LANDLORD AND TENANT.
GENERALLY. Continued.
5. Ownership of crop.-Where a farm is leased upon shares, if the
relation of landlord and tenant exists, the property in the crop is in the
tenant until harvested and divided, and until division, it cannot be levied
upon as the property of the landlord; but if the parties are tenants in
common of the crop, the landlord, before division, has such an interest
as may be levied upon. Hansen v. Dennison et al.,
73
6. Renting farm on shares.-When a farm is leased upon shares, the
question whether the relation of landlord and tenant or that of tenant in
common of the crop exists, is one of intention, to be gathered from the
circumstances, and in determining this question, the matter of posses-
sion by the lessee is of controlling importance. Hansen v. Denison et al.,
73
TENANT.
7. Holding over.-Where a tenant took a lease of other premises of
his landlord, but before entering into possession thereof the same was
canceled, and the tenant remained for a few days in occupancy of the
premises already occupied by him under a former lease, the same having
expired, and upon receiving notice from the landlord that he would be
considered as holding over under the prior lease, immediately vacated
the premises, it was held there was no implied tenancy for another year,
and that the tenant was liable only for the time he actually occupied the
premises after his lease expired. Wilcox v. Raddin.
594
LEGACY.-See ADMINISTRATION OF ESTATES.
LEVY.-See EXECUTION-ATTACHMENT AND GARNISHMENT.
LIEN.-See EXECUTION.
1. County treasurer's bond.—The lien of a county treasurer's bond
attaches to all his real estate, and if such real estate be sold to satisfy a
pre-existing mortgage, the lien will attach to the proceeds of such sale
before the claims of all other creditors, and subject only to the mortgage
debt and homestead right. The People v. Stitt,
MECHANIC'S.
2. Completion of contract.-Where a written contract for repairs upon
a building is express as to some of its terms, but silent as to the time
when the work is to be completed, it is a contract partly express and
partly implied, and the party may have a lien in accordance with the
statute. In such case the work must be done and materials furnished
within one year. Younger et al. v. Louks,
280
3. Priority. The mechanic holds a lien superior to a prior mortgage,
as to the improvements, and second as to the land, and the proceeds of
the sale should be applied in payment of the respective claims in propor-
tion to the several amounts. The value of the land and of the improve-
ments should therefore be found separately. Miller et al. v. Ticknor
al.,
4. Rights of prior mortgagee.-In proceedings for a mechanic's lien,
where it is claimed there are prior incumbrances, it is the duty of the
court to find and adjudicate upon the rights of the parties holding such
prior incumbrances. If such liens exist, they should be ascertained and
provided for in their order; and if they do not exist, it should be so de-
clared, in order that the master's sale may convey an unclouded title.
Miller et al. v. Ticknor et al.,
LIMITATIONS.-See STATUTE OF LIMITATIONS.
LIQUORS-SALE OF.-See DRAM SHOPS
1. Practice in.-In mandamus the petition stands in the place of the
alternative writ, and the answer takes the place of the return. The plead-
ings should then take the form of pleadings at law, and not as in chan-
cery, Com'rs of Highways v. Gibson,
MALICE AFORETHOUGHT.-See CRIMINAL LAW.
MALICE.-See MALICIOUS PROSECUTION.
1. Must show prosecution was determined.-In actions for malicious
prosecution it is incumbent upon the plaintiff to show that the prosecu-
tion has been legally determined in his favor, and the averments in the
declaration as to the particular manner in which the prosecution was
terminated must be proved as alleged. Where the plaintiff alleges a
determination of the prosecution in his favor by his discharge upon the
hearing before the justice, proof of the discharge must be made by the
record, and if for any cause the court is compelled to reject the record
under the rules of evidence, the plaintiff cannot supply its place by oral
testimony. Comisky v. Breen,
369
2. And probable cause must concur.-Want of probable cause and
malice must concur, and where the evidence shows that the defendant
acted with the utmost good faith, under the advice of those in authority,
and no malice is shown, this action cannot be sustained. Russell v. Deer,
3. Not presumed.-In this action malice is not a legal presumption
from the want of probable cause. It is for the jury to find from the facts
proven, where there was probable cause, whether there was malice or not.
The defendant may not be able to show probable cause, but he may be
able to rebut any presumption of malice. Hirschi v. Mettelman, 112;
Comisky v. Breen,
369
4. Must be shown.-In order to maintain this action the plaintiff
must show affirmatively that the defendant instituted the prosecution
without probable cause. Comisky v. Breen,
MASTER AND SERVANT.
DEATH OF SERVANT.
