Credit of on foreclosure, see "Payment," § 1. ed complaint.-Fleming v. City of Anderson
Railroad liens, see "Railroads," § 4.

*Point annotated. See syllabus.

*An injunction against the commencement of
an action does not save the running of limita-
tions, unless the statute so provides.-Hunter v.
Niagara Fire Ins. Co. (Ohio) 563.

§ 3. Operation and effect of bar by
limitation.

An action to recover on policy of fire insur-
ance, when brought in the state on a cause of
action arising in another state, is, by Rev. St.
1905, 4990, if barred in the state where the
cause of action arose, also barred in the state.-
Hunter v. Niagara Fire Ins. Co. (Ohio) 563.

LIMITATION OF LIABILITY.

Of carrier, see "Carriers," § 7.

LIQUOR SELLING.

See "Intoxicating Liquors."

LIS PENDENS.

Pendency of other action ground for abatement,
see "Abatement and Revival," § 1.

LIVE STOCK.

Carriage of, see "Carriers," § 3.

LOAN ASSOCIATIONS.

See "Building and Loan Associations."

LOCAL ACTIONS.

See "Venue," § 1.

LOCAL LAWS.

See "Statutes," § 2.

MACHINERY.

Liability of employer for defects, see "Master
and Servant," §§ 4, 9.

Warranty on sale of, see "Sales," § 4.

MALICE.

See "Malicious Prosecution," § 3.
Element of homicide, see "Homicide," § 2.

MALICIOUS PROSECUTION.

See "False Imprisonment."

Compelling telegraph company to furnish quo-
tations, see "Telegraphs and Telephones," § 2.
Removal of proceedings to federal court, see
"Removal of Causes," § 1.

Right of review in proceeding for writ of man-
date, see "Appeal and Error," § 3.

To compel collection of tax for railroad dona-
tion, see "Railroads," § 2.

To compel correction of assessments, see “Taxa-
tion," § 3.

To compel recount of votes, see "Elections," § 1.
§ 1. Nature and grounds in general.

Mandamus would not lie to compel the issu-
ance of a certificate of incorporation in a cer-
tain case in which a question of fact was in
doubt (4 Starr & C. Ann. St. Supp. 1902, c.
32, par. 53).-People v. Rose (Ill.) 42.

Mandamus will not lie to compel Secretary of
State to issue certificate of incorporation under
a name the use of which may be enjoined by
an existing company.-People v. Rose (Ill.) 42.

*Mandamus will not issue except on a show-
ing by relator of a clear legal right to have
the thing sought by it done and done in the
manner and by the person sought to be coerced.
-State v. Spinney (Ind. Sup.) 971.

The right of a city to construct railroad cross-
ing and bring action against railroad for cost
and penalty, under franchise ordinance and
Burns' Ann. St. 1901, § 5172a, held not an ad-
equate remedy so as to prevent mandamus.-
Vandalia R. Co. v. State (Ind. Sup.) 980.

§ 2. Subjects and purposes of relief.
*The performance of an official act which in
its nature is ministerial rather than judicial
may be coerced by mandamus.-Van Dorn v.
Anderson (Ill.) 53.

*A county superintendent of schools has no
power to antedate a teacher's certificate, and
may be compelled by mandamus to date it cor-

Effect of discharge in bankruptcy on liability rectly.-Van Dorn v. Anderson (Ill.) 53.
for, see "Bankruptcy," § 2.

*Mandamus will not lie to compel the mayor
of a city to enforce Sunday closing laws and
ordinances against the saloons of such city.-
People v. Dunne (Ill.) 570.

*Mandamus held maintainable to compel a
road district supervisor to take charge of a high-
way within his district, as required by Burns'
Ann. St. 1901, §§ 6818, 6828.-Rodenbarger v.
State (Ind. Sup.) 398.

*Under Burns' Ann. St. 1901, § 6028, discre
tion of school township trustees in establish-
ing school districts and building schoolhouses
cannot be reviewed by the courts, but the reme
dy is by appeal to the county superintendent.-
State v. Black (Ind. Sup.) 882.

*Under Burns' Ann. St. 1901, § 1182, man-
damus lies to compel a county treasurer to pay
over to a town treasurer funds belonging to the
town, to the custody of which the town treasur
er is entitled.-State v. Spinney (Ind. Sup.)
971.

* Point annotated. See syllabus.

MARRIED WOMEN.

