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cohabitation is presumed to be on the faith there must be evidence that the parties asof the marriage promise. That is, however, sumed the relation of husband and wife, merely a rule of evidence, and it is always treating each other as married, and so concompetent, in such cases, to show by proof ducting themselves as to have full repute that the facts are otherwise. Under our law, among their friends and associates to be mar'marriage' is a civil contract by which a ried. In re Baldwin's Estate, 123 Pac. 267, man and a woman agree to take each other 275, 162 Cal. 471. for husband and wife during their joint lives,
As matter or thing unless it is annulled by law, and to discharge
See Matter or Thing. towards each other the duties imposed by law upon such relation. Each must be capable One person created of assenting and must, in fact, consent, to “Marriage" is a contract by which a form this new relation. When the consent social union is established; and the status to marry is manifested by words de of each spouse, and his or her rights in præsenti, a present assumption of the mar- the common property, are fixed by special riage status is necessary.” On the issue as provisions of law applicable to that relation to a common-law marriage, the woman testi- alone. It will not be just to say that, because fied that while she and the man were riding the personal identity of the husband or wife together he said she was his wife, and that a is the same after as before marriage, there marriage ceremony was unnecessary, if they has been no loss or surrender of those legal should hold marriage relations, and that characteristics affected by the assumption of she agreed to hold such relations, and that the relation. There is in many respects a afterwards he acknowledged her as his wife, complete merger of identities and a total loss but that they did not live openly together of the separate individual rights that former. until five months thereafter. It appeared ly existed. Clark v. Brown (Tex.) 108 S. W. that subsequently their neighbors and the 421, 443. woman insisted that a ceremony be perform
As valuable consideration ed, and that, because of the man's refusal to have a ceremony, a difficulty arose between
See Valuable Consideration. the man and the woman's son, in which the MARRIAGE BOND RECORD latter killed the former. Held that the
A book known as the "Marriage Bond facts were insufficient to show a marriage. ļ Topper v. Perry, 95 S. W. 203, 207, 197 Mo. Record” is a book kept in the county clerks
offices in Kentucky, containing the names of 531, 114 Am. St. Rep. 777 (citing Cargile v. Wood, 63 Mo. loc. cit. 512; State v. Bittick, other evidence touching their age and resi
persons who obtained licenses to marry and 15 S. W. 325, 103 Mo. loc. cit. 191, 11 L. R. dence. Pace v. Cawood (Ky.) 110 S. W. 414, A. 587, 23 Am. St. Rep. 869; State v. Cooper,
415. 15 S. W. 327, 103 Mo. 271; Dyer v. Brannock, 66 Mo. 391, 27 Am. Rep. 359; Cart- MARRIAGE BROKERAGE wright v. McGown, 12 N. E. 737, 121 Ill. 388,
A contract based on a money considera2 Am. St. Rep. 105; Hantz v. Sealy (Pa.] 6 tion to aid a woman in securing a husband, Bin. 405; Elzas v. Elzas, 49 N. E. 717, 171 Ill. the services contracted for being in connec635).
tion with efforts already being made by her As used in Rev. Code, $ 2611, defining it to secure such man, was nothing less than as a personal relation arising out of a civil that known as “marriage brokerage" and contract to which the consent of the parties was invalid by common law as against public is necessary, and that consent alone will not policy. Wenninger V. Mitchell, 122 S. W. constitute it, but it must be followed by a 1130, 1132, 139 Mo. App. 420. solemnization or by mutual assumption of marital rights, duties, and obligations, was MARRIAGE PER VERBA DE FUTURA fully proven by evidence that the parties in
CUM COPULA this case had been married by a minister on See, also, Common-Law Marriage. authority of a certificate issued by law and
"Marriage per verba de futuro cum copuhad lived together for 28 years as man and la” is not consummated, unless the copula is wife, though at the time of the ceremony a had in fulfillment of the future agreement. prior spouse of one of the parties was alive; An existing agreement between a man and there being a presumption of divorce. Huff a woman to marry at a future day concluv. Huff, 118 Pac. 1080, 1083, 20 Idaho, 450. sively negatives the claim of a marriage per
Civ. Code, $ 55, declaring that marriage verba de præsenti between the same parties. is a personal relation arising out of a civil Sorensen v. Sorensen, 100 N. W. 930, 933, 68 contract, but consent alone will not constitute Neb. 483. a marriage, and it must be followed by a mutual admission of marital rights, does not MARRIAGE PROMISE modify the requirements of the common-law Breach of as personal injury, see Perrule that the repute and cohabitation neces- sonal Injury. sary to create a presumption of marriage Seduction induced by, see Seducese must be uniform, general, and open, and duction.
