2. FOREIGN GOVERNMENT BOND-RIGHT OF STATE TO PROHIBIT SALE OF. When a foreign government bond is coupled with conditions and stipu lations which change its character from a simple bond for the payment of money of a specified amount to a species of lottery ticket, a state stat. ute prohibiting the sale thereof does not violate treaty stipulations nor constitutional provisions. Ballock v. State, 559.
- Any device whereby money or any other thing is to be paid or delivered on the happening of any event or contingency in the nature of a lottery is a lottery. Ballock v. State, 559. 4. EFFECT OF, ON NON-RESIDENTS.
A statute prohibiting the sale of lottery tickets within the state operates equally and alike upon resident and non-resident foreigners, and as to the latter, it does not violate treaty or constitutional provisions. Ballock v. State, 559.
5. PRIZE PACKAGE- GIFT ENTERPRISE.
-A scheme by which packages of coffee contain on either end a pasted slip of paper containing the words 99 66 'one plate," "one plate,' one saucer," and which, when detached by the buyer of a package of coffee and presented to seller, entitles the former to two plates and a saucer in addition to the coffee, is within the meaning of a statute prohibiting "any scheme or device by way of gift enterprises of any kind or character." Long v. State, 606.
1. MANDAMUS TO REVIEW ACTION OF COURT. — Mandamus will not lie to compel a judge to hear and determine a motion for the restoration of money to a prisoner, who has been deprived of it by an officer at the time of his arrest, when the money has subsequently been attached in the hands of the officer, and the attachment suit remains undecided, and the motion to restore has been overruled, on the ground that the court has no jurisdiction to entertain it. Ex parte Hurn, 23.
2. MANDAMUS PROPER TO COMPEL ELECTION OFFICERS TO DETERMINE TIE VOTE BY LOT. Where election officers, after certifying the result of an election to be a tie vote, adjourn without determining by lot the person entitled to the office, they may be compelled by mandamus to reassemble and take the action required by law. Johnston v. State, 412. 8. MANDAMUS WILL NOT ISSUE TO A PUBLIC OEFICER, UNLESS the duty to be enforced by it is the performance of some precise, definite act, or is one of a class of acts purely ministerial and in respect to which the officer has no discretion whatever, and the right of the party applying for it is clear, and he is without other adequate remedy. American Casualty etc. Ins. Co. v. Fyler, 337.
4. MANDAMUS WILL NOT ISSUE TO CONTROL AN EXECUTIVE OFFICER in discharging an executive duty involving the exercise of discretion or judgment. American Casualty etc. Ins. Co. v. Fyler, 337.
5. MANDAMUS WILL NOT ISSUE TO COMPEL AN EXECUTIVE OFFICER to per- form an act, when the duty of performing it depends on the construc- tion of a statute, and the officer has construed it as not requiring him to perform the act, though the court may be of the opinion that his construction of the statute is incorrect. American Casualty etc. Ins. Co. v. Fyler, 337.
6. MANDAMUS WILL NOT ISSUE TO AN INSURANCE COMMISSIONER to compel him to admit a foreign insurance company to do business in the state, if he is vested by the statute with a discretion respecting the admis- sion, and has construed the statute as not requiring him to admit such
company, though the court may not agree with him in his construction of the statute. American Casualty etc. Ins. Co. v. Fyler, 337.
7. DEFINITION. A MINISTERIAL ACT is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the man date of legal authority, without regard to the exercise of his own judg ment upon the propriety of the act being done. American Casualty etc. Ins. Co. v. Fyler, 337.
8. MANDAMUS. - AN ALTERNATIVE WRIT OF MANDAMUS MUST SHOW UPON ITS FACE a clear right to the relief demanded, and the material facts upon which the applicant relies must be distinctly set forth, so that they can be admitted or denied; otherwise the writ may be quashed. American Casualty etc. Ins. Co. v. Fyler, 337. See INJUNCTION, 2; PLEADING, 3.
ALIMONY IS AN ALLOWANCE Made to a WOMAN on a decree of divorce for her support out of the estate of her husband, and under exceptional circumstances it may be decreed, once for all, of a sum in gross, or of real estate absolutely, to the wife, and at all events alimony terminates with the life of the husband. Adams v. Storey, 392.
MARRIED WOMEN.
See HUSBAND AND WIFE,
1. MASTER BOUND TO INSTRUCT INEXPERIENCED SERVANT IN REFERENCE TO DANGEROUS MACHINERY. - A master who puts to work upon a dangerous machine a servant known to be without experience in the par ticular work, and without knowledge of the actual dangers attending it, is bound to give him such instructions as will enable him to fully under. stand and appreciate the danger attending the work and the necessity for care. Ingerman v. Moore, 138.
