moving away and leasing the house to strangers, this constitutes extreme cruelty on her part, which entitles the husband to a divorce. Menzer v. Menzer, 605.

8. DIVORCE BECAUSE OF THE IMPRISONMENT OF DEFENDANT in a state prison, or in a jail or house of correction, will not be granted when such im. prisonment is in another state. The statute making imprisonment a cause for divorce means imprisonment in this state for some offense known to the laws thereof. Leonard v. Leonard, 437.

7. GROWING CROP, WHEN WILL PASS AS PART OF ALIMONY. A crop of wheat, sown on land by the husband as owner, after the commencement by his wife of a suit for divorce and alimony against him, passes to the wife as a purchaser, by a decree which gives her the land in dispute, and does not, in terms, describe or refer to the wheat. Herron v. Herron, 854.

8. DECREE OF DIVORCE VOID, WHERE NEITHER PARTY RESIDES IN JURISDICTION. - Where neither the plaintiff nor the defendant is a resident of the state or territory in which a decree of divorce is pronounced, its courts have no jurisdiction, and their decree is void. To give val dity to the decree of a court in a suit for divorce, one, at least, of the parties, must be a resident of the state or territory in which the decree is rendered. The courts of one state cannot, by judgment or decree, fix the status of the citizens of another state. A reply to an answer all ging that the defendant had procured a divorce from the plaintiff in Montana, having been a resident of that territory for more than the period required to give its courts jurisdiction, which alleges that neither of the parties was a resident of Montana at any time, is therefore good. Wat kins v. Watkins, 217.

See WILLS, 7, 8.

MARRIED WOMEN.

See HUSBAND AND WIFE; LANDLORD AND Tenant, 4.

MASTER AND SERVANT.

A railroad com

1. RAILROAD'S LIABILITY FOR NEGLIGENCE OF SERVANT. pany is liable for the negligence of its servant in placing and leaving torpedoes, of which he has the custody, on its track at a point where the public, including children, are permitted to pass, notwithstanding such negligent acts of the servant are wanton, reckless, needless, and against the rules of the company. Pittsburgh etc. R'y Co. v. Shields, 840. 2. CUSTODY OF DANGEROUS INSTRUMENT - LIABILITY FOR NEGLIGENCE OF SERVANT. A person having in his custody instruments of danger must keep them with the utmost care, and one charged with such duty cannot devolve it upon his servant, so as to exonerate himself from the consequences of injury caused to others by the negligent manner in which the duty in regard to the custody of such instruments may be performed by such servant. Id.

LIABILITY FOR NEGLIGENCE OF SERVANT. - Whatever the servant is intrusted by the master to do for him must be done with the same care and prudence that would be required of the master acting in that regard for himself. If it is the custody of dangerous instruments, the servant must observe the utmost care. Id.

4. LIABILITY FOR NEGLIGENCE OF SERVANT OUTSIDE EMPLOYMENT.

A servant may depart from his employment without making the master liable for his negligence, and he so departs whenever he goes beyond the scope of his employment and engages in affairs of his ow Id.

5. LIABILITY FOR NEGLIGENCE OF SERVANT. A servant cannot depart from a duty intrusted to him when that duty regards the rights of others in respect to the employment of dangerous instruments by the master .in the prosecution of his business, without making the master liable for the consequences of the negligence of the servant; nor is it necessary, to make the master liable, that there should be specific directions as to the particular act. It is sufficient if the general relation of master and servant within the range of such act exists, and that the wrong inflicted was incidental to the discharge of the duty with which the servant was intrusted. Id.

6. LIABILITY FOR NEGLIGENCE OF SERVANT.

-Where the master has a duty to perform, and intrusts it to his servant, who disregards it to the injury of another, it is immaterial, so far as the liability of the master is con. cerned, with what motive or for what purpose the servant neglects such duty. Id.

7. EMPLOYEE OF ONE EMPLOYER CANNOT, WITHOUT HIS ASSENT, BE MADE TO ASSUME HAZARDS OF SERVICE CONDUCTED BY ANOTHER. A person entering into a contract of service with one employer may not, without his knowledge or assent, be made to assume the hazards of a service conducted by another, and in which he is not engaged, and thus be personally subjected to the consequences of the negligence of the latter, without remedy against him. Brewer v. New York etc. R. R. Co., 647.

8. LIABILITY OF RAILROAD COMPANY FOR DEATH OF EXPRESS MESSENGER RESULTING FROM ITS NEGLIGENCE. - A railway company is liable for its negligence resulting in the death of an express messenger carried on its road free, under a contract between it and the express company, in which it is stipulated that in no event, whether of negligence or otherwise, shall the railway company be responsible for property carried by it free of charge, where there is no evidence that such messenger had any knowledge of the provisions of the contract. When he entered the service of the express company he assumed the ordinary hazards incident to that business in his relation to that company, but there was no presumption or implied understanding that he took upon himself the risks of injury he might suffer from the negligence or fault of the rail. way company. Id.

