of his superior officers, and without any effort on their part to enforce it, or where the usage and practice of the company would tend to mislead him in the violation of the rule. Id.

6. RAILROAD EMPLOYEE CANNOT RECOVER FOR INJURY CAUSED BY DEFECTS COMMON TO RAILROADS, and such as could not have been avoided by the exercise of reasonable care and attention on the part of the company. Id.

7. RAILWAY COMPANY DOES NOT WARRANT TO ITS SERVANTS SAFE CONDITION of its line and machinery; it guarantees only that due care shall be used in constructing, keeping in repair, and operating its line, appliances, and machinery. Little Rock etc. R'y Co. v. Eubanks, 245.

8. MASTER IS NOT Liable, as General Rule, to ONE SERVANT for an injury resulting from the negligence of a fellow-servant. Exceptions to the rule are as follows: 1. Where the injury results from exposing the servant to risks not arising out of his contract of service or employment; 2. Where the negligent servant, whatever his grade or title, exercises supervision or control over the injured servant, they are not fellowservants in a common employment, and the principal must answer for the negligent acts of the former, whereby the latter was injured without fault on his part; 3. Where the principal undertakes to run dangerous machinery with insufficient help, and the servant is thereby injured. Jones v. Old Dominion Cotton Mills, 92.

9. LIABILITY OF THIRD PERSON TO PERSON INJURED, FOR NEGLIGENCE OP ANOTHER, PROCEEDS upon the maxim, Qui facit per alium, facit per se, and presupposes the existence of the relation of master and servant between such third person and the person actually guilty of the negligent act. Muse v. Stern, 77.

10. MASTER AND SERVANT, WHEN RELATION DOES NOT EXIST. - One Straus, who was the partner in business of the defendant, Stern, individually owned a horse and phaeton. He sent them, in charge of his own servant, to meet the defendant and convey him from the depot to the store of the firm. While going in the direction of the store with the defendant, the servant recklessly drove against the plaintiff, Muse, and knocked him down and injured him. In an action for damages for the injury sustained, held, — 1. That the relation of master and servant did not exist between the defendant and the driver at the time of the injury, and the plaintiff could not recover; 2. That the negligence which caused the injury could not be considered as that of the defendant, merely because he was present at the time. Id.

11. EVIDENCE THAT MAN WAS ON RAILROAD TRAIN ACTING AS BRAKEMAN between two stations on the road is sufficient to justify the conclusion that he was a regular employee of the company. St. Louis, I. M., & S. R'y v. Hendricks, 220.

12. WHETHER PARTICULAR ACT of Servant was or was not DONE IN LINE OF HIS DUTY is a question to be determined by the jury from the surrounding facts and circumstances. Id.

13. CONTRACT BY WHICH EMPLOYEE ENGAGED IN OPERATING DANGEROUS MACHINERY AGREES IN ADVANCE TO WAIVE the duties and liabilities which the employer owes him to furnish a reasonably safe place in which, and suitable tools and appliances with which, to do his work, is against public policy, and void. Little Rock and Fort Smith R'y Co. v. Eubanks,

245.

See NEGLIGENCE; RAILROADS.

MATERIAL-MEN'S LIENS.

See LIENS.

MECHANICS' LIENS.

See LIENS.

MORTGAGES.

1. INDORSEMENT OF NOTE SECURED BY MORTGAGE OPERATES as an equitable assignment of the mortgage. Connecticut M. L. I. Co. v. Talbot, 655. 2. ASSIGNEE OF MORTGAGE WHO FAILS TO RECORD HIS ASSIGNMENT will be estopped from asserting the priority of his mortgage over that of a subsequent mortgagee who took upon the faith of a release executed by the administratrix of the original mortgagee and entered of record. Id. 3. UNREGISTERED MORTGAGE EXECUTED BY ANCESTOR RETAINS ITS PRIORITY over a judgment recovered against his heir at law in the ancestor's lifetime, although the judgment creditor had no notice of the mortgage when his judgment was recovered. Voorhis v. Westervelt, 315.