Mandamus will not lie to compel payment
of town funds by a county treasurer to a town
treasurer if the county treasurer has no such See "Husband and Wife."
funds in his possession.-State v. Spinney (Ind.
Sup.) 971.

*Under Burns' Ann. St. 1901, § 5153, cl. 5,
and section 5172a, the obligation of railroad
company to comply with franchise ordinance
requiring it to make safe crossings held en-
forceable by mandamus.-Vandalia R. Co. v.
State (Ind. Sup.) 980.

§ 3. Jurisdiction, proceedings, and re-
lief.

An answer to an alternative writ of manda-
mus to compel a telegraph company to sell and
deliver to relator the market quotations of a
board of trade held to show that relator desired
the quotations for the purpose of conducting a
bucket shop.-Western Union Telegraph Co. v.
State (Ind. Sup.) 100.

An answer to an alternative writ of manda-
mus held insufficient because not setting out the
tenor of a contract relied on as a defense, nor
declaring its effect on the service required by
the writ.-Western Union Telegraph Co. v.
State (Ind. Sup.) 100.

In mandamus to compel railroad company to
grade highway crossing, return held to confess
and avoid allegations of the application.-Van-
dalia R. Co. v. State (Ind. Sup.) 980.

Judgment in mandamus directing railroad
company to plank crossing held not erroneous
as being too specific.-Vandalia R. Co. v. State
(Ind. Sup.) 980.

In mandamus to compel the advisory board
of a township to make an appropriation to
build a schoolhouse, a complaint and alterna-
tive writ failing to show that there were any
funds from which it could be made were de-
murrable. Advisory Board of Harrison Tp. v.
State (Ind. Sup.) 986.

Including in the mandatory clause of an al-
ternative writ of mandamus, a command for
greater relief than the relator is entitled to
under his petition and writ renders the same
insufficient. Advisory Board of Harrison Tp.
v. State (Ind. Sup.) 986.

See "Mandamus."

MANDATE.

To lower court on decision on appeal or writ
of error, see "Appeal and Error," § 29.

MARRIAGE.

See "Divorce"; "Husband and Wife."
Amendment of statute relating to remarriage of
divorced persons, see "Statutes, § 3.
Effect of invalidity of marriage on competency
of husband or wife as witness, see "Witnes-
ses," § 1.

Under Laws 1905, p. 317, amending Hurd's
Rev. St. 1903, c. 89, it is the duty of the county
clerk to inquire whether applicants for a mar-
riage license are incapable of contracting mar-
riage, under Laws 1905, p. 317, relative to re-

marriage of divorced persons.-Olsen v. People
(Ill.) 89.

*In an action by a wife to annul a marriage
because the husband was a lunatic, held the
wife was not entitled to counsel fees and alimo-
ny.-Jones v. Brinsmade (N. Y.) 22.

MARRIAGE SETTLEMENTS.

See "Husband and Wife," § 2.

MASTER AND SERVANT.

Applicability of instructions in action for in-
Form and allegations of pleading in action for
juries to servant, see "Trial," § 7.
injuries to servant, see "Pleading," § 1.
Harmless error in action for injuries to ser-
vant, see "Appeal and Error," § 25.
Liability of carrier for acts of employer, see
"Carriers," § 7.
Objections for purpose of review in action for
injuries to servant, see "Appeal and Error,"
§ 4.

Validity in general of contract between em-
ployer and labor union, see "Contract," § 1.

1. The relation.

Stevedore, employed to unload coal from
vessel, who hired his own men, held an inde-
pendent contractor.-Sullivan v. New Bedford
Gas & Edison Light Co. (Mass.) 1048.

§ 2. Services and compensation.
A contract of employment construed, and
be deducted
held that certain expenses must
from the gross profits in order to determine the
net profits forming a basis for the employe's
compensation.-Arthur Jordan Co. v. Caylor
(Ind. App.) 419.

*The "net profits" of a business, a percentage
of which an employé shall receive for his serv-

ices, is what remains after all legitimate ex-
Co. v. Caylor (Ind. App.) 419.
penses thereof have been paid.-Arthur Jordan

Willful default in performance of stipulation
of contract held to preclude a recovery for serv-
ices, although the stipulation does not go to the
essence of the contract.-Sipley v. Stickney
(Mass.) 226.

§ 3. Master's liability for injuries to

servant.

servant
Liability of master for injuries to
caused by act of other servant while not act-
ing within scope of his employment, see
post, § 10.

An order directing a servant to perform cer-
tain work held not a particular one within
Burns' Ann. St. 1901, § 7083, authorizing re-
covery by a servant injured by obedience to
a particular instruction.-McElwaine-Richards
Co. v. Wall (Ind. Sup.) 408.

