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berger v. Sussman, 60 Atl. 195, 196, 69 N. MASSES OF MEN J. Eq. 199.

Where a creditor of A. has a right to satisfy his debt out of two funds, X and Y, to but one of which, Y, another creditor, can resort, the first creditor must be compelled to exhaust X before resorting to Y. Where a mortgagor, as further security, assigned a claim for money due under insurance policies, and the mortgagee, without knowledge of a subsequent mortgagor, and pursuant to a supplemental agreement with the mortgagor, applied the money collected on the policies to a general and unsecured indebtedness of the mortgagor, the subsequent mortgagee was not entitled to have the money applied in satisfaction of the mortgage. Weidemann v. Springfield Breweries Co., 63 Atl. 162, 164, 78 Conn, 660.

The doctrine of marshaling assets will not be applied in favor of one having an adequate remedy at law. Farmers' Loan & Trust Co. v. Kip, 85 N. E. 59, 64, 192 N. Y.

266.

MASON

MASONIC SOCIETY

As charity, see Charity. MASONRY

See Inspector of Masonry.

A contract sufficiently fixes the date for the completion of the work where such contract includes excavating, concrete foundations, rubble stone work, pressed brick and cut stone work, etc., and provides the date for completing the "entire masonry," inasmuch as the term "masonry" is generic and includes all the prior specifications of the contract as recited. Joseph N. Eisendrath Co. v. Gebhardt, 124 Ill. App. 325, 331.

MASS

As public charity, see Public Charity.
As superstitious use, see Superstitious
Use.

The words "masses of men," in a pleading alleging that the letters "Inc." are an abbreviation and are so understood by the "masses of men," mean the principal or main body, and is an admission that there are some men or a portion of the public who do not so understand it. Commonwealth v. American Snuff Co., 101 S. W. 364, 365, 125 Ky. 350.

MASSEUR

As physician, see Physician.

As practicing medicine, see Practice of
Medicine.

MASTER

The master is the one who has the direc

tion and control of the servant, and the test is whether in the particular service the servant continues liable to the direction and control of his master, or becomes subject to the party to whom he is loaned or hired. Grace & Hyde Co. v. Probst, 70 N. E. 12, 14, 208 Ill. 147 (citing Consolidated Fireworks Co. v. Koehl, 60 N. E. 87, 190 Ill. 145).

A "master" is one who stands to another in such relation that he not only controls the result of the work of that other, but also may direct the manner in which it shall be done. McColligan v. Pennsylvania R. Co., 63 544, 112 Am. St. Rep. 739. Atl. 792, 793, 214 Pa. 229, 3 L. R. A. (N. S.)

"The fact that the party to whose wrongful or negligent act an injury may be traced was at the time in the general employment and pay of another person does not necessarily make the latter the 'master,' and responsible for his acts. The 'master' 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 York Cent. & H. R. R. Co., 96 N. Y. Supp. 28, 30, 109 App. Div. 81 (quoting Higgins v. Western Union Tel. Co., 50 N. E. 500, 156 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 'masses' are celebrated for the good of those who are dead, but in no sense is a mass so celebrated necessarily a part of the funeral service." In re McAvoy's Estate, 98 N. Y. Supp. 437, 438, 112 App. Div. 377 (citing Cent. Dict.).

latter, who is called the "master." Giacomini v. Pacific Lumber Co., 89 Pac. 1059, 1060, 5 Cal. App. 218 (citing Civ. Code, § 2009).

A "master" is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, retains 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.

MASSAGE

Torts [4th Ed.] p. 72).