2 SERVANT OF MATURE YEARS, WHEN ENTITLED TO INSTRUCTIONS CON. CERNING DANGEROUS MACHINERY. - While the rule which requires an employer to give proper instructions to his servant in reference to dan- gerous machinery is most frequently applied in cases where persons of immature years are employed about dangerous machinery, the same principle governs where the person so put to work is of mature years, but without experience in the particular work, and without knowledge of the actual dangers attending it. But the fact that the person injured is of mature years is a matter for the careful consideration of the jury in determining whether he fully understood and appreciated the dan- gers of his position. Ingerman v. Moore, 138.
3. JURY TRIAL-WHETHER SERVANT EXPERIENCED IN WORK QUESTION FOR JURY WHEN. — Where it appears that an employee in a saw-mill was injured while running a scantling-machine and saw, in attempting to remove slivers from under the saw, by reason of his sleeve catching on a concealed set-screw fixed upon and projecting from a shaft located below the saw, the fact that he had been employed in the mill for nearly two years, and had been working as an assistant on the scantling. machine, in putting the lumber in place to be sawed, for about nine months, and had, in the absence of the foreman, upon different occa-
sions, run the machine for eighteen days in all, does not warrant the court in declaring as matter of law that he was experienced in the work he was doing, and had knowledge of the set-screw and of the danger of placing his hand where he did while the machine was running, but his experience and knowledge of the machine are questions of fact for the jury. Ingerman v. Moore, 138. EMPLOYER LIABLE FOR NEGLIGENCE OF HIS SUPERINTENDENT. — The fact that the owner of a saw-mill did not manage the mill in person, and did not personally employ or have communication with a servant injured while at work upon dangerous machinery, does not absolve him from liabibility for the negligence of his superintendent or foreman in putting the servant to work without proper instructions. Ingerman v. Moore, 138.
5. FELLOW-SERVANTS. — All who are servants of a common master, engaged in the same general business, subject to the same general control, and paid out of a common fund, are fellow-servants, without regard to rank or grade, and whether the element of personal control enters into the consideration or not, in respect to all acts done in the common service, unless the duty performed by them is such as properly belongs to the master as such, in which case they take the place of the master, and he is chargeable with their acts as if done by him personally, with all the knowledge which the law imputes to him. Georgia Pacific R'y Co. v. Davis, 47.
6. MASTER IS NOT ORDINARILY RESPONSIBLE CRIMINALLY for the act of his servant or agent, unless he has in some way participated, or counte- nanced or approved it. Commonwealth v. Stevens, 647.
7. MASTER IS NOT CRIMINALLY RESPONSIBLE for the sale, by his servant, of liquor to a minor, if he had instructed all of his servants not to make any sales to minors, nor to persons under twenty-five years of age, but had left his servants to determine the question of minority from the appearance of customers applying for liquors, and one of his clerks had made an innocent mistake in judging of a customer's appearance. It cannot be affirmed as a matter of law that the test of appearance is un- reasonable. Whether it was or not, and whether its imposition indi- cated bad faith or negligence, the jury should be left to determine. Commonwealth v. Stevens, 647.
See RAILROAD COMPANIES; STATUTES, 11, 12,
Bic utere tuo ut alienum non lædas. Barrett v. Southern Pac. Co., 186.
MECHANICS' LIENS.
See CONTRACTS, 10.
MILLS AND MILL-DAMS.
See EASEMENTS, 2; WATERCOURSES.
MISTAKE OF LAW, RECOVERY OF MONEYS PAID UNDER.-Fees paid by a county to a public officer, under a mistaken belief on his part and that AM. ST. REP., VOL. XXV.-63
of the county that he was entitled to them by law, cannot be recovered by the county, for the reason that its mistake was one of law, on ac count of which no recovery can be had. Painter v. Polk County, 489.
MODIFICATION, See JUDGMENTS, 6.
1. FORECLOSURE OF JUNIOR MORTGAGE AS RES JUDICATA. — One holding a senior mortgage, the superiority of which is not drawn in question by a bill to foreclose a junior mortgage, is not divested of his prior right by the ordinary decree of foreclosure against him therein, nor will his superior right be placed in issue by making him a party to such bill, and alleging therein that he claims title to the premises by deed or other- wise. Buzzell v. Still, 777.
2 MERGER.— Where first, second, and third mortgages exist against the same property, and the third mortgage is by deed absolute on its face, an assignment of the first mortgage to the third mortgagee will not merge the first and third mortgages. Buzzell v. Still, 777.
See CHATTEL MORTGAGE; CORPORATIONS, 7, 8; COVENANTS, 3, 4; INSANE PERSONS; POWERS.
