3. In an action against a boom company for jamming the river so that plaintiff could not roll his logs into it, a witness who has testified that he had logged on the river for 27 years, and part of the time was driving logs, is competent to give an opinion as to whether defendant had handled the logs as well as could have been done to prevent the jam. CAMPBELL and MORSE, JJ., dissenting. Coburn v. Muskegon Booming Co., (Mich.) 198.

11. Plaintiff's declaration was special, and in the form prescribed by Laws Mich. 1887, p. 279, relating to liens on logs. At the trial certain claims not connected with work on logs were introduced, and the jury brought in a general verdict for more than the amount claimed in the declaration, but did not find, as provided by section 12 of the act, that the amount was due for work done on logs, or was a lien thereon. There was testimony inconsistent with any lien. Held, that a judgment on the verdict, making the entire amount a lien, could not be sustained as to the lien.

4. Where it appears that defendant's men had refused to work without higher wages, and that defendant, about three weeks later, gave them what they asked, testimony-Demars v. Conrad, (Mich.) 799. that defendant refused to employ them by reason of persons having logs in the river agreeing in writing to make no claim for damages, is properly excluded, the paper not being introduced. CAMPBELL and MORSE, JJ. dissenting.-Id.

5. It is not competent to show that plaintiff had not put the logs on the rollways in time to put them in the river within the time called for by his contract with the person for whom the logs were cut.-Id. 6. Loss of time by plaintiff's men, by reason of the jam, was properly included as an element of damages.-Id.

66

7. A complaint averring that defendant, 'disregarding its duty in the premises, wrongfully, unlawfully, willfully, and in juriously permitted and caused the logs ***to form jams." sufficiently charges non-feasance to submit evidence thereof to the jury.-Id.

Statutory liens.

8. Under Laws Wis. 1885, c. 469, §§ 1, 2, supplies actually used in getting out logs. if sold for that purpose, constitute a lien on the logs, though they were placed in the store of the purchasers as part of their stock, to be sold in the usual course of trade, at a profit, to their employes and others.-Stacy v. Bryant, (Wis.) 632.

9. Though there be much evidence, direct and circumstantial, tending to show that the supplies were neither sold for nor used in getting out the logs, where one of the purchasers and his book-keeper have testified to the contrary, a verdict for plaintiff will not be set aside as against the evidence.-Id.

10. A petition for a lien for supplies furnished for use in getting out logs, under Laws Wis. 1885, c. 469, §§ 1, 2, which describes the logs generally as "about 1,500,000 feet of pine saw-logs and timber, endmarked and stamped M B," may be amended after the evidence is introduced, to make the description more specific, and to conform to the proof, when it is evident that the defendants could not have been misled by the generality of the description. -Id.

MALICIOUS MISCHIEF. Evidence of malice.

In a prosecution under How. St. Mich. S 9170, providing that "every person who shall willfully and maliciously destroy or * *shall be puninjure any house

ished," etc., malice may be inferred from evidence that lead pipe and faucets had the plastering, moulding, and paper had been severed and carried away, and that been broken, and that from wash basins doors had been wrenched, and the zinc torn and destroyed but not taken away, though the witness testifies that he has no ice.-People v. Burkhardt, (Mich.) 240

reason to believe that defendant bore mal

MALPRACTICE.

Degree of skill.

1. In an action against a clairvoyant physician for malpractice, a charge that if, when defendant was called, both parties understood that he would treat plaintiff according to the approved practice of clair voyant physicians, and if he did so treat him, with the ordinary skill and knowledge of the clairvoyant system, plaintiff could not recover, was properly refused. Instead of the words "with the ordinary skill and knowledge of the clairvoyant system," the instruction should have read, "with the ordinary skill and knowledge of physicians in good standing, practicing in that vicinity. -Nelson v. Harrington, (Wis.) 228.

Imputed negligence.

2. In an action against a clairvoyant physician for malpractice, defendant cannot be heard to charge that the father of plaintiff, a minor, was negligent, in that he employed defendant to treat his son with full knowledge of defendant's methods of diagnosis and prescription.—Id. Evidence.

3. In an action for malpractice, a deposition of plaintiff's father taken in a case

brought by the latter against defendant for | ister or magistrate.-Roszel v. Roszel, loss of his son's services caused by the (Mich.) 858. malpractice complained of in this action, was properly excluded as evidence against plaintiff.-Id.

