LIENS

ΤΟ

MAST, AND SERV.

falsity. Moffitt v. Chicago Chronicle Co., 407; Locke v. Com-
pany, 390.

LIENS-See CRED. BILLS, 1,2.

Agency No lien can be established against the property of
a married woman, on the theory of her husband's agency,
for lightning rods erected upon her house and barn, where she
objected to their purchase and stated to her husband, in the
presence of the agent, that if he entered into the contract he
must pay for the rods with his own money, and at ail reason-
able times protested against their erection.-James v. Dalbey,
463.

17.

LIMITATION OF ACTIONS-See PLEAD., "; RAIL., 30.
1. Written Contract-A written agreement upon the back of an
assessment certificate issued for a special assessment to pay
for street paving, which is a plain assumption by the owner
of the property of an obligation to pay and a waiver of all
legal objections to the claim, in consideration of additional
time, is a written contract upon which action is not barred
until ten years from the time it accrued.-Talcott v. Noel, 470.
2. SAME-The right to attack a conveyance to a non-resident is not
barred if exercised within five years after the property is con
veyed to a resident.-Applegate v. Applegate, 312.

LIQUIDATED DAMAGES-See CONTRACTS, 7.

MALICIOUS PROSECUTION.

1. Justice-Where a justice issued a subpoena for a witness, with-
out authority, and, on the witness not appearing, arrested and
fined him for contempt, evidence of such facts is sufficient to
take a case of false imprisonment against the justice to the
jury.-Chambers v. Oehler, 155.

2. Constables-Where constables served warrants, apparently
regular, arresting a witness for disob ying an invalid subpœa
issued by the justice, they are not liable for false imprison-
ment.- Idem.

MARSHALLS-See FEES, 1.

33

MASTER AND SERVANT-See EVID., ; INTOX. LIQ., ;
PARENT AND CHILD; RAIL., 11, 12, 23, 24, 31, 32

1. Risk of Employment-A boy fifteen years of age who, with-
out objection or promise of repair, works for three years with
a machine with revolving iron rollers placed within three-
quarters of an inch of each other, assumes the risk incident to
its use and waives any defects therein.-McCarthy v. Mul-
grew, 76.

Small figures refer to subdivisions of Index. The others to page of report.

MAST. AND SERV. Continued

ΤΟ

MECH. LIENS

2. SAME-The danger of using a machine with unguarded revolv-
ing rollers three-fourths of an inch apart is so obvious that the
master need not warn a servant of it.-Idem.

3. SAME-Plaintiff, whose hand was injured by being caught
between the rollers of an ironing mangle while she was putting
beeswax on one of the rollers in obedience to her employers'
orders, was twenty-one years old, and had often used the man-
gle. She knew the danger of having her hand caught, and
knew that the guard had been removed from in front of the
rollers in order to allow her to do the work. Held, that her
employers were not liable, although they did not warn her of
the danger.-Hanson v. Hammel, 171.

MECHANIC'S LIENS.

1. Affidavit-An affidavit purporting to be that of one partner in
claimant's firm, signed in the firm name and sworn to before
the other partner, as an notary, is not a proper verification of
a statement for a mechanic's lien. -McGillivary v. Case, 17.
2. CORRECTION-Code, section 357, providing that no defective
affidavit shall prejudice the party making it if it be rectified
within a reasonable time, so as not to cause essential injury,
will not permit amendment of a defective affidavit for a
mechanic's lien as against a subsequent bona fide mortgagee.-
Idem.

3. Breach of Contract-An owner, who, on the default of a build-
ing contractor completes the work, under the provisions of
the contract permitting him to do so, and to deduct the cost
from the amount due the contractor, has the same right to
reimburse himself out of the amount reserved during the pro-
gress of the work by the contractor against the holders of
mechanic's liens as against the contractor himself.-Beach &
Weld v. Wakefield, 567.

4.