MASTER AND SERVANT

53 L. R. A. 550; Powell v. Virginia Const. Co., 13 S. W. 691, 88 Tenn. 692, 17 Am. St. Rep. 925; Carlson v. Stocking, 65 N. W. 58, 91 Wis. 432; Robinson v. Webb, 11 Bush [74 Ky.] 464; Harrison v. Collins, 86 Pa. 153,

The common understanding of the words "master and servant" and the legal understanding are not the same. The latter is broader, and comprehends some cases in which the parties are master and servant 27 Am. Rep. 699). only in a peculiar sense, and for certain purposes-perhaps only for a single purpose.ant" subsists between an accident insurance

In strictness, a "servant" is one who, for a valuable consideration, engages in the service of another, and undertakes to observe his directions in some lawful business. *** It could not all depend on whether the master was to pay anything, nor whether the service was permanent or temporary. His control of the action of the other is the important circumstance, and the particulars of his arrangement are immaterial. The plaintiff not being employed, controlled, or paid by the defendant, would seem not to be their servant, so that they would be liable | for his acts, or their liability to him be governed by the rules applicable as between master and servant. Where defendant engaged J. to sink a shaft, paying him so much per foot, and J. hired plaintiff to help him, and agreed to pay him one-third of the compensation received from defendant, J. having the exclusive right to employ, control, and discharge his helpers, plaintiff was not defendant's servant. Kiser v. Suppe, 112 S. W. 1005, 1007, 133 Mo. App. 19 (quoting and adopting Cooley, Torts, pp. 531, 532).

The relation of "master and serv

company and its medical officer empowered to examine the person or body of insured in respect to any injury or cause of death, in such manner and at such times as he may require, in the exercise of such right of examination, and the company is answerable for injuries resulting from the negligence or misconduct of the medical officer, and, between the medical officer and insured, the law governing the relations of physician and patient does not apply. Tompkins v. Pacific Mut. Life Ins. Co., 44 S. E. 439, 444, 53 W. Va. 479, 62 L. R. A. 489, 97 Am. St. Rep. 1006. MASTER IN CHANCERY

"A 'master in chancery' is an officer appointed by the court to assist in various proceedlings incidental to the progress of a cause before it, and is usually employed to take and state accounts, to take and report testimony, and to perform such duties as require computation of interest, the value of annuities, the amount of damages in particular cases, the auditing and ascertaining of liens on property involved, and similar services. The information which he may communicate by his findings on such cases on the evidence presented to him is merely ad

The relation of master and servant exists where the employer has power to direct doing it, with power to employ and dis-visory to the court which it may accept and

the nature of the work and the manner of

charge, and a switch tender, employed and controlled by defendant, but one-third of whose wages was paid by plaintiff's company, which ran over defendant's tracks at the switches, was not a servant of plaintiff's company, nor was defendant its servant; the latter only having the right to complain to defendant as to the manner of performing

his duties. Yeates v. Illinois Cent. R. Co.,

89 N. E. 338, 341, 241 Ill. 205.

act upon or disregard in whole or in part according to its own judgment as to the weight of the evidence. In practice it is not usual for the court to reject the report of a master with his findings, where the matters refer to him unless exceptions are taken to them and brought to its attention and on examination the findings are found unsupported or defective in some essential

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. 894, 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- 547. 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 servto 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 Singer Mfg. Co. v. Rahn, 10 Sup. Ct. 175, 132 U. S. 518, 33 L. Ed. 440; Uppington v. City of New York, 59 N. E. 91, 165 N. Y. 222,

law, and such reference is entered as a rule of the court, the master is clothed with very different powers from those which he exercises upon ordinary reference without such

consent, and his determinations are not subject to be set aside and disregarded at the mere discretion of the court. A reference by consent of the parties of the entire case for a determination of all its issues, though not strictly a submission of the controversy to arbitration-a proceeding which is governed by special rules-is a submission of the controversy to a tribunal of the parties' own selection to be governed in its conduct by the ordinary rules applicable to the admin

MATERIAL

"Material" is defined by Webster to mean something essential. Faulkner v. Bridget, 86 S. W. 483, 110 Mo. App. 377.