A railroad company cannot be absolved from
its duty to its servants by suffering a negligent
custom to be established in the conduct of its
business.-Pittsburgh, C., C. & St. L. Ry. Co.
v. Nicholas (Ind. Sup.) 522.

A servant, injured by the negligence of his
superintendent while performing work under
special direction of such superintendent, held en-
titled to recover under the employer's liability
act, though the direction pertained to work he
was employed to do.-Clear Creek Stone Co. v.
Carmichael (Ind. App.) 320.

plaintiff to do certain work requiring him to go
Defendant's superintendent having ordered
to a place of danger, such superintendent was
charged with knowledge of such danger which
he could have ascertained by the exercise of
reasonable care.-Clear Creek Stone Co. v. Car-
michael (Ind. App.) 320.

*Certain negligence of a machinist in charge
of repairing a machine held that of a fellow
servant to an apprentice.-Wolf v. New Bed-
ford Cordage Co. (Mass.) 222.

* Point annotated. See syllabus.

*The master was not bound to instruct an
apprenticed machinist that if certain steel
needles or teeth on an endless chain broke on
coming in contact with a crowbar the pieces
might fly; such danger being an obvious one.
-Wolf v. New Bedford Cordage Co. (Mass.)
222.

In an action for injuries to a servant by the
fall of certain bales of cotton, evidence held
insufficient to sustain a finding of negligence
against defendant's foreman.-Cahill v. Boston
& M. R. R. (Mass.) 911.

At common law and under Rev. Laws, c.
106, § 76, an owner who contracts to have
work done by independent contractor with the
owner's machinery held to owe the same duty
to employés of the contractor as if they were
his own.-Sullivan v. New Bedford Gas & Edi-
son Light Co. (Mass.) 1048.

Tools, machinery, appliances,
and places for work.
A master held not negligent in ordering the
performance of certain work by a servant.—
McElwaine-Richards Co. v. Wall (Ind. Sup.)

408.

-

§ 5. Risks assumed by servant.
*The assumption of the ordinary risks of a
brakeman does not include the unexpected neg-
ligence of a conductor while exacting implicit
obedience to a specific order.-Pittsburgh, C., C.
& St. L. Ry. Co. v. Nicholas (Ind. Sup.) 522.

*A coal miner held not to assume risk of in-
juries resulting from employer's violation of
statute relating to coal mines.-Diamond Block
Coal Co. v. Cuthbertson (Ind. Sup.) 1060.

*The risks of the employment held assumed
by the employé so far as the same could be dis-
covered by using reasonable care to ascertain
the condition of the appliances he is to use and
the place in which he is to work.-Evansville
Gas & Electric Light Co. v. Raley (Ind. App.)
548.

*An employé in assuming the duties of his
employment presumptively assumes the risks
thereof discoverable by the exercise of reasonable
diligence on his part.-Evansville Gas & Elec-
tric Light Co. v. Raley (Ind. App.) 548.

A lineman employed by an electric company
to remove wires from old poles held to assume
the risk of injury in consequence of defects in
An electric light company employing an ex- received in consequence thereof.-Evansville Gas
the poles, precluding a recovery for injuries
perienced lineman to ascend poles for the pur-& Electric Light Co. v. Raley (Ind. App.) 548.
pose of untying the wires preparatory to trans-
ferring them to new poles is not required to in-
spect the poles and inform the lineman of their
unsound condition.-Evansville Gas & Electric
Light Co. v. Raley (Ind. App.) 548.

*A servant assumes only open and obvious
risks.-Finnegan v. Samuel Winslow Skate
Mfg. Co. (Mass.) 192.

One entering a machine shop as an apprentice
held to have assumed the risk of finishing frames
being constructed with steel teeth, pieces of
which might fly off when coming forcibly in
contact with any hard substance.-Wolf v. New
Bedford Cordage Co. (Mass.) 222.

*The failure of an employer to comply with
the statute providing that exhaust fans shall
be provided to carry off dust from emery
wheels is a breach of duty owing to employés.
-Muncie Pulp Co. v. Hacker (Ind. App.) 770.
*Violation by master of Rev. Laws, c. 104,
*A servant directed to work on a platform
$27, relative to precautions about elevators, constructed under the directions of his foreman
held evidence of negligence in an action for in-held not bound to examine the same himself in
juries to a servant.-Finnegan v. Samuel Wins- order to determine whether it was safe.-White
low Skate Mfg. Co. (Mass.) 192.
v. William H. Perry Co. (Mass.) 512.