Equitable Interests - Foreclosure - A mechanic's lien may
attach to an equitable interest in real property, and when
foreclosed the decree is a lien thereon.-Sheppard v. Mes-
senger, 717.

5. Estoppel-A material man stated to a house owner, while the
house was unfinished, that the principal contractor "had paid
all his bills as he had paid them last winter,-when the build-
ings were finished." Held, that this did not estop him from
asserting his lien for material furnished the contractor.-Green
Bay Lumber Co. v. Adams, 672.

6. Incumbrancers -The maker of a note held by a bank then in
liquidation obtained its surrender by reason of the fact that
Small figures refer to subdivisions of Index. The others to page of report.

MECH. LIENS Continued

ΤΟ

MORTG

the president of the bank paid the note either in cash or by a
charge to his account which had sufficient to its credit. The
maker of the surrendered note gave the president new notes
payable on demand and secured them by mortgage. Held.
a. The president acted for himself and not as trustee for the
bank.

b. While by reason of the taking of demand notes, there was
no extension of time, yet the new notes did not secure or
evidence an antecedent debt, and they rested on sufficient
consideration to bring their holder within the rights of
incumbrancers for valuable consideration under the mech-
anics's lien law.-McGillivary v. Case, 17.

7. Railroads-A builder constructing a union depot for a terminal
railway and warehouse corporation, which was a railroad with-
in the statute, and where the building of such depot was the
real and primary purpose of the corporation's organization,
has a mechanic's lien on the corporation's entire railroad pro-
perty, prior to incumbrances and liens accruing subsequent to
the beginning of the work.-Beach & Weld v. Wakefield, 567.
8. Subcontractors--Where a house owner, knowing that a mater-
ial man was furnishing material for which he had not been
paid, and having funds due the contractor sufficient to pay the
duly-perfected lien for material, pays the contractor in advance
and also other subcontractors, who had not filed their liens, he
is liable for the amount of the material man's lien.-Green Bay
Lumber Co. v. Adams, 672.

MISJOINDER-See PRACT., 22
MISTAKE--See JUDGMENT, 3, 12.

MORTALITY TABLES-See EVID., 27.

MORTGAGES-See ADJUD., 2; CORP., 3,4,5; INSTRUC., ; GEN.
ASSIGN., 1,3,4,9; NOTES AND BILLS, 2; PLEADING, 12; PROBATE
JUR.; RAIL., 22.

1. Foreclosure-ATTORNEY'S FEES-A mortgage providing that it
shall secure, in addition to the principal debt, all sums in any
way to become due, including attorney's fees, does not
include sums due for services of a stranger in trying to obtain
an extension of the mortgage, where he is unsuccessful.—
Steckel & Sons v. Standley, 694.

2. SAME-Nor does it secure a stranger performing services, as
against a purchaser of the land, though the stranger after-
wards acquires the mortgage.-Idem.

3. SAME-A chattel mortgagee is not entitled to expenses of a trip
to foreclose a mortgage, which he does not show to be neces-
sary or reasonable.—In re Windhorst, 58.

Small figures refer to subdivisions of Index. The others to page of report.

MORTG. Continued

то

MOTIONS

4. DEFENSES-Waiver-The fact that a purchaser withholds a por-
tion of the price claimed by the mortgagee, as security against
the claim does not prevent him from disputing the validity of
the claim.-Steckel & Son v. Standly, 694.

5. INSTALLMENTS NOT DUE-Though a decree in foreclosure may
preserve a lien for installments not due, yet plaintiff may not
make his lien for installments not due senior to those due, and
sell subject to the senior lien. He must sell sufficient only to
satisfy installments due, or sell the whole, and look to the sur-
plus to satisfy installments not due.-Kilmer v. Gallaher, 676.
6. TENDER-A tender to a mortgagee of the amount due on the
mortgage is kept good although no money was paid to the clerk
of the district court in pursuance thereof because the latter
preferred a certificate of deposit, where the money was at all
times subject to his order and under his control.-Steckel v.
Standley, 694.