Webster defines "material" to be something "of solid or weighty character; substantial; of consequence; not to be dispensed with; important; specific; especially law, such as does or would affect the determination of a case, the effect of an instrument, istration of justice in controversies estabor the like; constituting a matter that is enlished by law. Its findings, like those of an titled to consideration; such as must be conindependent tribunal, are to be taken as corsidered 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 order of the court, when there has been manifest error in the consideration given to the evidence, or the application of the law, but not otherwise. The reference of a whole case to a master * has become, in late years, a matter of more common occurrence than formerly, though it has always been within the power of the court of chancery, with the consent of the parties, to order a reference." Locust v. Caruthers, 100 Pac. 520, 522, 23 Okl. 373 (quoting Kimberly v. Arms, 9 Sup. Ct. 355, 129 U. S. 355, 32 L. Ed. 764; citing Basey v. Gallagher, 20 Wall. [87 U. S.] 670, 22 L. Ed. 452; Quimly v. Conlan, 104 U. S. 420, 424, 26 L. Ed. 800).

MASTER OF A SHIP

As laborer, see Laborer.

MASTER PLUMBER

Laws N. Y. 1896, c. 803, after making it unlawful for any person to carry on the business of an employing or "master plumber" unless the name and address of such person shall have been registered as provided in section 6, provides that a master or employing plumber within the meaning of the act is any person who hires a person or persons to do the plumbing work. Schnaier & Co. v. Grigsby, 113 N. Y. Supp. 548, 549, 61 Misc. Rep. 325.

"Master plumbers" and "employing plumbers" are one and the same-those who do not hold themselves out as personally doing the work, but as contracting to furnish the materials and to do the work through others, while "journeyman plumbers" are those skilled in the calling and holding themselves out as able and willing to do the work themselves. Felton v. Atlanta, 61 S. E. 27, 28, 4 Ga. App. 183.

MATE

As laborer, see Laborer.

MATERIA

See In Pari Materia,

Cr. 50.

Code Supp. 1907, § 3060a14, provides that, where a negotiable instrument is wanting in any "material particular," the person in possession has prima facie authority to complete it by filling up the blank therein, etc. Held, that the word "material" was not there used as synonymous with "necessary,” so as to restrict the right to filling in an omission essential to the completion of a negotiable instrument, but included all omitted matter usually found in such instruments. Johnston v. Hoover, 117 N. W. 277, 278, 139 Iowa, 143.

To justify a reversal of a conviction on the ground of error, the error must have been of a material character, and must have deprived accused of a substantial right, the word "material" meaning something of weighty character, substantial, of consequence, not to be dispensed with. Campbell V. Territory (Ariz.) 125 Pac. 717, 721.

The words "material" and "not materi al" are absolutely contradictory, in that they exclude all middle ground, and together include everything thinkable. Bennett v. Ware, 61 S. E. 546, 550, 4 Ga. App. 293 (dissenting opinion by Powell, J.).

MATERIAL ALLEGATION

Under Civ. Code Prac. § 126, providing that material allegations against infants must be proved, though not denied, and secone necessary to support the action, and section 127, defining a material allegation to be tion 429, requiring a petition in a suit to settle a decedent's estate to state the amount of debts, the nature and value of the property of decedent, and providing that, if the personal property is insufficient to pay debts, so much of the real property as may be necessary may be sold, a sale of an entire tract before the value of the personal property had been ascertained, and before it had been ascertained, at least approximately, what the claims against decedent's estate amounted to, and without any showing that the land was indivisible, was, as to infant heirs, void. Carter v. Crow's Adm'r, 112 S. W. 1098, 1099, 130 Ky. 41.

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The test whether an instrument has been materially altered is whether the change or addition injuriously affected the complaining parties or could have under any probable circumstances enlarged their burden. Holthouse v. State, 97 N. E. 130, 132, 49 Ind. App. 178.

Whatever changes the legal effect of an instrument is a material alteration. "The test is, not whether an alteration increases or reduces a party's liability, but whether the instrument expresses the same contract -whether it will have the same legal effect and operation after the alteration as before." White v. Harris, 48 S. E. 41, 43, 69 S. C. 65, 104 Am. St. Rep. 791.