4. REGISTRY LAW APPLIES ONLY IN CASES WHERE INTEREST OF SUBSEQUENT judgment creditor, mortgagee, or purchaser, at the time he acts, can be affected by want of notice of the unregistered mortgage. It was not intended to relate to those who have no concern in such mortgage when they acquire their rights. Id.

5. UNRECORDED MORTGAGE GIVEN BY ANCESTOR IS DISPLACED by a judgment recovered against the heir at law after the ancestor's death; and a purchaser of the heir's estate at a sale under such judgment, if he has no notice of the mortgage, is a bona fide purchaser, and will take free from the lien of such mortgage. Id.

6. CHATTEL MORTGAGE, LIKE ANY OTHER CONTRACI, IS TO BE CONSTRUED TOGETHER, the object being to ascertain with precision the mutual understanding of the parties. The whole instrument is to be viewed and compared in all its parts, so that every part of it may be made consistent and effectual. Newlean v. Olson, 286.

7. MORTGAGEE OF CHATTELS IS NOT AUTHORIZED, WITHOUT CAUSE, TO SEIZE AND SELL the mortgaged property before the debt becomes due, under a provision in the mortgage that he may seize and sell the property, if he shall at any time feel "unsafe or insecure," and the mortgage also provides for interest in favor of the mortgagee, and that the debt is to be paid at certain times named, and thereby there is an implied agreement that the mortgagor shall remain in possession until a default im payment of the whole or a part. Id.

8. CLAUSE IN CHATTEL MORTGAGE AUTHORIZING MORTGAGEE TO SELL if at any time he feels "unsafe or insecure" does not mean that he may, arbitrarily and without cause, declare that he feels unsafe or insecure, but the mortgagor must be about to commit or has committed some act which tends to impair the security. Id.

9. PROCEEDINGS TO FORECLOSE MORTGAGE IN COURTS OF STATE OF NEW YORK upon lands in Connecticut are without validity, and do not affect the right to a foreclosure of the mortgage according to the laws of the latter state. Farmers' Loan and Trust Co. v. Postal Tel. Co., 53.

See ADVERSE POSSESSION, 1, 2; Insurance; STATUTE OF LIMITATIONS, 5..

MUNICIPAL CORPORATIONS.

MUNICIPAL AUTHORITIES OF CITY must exercise ordinary care in keeping the sidewalk free from defects and obstructions, and a failure to perform this duty may lay the foundation of municipal liability. City of Denver v. Dean, 594.

WHERE CITY DId not Construct SIDEWALK, a defect in which caused an accident not occasioned by any act of the city, its officers or agents, before a recovery can be had it must be proved that the corporation had notice of the defect, and also that it was in possession of such notice a sufficient length of time before the accident to have cured the defect and prevented the injury. Such notice might be actual or constructive. Id. ERSONAL KNOWLedge of Officer OF CITY gained in pursuance of his duties of defects in or obstructions to the sidewalks in such city is actual, but not constructive, notice to the city. Id.

UNICIPAL CORPORATION MAY BE CHARGED WITH CONSTRUCTIVE NOTICE of defects in its sidewalks so as to be held liable for injury caused thereby, either where an exercise of ordinary care on its part or the part of its officer involves the anticipation of defects that are the natural and legitimate result of use or climatic influences, or where the corporation had the means of knowledge for a sufficient time to have remedied the defect. The phrase "means of knowledge" includes cases of neglect to anticipate and prevent certain defects mentioned above. Id.

ACTION AGAINST CITY FOR INJURY resulting from defective sidewalk, it is within the province of the jury to determine whether or not the city or its proper officer had personal knowledge of the defect for a sufficient length of time previous to the injury to make the city liable. Id.

See COUNTIES.

MURDER.

See CRIMINAL Law.

NAMES.

See EVIDENCE, 6.

