Compelling levy of school taxes-Effect

of custom.

5. The failure of a county auditor to make a school-tax assessment directed by a school trustee could not be excused by any custom in the auditor's office; his duties, as well as those of the trustee, being prescribed by law.-Cole v. State, (Ind. Sup.) 31 Ñ. E. 458.

Remedy of claimant of office.

6. Mandamus is a proper remedy for ascer taining the respective rights of two persons claiming the same municipal office. Luce v. Board of Examiners, 153 Mass. 108, 26 N. E. 419, followed.-Keough v. Board of Aldermen of Holyoke, (Mass.) 81 N. E. 387. Who may apply for writ.

7. The township trustee is the proper relator in an action to compel the auditor to make a school tax assessment; his duty extending to do ing what is reasonable to secure the collection of the special tax levied by him.-Cole v. State, (Ind. Sup.) 81 N. E. 458.

Petition-Averring special interest of

MARINE INSURANCE.

Action on policy-Verdict.

In an action on a marine insurance policy it appeared that the vessel insured was, in a storm, cut adrift from a propeller, and lost. A special verdict was found that the vessel was cut adrift "to relieve the propeller and tow from a danger of navigation, and for the best interest of the property at risk." Held, that the insurer's liability was not limited by such verdict to a general average loss, as it did not show the sacrifice was made as the sole means of averting an immediate, common danger to the property and crew.-British American Assur. Co. of Toronto v. Wilson, (Ind. Sup.) 31 N. E. 938.

MARRIAGE.

MASTER AND SERVANT.

Injury to servant of contractor, see "Negligence," 2.

Liability of landlord for injuries to servant, see "Landlord and Tenant," 10.

Negligence of contractor's servants, see "Negligence," 3. Several and joint liability to servant, see "Torts."

Labor in excess of eight hours.

eight hours shall constitute a legal day's work, 1. Under Act March 6, 1889, providing that but permitting overwork by agreement, for an extra compensation, where one accepts a position knowing that he will be expected to work more than the statutory time, and continues work without objection or giving notice of an intention to charge for the extra time, his consent to his employer's requirements will be presumed, and he cannot recover for the time in excess of eight hours a day during which he worked.-Helphensteine v. Hartig, (Ind. App.) 31 N. E. 845.

2. Act March 6, 1889, providing that eight hours shall constitute a legal day's work, but permitting overwork by agreement, for an extra ment is by the day.-Helphensteine v. Hartig, compensation, applies only where the employ(Ind. App.) 31 N. Ě. 845.

Master's liability to third persons.

3. One hiring a billposter to post bills on certain boards, for a certain sum, is not liable for the death of a horse frightened by the bills left by the billposter in the road 15 miles from the bill boards, such act not being within the scope of the billposter's employment, even if he is a servant, and not an independent contractor. -Smith v. Spitz, (Mass.) 81 N. E. 5.

4. An employer cannot be held to account for failing to exercise care in the selection of a suitable person for a given position unless the failure to discharge the duties of the position properly resulted in injury to another; and where an Injury so results the employer is liable, regardless of the amount of care he may have used in the selection of the servant.-Oakland City Agricultural & Industrial Soc. v. Bingham, (Ind. App.) 31 N. E. 383.

5. Where the gate keeper of defendant fair company was authorized to preserve order, and eject those who were not rightfully on the fair grounds, and wrongfully ejected plaintiff, or, for a fancied violation of some rule of demeanor, inflicted malicious injury on him, defendant is liable.-Oakland City Agricultural & Industrial Soc. v. Bingham, (Ind. App.) 31 N. E. 383.

6. Where the engineer of a railroad company runs his train within the city limits at a rate of speed forbidden by a city ordinance the company is liable thereunder, though it had instructed the engineer not to so run his train, and had no knowledge of his act.-City of Hammond v. New York, C. & St. L. Ry. Co., (Ind. App.) 31 N. E. 817.

Validity-Procurement by fraud.

1. The fact that a minor resident in Massachusetts is married in another state for the sole purpose of evading the provision of the Massachusetts law requiring the father's consent to the marriage of a minor son does not invalidate the marriage. - Commonwealth V. Graham, (Mass.) 31 N. E. 706.

