LIENS.

1. LIENS-PRIORITY OF-LEASE AND CHATTEL MORT-
GAGE.-A lien for rent created by lease to become operative against
personal property afterward to be brought upon the leased premises,
but not yet capable of description, because not segregated, from a
stock of goods of which it forms a part, is inferior to the lien of a
chattel mortgage on such property, executed after it was placed
upon the premises, and with notice of the lien attempted to be cre-
ated by the lease. (New Lincoln Hotel Co. v. Shears, 524.)

2. LIEN ON RENTS FROM PROPERTY.-A lien upon property
does not attach to the rents derived from the property, unless
specifically included. (Heller v. National Bank, 212.)

3. LIENS EFFECT OF INSOLVENCY ON.-The insolvency
of the mortgagor or debtor cannot operate to expand the lien held
by mortgagee or creditor, because mere insolvency can, of itself,
in no instance, amplify a lien, whose existence and extent depend
wholly upon the terms of the contract creating the lien. (Heller v.
National Bank, 212.)

See Corporations, 4, 8, 11; Insurance, 12, 20; Trusts, 6; Vendor and
Purchaser, 3-5.

LIMITATIONS OF ACTIONS.

LIMITATIONS OF ACTIONS-CONTRACT WITH CORPO-
RATION-SHAREHOLDER'S LIABILITY.-If a corporation em-
ploys an attorney at law to defend an action brought against it, its
liability upon the contract is "created" when the services have been
fully performed, and not at the time of the employment. Hence,
where the liability of a shareholder in such corporation is dependent,
under the statute, upon the amount of stock owned by him at the
time the liability was "incurred," the liability of one who was a
stockholder when the services in question were rendered, is not
barred by the statute of limitations until the expiration of the statu-
tory period from the time that the liability was created. (Johnson v.
Bank of Lake, 17.)

See Guaranty, 6; Legacies; Rape, 8.

MANDAMUS.

1. MANDAMUS TO CONTROL OFFICIAL DISCRETION.—
Mandamus does not lie to compel an officer to exercise his official
discretion in favor of a claimant of exemptions and to turn over to
him on demand his property seized under a writ of attachment.
(Oliver v. Wilson, 784.)

2. MANDAMUS TO CONTROL OFFICIAL DISCRETION.—
Mandamus does not lie to compel a ministerial officer to act in a
particular manner in any case where the officer's action or nonac-
tion depends upon the exercise of official discretion. (Oliver v. Wil-
son, 784.)

3. MANDAMUS-CITY TREASURER-ILLEGAL DEMAND
APPROVED BY CITY COUNCIL.-The duty of a city treasurer is
to pay only legal demands against his funds. He cannot, therefore,
be compelled, by mandamus, to pay a warrant issued for the value
of lumber and materials sold to the city by a member of the city
council, although the demand has been allowed by the city council,
for such a claim is not a legal one, and its allowance by the council
does not give it any validity not otherwise possessed. (Berka v.
Woodward, 31.)

MARRIAGE AND DIVORCE.

1. MARRIAGE AND DIVORCE-CHANGE OF DOMICILE
FOR DIVORCE PURPOSES.-To effect a change of domicile for
the purpose of obtaining divorce, not only must the residence at the
place chosen for the new domicile be actual, but to the factum of
residence there must be added the animus manendi. (Magowan v.
Magowan, 645.)

2. DIVORCE-CONCLUSIVENESS OF DECREE AS TO RESI-
DENCE.-If a plaintiff in an action for divorce is required by stat-
ute to have been a bona fide resident of the state in which the
action is brought for a fixed period of time, in order to enable him
or her to maintain the action, the ascertainment by the court of the
fact of such residence necessarily precedes a consideration of the
merits of the case, and the determination of that question is final,
not only in the courts of that state, but in every other jurisdiction
where the validity of the judgment comes in question, unless such
determination has been procured by fraud, but, if it has been so
procured, it is without extraterritorial effect, and the decree must
be treated as void in another state. (Magowan v. Magowan, 645.)
See Parent and Child, 1.

MAXIMS.

FICTIONS OF LAW ARE INDULGED TO WHAT EXTENT
-MAXIM.-All fictions of the law were created to enable the court
to do justice. In fictione juris semper aequitas existit. But where
the indulgence of a legal fiction will work injustice, its just limit has
been found. A court will never allow it to work wrong and in-
justice. (Estate of Walker, 40.)

MECHANICS' LIENS.

-

-

1. MECHANIC'S LIEN COVENANT AGAINST — REPUG-
NANT CLAUSES.-A clause in a building contract positively pro-
hibiting all liens is valid, and is not repugnant to a further clause
requiring the contractor to show by sufficient evidence that the
premises are free of all liens before payments could be demanded,
this latter clause being inserted only as a protection against possible
liens which might be filed without regard to the contract. (Com-
monwealth etc. Co. v. Ellis, 816.)

2. MECHANIC'S LIEN-COVENANT AGAINST-WHO MAY
FILE.-Under a clause in a contract which provides that no liens
shall be filed "by any subcontractors, or any other person," the prin-
cipal contractor is not entitled to file a lien. (Commonwealth etc.
Co. v. Ellis, 816.)

