a case the law requires of the employer the utmost good faith in judg
ing of the sufficiency of the reason. Winship v. Portland League Base Ball,
etc., Ass'n, Me., 47.

3. Negligence—usual risks.] Where a servant, knowing and appreciating
the dangers, enters upon a perilous work, even though he does so unwillingly
and by order of his superior officer, he must bear the risk. Lynch v. Saga-
more Manufacturing Co., Mass., 84.

4.

.] When an employee is called upon by his foreman to assist in a
work outside of the work which he was employed to do, and in a place where
he had not before done such work, involving perils not known to him, and
which, in the exercise of due care, he was not bound to foresee, he cannot be
held, as matter of law, to have assumed the risk. Farren v. Old Colony Rail-
road Co., Mass., 81.

See DAMAGES, 325.
MECHANIC'S LIEN.

Oath attached to statement.] Failure of a justice of the peace, before whom
the statement of a mechanic's lien is sworn to, to add to his signature the
title of his office does not render the filing of the statement void. The
authority of the officer to administer the oath may be proved if questioned.
Jackson v. Gloucester, Mass., 565.

Affidavit of defense.] See MARRIAGE, 147.

MERGER.

Merger will never be allowed against the interest of parties or their obvious inten-
tion, or when two estates are held in different rights. Gilbert v. Thayer,
N. Y., 435.

MILK.

See ADULTERATION.
MILLS.

Maintaining dam - mutual duty — contribution.] When two mill-owners,
whose mills are on the same stream, one below the other, have a mutual interest
in the upper dam, used as a reservoir for storing water to propel the machinery
of both mills, they are, in the absence of any contract, under a mutual duty
to maintain the dam; and a court of equity will compel each to contribute to
its maintenance in proportion to his relative interest, so long as he exercises
his right to the water. And the lower owner is not entitled to damages occa-
sioned by the upper owner's unnecessary delay in repairing the reservoir dam.
Webb v. Laird, Vt., 57.

MORTGAGE.

-

1. Assignment as collateral foreclosure by assignee — rights of
parties.] When the mortgage of a third person has been assigned by the
mortgagee as collateral security for his own debt, the foreclosure of the mort-
gage by the assignee and his purchase at the sale, as against the assignor,
assuming that the assignor's equity of redemption has not been foreclosed by
making him a party, works no other result than to substitute the land for the
mortgage in the hands of the assignee, and leaves it subject to the assignor's
rights by payment of the debt to reclaim and hold the property discharged
of the assignee's lien. In such case the rights of the assignor attach to the
land if the assignee becomes a purchaser, and to the purchase-money if the
title goes to the stranger. Gilbert v. Thayer, N. Y., 435.

2. Lien canceled by accident, fraud, etc.] The lien of a mortgage
duly registered will not be lost by a cancellation of record effected through

accident or the mistake or fraud of third persons. Heyder v. Excelsior
Building Loan Ass., N. J., 860.

3. Canceled through negligence - subsequent bona fide purchasers.]
If cancellation be the result of the negligence of the owner, he will not be
permitted to establish his lien against subsequent bona fide purchasers or mort-
gagees acting upon the faith of such cancellation of record. Id.

4. Mortgagor retained mortgage.] Permitting the custody of a mortgage
to be in the mortgagor, held to be proof of negligence in the mortgagee, such
as precludes restoration of the mortgage canceled through fraud of the mort-
gagor, against a subsequent purchaser in good faith and with notice. Id.
5. Redemption - conveyance pendente lite.] When a suit to redeem real
estate from a mortgage has been defeated by a conveyance made by the
holder of the mortgage to the plaintiff pendente lite, the bill may still be
retained for the purpose of showing that the mortgagee, while he held the
mortgage, received more than the amount of the mortgage debt; and this
being found, judgment may be entered in favor of the plaintiff for such
amount. Tyler v. Brigham, Mass., 554.

6. Deed with defeasance.] A deed with an instrument of defeasance, under
seal, executed at the same time as a part of the same transaction and between
the same parties, constitute a mortgage. Bunker v. Barron, Me., 872.
7. Discharge.] Nothing but payment of the debt, or its release, will.

See RECORDING ACT, 242.

MUNICIPAL CORPORATION.

Id.

1. Contract limitation of authority.] One can contract with a municipal
corporation only through its authorized agents, and is chargeable with notice
of the limitations upon their official authority imposed by general laws.
Long Island City is not liable for services rendered by an attorney employed
by the common council subsequent to the act of 1871. Lyddy v. Long Island
City, N. Y., 440.