MANDAMUS.

MASTER AND SERVANT. Contract.

1. Plaintiff testified that before a railroad company's station agent was appointed he

To highway commissioner, see Bridges, 1-3. was told by its civil engineer to look after

Procedure.

1. In mandamus to enforce a purely public duty, not due the government as such, any private person may move as relator. Any citizen of the county may file an information to compel the register of deeds or auditor to keep his office at the countyseat. He need not precede his application by a demand on the officer to perform such public duty.-State v. Weld, (Minn.) 561.

2. The peremptory writ need not precisely follow the alternative writ, in mat ters of detail. Upon the hearing the court may grant the relief in any form consistent with the case made by the complaint, presented and embraced within the issues.Id.

MARINE INSURANCE. Abandonment.

1. Where an insurer, upon notification of an abandonment of a vessel, gets it off, brings it to port, repairs it at great expense, and never offers to return it, believing the loss caused by a peril covered by the policy, the abandonment is thereby accepted, and the company cannot defend on the ground that it is not liable, but must pay the full amount of the policy, as it should have investigated the cause of the loss before accepting the abandonment.— Richelieu & O. Nav. Co. v. Thames & M. Ins. Co., (Mich.) 758.

the freight and about the station until the company discharged him; that he delivered goods and collected freight until the agent was appointed; that the agent did not agree to employ him, but said that he would have his name put on the pay-roll. Plaintiff remained and worked about the depot. There was no evidence that the superintendent knew that plaintiff was at work, except that he was in the pay car when plaintiff demanded pay. Held insufficient to show a cause of action against the company.-Willis v. Toledo A. A. & N. M. Ry. Co., (Mich.) 205.

2. A charge that, if plaintiff did work necessary to be done, and which the station agent could not do himself, he had authority to employ plaintiff, and the latter may recover, is erroneous, in not submitting the question of the superintendent's assent to the employment, or his knowledge of the fact that plaintiff was at work.-Id. Discharge.

3. In an action for a wrongful discharge from service, under a contract providing for a certain salary in consideration for plaintiff's exclusive time and services, defendant may show, on cross-examination of plaintiff, that, when plaintiff was employed, he made false representations to defendant; that he afterwards refused to obey instructions; that he did not do work enough to earn his salary; that he received pay from others during the term of the contract; and also, by direct evidence, the 2. Under a clause in the policy requiring amount of goods sold by plaintiff, and that a notice of abandonment to be in writing they were sold contrary to instructions; and sufficient if accepted to vest the title that he sold scarcely any goods, when he in the company, a telegram informing the might have sold large quantities; and that company that the vessel was ashore at a his work was not done according to congiven point, and that the insured aban- tract, and on that account was worthless. doned it, and claimed a total loss, is suffi--Child v. Detroit Manuf'g Co., (Mich.) 916. cient, as no deed of abandonment is neces- Negligence of master. sary to vest the title in the insurer under marine law.-Id.

MARRIAGE.

See, also, Divorce; Husband and Wife.
Proof of, see Bigamy, 2-5.
What constitutes.

4. In an action against a railroad company for personal injuries, where the evidence shows that plaintiff, a servant of defendant, while lawfully riding on one of its trains, and standing on the lowest step of the car platform, was struck by a switchsignal, which stood so near the track that it scraped the sides of the cars in the train, it is error to withdraw the case from the jury.-Boss v. Northern Pac. R. Co., (Dak.) 590.*

Where one of the parties to a marriage contract positively dissents from it, there can be no legal marriage, although a cere- 5. In an action for injuries caused by mony is performed by the officiating min-negligence of defendants, the evidence

v.40N.W.-64

66

dangerous when prudently and carefully
worked and managed, and that blocking
them materially lessens the danger of their
use and management, and that such was
generally recognized by those engaged in
the construction and operation of railroads
in the country or vicinity by the adoption
and use of such improvement, or of evi-
dence equivalent.-Id.
Negligence of vice-principal.

showed that plaintiff was injured by a and switches are inherently unsafe and 'straw-carrier" attached to a threshing machine falling upon him; that defendants had used proper care in selecting the rope which held the "straw-carrier;" and that plaintiff had been cautioned to "keep out from under the carrier." The court charged that the preponderance of proof is upon defendants to show, by fair testimony, that plaintiff was under the machine, when he ought not to be. Held, that the cause was properly submitted to the jury, by the charge, and the supreme court cannot, on appeal, interfere with a verdict for defend

ants.-Engel v. Breitkreitz, (Minn.) 519.