9. EMPLOYEE'S AGREEMENT THAT HE WILL NOT HOLD HIS EMPLOYER LIABLE for damages resulting from the negligence of the latter, or his servants or agents, is without consideration, and void, when the former was already in the latter's employment, and there was no new employment tendered to or accepted by him, and no promise to continue to employ him after the execution of the agreement. Purdy v. Rome etc. R. R. Co., 736.

10. RISK ASSUMED. Where a servant has full knowledge of, and is abun dantly cautioned against certain sources of, danger, and voluntarily neglects such warnings, and takes the risk of such perils and dangers, and is then injured through the negligence of the master, from an entirely different source of danger, of which he knew and could know

nothing, and of whose existence it was the duty of the master to warn him, his failure to heed the warning given does not constitute contribu tory negligence as to the injury received. Smithwick v. Hall etc. Co., 104.

11. AN EMPLOYER IS UNDER NO OBLIGATION TO WARN an employee of danger which is obvious, nor to instruct him in matters which he may fairly be supposed to thoroughly understand. Nor is it the duty of the master to admonish his servant to be careful, when the servant well knows his danger and the importance of using care to avoid it. It is the duty of the servant to use care proportionate to the dangers of his situation as he understands it; and if he fails to do so, the fault is his, and not his master's. Ciriack v. Merchants' W. Co., 438.

12. IF THE WORK OF A SERVANT EXPOSES HIM TO DANGER of which he is ignorant, and which, from his youth and inexperience, he is incapable of comprehending without assistance, it is the duty of the master, if he knows or ought to know of it, to give him such warning and instruction as is necessary for his safety. To determine a master's duty, the inquiry must be, What instruction does the servant appear to need? Id. 13. IF A BOY TWELVE YEARS OF AGE is employed, and is of less than the average intelligence of boys of his age, and the defendant knew or ought to have known this, and he is put to work in a place dimly lighted, in the same room with machinery with rapidly revolving gearing, and is told to go between the machines and to get a tool, and to hurry, and some part of his clothing is caught in the gearing, and he is drawn in and injured, there is sufficient evidence of negligence to warrant the submis sion of the case to the jury, if the injured boy had not been working upon or near the dangerous machinery, and was sent for the tool, without being given any warning or instruction concerning the danger attendant upon his getting into a position which it was necessary for him to assume in getting the tool. Id. 14. CONTRIBUTORY NEGLIGENCE-DANGEROUS POSITION. A servant by changing his position at work, contrary to orders and after a warning of danger, voluntarily takes the risks of all perils which a man of ordinary care in his place ought to have known or could reasonably have anticipated; but as to dangers arising through the master's negligence from other sources, dangers which the servant was not bound to anticipate, and of whose existence he had no knowledge, he takes no risk and assumes no duty of taking care; and if injury results to him from such dangers, he is not guilty of contributory negligence Smithwick v. Hall and Upson Co., 104.

15. FAILURE TO GUARD TRAP-DOOR.

- Where injury results from a failure of employees to properly guard an open trap door while in use, their violation of instructions to guard it cannot be shown in defense. Engel v. Smith 549.

MAXIMS.

Party seeking equity must do equity: Datz v. Phillips, 864.

MERCANTILE AGENCY.

See LIBEL AND Slander, 13-15.

MERGER.

See JUDGMENTS, 1-3.

MORTGAGES.

1. ABSOLUTE CONVEYANCE AS MORTGAGE DEGREE OF PROOF TO ESTABLISH -The fact that an absolute conveyance was intended as a mortgage must be established by a clear preponderance of the evidence; or in other words, the proof of that fact must be clear of reasonable doubt. Winston v. Burnell, 289.

2. PRIORITY AS BETWEEN MORTGAGE NOTES. — Where several distinct notes are secured by one mortgage, no one of them has any preference over the rest in consequence of falling due at an earlier date. Jennings v. Moore,

601.

3. MORTGAGE ASSIGNEE'S FORECLOSURE OF PART INTEREST

LIEN

REDEMPTION.

PRIORITY OF

An assignee under an assignment of a part interest in a mortgage and the notes secured thereby, containing no provision for any priority of lien, who has foreclosed, and upon the expiration of the time in which to redeem has purchased the equity of redemption, and has gone into possession under his sheriff's deed, does not thereby gain any priority of right over the assignor; but as the purchaser of the equity of redemption, he has a right to redeem from the lien of the assignor, and failing to do this, the premises will be sold and the proceeds divided according to the respective interests of the assignor and assignee. Id. 4. REMEDY OF JUNIOR MORTGAGEE WHERE SHERIFF SELLS REALTY AS PERSONALTY. — If a sheriff at a foreclosure sale sells as personal property that which is in fact real property, the remedy of a junior mortgagee is to attack the sale itself as invalid, and not by a suit to redeem. Horn v. Indianapolis Nat. Bank, 231.