Annulment.

2. Where two persons have contracted marriage in good faith, and it is subsequently discovered that the wife had a former husband living at the time of her second marriage, she cannot maintain an action to avoid her second marriage after the death of her second husband.Rawson v. Rawson, (Mass.) 31 N. E. 653.

in finding that he was incompetent or careless.→ Perry v. Smith, (Mass.) 31 N. E. 9.

Pleading and proof.

8. Where the complaint charged an assault by defendant's servant while in the performance of his duty as such, plaintiff was obliged to prove, not only the commission of the assault, but that it was committed by defendant's servant, while so engaged; and the general denial putting all these facts in issue, any evidence was admissible thereunder to show that plaintiff assaulted the servant first, whereupon the latter, in self-defense, inflicted the injury complained of, such defense being good, as showing that the act complained of was not defendant's trespass.-Oakland City Agricultural & Industrial Soc. v. Bingham, (Ind. App.) 31 N. E. 363.

Negligence of master.

9. In an action by a servant against his mas ter for personal injuries it appeared that defendant operated a series of ore kilns, which stood on an incline, one above the other. On the incline in front of the kilns was a railway, on which were cars to carry the ore. In loading these, ore sometimes fell on the track, and had to be removed, and for this purpose tools were provided. At the time of the accident plaintiff was removing ore from the track under a car, and, after removing a portion with a rake, crawled under the car to remove the rest with his hands. While so doing, a car above, started by some cause unknown, pushed the car under which plaintiff was working, causing the injury in question. Held, that there was nothing in the nature of the work rendering it necessary for the defendant to make rules for its employes to prevent such an accident. 15 N. Y. S. 609, reversed. -Morgan v. Hudson River Ore & Iron Co., (N. Y. App.) 31 N. E. 234.

10. Where it is the custom of a railroad company to repair its cars on tracks on which no trains are switched, an employe, directed by the company's foreman to repair a car standing on a side track used for switching, has the right to assume that the company will use ordinary care in protecting him against the increased danger; and if he is injured without his fault, and through the failure of the company to cause signal flags to be so placed at a switch as to warn train men not to run cars on such track, the company is liable.-Louisville, E. & St. L. C. R. Co. v. Hanning, (Ind. Sup.) 31 N. E. 187

11. Where a railroad company maintains a platform along its track, on which trainmen are obliged to walk, the company must not only employ suitable persons to keep the platform in repair, but must also use reasonable diligence to see that they do so.-Sweat v. Boston & A. R. Co., (Mass.) 31 N. E. 296.

12. The court, in giving defendant's requested instruction that ordinary care was all that was required of defendant in protecting a bank, near which a wall was being built, and, if he had taken such care as men of ordinary prudence would have taken in the same situation and under the same circumstances, he was not liable for injuries to an employe by its fall, added that it was a question for the jury what care plaintiff exercised when he went there to put the stone in after the digging. Held, that there was no error therein.-O'Driscoll v. Faxon, (Mass.) 31 N. E.

685.

13. The mere fact that there was smooth ice on a path on defendants' premises, used by their employes, without anything thrown on to make it less slippery, would not warrant an instruction that such fact established negligence in an action by an employe for injuries caused thereby, it being a question for the jury.-Murray v. Knight, (Mass.) 31 N. E. 646.

Defective appliances.

14. In an action against a railroad company for personal injuries to an employe by reason of the breaking of a defective drawhead, where the evidence leaves it just as probable as not that the defect may have been a latent defect, which no inspection would have reached, a judgment for plaintiff cannot be sustained. -Grant v. Pennsylvania & N. Y. Canal & R. Co., (N. Y. App.) 31 N. E. 220.

15. Acts 1887, c. 270, rendering a master liable for injuries to a servant because of defects in "ways, works, or machinery connected with or used in the business of the employer," does not make a railroad company liable for injuries sustained by its employe from the defective track of another company, over which it had no control, and which it sometimes went upon to get cars under a license.-Trask v. Old Colony R. Co., (Mass.) 31 N. E. 6.