3. EXEMPTIONS-LIENS FOR LABOR OR MATERIALS.-A
constitutional provision that all property exempted by law from seiz-
ure and sale shall be liable to seizure and sale for any debt incurred
to any person for work done or materials furnished in the construc-
tion, repair, or improvement of such property, is self-executing, and
its direct effect is to make property which is exempt from seizure
and sale for other debts liable for the debts enumerated to the same
extent and in the same way as if no exemption law existed. (Nick-
erson v. Crawford, 354.)

AND

LABOR-LOGGING

OPERA

4. LIENS-SUPPLIES
TIONS. The lien of a person who performs labor and furnishes
supplies in furtherance of a general lumbering operation of cutting
and hauling logs is not limited to the particular logs drawn by his

own team, but may be enforced against those cut in the general logging operations, and not drawn by him. (Hopkins v. Rays, 554.)

See Homesteads, 6.

MERGER.

See Judgments, 13.

MILITIA.

1. MILITIA-MILITARY CODE-COURT-MARTIAL-CONSTITUTIONAL LAW.-The provisions of a state military code authorizing the trial, in times of peace, of members of the state militia by court-martial for a violation of the reasonable rules and regulations of such code, and their punishment, if found guilty, by fine or imprisonment, are constitutional and valid. (State v. Wagener, 369.) 2. MILITIA-VIOLATION OF MILITARY CODE NOT CRIMINAL OFFENSE.-The rules and regulations of the Minnesota military code are merely disciplinary in their nature, designed to secure higher efficiency in the military service, and a violation of them does not constitute a "criminal offense" within the protection and meaning of constitutional provisions requiring presentment or indictment by a grand jury in order to hold to answer for a criminal offense. (State v. Wagener, 369.)

3. MILITIA-"TROOPS"-"STANDING ARMY."-The active militia of the state, the members of which, when not engaged at stated periods in drilling or training for military duty, pursue their usual vocations subject to call for military duty when public exigencies require it, are neither "troops" within the meaning of article 1, section 10, of the federal constitution, nor a standing army within the meaning of section 14 of the bill of rights of the Minnesota state constitution. (State v. Wagener, 369.)

MISTAKE.

See Insurance, 41; Libel, 10.

MORTGAGES.

MONEY-CHARACTER

DIS

1. MORTGAGE-PURCHASE CLOSED ON ITS FACE.-A lien, whether it be a mortgage or a judgment, need not disclose on its face that it is for purchase money, if, in point of fact, it was given for purchase money. (Commonwealth etc. Co. v. Ellis, 816.)

2. MORTGAGE—PURCHASE MONEY.-Where the delivery of a deed to the mortgagor and a delivery of the mortgage to the mortgagee are concurrent and simultaneous acts, and the money for which the mortgage was given was in actual fact a part of the purchase money paid for the property, such mortgage is a purchase money mortgage, and is entitled to priority in distribution. (Commonwealth etc. Co. v. Ellis, 816.)

3. MORTGAGES-PAYMENT-REVESTING OF TITLE.-The payment or satisfaction of a debt secured by mortgage operates, ipso facto, to revest the title in the mortgagor without a reconveyall (Schilling v. Darmody, 892.)

4. MORTGAGES-REDUCTION FOR FRAUDULENT REPRESENTATIONS.-In an action to foreclose a purchase money mortgage, the mortgagor may claim a reduction of the mortgage debt if the quantity of the land covered by the mortgage has been fraudulently represented to be greater than that actually conveyed, and such representations have induced the purchase. Such defense

SA

0

may be made by answer without a cross-bill. (McMichael v. Webster, 630.)

FORECLOSURE-WASTE

5. MORTGAGES REDUCTION OF DEBT.-A mortgagee in possession as such may, by cross-bill on a bill to foreclose the mortgage, be compelled to account for waste of the mortgaged premises, and to submit to a reduction therefor from the mortgage debt. (McMichael v. Webster, 630.)

6. MORTGAGES-FORECLOSURE.-WASTE by a mortgagee while in possession, not as mortgagee, but in some other right, is not a defense to the foreclosure of a purchase money mortgage.. (McMichael v. Webster, 630.)

7.

MORTGAGES-FORECLOSURE-MANNER OF SALE.-If land has been mortgaged as one tract and subsequently platted or cut up into city lots, and some of the lots sold, the mortgagor cannot, in case of foreclosure, insist, as a matter of right, that the sale be of the lots as platted, and not of the entire tract. (Hanscom v. Meyer, 544.)

8. JUDICIAL SALES-REDEMPTION-RIGHTS TO RESIST. A purchaser at a mortgage foreclosure sale has the right to acquire absolute title to the land, unless it is redeemed within the time allowed by law, by one who has a right under the statute to redeem, and he cannot be deprived of this right by one who is not a lawful redemptioner. (Hughes v. Olson, 343.)