feated, and on her entering into a polygaSee Property Growing Out of Marriage mous marriage the gift to her terminated. Relation,
In re Poppleton's Estate, 97 Pac. 138, 140, 34
Utah, 285. MARRIAGEABLE WOMAN
A woman, to be “marriageable,” must at MARSH LAND the time be able to bear children to her husband, and a representation to this effect is The drainage act of 1881 (Laws 1881, implied in the very nature of the contract. P. 236, c. 51) confers the power upon county Baker v, Baker, 13 Cal. 87, 103.
authorities to create drainage districts for
the purpose of draining "marsh or swamp MARRIED WOMAN
lands" alone, and does not confer power to As public merchant, see Public Merchant change the channel or divert surface water As stockholder, see Stockholder.
drains for the purpose of relieving the lands In Domestic Relations Law (Consol.
of riparian proprietors lower down the
stream from periodical overflows in seasons Laws 1909, c. 14) $ 81, providing that a
of freshet. The term "marsh or swamp married woman is a joint guardian of her lands,” as used in said act, has a wider sigchildren with her husband, the term “mar
nificance than the terms "marshes" ried woman” does not refer to one married "swamps.” The power is conferred by this to another than the living father of the child after divorce from him, but only to the act to drain lands which are not, strictly mother married to the father of the infant. speaking, “marshes” or “swamps,” but which In re Wagner, 135 N. Y. Supp. 678, 683, 75 by lands which are so situated as to be ren
are "marsh or swamp lands," meaning thereMisc. Rep. 419.
dered difficult or incapable of successful culMARRIED WOMAN'S SEPARATE ES
tivation by reason of retaining in the soil or TATE
carrying on the surface an excessive quantity
of water during certain portions of the year, See Separate Estate.
even though at other times they may be as MARRY
solid, dry, and firm as lands in general. As used in Rev. St. 1899, § 2169, declar- Campbell v. Youngson, 114 N. W. 415, 417,
418, 80 Neb. 322. ing that every person, having a husband or wife living, who "shall marry another person” without this state in any case where MARSHAL such marriage would be punishable, is con
As city officer tracted or solemnized within the state, or shall thereafter cohabit with such person
See City Officer. within the state, shall be adjudged guilty of As peace officer bigamy, should be taken to mean the going See Peace Officer. "through" the form and ceremony of mar
As person riage with another person, regardless as to
See Person. the validity of the second marriage as a matter of law. State v. Stuart, 92 S. W. 878, MARSHALING ASSETS 882, 194 Mo. 345, 112 Am. St. Rep. 529, 5 Ann, Cas. 963.
The doctrine of "marshaling assets" is
defined as follows: "It is a settled principle MARRYING AGAIN
that when there are two classes of creditors Testator devised real estate described to and two funds, and one class of creditors his wife, and gave to another woman named can only go against one fund while the other other described real estate, to be held by her can go against both, the court will marshal for the support of herself and testator's child the assets, restricting the creditors who have dren by her, and provided that, in the event a double security from touching the fund apof her “marrying again,” the gift to her plicable to the first class of creditors until should become void, and the property should they are paid in full.” In re Terens, 175 Fed. go to such children. A provision in similar 495, 497. language was made in favor of a third woman. The rule that he who has two funds for The woman so named was testator's polyga- the satisfaction of his claim shall not, by mous wife. Testator and she were members electing to resort to the doubly charged fund, of the Mormon Church and believed in its disappoint him who has that fund only to doctrines, including the doctrine of polyga- resort to, is subject to qualifications, and my. Held, that the words “marrying again" among them is the qualification that both included the entering into a polygamous mar- funds must be within the jurisdiction and riage, and the gift to such woman was with control of the court, except in the rare cases in Comp. Laws 1907, 8 2795, providing that a in which it is clear that the creditor of the conditional disposition is one which depends two funds will sustain no loss, delay, or on the occurrence of some uncertain event additional expense if required to resort first by which it is either to take effect or be de- ' to the fund without the jurisdiction. Sternberger v. Sussman, 60 Atl. 195, 196, 19 N. MASSES OF MEN J. Eq. 199.