A material alteration of a written instrument is an intentional act, after it has been fully executed by one party without the consent of the other; which changes the legal effect of the instrument in any way. The cross-marking of a material provision of a written instrument, after its execution by one of the parties, without the consent of the other, with intent of erasing it, is a material alteration. O. N. Bull Remedy Co. v. Boyer, 124 N. W. 20, 21, 109 Minn. 396, 32 L. R. A. (N. S.) 519, 18 Ann. Cas. 413.

Under Rem. & Bal. Code, § 3514, providing that, where a negotiable instrument is materially altered without the assent of all persons liable thereon, it is avoided, except as against a party who made, authorized, or assented to the alteration and subsequent indorsers, and section 3515, providing that an alteration which changes the number or relations of the parties is a "material alteration," where, after the indorsement of a note by an accommodation party, and before it was negotiated, without his knowledge or consent, other parties signed it as maker, he was discharged of liability thereon. Handsaker v. Pedersen, 128 Pac. 230, 231, 71 Wash.

218.

As a rule, any change in the personality, number, or relation of the parties to a writ

ten contract is a material alteration thereof, so as to avoid it as to the nonconsenting parties, so that the erasure of the name of one of the obligors in a contract is a material alteration. Matson v. Jarvis (Tex.) 133 S. W. 941, 943.

The addition to a note by the payee without the knowledge of the maker of the words "with interest 6 per cent." is a material alteration of the note within Negotiable Instruments Law (Consol. Laws 1909, c. 38) § 206, subd. 2, declaring that any alteration changing the sum payable either for interest or principal is material. Columbia Distilling Co. v. Rech, 135 N. Y. Supp. 206, 207, 151 App. Div. 128.

It is a material alteration of an instrument to change the time from which the interest is to run, either by the insertion, alteration, or erasure of words, whether the time is thereby accelerated or delayed. Baldwin v. Haskell Nat. Bank, 133 S. W. 864, 865, 104 Tex. 122.

Where, after the delivery of a note containing an unfilled blank for the place of payment, the payee filled the blank as authorized by Code Supp. 1907, § 3060a14, such note was not within sections 3060a124 and 3060a125, providing that any alteration in the time or place of payment shall constitute a material alteration and that a material alteration will avoid the note. Johnston v. Hoover, 117 N. W. 277, 278, 139 Iowa, 143.

Whether an alteration of a note is material does not depend upon whether it increases or reduces the maker's liability, but upon whether the instrument after alteration expresses the same contract, and, if the change enlarges or lessens the liability, it is material. Commonwealth Nat. Bank of Dallas, Tex., v. Baughman, 111 Pac. 332, 333, 27 Okl. 175.

The altering of the figures in two places in an order for money, to make it read $38 instead of $30, but leaving the written amount as it originally was, was a "material alteration," tending to indicate that it was the maker's intention to pay $38, and was therefore apparently capable of effecting a fraud. White v. State, 102 S. W. 715, 716, 83 Ark. 36.

Under a statute providing that a material alteration of a negotiable instrument is one which changes the date, the sum payable, the time or place of payment, the number or relations of the parties, or the medium or currency in which payment is to be made, a valid agreement between the holder and principal debtor for an extension of time of payment is not a "material alteration" discharging an accommodation maker of a note; the statute referring to changes in the instrument itself and not the contract. Rich

ards v. Market Exch. Bank Co., 90 N. E. 1000, 1005, 81 Ohio St. 348, 26 L. R. A. (N. S.) 99.

Under a statute providing that any alteration changing the date or any change which alters the effect of a negotiable instrument is a "material alteration," the drawing of a hand through the figures "1

8-9" in a note written on a blank form, dated October 24, 1892, payable one year from date, reciting that it was due October 24, 1903, and writing above the figures "1-9-0" so as to make the date October 24, 1902, was not a "material alteration," since, as the written figures control the printed ones, the alteration did not change the date. Lombardo v. Lombardini, 106 Pac. 907, 908, 57 Wash. 352, 32 L. R. A. (N. S.) 515.