NEGLIGENCE.

DEFENDANT HAS NO ABSOLUTE RIGHT TO HAVE PERSONAL PHYSICAL EXAMINATION OF PLAINTIFF MADE, in an action for personal injuries. The granting or refusing of an order for such an examination rests in the discretion of the trial court, which discretion will not be interfered with unless manifestly abused. Sidekum v. Wabash etc. R'y Co., 549. WHERE COURT MERELY DENIES MOTION FOR PHYSICAL EXAMINATION OF PLAINTIFF for the time being, at the same time remarking that if, during he progress of the trial, it appeared necessary to ascertain the plaintiff's eal condition, and the nature and extent of her injuries, he would then irect such an examination, and the defendant does not at any subsequent stage of the proceeding renew the application for such order, the court may well assume that the defendant abandoned his application for the order. Id.

EVIDENCE OF CONDITION OF RAILROAD TRACK SHOULD BE CONFINED TO PLACE OF ACCIDENT, or to the immediate vicinity thereof, in an action against the company for injuries sustained on its road; and testimony as

to the condition of the track a mile and a half from the place of the accident is incompetent and inadmissible. The reception of such improper evidence will not, however, be ground for reversal, where it was withdrawn, and excluded from the jury, by the subsequent instruction of the court, the competent and admissible evidence in the record being amply sufficient to authorize the verdict, independent of that erroneously received. Id.

4. NEGLIGENCE — APPLICATION OF PRINCIPLE OF RESPONDEAT SUPERIOR. The plaintiff, a boy thirteen years of age, was in the service of the defendant corporation, being engaged in the weaving department of its cotton mills, "to sweep the floor, carry water, and fill the buckets with quills." The dangerous machinery of the weaving department was at the time being operated with insufficient help, and an employee of the defendant, acting as its agent, called on the plaintiff for help, and ordered him into a position of danger, the result of which was irrepa rable injury to him. Held, that the defendant corporation was liable in damages for the injury sustained by the plaintiff. Jones v. Old Dominion Cotton Mills, 92.

5. ONE WHO WALKS UPON RAILROAD TRACK LAID ALONG PUBLIC STREET IS NOT TRESPASSER, especially if he be at a public crossing, and may recover for an injury caused by the negligence of the railroad company, if himself without fault. Ohio & M. R'y Co. v. Walker, 638.

6. GENERAL AVERMENT THAT PLAINTIFF WAS WITHOUT FAULT IS SUFFICIENT, in an action for a negligent injury, unless the facts specially pleaded clearly show that he was guilty of contributory negligence. Id.

7. NEGLIGENCE MAY BE CHARGED IN GENERAL TERMS; and if the defendant desires a more definite statement of the facts, his remedy is by motion to make the complaint more specific, and not by demurrer. Id.

8. DECLARATION IS SUFFICIENT, ALTHOUGH IT DOES NOT STATE whether the plaintiff was an employee or a mere trespasser, if it distinctly sets forth when, where, in what manner, and under what circumstances the plaintiff was injured by the default, negligence, and improper conduct of the defendant's servant, who was then and there in the care and management of certain described machinery of the defendant. Jones v. Old Dominion Cotton Mills, 92.

9. FOR NEGLIGENCE CAUSING PERSONAL INJURIES TO MINOR CHILD, separate and concurrent actions may, in the absence of statute, be maintained by the child and its father. Pratt C. & I. Co. v. Brawley, 751.

10. IN ACTION BY CHILD FOR INJURIES CAUSED BY NEGLIGENCE of a third person, the contributory negligence of the child's father is no defense, and cannot be imputed to the child when it is of such tender years as to be legally presumed as incapable of judgment and discretion; but when the child is between the ages of seven and fourteen years, though prima facie incapable of judgment and discretion, evidence of capacity may be received, and contributory negligence imputed and shown in defense of the action. Id.