1. Office and Officers — REMOVAL OF MUNICIPAL OFFICER, WHEN DISCRE- - When the tenure of a municipal office is at the pleasure of the appointing body, its power to remove is discretionary, and may be exercised without notice or hearing. Carter v. City of Durango, 294. 2 OFFICE AND OFFICERS - AUTHORITY OF CITY COUNCIL TO REMOVE OFFI- CER IS QUASI JUDICIAL. The city council is primarily a legislative and administrative body, but it may be clothed with quasi judicial authority in connection with removals from municipal offices. Carter v. City of Durango, 294.
& OFFICE AND OFFICERS - POWER OF CITY COUNCIL TO REMOVE OFFICER. The possession or exercise of judicial power by the city council is not a prerequisite to its authority to remove all its officers. The possession of such power is only necessary in cases of removal from offices which are of the essence of the corporation, and which can only take place for cause, upon notice and investigation with opportunity to be heard. Its possession by the council is not necessary in cases of removal from office to which the occupant is appointed at the pleasure of the council. Car- ter v. City of Durango, 294.
OFFICE AND OFFICERS - REMOVAL OF MUNICIPAL OFFICER. — THE MOTIVES ACTUATING city councilmen in removing an officer from an office, the tenure of which is at its pleasure, are not ordinarily subject to judicial inquiry, and in the absence of fraud or deception, courts will not inter- fere with the declaration of discretionary municipal pleasure by the council. Carter v. City of Durango, 294.
OFFICE AND OFFICERS - POWER OF CITY COUNCIL TO REMOVE FROM OF- FICE CANNOT BE CURTAILED BY ORDINANCE. — It is not within the power of a municipal corporation, by ordinance or by-law, either to extend or restrict the discretionary authority conferred on the city council by statute in the matter of the removal of municipal officers. Carter v City of Durango, 294.
6. NOTICE TO AGENT OF CITY AS NOTICE TO CITY. The rule that notice to the agent of a party, whose duty it is, as such agent, to act upon such notice, or to communicate it to his principal in the proper discharge of his trust as agent, is legal notice to his principal, applies as well to the agents of corporations, both municipal and private, as to those of private persons. Burditt v. Porter, 763.
7. MUNICIPAL CORPORATION IS NOT ANSWERABLE FOR THE NEGLIGENT ACT OF ITS SERVANT while engaged in excavating for the foundation of a school-house, though such negligence caused an injury to a person on an adjacent highway not within the limits of the school-house lot. How ard v. City of Worcester, 651.
8. MUNICIPAL CORPORATION IS NOT ANSWERABLE FOR THE NEGLIGENCE OF ITS SERVANTS While they are engaged in a work purely for the benefit of the public. Howard v. City of Worcester, 651.
9. LIABILITY OF, FOR NEGLIGENCE OR TORT. - Municipal corporations proper, such as villages, towns, and cities, incorporated by special charters or voluntarily organized under general laws, are liable to individuals in- jured by their negligent or tortious conduct, or that of their agents, in respect to corporate duties; but in regard to public involuntary quast corporations, such as counties, townships, school or road districts, or the like, the rule is otherwise, and they are not so liable, unless made so by statute. Elmore v. Drainage Commissioners, 363.
10. MUNICIPAL CORPORATION IS LIABLE TO AN ACTION FOR DAMAGES re- sulting from the negligent or improper construction or maintenance by it of a dam or reservoir which it was authorized by statute to make and maintain. The rule is otherwise when due and reasonable precau- tions are taken, and nothing is done wantonly or negligently, so as to cause unnecessary damages. Aldworth v. City of Lynn, 608.
11. DUTY IN CONSTRUCTING BRIDGES. - A city, in the construction of bridges across its streets, is required to provide against such casualties liable to occur from overflow as a cautious and prudent man should foresee and anticipate. Bradford v. Mayor of Anniston, 60. 12. LIABILITY FOR DEFECT IN STREET. The owner of an animal injured while being driven along the public street by stepping into a hole therein caused by rain may, if free from negligence, recover from the city, when it appears that the defect was known thereto, and had ex- isted so long that it might have been repaired in the exercise of reason- able diligence, and that it failed to do this, or to give any notice or warning to the public. In such case, the fact that the street force was busy in repairing other damage done by the rain will not excuse the liability, in the absence of proof that by reasonable diligence an extra force could not have been employed. by the city for such emergency. Bradford v. Mayor of Anniston, 60.
13. NOTICE to a street overseer of a defect in the street is notice to the city. Bradford v. Mayor of Anniston, 60.
14. MUNICIPAL CORPORATION, RIGHT OF TAX-PAYER TO RECOVER FOR DE- STRUCTION OF HIS PROPERTY BY FIRE, THROUGH FAILURE OF CON- TRACTOR TO FURNISH WATER. If a water company enters into a contract with a municipal corporation, whereby the former agrees, in consideration of the grant of a franchise and of a promise to pay cer- tain specified prices for the use of hydrants, to construct water-works of a specified character, force, and capacity, and to keep a supply of water required for domestic, manufacturing, and fire protection pur.
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