The words “masses of men,” in a plead. Where a creditor of A. has a right to ing alleging that the letters “Inc.” are an satisfy his debt out of two funds, X and Y, abbreviation and are so understood by the to but one of which, Y, another creditor, can masses of men,” mean the principal or resort, the first creditor must be compelled main body, and is an admission that there to exhaust X before resorting to Y. Where a
are some men or a portion of the public who mortgagor, as further security, assigned a do not so understand it. Commonwealth v. claim for money due under insurance policies, American Snuff Co., 101 S. W. 364, 365, 125 and the mortgagee, without knowledge of a
Ky. 350. subsequent mortgagor, and pursuant to a supplemental agreement with the mortgagor, applied the money collected on the policies MASSEUR to a general and unsecured indebtedness of the mortgagor, the subsequent mortgagee was
As physician, see Physician. not entitled to have the money applied in sat
As practicing medicine, see Practice of
Medicine. isfaction of the mortgage. Weidemann v. Springfield Breweries Co., 63 Atl. 162, 164, 78 Conn. 660.
MASTER The doctrine of marshaling assets will
The master is the one who has the direcnot be applied in favor of one having an ad- tion and control of the servant, and the test equate remedy at law. Farmers' Loan & is whether in the particular service the servTrust Co. v. Kip, 85 N. E. 59, 64, 192 N. Y. ant continues liable to the direction and con266.
trol of his inaster, or becomes subject to the
party to whom he is loaned or hired. Grace MASON
& Hyde Co. y. Probst, 70 N. E. 12, 14, 208
Ill. 147 (citing Consolidated Fireworks Co. MASONIC SOCIETY
v. Koehl, 60 N. E. 87, 190 Ill. 145). As charity, see Charity.
A "master" is one who stands to another
in such relation that he not only controls the MASONRY
result of the work of that other, but also See Inspector of Masonry.
may direct the manner in which it shall be A contract sufficiently fixes the date for Atl. 792, 193, 214 Pa. 229, į L. R. A. (N. S.)
done. McColligan v. Pennsylvania R. Co., O the completion of the work where such con
544, 112 Am. St. Rep. 739. tract includes excavating, concrete foundations, rubble stone work, pressed brick and "The fact that the party to whose cut stone work, etc., and provides the date wrongful or negligent act an injury may be for completing the "entire masonry,” inas- traced was at the time in the general emmuch as the term "masonry" is generic and ployment and pay of another person does includes all the prior specifications of the not necessarily make the latter the 'master,' contract as recited. Joseph N. Eisendrath and responsible for his acts. The 'master Co. v. Gebhardt, 124 Ill. App. 325, 331. is the person in whose business he is engaged
at the time, and who has the right to control
and direct his conduct." Wieber V. New MASS
York Cent. & H. R. R. Co., 96 N. Y. Supp.
28, 30, 109 App. Div. 81 (quoting Higgins v. As public charity, see Public Charity,
Western Union Tel. Co., 50 N. E. 500, 156 As superstitious use, see Superstitious
N. Y. 75, 66 Am. St. Rep. 537).
A servant is one who is employed to “A ‘mass' is not peculiarly a part of a render personal service to his employer othfuneral service, like unto the office for the erwise than in the pursuit of an independent dead. It is the sacrament of the Eucharist, calling, and who in such service remains enand a low mass is one said and not sung. tirely under the control and direction of the In the religion of the Holy Roman Church latter, who is called the "master.” Giaco'masses' are celebrated for the good of those mini v. Pacific Lumber Co., 89 Pac. 1039, who are dead, but in no sense is a mass so 1060, 5 Cal. App. 218 (citing Civ. Code, $ celebrated necessarily a part of the funeral 2009). service." In re McAvoy's Estate, 98 N. Y.
A "master" is one who not only preSupp. 437, 438, 112 App. Div. 377 (citing scribes to the workman the end of his work, Cent. Dict.).
but directs or at any moment may direct the
means also, or, as it has been put, retains MASSAGE
the power of controlling the work. Kellog
v. Church Charity Foundation 112 N. Y. As practicing medicine, see Practice of Supp. 566, 569, 128 App. Div. 214 (citing Pol. Medicine.
Torts [4th Ed.] p. 72).