11. IN ACTION BY FATHER FOR PERSONAL INJURIES TO CHILD CAUSED BY NEGLIGENCE, the contributory negligence of the child is a good defense, unless the child be within the age which raises the legal presumption of incapacity. Id.

12. IN ACTION BY Father for PERSONAL INJURIES TO CHILD caused by negligence, the contributory negligence of the father is a complete defense. without regard to the age or capacity of the child. Id.

13. IN ACTION FOR PERSONAL INJURIES TO CHILD CAUSED by the wanton, reckless, or intentional negligence of defendant, the contributory neg ligence of neither father nor child is available as a defense. I

14. FATHER WHO KNOWINGLY PERMITS CHILD ABOUT SEVEN YEARS OF AGE to go unprotected upon the track of a railroad for the purpose of picking up coal at a place where trains are constantly passing is guilty of culpable negligence. Id.

15. If Father PERMITS GRANDMOTHER TO HAVE CARE AND CUSTODY OF CHILD, her negligence, whereby the child is injured, is to be imputed to the father.

Id.

16. CONTRIBUTORY NEGLIGENCE IS Matter of DEFENSE, which cannot be presumed, but must be proved, and the burden of proving it rests on the defendant. Little Rock etc. R'y Co. v. Leverett, 230.

17. CONTRIBUTORY NEGLIGENCE, AS DEFENSE, MUST BE AFFIRMATIVELY PROVED. Little Rock etc. R'y Co. v. Eubanks, 245.

18. WHETHER THE DEFENDANT WAS IN THIS CASE GUILTY OF NEGLIGENCE in failing to prescribe suitable rules was held to be a question for the jury. Reagan v. St. Louis etc. R'y Co., 542.

19. CONTRIBUTORY NEGLIGENCE.

- A person is not a trespasser who, by the conductor's permission, is on a freight-car while it is being loaded, nor is his presence there contributory negligence, unless it was known to him that the conductor exceeded his authority in granting such permission. Alabama G. S. R'y Co. v. Yarbrough, 715.

20. IN ACTION FOR DAMAGES FOR PERSONAL INJURY, LOSS OR DIMINUTION OF CAPACITY to follow the plaintiff's usual business or employment is a proper subject for compensation. The extent and nature of plaintiff's business, and his physical capacity to perform work at the time he was injured, may be shown; and where one of the injuries sustained was the breaking of an arm, it is competent for him to prove that his other arm had been previously disabled, not as an element of recoverable damages, but as showing the decreased capacity produced by the injury complained of. Id.

21. STATEMENTS OF DECEASED AS TO CAUSE AND MANNER OF INJURY, MADE BY HIM IMMEDIATELY after being run over by a railroad car, and while he was still under the car, are admissible in evidence as part of the res gestæ in an action against the company for negligence resulting in the death of the person injured. Little Rock etc. R'y Co. v. Leverett, 230. 22. EVIDENCE OF POVERTY OF MOTHER, AND OF HER DEPENDENCE ON HER DECEASED SON for support and maintenance, is admissible in evidence to show the pecuniary damage suffered by her by his death, in an action brought by her under the statute, as next of kin of the deceased. Id. 23. IT IS NOT ERROR TO EXCLUDE EVIDENCE OF FINANCIAL CONDITION OF MOTHER in an action brought by her to recover damages for the drowning of her son, when she had already testified as to her circumstances and surroundings at the time the accident happened. Overholt v. Vieths, 557. 24. EVIDENCE OF IMPRACTICABILITY OF MAKING FENCE IS ADMISSIBLE as bearing upon the question of negligence, in an action for damages for the death of plaintiff's son, based upon the alleged negligence of the defendant in not fencing on a line of his lot which did not abut upon a street or highway, but on the private property of another, especially where it was shown that the defendant had owned the lot but a short length of time. Id. 25. OWNER OF LAND IS NOT UNDER OBLIGATION TO STRANGERS TO PUT GUARDS AROUND EXCAVATIONS made by him, unless such excavations are so near