9. Evidence that plaintiff was employed on defendant's railroad in removing signal defend-posts; that the person in charge intromeans of the locomotive without removing duced the method of pulling them out by any earth, the posts being about three feet in the ground; that the rope sometimes loosened itself from the post after the pulling, and sometimes did not, in which case the engine stopped, for loosening it; that the rope not loosening itself, plaintiff, while the engine was moving and the post being dragged, tried to loosen it, when the and struck and injured plaintiff,-is suffipost meeting an obstruction flew around cient to sustain a verdict for plaintiff.Union Pac. R. Co. v. O'Hern, (Neb.) 293. Risks of employment.

6. Plaintiff was a brakeman, engaged in coupling coal cars as fast as they were weighed, and pushed or "kicked" by the locomotive, over the scales and down an incline upon a trestle on which plaintiff was standing and coupling as fast as the cars were pushed down. Plaintiff was used to the business, but was working in that place for the first time that day, and had been so engaged for two or three hours. At the time of the injury he was proceed ing behind the last car, preparing to couple the succeeding one, when he observed one coming from the scales more rapidly than usual; he turned back to get out of the way, and fell through the opening in the trestle work, was overtaken by the car, and dragged along several feet, and, in the emergency, put out his hand to save himself, and it was caught and injured. He had refused to couple the cars twice before, because they were coming too fast. Held, that the mere fact that the car came down the incline at a higher rate of speed than usual was not evidence of negligence, in the absence of further facts as to the management of the train, or any evidence that, with reasonable diligence, the cars could be "kicked" over the scales at a uniform or lower rate of speed.-Woods v. St. Paul & D. R. Co., (Minn.) 510.

7. The construction and operation of a railroad without blocking its frogs and switches is not negligence per se, of which a court will take judicial notice upon proof of the fact of such construction and operating, and failure to block the frogs and switches only.-Missouri Pac. Ry. Co. v. Lewis, (Neb.) 401.

8. In an action by an administratrix against a railroad company for damages for the death of her husband, a brakeman, the petition alleged that in constructing its railroad the defendant negligently failed to block its switches and frogs, by means of which deceased, in coupling cars stepped his foot between the rails of a switch and became fastened there, by reason of which he was run over by the cars and killed. Held, that the plaintiff could not recover without evidence that unprotected frogs

10. Plaintiff was a brakeman, engaged in coupling coal cars as fast as they were weighed, and pushed or "kicked" by the locomotive, over the scales and down an incline upon a trestle on which plaintiff was standing and coupling as fast as the cars were pushed down. Plaintiff was used to the business, but was working in that place for the first time that day, and had been so engaged for two or three hours. At the time of the injury he was proceeding behind the last car, preparing to couple the succeeding one, when he observed one coming from the scales more rapidly than usual; he turned back to get out of the way, and fell through the opening in the trestle work, was overtaken by the car, and dragged along several feet, and, in the emergency, put out his hand to save himself, and it was caught and injured. He had refused to couple the cars twice before, because they were coming too fast. Held that, whether the place at which the coupling was required to be done was dangerous or not, the plaintiff had assumed the risks.-Woods v. St. Paul & D. R. Co., (Minn.) 510.

11. In an action for personal injuries, the court charged the jury in substance, that, if they found from the evidence that the labor in which plaintiff was engaged was of a dangerous character, and of which plaintiff had knowledge, he could not recover. But the testimony of the witnesses was directly in conflict as to whether the employment was dangerous or not. Held,

lien, plaintiff's book-keeper testified that | Default.
everything was delivered between the 5th
and 20th of April. One of the plaintiffs
testified that he did not recollect the dates;
the account books were not put in evi-
dence. The affidavit for lien was alleged
to have been filed October 19th. Held, that
the evidence as to the date of the last item
was not sufficient to show that the lien was
filed in time.-McDonald v. Ryan, (Minn.)
158.

See Guardian and Ward; Infancy; Parent given to secure notes payable to B. & E.

or order, an allegation in the complaint that the mortgage has been duly assigned by the said B. & E., for value received, to this plaintiff, is sufficient to show plaintiff to be the owner of the notes and mortgage. and-Foster v. Trowbridge, (Minn.) 255.