MASTER AND SERVANT
53 L. R. A. 550; Powell v. Virginia Const. The common understanding of the words Co., 13 S. W. 691, 88 Tenn. 692, 17 Am. St. "master and servant" and the legal under-Rep. 925; Carlson v. Stocking, 65 N. W. 58, standing are not the same. The latter is 91 Wis. 432; Robinson v. Webb, 11 Bush (74 broader, and comprehends some cases in Ky.) 464; Harrison v. Collins, 86 Pa. 153, which the parties are master and servant 27 Am. Rep. 699). only in a peculiar sense, and for certain pur- The relation of "master and poses-perhaps only for a single purpose. ant" subsists between an accident insurance In strictness, a "servant” is one who, for a company and its medical officer empowered valuable consideration, engages in the serv. to examine the person or body of insured in ice of another, and undertakes to observe respect to any injury or cause of death, in his directions in some lawful business. such manner and at such times as he may
* * It could not all depend on whether require, in the exercise of such right of exthe master was to pay anything, nor wheth- amination, and the company is answerable er the service was permanent or temporary. for injuries resulting from the negligence His control of the action of the other is the or misconduct of the medical officer, and, beimportant circumstance, and the particulars tween the medical officer and insured, the of his arrangement are immaterial. The law governing the relations of physician and plaintiff not being employed, controlled, or patient does not apply. Tompkins v. Pacific paid by the defendant, would seem not to be Mut. Life Ins. Co., 44 S. E. 439, 444, 53 W. their servant, so that they would be liable Va. 479, 62 L. R. A. 489, 97 Am. St. Rep. 1006. for his acts, or their liability to him be governed by the rules applicable as between MASTER IN CHANCERY master and servant. Where defendant en
"A master in chancery' is an officer apgaged J. to sink a shaft, paying him so much pointed by the court to assist in various proper foot, and J. hired plaintiff to help him, ceedings incidental to the progress of a and agreed to pay him one-third of the com- cause before it, and is usually employed to pensation received from defendant, J. hav- take and state accounts, to take and report ing the exclusive right to employ, control, testimony, and to perform such duties as and discharge his helpers, plaintiff was not require computation of interest, the value defendant's servant. Kiser v. Suppe, 112 of annuities, the amount of damages in S. W. 1005, 1007, 133 Mo. App. 19 (quoting particular cases, the auditing and ascertainand adopting Cooley, Torts, pp. 531, 532).
ing of liens on property involved, and similar
services. The information which he may The relation of master and servant ex communicate by his findings on such cases on ists where the employer has power to direct the evidence presented to him is merely adthe nature of the work and the manner of visory to the court which it may accept and doing it, with power to employ and dis- act upon or disregard in whole or in part charge, and a switch tender, employed and
according to its own judgment as to the controlled by defendant, but one-third of whose wages was paid by plaintiff's company, not usual for the court to reject the report
weight of the evidence. In practice it is which ran over defendant's tracks at the switches, was not a servant of plaintiff's matters refer to him unless exceptions are
of a master with his findings, where the company, nor was defendant its servant; the taken to them and brought to its attention latter only having the right to complain to and on examination the findings are found defendant as to the manner of performing
unsupported or defective in some essential his duties. Yeates v. Illinois Cent. R. Co., 89 N. E. 338, 341, 241 Ill. 205.
particular. Metzker v. Bonebrake, 2 Sup.
Ct. 351, 108 U. S. 66, 27 L. Ed. 654; TilghThe doctrine of respondeat superior ap- man v. Proctor, 8 Sup. Ct. $94, 125 U. S. 136, plies only where the relation of master and 149, 31 L. Ed. 664; Callaghan v. Myers, 9 servant exists between the wrongdoer and Sup. Ct. 177, 128 U. S. 617, 666, 32 L. Ed. the person sought to be held liable for the in- 517. It is not within the general province jury, and the master is he in whose business of the master to pass on all the issues in an the servant is engaged at the time, and who equity case, nor is it competent for the court has the right to control and direct the serv- to refer the entire decision of the case to him ant's conduct. Harding v. St. Louis Nat. without the consent of the parties. It cannot Stockyards, 90 N. E. 205, 207, 242 Ill. 444. of its own motion, or upon the request of
“The relation of 'master and servant one party, delegate its duty to determine by exists whenever the employer retains the its own judgment the controversy presented right to direct the manner in which the and devolve that duty upon any of its offibusiness shall be done, as well as the result cers; but when the parties consent to to be accomplished, or, in other words, not the reference of a case to a master or other only what shall be done, but how it shall be officer to hear and decide all the issues theredone." Atchison, T. & S. F. Ry. Co. v. Dick-in and report his findings both of fact and of ens, 103 S. W. 750, 753, 7 Ind. T. 16 (citing law, and such reference is entered as a rule Singer Mfg. Co. v. Rahn, 10 Sup. Ct. 175, of the court, the master is clothed with very 132 U. S. 518, 33 L. Ed. 440; Uppington v. different powers from those which he exerCity of New York, 59 N. E. 91, 165 N. Y. 222, 'cises upon ordinary reference without such