MORTGAGES-FORECLOSURE--RIGHT OF PURCHASER TO ENJOIN REDEMPTION UNDER VOID JUDGMENT.-A purchaser at a mortgage foreclosure sale has the right to enjoin a person from redeeming from such sale under a void judgment purporting to have been rendered in his favor against the mortgagor. (Hughes v. Olson, 343.)

See Debtor and Creditor, 2; Gifts, 4; Husband and Wife, 3; Insurance, 10-12; Vendor and Purchaser, 6.

MUNICIPAL CORPORATIONS.

1. MUNICIPAL CORPORATIONS-ORDINANCES REASONABLENESS.-COURTS are not inclined to inquire into the reasonableness of ordinances passed under an express grant of power by the legislature, but, as to ordinances passed under the general powers of a city, courts will not hesitate to declare them void where they appear to be unreasonable. (Ex parte McCarver, 946.) 2. MUNICIPAL CORPORATIONS-"CURFEW" ORDINANCE -WHEN UNREASONABLE AND VOID.-A city ordinance declaring it to be unlawful for any person under twenty-one years of age to go upon the streets later than fifteen minutes after the ringing of what is called the "curfew bell," provided for by the ordinance, unless such person is accompanied by his or her parent or guardian, or is in search of the services of a physician, is not necessary to preserve the good order and morals of the community, but, on the contrary, is paternalistic and an invasion of the personal liberty of the citizen. Such legislation is unreasonable, and the ordinance is, therefore, illegal and void. (Ex parte McCarver, 946.) 3. MUNICIPAL CORPORATIONS-LIABILITY FOR ACTS OF AGENTS, WHICH THE CITY HAS NO POWER TO AUTHORIZE. A city is not answerable, even for the acts of its agents or servants, or for their negligence, in the performance of acts which it has no power to authorize. (Gross v. Portsmouth, 586.)

4. MUNICIPAL CORPORATIONS-LIABILITY FOR ACTS OF INDEPENDENT PERSONS-A city is not answerable for injuries caused by the negligent construction of waterworks therein, by

an independent board of water commissioners, who are not the city's servants or agents, and whom the city cannot direct or control in the discharge of their duties. (Gross v. Portsmouth, 586.)

5. MUNICIPAL CORPORATIONS-FORBIDDEN CONTRACT -RECOVERY UPON IMPLIED CONTRACT.-Under a city charter, which forbids a member of the city council from being directly or indirectly interested in any contract made by them, and statutes which forbid city officers from being interested in such contracts, and which impose a penalty for such an act, a member of a city council who has expressly contracted with it for the sale of lumber and materials to the city, cannot recover their value upon an implied contract. (Berka v. Woodward, 31.)

NEGLIGENCE.

1. NEGLIGENCE-DANGEROUS PREMISES-LIABILITY TO TRESPASSERS-CHILDREN.-Liability of the owner of dangerous premises to trespassers does not exist, even in the case of children, unless they are induced to enter upon the land by something unusual and attractive placed upon it by the owner, or with his knowledge permitted to remain there. (Cooper v. Overton, 864.)

2. NEGLIGENCE-DANGEROUS PREMISES-LIABILITY OF OWNER TO TRESPASSERS.-The owner of an unfenced, vacant city lot, upon which is situated a pond of surface water caused by the obstruction of a natural drain by city authorities, unknown to such owner, is not required to fence it or otherwise insure the safety of trespassers, old or young, who may go upon the premises, not by his invitation express or implied, but for purposes of amusement or from motives of curiosity. In such case, the owner is not liable for the death of a child ten years old who is drowned while playing on the pond. (Cooper v. Overton, 864.)

3. NEGLIGENCE-ORDINARY CARE.-Any failure by one engaged in the pursuit of his own occupation or business to observe precautionary rules or regulations established by competent authority to guard against accidents and prevent injury to others, is, in legal contemplation, a want of ordinary care. (Schmidt v. St. Louis R. R. Co., 380.)

4.

NEGLIGENCE-ORDINARY CARE.-Under some circumstances, a very high degree of vigilance is demanded by the requirement of ordinary care. Thus, if the consequences of negligence may probably be serious injury to others, and where the means of avoiding the infliction of such injury are completely within the party's power, ordinary care requires the utmost degree of human vigilance and foresight. (Schmidt v. St. Louis R. R. Co., 380.)

5. NEGLIGENCE-ORDINARY CARE.-The term “ordinary care," when used to define the duty of a gripman on a street-car toward a young child just dismissed from school and about to cross in front of his car, means that degree of care which, in the ordinary experience of mankind, must be expected to be exercised toward such child. (Schmidt v. St. Louis R. R. Co., 380.)

6. NEGLIGENCE-CITY RAILWAY'S RATE OF SPEED.-An ordinance authorizing a city railway company to run its cars at a rate of speed not exceeding twelve miles per hour is not a license to run at that rate under any and all surroundings, and does not relieve the company and its servants in charge of its trains of the duty of holding them in such control that they can stop them in the shortest time and space possible on the first appearance of danger observable by the vigilant watch imposed by such ordinance. If there is a crowd of school children on the street, the gripman in charge of a street-car must so regulate the speed of his car aud