16. In an action by a brakeman against the railroad company for injuries caused by a defective platform along the track, the court properly refused to charge that defendant was entitled to

reasonable notice of the defect, and an opportunity, after such notice, to repair it, since defendant was liable if it might have discovered the defect by the exercise of due care.-Sweat v. Boston & A. R. Co., (Mass.) 31 N. E. 296.

17. It is no defense to an action against a railroad company for injuries caused by a defective track used by the company that such track did not belong to the company.-Wisconsin Cent. R. Co. v. Ross, (Ill. Sup.) 31 N. E. 412.

18. In an action against a railroad company by an employe for injuries received while coupling cars, where the complaint alleged that the engine used was defective, an instruction that the jury may find notice of defects to be proved, if it may be rightfully and reasonably inferred from the evidence, although there is no direct evidence thereof, is not erroneous in view of the averment in the complaint that defendant "has long known of said defective and dangerous condition of said engine."-Wabash W. Ry. Co. v. Morgan, (Ind. Sup.) 31 N. E. 661.

19. In an action for personal injuries, the complaint alleged the employment of plaintiff by defendant; that within defendant's shops and grounds there was a pit 14 inches wide, 3 feet long, and 5 feet deep, covered with a layer of boards seven eighths of an inch thick, and iron plates half an inch thick, which were not fastened; that while plaintiff and other employes were moving a large casting on a cart over this pit, in the proper discharge of their duties, and without any negligence on the part of any of them, the covering of the pit gave way, precipitating the casting and cart into the pit, the former falling on plaintiff's leg and foot, and permanently injuring him; that defendant knew of the dangerous condition of the pit; and that the same was unknown to plaintiff, and could not have been known to him by the exercise of ordinary care. Held, that the complaint stated a cause of action.-W. C. De Pauw Co. v. Stubblefield, (Ind. Sup.) 31 N. E. 796.

Pleading.

20. In an action by a coal miner against his employer for injuries caused by part of the roof of the mine falling on him, the complaint having alleged that the plaintiff had no knowledge of any defect in the roof, it need not allege facts showing affirmatively that the plaintiff had no means of ascertaining the defect.-Purke County Coal Co. v. Barth, (Ind. App.) 81 N. E. 585.

Evidence.

21. The court properly excluded evidence of a rule of defendant requiring employes to use a stick in coupling and forbidding coupling by hand, where it was not shown that deceased had not acted in accordance with the rule.-Lake Erie & W. R. Co. v. Mugg, (Ind. Sup.) 31 N. E. 564.

22. In an action against a corporation for the negligent killing of plaintiff's intestate while in defendant's employ, an averment in the complaint that "defendant, by its agents and employes, acting under the order of its superintendent and foreman," committed the wrongful act causing the death, is not demurrable on the ground that it shows the death to have been caused by the fellow servants of the deceased, since a corporation must necessarily act through its agents and employes.-Hoosier Stone Co. v. McCain, (Ind. Sup.) 31 N. E. 956.

23. Where defendant pleads the general denial to a complaint which avers defendant's negligence, and negatives the existence of contributory negligence by plaintiff, a demurrer is properly sustained to special paragraphs of the answer which do not confess and avoid, but assert argumentatively, that plaintiff never had any cause of action because defendant was not negligent, since evidence in support of such special paragraphs is admissible under the general denial. Hoosier Stone Co. v. McCain, (Ind. Sup.) 31 N. E. 956.

24. Where the complaint alleges that the death of plaintiff's intestate was caused by defendant's negligence, a demurrer is properly sus

7. Elliott's Supp. § 1693, provides that any person claiming a mechanic's lien must enforce the same within one year. Held, in an action by an assignee of a contractor to recover the aniount due under a contract, that material men who had filed their claim of lien, but failed to bring suit to enforce the same within one year, were barred from claiming the amount agreed to be due on the contract.-Kulp v. Chamberlin, (Ind. App.) 31 N. E. 376.

8. It is not necessary to make the contractor a party in an action by a material-man to fore close a mechanic's lien. City of Crawfordsville

v. Barr, 65 Ind. 367, followed. -Hubbard v. Moore, (Ind. Sup.) 31 N. E. 534.