2. Streets negligence notice

--

-

injury to child — imputable neg-
ligence.] The rule requiring care on the part of municipalities in protect-
ing and keeping safe the public streets, and which subjects such corporations
to the consequences of a disregard of their statutory duties in this respect is
wholesome and founded in just principles. Where the question of negligence
in not removing an obstruction unlawfully placed in a public street by third
persons depends upon implied notice, what is a reasonable time from which
notice is to be inferred, must be determined upon the circumstances, giving
weight to the consideration that municipal authorities cannot be expected to
act with the promptness and celerity of individuals in conducting their pri-
vate affairs. Although a city is not liable for the placing by a third person
of a dangerous obstruction upon one of its sidewalks, yet if it fail to cause
its removal after due notice of its existence, it is responsible for any damage
occasioned thereby. Tuesday, A. placed a bar counter upon the sidewalk
leaning against the wall of his building and it remained there until the fol-
lowing Saturday, when plaintiff's intestate, a child between five and six years
of age, while playing about the counter, was fatally injured by the falling of
the counter upon him. Held, that lapse of time, together with the fact that
the street was in a busy and frequented part of the city, made it a question
for the jury whether the city authorities ought to have known of the obstruc-
tion and have caused its removal before the accident, and that a nonsuit was
error. It is not sufficient to defeat a recovery for an injury to a child not
sui juris caused by the negligence of a defendant that the act of the child
was one which in an adult would be deemed a negligent one contributing to
the injury. There must also be concurring negligence on the part of the
parents or guardians. If no such negligence is found the doctrine of con-
tributory negligence has no application. Whether the family of the child in
this case was chargeable with negligence in permitting him to play in the
street was also a question for the jury. Kunz v. City of Troy, N. Y., 683.

See EVIDENCE, 518; TAXATION,

NAVIGATION.

1. Collision-proper lights - U. S. Rev. Stat., § 4233.] The "Yosemite,"
a vessel belonging to defendants, was coming up the Hudson river at the rate
of about sixteen miles an hour, when, between nine and ten o'clock at night,
she collided with and sank a vessel belonging to the plaintiff's testator. She
carried lights corresponding in character and position with the lights pre-
scribed by section 4233, rule 3 of United States Rev. Stat. In an action to
recover damages, plaintiffs were nonsuited on the ground that the "Yosemite,"
at the time of the collision, had the proper lights, and that no negligence was
imputable to her on any other ground. The general term affirmed the ruling.
Held, that as the "Yosemite" was at the time navigating inland waters, under
a coasting license, and was bound to carry the lights prescribed by rule 7, the
ruling was error.
Chase v. Belden, N. Y., 154.

NEGLIGENCE.

1. Action for personal injuries-conflict of laws.] An action cannot be
maintained in this Commonwealth by an administrator for negligently caus-
ing the death of his intestate, in the State of Connecticut, in which State an
action for personal injuries does not survive to the administrator of the per-
son injured. This is so, notwithstanding the intestate was a resident of this
Commonwealth at the time of the injury, and the defendant, a railroad cor-
poration, incorporated under the laws of Massachusetts and Connecticut, and
operating its road in both States as one continuous line. Davis v. Railroad
Co., Mass., 167.

2. Contributory.] When one negligently and without excuse places him-
self in a position of known danger and thereby suffers injury at the hands of
another, either wholly or partially by means of his own act, he cannot
recover damages for the injury sustained. The contributory negligence
which prevents recovery for an injury, however, must be such as co-operates
in causing the injury, and without which the injury would not have happened.
Ordinarily, the question of negligence is one of fact to be submitted under
proper instructions to the determination of a jury. Where the facts are dis-
puted, where there is any reasonable doubt as to the inference to be drawn
from them, or where the measure of duty is ordinary and reasonable care,
and the degree varies according to the circumstances, the question cannot, in
the nature of the case, be considered by the court, it must be submitted to
the jury. But where the facts and the inferences therefrom are undisputed,
where the precise measure of duty is determinate, the same under all circum-
stances, where a rule of duty in a given exigency may be certified and
accurately defined, the question is for the court and not the jury. B., who
was employed by C., a railroad company, at its repair shops - having been so
employed for about five years in conjunction with other of his fellow work-
men, had made an arrangement with an engineer of the company to carry
them each evening to their homes, about two miles from the shops. The
train consisted of a locomotive, a tender, and a gondola car. The gondola
truck stood eleven inches higher than that of the tender; B. had a
habit of sitting on the rear platform of the tender, with his legs hanging over
the side. He was repeatedly warned of the danger he was placing himself
in. Whilst so riding, and whilst there was plenty of room in the gondola,
the train stopped at a point to discharge some articles, when a light engine
that had been following the gondola, through a blunder of the engineer in
charge, ran against the rear bumper of the gondola, and forced the forward
bumper of it up on to the rear platform of the tender, where B. was seated;
the result was, B. was killed. Held, in an action to recover damages for
occasioning the death, that the court should have instructed the jury that B.
had been guilty of contributory negligence. Lehigh Valley Railroad Co. v.
Greiner, Penn., 787.

3.

of parent.] The contributory negligence of a parent or guardian will
not bar a recovery by an infant for injury resulting from the negligence of
another. Erie City Passenger Ry. Co. v. Schuster, Penn., 352.