7. Waiver A mortgagee waives his right to insist that the money
owing on the mortgage be produced where the owner of the
property subject to the mortgage offered to pay the amount
due and could have produced it within a few minutes and
offered to do so but was assured by the former that the money
would not be accepted unless his alleged claim was paid in
full.-Idem.

8. Recording - Notice - A recorded chattel mortgage does not
impart constructive notice where the only description is by
reference to the names of the various items of machinery cov-
ered by the amount apportioned to each, without any statement
as to the possession, ownership, or location, or other things to
aid in its identification.-Iowa Lumber Co. v. Cassidy & Bro.,
564.

9. Settlement by Debtor-A mortgagee may complain of a
fraudulent settlement between the mortgagor and the holder
of a mechanic's lien paramount to the mortgage whereby the
amount of the lien is fixed at a sum in excess of that actually
due. Beach & Weld v. Wakefield, 567.

10. Tacking-A valid claim not secured by mortgage at the time of
a purchase of real property cannot be tacked to the mortgage
debt and made a lien upon the property by the purchase of the
mortgage after the title to the property has vested in the pur-
chaser although the latter retains a portion of the purchase
price on account of the claim, not because it was conceded to
be due but as security against liability therefor.-Steckel &
Son v. Standley, 694.

MOTIONS-See JUDGMENT, 12; PRACT.,

25 26
>

Small figures refer to subdivisions of Index. The others to page of report.

MUN. CORP.
9.10. PRACT.,

MOTION AND DEMURRER-See ADJUD., 1; PLEAD., 9,10;

28; PRACT. SUP. CT., 22.

2.

34

MULCT LAW-See INTOX. LIQ., 1,2; TAXATION, 3,*.

MUNICIPAL CORPORATION--See BONDS, 1, 2; EVID., 16, 30;
CONSTITUTIONAL LAW, 4; LIM. ACTIONS, 1; NEGLI., ; OFFICE
AND OFFICERS, 1, 2; TAXATION, 1 2 3 567 8 9

1. Debt--A contract for a street improvement under which a city
agrees to pay a specific sum at a stated time is a debt within
the constitutional inhibition against incurring indebtedness in
excess of five per cent. of the value of its taxable property,
where the contractors are under no obligation to accept the
proceeds of local assessment bonds or the amount derived from
such assessments on abutting property, and the city has no
funds which it can lawfully use to meet the payments as they
fall due under the contract, and has issued bonds and levied
assessments to reimburse itself for the amount to be paid to
the contractors.--Allen v. City, 90.

2. Constitutional Limit — Money raised to pave one street be-
comes a trust fund, and if used on another street a debt is
made to that trust fund. If the debt so made exceeds the con-
stitutional limit, a paving assessment to reimburse the city for
the trust money and bonds for that purpose, payable out of a
special paving tax, are both invalid, and no paving contract
may be made looking to such reimbursement.-Idem

3. Order of Payment-The income of each year must be used to
pay debts of that year, to the exclusion of prior warrants
issued, presented for payment and endorsed "Unpaid for want
of funds."-Phillips v. Reed, 331.

4. PRIORITIES-Code, section 660, providing that warrants when
presented to the city treasurer, if not paid for want of funds,
shall be endorsed by that officer with the date of presentation,
and paid in order thereof, applies only as between warrants
issued in a given year.--Idem.

5.

6.

Contract-PAVING-The statute making it incumbent on a city
to establish the grade of a street before paving it does not pre-
clude the city from ordering the paving and making the con-
tract therefor before it has established the grade, where the
contract is made with reference to a pro osed grade, which is
established before any work is done.-Allen v. City, 90.
SAME-A contract by a city with a paving contractor requiring
the contractor to replace defective work at any time within
two years, and providing that, if he fails to do so, the city may
replace it and recover the expense of him and his bondsmen,
Small figures refer to subdivisions of Index. The others to page of report.