9. Where the dates in the items in the bill of particulars, in a complaint in an action to foreclose a mechanic's lien, show that some of the items were furnished less than 60 days before the notice of lien was filed, and the complaint contains an averment that the notice was filed less than 60 days after said materials were furnished, it is sufficient after judgment. - Hubbard v. Moore, (Ind. Sup.) 81 N. E. 534.

10. Elliott, Supp. § 1691, requires the recorder to record the notice of lien in the "Miscellaneous Record," but it was entered in what was called the "Mechanic's Lien Record." Held, that it was erroneous to admit in evidence this entry, as no "mechanic's lien record" was authorized by law, but that the error was harmless, since the lien was acquired by filing the notice, and not by its record.-Adams v. Shaffer, (Ind. Sup.) 31 N. E. 1108.

Mines and Mining.

to the person entitled thereto, and on production of the same thus indorsed the recorder shall enter satisfaction upon the record." Held, in a suit to foreclose a mortgage held by a county auditor, where it appeared that the same was paid to the auditor, and the latter indorsed on the mortgage his certificate of satisfaction under official seal, and delivered the same, with the note, to the pay er; that said satisfaction was entered of record on the mortgage by the recorder of the county: in his office a statement that the mortgage and the auditor entered on the register of loans was fully paid and satisfied,-a subsequent bona hold the same discharged of the mortgage lien, fide purchaser of the mortgaged premises will though the auditor failed to turn over to the county treasurer the money so paid.-Slaughter v. State, (Ind. Sup.) 31 N. E. 1112. Rights and liabilities of mortgagee.

4. Where the surplus from a sale of mortgaged property was payable by the terms of the mortgage to the mortgagor or his assigns, the mortgagee was liable for such surplus to grantees of the mortgagor claiming under a subsequent deed, which provided that it should be void if the mortgagor should pay them named sums of money during his lifetime, the mortgagor having died without doing so, it being immaterial that there was no contract between the mortgagee and the grantees for the payment thereof; and the grantees having alleged, and the mortgagee having denied, the execution of the deed, in an action at law to recover such proceeds, its validity and legal effect were determinable therein, and the possibility that the mortgagee might be held accountable to the mortgagor's executor and the beneficiaries under his will was immaterial.-Mattel v. Conant, (Mass.) 31 N. E. 487.

In possession.

5. In ejectment by a mortgagor against the mortgagee in possession, after condition broken, proof that the mortgagor tendered what he claimed was the balance due on the mortgage debt, without showing that the sum tendered was the full amount remaining due, is insufficient to show that the mortgagee's right to possession has terminated.-Brown v. Bookstaver, (Ill. Sup.) 31 N. E. 17.

Assignment of debt and mortgage.

6. An indorsee of a mortgage note, who has possession of the mortgaged property, and also of the mortgage itself, cannot be dispossessed by the grantees of the mortgagor until the mortgage debt is paid, since he is the equitable assignee of the mortgage.-Brown v. Bookstaver, (Ill. Sup.)

31 N. E. 17.

7. One to whom a note and mortgage are subject to all equities existing in favor of the assigned when both are past due takes them mortgagor or of any other person.-Owen v. Evans, (N. Y. App.) 31 N. E. 999. Purchase of mortgaged property.

8. A party defendant to an action on certain notes secured by a real-estate mortgage will not be relieved from a personal judgment entered therein on default, where the complaint alleged that such defendant purchased the mortgaged property, agreeing to assume the indebtedness thereon as part of the purchase price, and that he had failed to pay any part thereof.-Lowe v. Hamilton, (Ind. Sup.) 31 N. E. 1117.

9. An owner of land subject to a mortgage made by his grantor executed to the mortgagee a bond conditioned for the payment of the mortgage, which provided that the mortgagee should first exhaust his remedy against the mortgaged premises. Subsequently the land was purchased by defendant, who assumed the mortgage as part of the purchase money. Held, that defendant became liable to the mortgagee for any deficiency arising on a sale of the premises. 12 N. Y. S. 68, reversed.-Wager v. Link, (N. Y. App.) 31 N. E.

213.