5. DECREE OF FORECLOSURE WHICH DOES NOT ADJUDICATE UPON CHARACTER OF PROPERTY which is ordered sold to satisfy the mortgage does not estop the senior lien-holder to treat the property as personalty. Id.

6. EQUITABLE TENDER, WHEN NOT REQUIRED IN SUIT TO REDEEM. — While the general rule is that the plaintiff in a suit to redeem real property must make an equitable tender of the amount due the senior lien-holder, if it appears that the lien-holder has money in his hands exceeding the amount of his lien, which he is equitably bound to apply to the discharge of his claim, such tender is not required. Id.

7. MORTGAGEE IN POSSESSION CANNOT EMBARRASS RIGHT TO REDEEM BY MAKING IMPROVEMENTS. - He may make repairs, but he cannot make improvements, at the expense of redemptioners. Id.

8. MORTGAGE BONDS, RIGHT OF HOLDER OF, AS AGAINST COUPON-HOLDER. Where interest coupons of mortgage bonds have been presented and paid for with money supplied by a third person, under a private agreement between him and the mortgagor that such coupons should be treated as unpaid, and the third party treated as an original holder, with the right to share in the proceeds of the sale of the mortgaged property equally with the bond-holders, such agreement is void as to the latter. Fidelity Ins. etc. Co. v. Western Pennsylvania R. R. Co., 911.

See CHATTEL MORTGAGES; CORPORATIONS, 9, 10; EQUITY; EVIDENCE, 9; FIXTURES.

MUNICIPAL CORPORATIONS.

1. RIGHT TO CONTROL USE OF RIVER BANK. A city has the right to control, manage, and administer the use of the river banks within the corporate limits for the public convenience and utility; to establish

wharves and landings; to erect and provide facilities for the use of vessels and water-craft; and to charge just compensation for the use thereof. Riparian owners or their lessees have no right to appropriate these banks to their exclusive use for such or any other purposes, and they have no private property in the use thereof which is in the public. Sweeney v. Shakspeare, 400.

2. ID. The discret on exercised by a municipal corporation in determining what are proper and needful facilities for commerce, and on what part. of the river bank, within its limits, they should be established, is not a proper subject for judicial control or interference. Whatever incidental damage may result to riparian proprietors or their lessees from the exercise of such discretion is damnum absque injuria. Id.

3. ID. A riparian owner along the banks of a river within the corporate limits of a city, or his lessee, has no right to erect on the batture outside the levee in front of his property, upon piles driven in the earth, sheds or other structures for his own exclusive use and benefit; and in case of such erection the city may order the same removed, and upon refusal by the owner, may remove them. Id.

4. POWER TO ISSUE OBLIGATION TO PAY MONEY.

A municipal corporation

has no right as an incidental function to borrow money, issue negotiable . securities or unconditional obligations to pay money, without express legislative sanction or irresistible implication. It may, however, issue warrants or orders negotiable in form and transferable by delivery or indorsement, but they are not negotiable paper in the hands of the holder so as to exclude inquiry into the legality of their issue, or to preclude defenses thereto. Newgass v. New Orleans, 368.

5. CERTIFICATES OF INDEBTEDNESS issued by a municipal corporation without express authority of law, and regularly filled in the name of its creditor or bearer, are not unconditional obligations to pay, and are not negotiable so as to pass title by delivery, especially when the ordinance under which they are issued is printed on and forms part thereof, and requires as a condition precedent to their issue that the party named therein sign a receipt therefor, which condition has not been complied with. In such case the question as to whether or not they were fraudu. lently issued, or the good faith of the holder for value, is immaterial. The holder takes them with notice of everything which appears thereon. Id.

6. ORDINANCE REGULATING REMOVAL OF GARBAGE. Under a statute authorizing a city council to provide by ordinance for the manner of removal of garbage from a city, and to impose and enforce appropriate penalties, an ordinance requiring the garbage to be removed through and out of the city in closed, water-tight carts or wagons, marked "Gar bage," is reasonable and valid. People v. Gordon, 524.

7. CONSTITUTIONALITY OF ORDINANCE PROHIBITING SMOKING IN STREETCARS. - An ordinance making it an offense for passengers to smoke while in street-cars, adopted by a city under its charter conferrin authority to maintain good health and sanitary conditions and to suppress nuisances, is constitutional and valid. State v. Heidenhain, 388. 8. POWER TO ABATE SMOKING IN STREET-CARS. - A city, in the exercise of its legislative discretion, may determine what is a nuisance, and enact necessary ordinances to suppress it, and it may thus abate, as a nuisance, the act of smoking by passengers while in street-cars, as part of the police power vested in it. Id.