A crowbar was not a defective nor obsolete
tool to use in lifting out the chain on a finishing
frame in a machine shop.-Wolf v. New Bed-
ford Cordage Co. (Mass.) 222.

The fact that some other appliance than the
one furnished by a master may, in the opinion
of mechanical experts, be more suitable for a
certain purpose or safer, does not show that the
appliance in question is not reasonably safe
and adapted to the work, if it appears to have
been fit and proper.-Wolf v. New Bedford
Cordage Co. (Mass.) 222.

*A servant held not entitled to recover for
injuries owing to her hand having been drawn
into a laundry mangle.-Burke v. Davis
(Mass.) 1039.

*That a servant consented to undertake the
work reluctantly, and under threat of dismissal,
did not save her from assuming obvious risks.
-Burke v. Davis (Mass.) 1039.

Servant employed to unload coal from vessel
held to assume risk of injury from apparatus
in use when he was employed.-Sullivan v.
New Bedford Gas & Edison Light Co. (Mass.)
1048.

*A servant assumed the risk of injury inci-
dent to the walls of an elevator well being
covered with plaster in place of boards or
metal.-McDonald v. Dutton (Mass.) 1055.

exercise of due

care.-McElwaine-Richards

*A workman injured by the falling of the tim-
*An employer is under the obligation of keep-ber on which he was working held not in the
ing the machinery and tools in proper repair.
-Wolf v. New Bedford Cordage Co. (Mass.)
222.

Where a servant was injured by the fall of
certain cotton piled in a freighthouse, such
cotton did not constitute a part of the ways,
works, or machinery within the employer's lia-
bility act.-Cahill v. Boston & M. R. R. (Mass.)
911.

*Owner of elevator held not negligent in
permitting break in wall of elevator well, re-
sulting in injury to servant.-McDonald v. Dut-
ton (Mass.) 1055.

Co. v. Wall (Ind. Sup.) 408.

*Coal miner directed to work in certain place
held to have right to assume that place had been
made safe by his employer.-Diamond Block
Coal Co. v. Cuthbertson (Ind. Sup.) 1060.

The right of an employé, injured while oper
ating an emery wheel, to recover, held not de
feated because the employé stood in front of
the wheel.-Muncie Pulp Co. v. Hacker (Ind.
App.) 770.

In action for injuries to a servant, certain
facts held not to show that a crowbar used by

* Point annotated. See syllabus.

the servant was a defective appliance.-Wolf | his contributory negligence.-Diamond Block
V. New Bedford Cordage Co. (Mass.) 222.

In an action for injuries to a brakeman, evi-
dence examined, and held to show contributory
negligence on plaintiff's part.-Flansberg V.
Heywood Bros. & Wakefield Co. (Mass.) 599.
§ 7. Pleading in action for injuries.
*In an action for injuries to a servant, the
specific act or omission. of the master relied
on as constituting a breach of duty must be
alleged in order to constitute a cause of ac-
tion. Klawiter v. Jones (Ill.) 673.

Declaration in an action for injuries to a

servant held not to state a cause of action

against one of the defendants.-Klawiter v.
Jones (Ill.) 673.

Where a brakeman was injured by being
thrown from roof of car, it was not necessary
for him to allege in his complaint that the con-
ductor knew of his perilous position.-Pitts-
burgh, C., C. & St. L. Ry. Co. v. Nicholas (Ind.
Sup.) 522.

In an action for injury to plaintiff brakeman,
complaint held sufficient to show a duty on the
part of defendant's conductor as to the act
complained of.-Pittsburgh, C., C. & St. L. Ry.
Co. v. Nicholas (Ind. Sup.) 522.

Complaint in an action against a railway
company for injuries to an engineer held not
to state a cause of action.-Southern ky. Co.
v. Sittasen (Ind. Sup.) 973.

Coal Co. v. Cuthbertson (Ind. Sup.) 1060.

Instruction that coal miner failing to comply
with Burns' Ann. St. 1901, § 7472, as to notice
of unsafe condition of mine, assumes the risk
of injury, held properly refused.-Diamond
Block Coal Co. v. Cuthbertson (Ind. Sup.) 1060.