Under Rev. St. § 3175p, declaring that a "material alteration" of a negotiable instrument consists in an alteration which changes the date, the sum payable, either for principal or interest, the time or place of payment, the number or the relation of the parties, the medium or currency in which payment is to be made, or which adds a place of payment where no place of payment was specified, or any other change or addition which alters the effect of the instrument in any respect, the term is limited to the alteration of the instrument itself and was not fulfilled by an extraneous contract between the holder and the principal maker extending the time of payment. Richards v. Market Exch. Bank Co., 90 N. E. 1000, 1005, 81 Ohio St. 348, 26 L. R. A. (N. S.) 99. MATERIAL DEFENDANT

Under Code 1907, §§ 3093, 6110, providing that bills must be filed in the district in which the defendants or a material defendant reside, a material defendant being a necessary or indispensable party, the husband is the only material defendant to a suit by a wife for divorce and alimony, and hence a bill for divorce and alimony cannot be filed in a district other than that in which he resides. Puckett v. Puckett, 56 South. 585, 587, 174 Ala. 315.

A "material defendant," within the meaning of the statute, requiring that an original bill be filed in the district in which the defendants or a "material defendant" reside, has been held to be a defendant who is a necessary party, really interested in the result of the suit and against whom a decree is sought; one whose interest is antagonistic to the complainants and against whom relief is prayed. Railroad Commission of Georgia v. Palmer Hardware Co., 53 S. E. 193, 197, 124 Ga. 788 (citing Gay v. Brierfield Coal & Iron Co., 17 South. 618, 106 Ala. 615; Waddell v. Lanier, 54 Ala. 440). MATERIAL DEGREE

to the injury, which would not defeat a recovery. Root v. Des Moines Ry. Co., 98 N. W. 291, 293, 122 Iowa, 469.

The words "material degree," in an instruction, in an action for injuries, to the effect that if the plaintiff was injured as the direct result of defendant's negligence, and was "in no manner or to any material degree negligent himself, or in no manner or to any extent contributed to his own injury," he was entitled to recover, related to the amount of care required, and not to the extent of contribution to the injury by reason of failure to exercise such care, and hence the instruction was not erroneous. Camp v. Chicago Great Western Ry. Co., 99 N. W. 735, 738, 124 Iowa, 238.

MATERIAL DEPARTURE

On September 25th the court ordered the issuance of a venire of 150 names, returnable on October 5th, and names to that number were regularly drawn and the venire issued. On September 30th, the court vacated the order of September 25th, and directed that the names in the venire then in process of being served be restored to the trial jury | box, and that 150 names be drawn from the trial jury box, and a venire issued for those persons to attend October 7th to complete the panel in the case; seven jurors having been passed. Thereafter on the same date the 150 names were returned to the box, and the judge and clerk of court drew therefrom 150 names to complete the panel, and a venire was issued to serve the names so drawn. Held that, conceding irregularity, there was not a "material departure" from the forms provided by statute, expressly made ground for challenge to the panel by Comp. Laws Nev. 4288; "material departures" being only such as affect the substantial rights of a defendant in securing an impartial jury. State v. Jackman, 104 Pac. 13, 14, 16, 31 Nev. 511.

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Testimony of the accused, in a bastardy proceeding, that he had not had sexual intercourse with the complainant, held, to be "material" on his indictment for perjury, although he had also sworn that he was not the father of the child. State v. Brown, 79 N. C. 642, 643.

False testimony is "material," so as to be the subject of an assignment for perjury, when it is such as to be substantially important and to have influence on the issues, especially as distinguished from a mere formal requirement, and capable of properly influencing the result of the trial. People v. Schweichler, 117 Pac. 939, 940, 16 Cal. App. 738.

One of the meanings of the term material is "in an important degree" (Webster, Dict.), and this is the meaning which would properly be attached to it as used in an instruction that a passenger on a street car could not recover if she contributed to her injury in a material degree, and hence the instruction was erroneous, because import- In Code Civ. Proc. § 870 et seq., and ing that there might be a degree of negli- general rule of practice 82, requiring, for gence on the part of plaintiff, contributing the examination of an adverse party before

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