consent, and his determinations are not sub- MATERIAL ject to be set aside and disregarded at the mere discretion of the court. A reference "Material" is defined by Webster to by consent of the parties of the entire case mean something essential. Faulkner v. Bridfor a determination of all its issues, though get, 86 S. W. 483, 110 Mo. App. 377. not strictly a submission of the controversy
Webster defines "material” to be someto arbitration—a proceeding which is gov- thing "of solid or weighty character; suberned by special rules—is a submission of the stantial; of consequence; not to be dispensed controversy to a tribunal of the parties' own with; important; specific; especially. law, selection to be governed in its conduct by such as does or would affect the determinathe ordinary rules applicable to the admin- tion of a case, the effect of an instrument, istration of justice in controversies estab
or the like; constituting a matter that is en. lished by law. Its findings, like those of an
titled to consideration, such as must be conindependent tribunal, are to be taken as cor- sidered in deciding a case on its merits." rect, subject indeed to be reviewed under the Thompson v. State, 117 Pac. 216, 223, 6 Okl. reservation contained in the consent and or
Cr. 50. der of the court, when there has been mani. fest error in the consideration given to the Code Supp. 1907, § 3060a14, provides evidence, or the application of the law, but that, where a negotiable instrument is wantnot otherwise. The reference of a whole ing in any “material particular," the person case to a master
has become, in in possession has prima facie authority to late years, a matter of more common occur- complete it by filling up the blank therein, rence than formerly, though it has always etc. Held, that the word "material” was not been within the power of the court of chan- there used as synonymous with "necessary," cery, with the consent of the parties, to or- so as to restrict the right to filling in an der a reference." Locust v. Caruthers, 100 omission essential to the completion of a ne Pac. 520, 522, 23 Okl. 373 (quoting Kimberly gotiable instrument, but included all omitted v. Arms, 9 Sup. Ct. 355, 129 U. S. 355, 32 L. matter usually found in such instruments. Ed. 764; citing Basey v. Gallagher, 20 Wall. Johnston v. Hoover, 117 N. W. 277, 278, 139 [87 U. S.] 670, 22 L. Ed. 452; Quimly v. Con- JIowa, 143. lan, 104 U. S. 420, 424, 26 L. Ed. 800).
To justify a reversal of a conviction on
the ground of error, the error must have MASTER OF A SHIP
been of a material character, and must have As laborer, see Laborer.
deprived accused of a substantial right, the
word “material” meaning something of MASTER PLUMBER
weighty character, substantial, of Laws N. Y. 1896, C. 803, after making it quence, not to be dispensed with. Campbell unlawful for any person to carry on the v. Territory (Ariz.) 125 Pac, 717, 721. business of an employing or “master plumb- The words "material" and "not materi er" unless the name and address of such per- al” are absolutely contradictory, in that they son shall have been registered as provided in exclude all middle ground, and together insection 6, provides that a master or employ- clude everything thinkable. Bennett v. Ware, ing plumber within the meaning of the act | 61 S. E. 546, 550, 4 Ga. App. 293 (dissenting is any person who hires a person or persons opinion by Powell, J.). to do the plumbing work. Schnaier & Co. v. Grigsby, 113 N. Y. Supp. 548, 549, 61 Misc. MATERIAL ALLEGATION Rep. 325.
Under Civ. Code Prac. & 126, providing "Master
that material allegations against infants plumbers" and "employing plumbers" are one and the same those tion 127, defining a material allegation to be
must be proved, though not denied, and secwho do not hold themselves out as personally one necessary to support the action, and secdoing the work, but as contracting to furnish tion 429, requiring a petition in a suit to the materials and to do the work through settle a decedent's estate to state the amount others, while “journeyman Plumbers” are of debts, the nature and value of the propthose skilled in the calling and holding them- erty of decedent, and providing that, if the selves out as able and willing to do the work personal property is insufficient to pay debts, themselves. Felton v. Atlanta, 61 S. E. 27, so much of the real property as may be nec28, 4 Ga. App. 183.
essary may be sold, a sale of an entire tract
before the value of the personal property had MATE
been ascertained, and before it had been as
certained, at least approximately, what the As laborer, see Laborer.
claims against decedent's estate amounted to,
and without any showing that the land was MATERIA
indivisible, was, as to infant heirs, void.
Carter v. Crow's Adm'r, 112 S. W. 1098, 1099, See In Pari Materia,
130 Ky. 41.