The court held not authorized to say as a
matter of law that an employé, injured while
operating an emery wheel, was not injured
because of the failure to guard the wheel as re-
quired by law.-Muncie Pulp Co. v. Hacker
(Ind. App.) 770.

provided with an exhaust fan for the purpose
An employé operating an emery wheel not
of carrying off dust from the wheel, as ex-
pressly required by statute, cannot be said
as a matter of law to know the danger.-Mun-
cie Pulp Co. v. Hacker (Ind. App.) 770.

In an action for injuries to a servant, ques-
tion of master's negligence held one for the
Co. (Mass.) 192.
jury. Finnegan v. Samuel Winslow Skate Mfg.

In an action for injuries to a servant, wheth-
er the defect in question could have been dis-
covered by the master by reasonable inspection
Samuel Winslow Skate Mfg. Co. (Mass.) 192.
held a question for the jury.-Finnegan v.

Whether servant was guilty of contributory
negligence held a question of fact for the jury.
*In action for injuries to coal miner, allega-Finnegan v. Samuel Winslow Skate Mfg. Co.
tions of complaint as to knowledge of defect in (Mass.) 192.
mine held not to show assumption of risk.-
Diamond Block Coal Co. v. Cuthbertson (Ind.
Sup.) 1060.

In action for injuries to a coal miner, motion
to make complaint more definite by alleging
particular kind of work in which miner was
engaged held properly denied.-Diamond Block
Coal Co. v. Cuthbertson (Ind. Sup.) 1060.

In an action for injuries to a servant, a
complaint held to sufficiently allege that a fly
wheel that caused plaintiff's injury was a part
of defendant's mill machinery, and that plain-
tiff was in defendant's employ and in the dis-
charge of his duty as an employé when injured.
-Hay v. Bash (Ind. App.) 644.

In an action for injuries to a servant in a
sawmill by the bursting of a balance wheel,
plaintiff's complaint held fatally defective for
failure to directly aver that the balance wheel
was defective.-Hay v. Bash (Ind. App.) 644.

A complaint in an action for injuries received
by an employé while working at an unguarded
emery wheel held to state a cause of action
under the statute relating to guarding emery
wheels. Muncie Pulp Co. V. Hacker (Ind.
App.) 770.

8.- Evidence in action for injuries.
*An employé suing for personal injury re-
ceived while engaged in the performance of the
duties of his employment has the burden of
showing that the injury was not the result of the
risk assumed.-Evansville Gas & Electric Light
Co. v. Raley (Ind. App.) 548.

§ 9.

Trial in action for injuries.
Evidence held sufficient to go to the jury on
the questions of contributory negligence and
assumption of risk.-National Enameling &
Stamping Co. v. McCorkle (Ill.) 843.

An instruction on fellow servants held defec-
tive.-National Enameling & Stamping Co. v.
McCorkle (Ill.) 843.

*In action for injuries to a coal miner, evi-
dence held to present question for jury as to

to have assumed the risk as a matter of law.
An employé injured while at work held not
Arnold v. Harrington Cutlery Co. (Mass.) 194.

operating an alleged defective machine, evidence
In an action for injuries to a servant while
held to require submission of defendant's negli-
gence to the jury.-Peterson v. Morgan Spring
Co. (Mass.) 220.

In an action for injuries to a servant caused
by the defectiveness of a machine, a request to
charge that plaintiff assumed the risk in setting
up the machine held properly refused.-Peter-
son v. Morgan Spring Co. (Mass.) 220.

In an action for injuries to a servant, an in-
struction that certain language of plaintiff's
foreman was susceptible of different interpreta-
tions held proper.-Peterson v. Morgan Spring
Co. (Mass.) 220.

In an action for injuries to a servant, whether
the injuries were caused by the master's negli-
Hargraves Mills (Mass.) 235.
gence held a question for the jury.-Lack v.

*In an action for injuries to a servant by the
collapse of an unspiked platform, whether de-
fendant exercised due care in so constructing
the platform was for the jury.-White v. Wil-
liam H. Perry Co. (Mass.) 512.

*A servant held not to have assumed the risk
arising from the unspiked condition of a plat-
form on which he was directed to work, as a
matter of law.-White v. William H. Perry Co.
(Mass.) 512.

In an action for death of intestate because of
the negligence of the manager of defendant in
failing to warn the foreman as to improper use
of steel rod for tamping dynamite, held error
to direct a verdict for defendant.-O'Brien v.
Buffalo Furnace Co. (N. Y.) 161.

Question of assumption of risk in an action
for injury to an employé held one for the jury.
-O'Brien v. Buffalo Furnace Co. (N. Y.) 161.
* Point annotated. See syllabus.