1. Rule of damages.-In an action against the master to recover dam-
ages for the death of his servant through the former's negligence, the
jury may take into consideration the amount of earnings by the deceased;
but the question whether his minor children had or had not other means
of support after his death, is wholly immaterial, and cannot be considered
Heyer et al. v. Salsbury,
2. Defective machinery.—While the master must use ordinary' care
in providing suitable and fit appliances and structures for the use of his
servants, he is not bound to provide against the danger arising from an
unnecessary use of such appliances for purposes to which the same
are not adapted. C. B. & Q. R. R. Co. v. Abend,
130
3. Machinery furnished to servant.-A master is not liable to his ser-
vant for any defects in materials furnished to the latter for use in the
master's service, unless he is negligent in providing such materials, or
omitting to warn the servant of the defects. There is no implied war-
ranty that the materials shall be sound, or that the servant shall not be
exposed to extraordinary risks. Heyer et al. v. Salsbury,
93
GENERALLY.
4. Common employment.-Persons engaged by a railroad company in
loading its care with freight, and a person employed by the same com-
pany as a switch-tender, are not engaged in a common employment, so
as to bar a recovery against the common master for an injury to one
occasioned by the negligence of the other; but an engineer running a
switch-engine, and a switch-tender, are engaged in a common employ-
ment. C. R. I. & P. R. R. Co. v. Henry,
MECHANIC'S LIEN.-See LIEN.
MONEY PAID.-See ACTIONS,
MORTGAGE.-See CHATTEL MORTGAGE HOMESTEAD.
FORECLOSURE.
1. Heir not a necessary party.-The statute having now provided
that a mortgage may be released by an executor or administrator of a
deceased mortgagee, the heir is not a necessary party to proceedings by
an administrator to foreclose a mortgage. Dayton v. Dayton et al., 136
2. Inverse order of alienation.-Although it is a general rule that
where a mortgagor sells portions of the mortgaged premises and retains
other portions, the latter shall first be taken to satisfy the mortgage, the
rule does not apply to cases of a sale of the equity of redemption upon exe-
cution, other than for the mortgage debt. Erlinger et al. v. Boul, 40
3. Personal decree.—In a proceeding to foreclose a mortgage, it is er-
ror to render a personal decree against the heirs of the grantee of the
of the equity of redemption. Cundiff et al. v. Brokaw,
147
GENERALLY.
4. As affected by mechanic's lien.-In proceedings to enforce a me-
chanic's lien, if there are prior incumbrances upon the land, the court
should ascertain and adjudicate upon the rights of parties holding such
incumbrances, and provision for their payment should be fixed in the de-
cree, so that the master's sale may convey an unclouded title. Miller et
al. v. Ticknor et al.,
5. Correcting mistake-Heir not a party.-In proceedings by an ad-
ministrator to correct a description of lands in a mortgage, the heir of the
mortgagee need not be made a party. Dayton v. Dayton et al.,
136
6. Crops growing.-The crops growing on mortgaged land are cov-
ered by the mortgage, whether planted before or after its execution, until
they are severed, and the lien of the mortgage attaches as well to the
crops as to the land. Rankin et al. v. Kinsey,
215
7. Diligence of mortagee.-Where the mistake in the description of
the lands is patent upon the face of the mortgage, the mortgagee can
have no relief from the misdescription. He is bound to use reasonable
care and diligence in taking the mortgage, unless the position of the re-
spective parties was such as to relieve the mortgagee from the exercise of
diligence. Munford v. Miller,
62
8. Election to declare whole sum due.-Where a mortgage provided
that upon a failure for six months to pay any installment of interest, the
whole sum should, at the option of the holder of the note, become due and
payable, no notice of the election of the holder to declare the whole sum
due is necessary before bringing suit. Cundiff et al. v. Brokaw,
147
9. Interest of heir of mortgagee.-When by the death of the mort-
gagee the legal title in the mortgaged premises becomes separated from
the ownership of the debt secured thereby, the heir of the mortgagee, to
whom the legal title in the land descends, will be regarded in equity as the
trustee for the administrator until the debt is paid, and will upon applica-
tion be decreed to convey accordingly. Dayton v. Dayton et al., 136
10. Interest of mortgagee.-In equity, a mortgagee has an interest
in the mortgaged premises of a personal character, similar to the interest
which he has in the land secured. The debt is the principal thing, and
the land the incident. His interest is a mere chattel interest. Dayton v.
Dayton et al.,
136
11. Possession as notice to mortgagee.-Where a party purchased a
portion of an entire tract of land covered by a mortgage, entered into
possession, and paid the purchase money in installments to the mort-
gagor, and the holder of the mortgage notes, jus prior to the last pay-
ment by such purchaser, released his mortgage and took in lieu thereof
separate trust deeds upon the several parcels for amounts aggregating the
original indebtedness, the possession of such purchaser was notice to the
mortgagee of his rights in the portion so purchased, and the balance of
the purchase money having been paid to the mortgagor without notice of
the new trust deed upon the land, the rights of such purchaser were su-
perior to those acquired under the new trust deed. Layman v. Willard
et al.,
183
12. Priority of mechanic's lien.-A mechanic's lien, as to the im-
provements, is superior to a prior incumbrance upon the land, and sec-
MORTGAGE.
GENERALLY. Continued
ond as to the land, and the court should find the value of the land and
improvements separately. Miller et al. v. Ticknor et al.,
393
13. Release and taking new deed.-Where a mortgager of an entire
tract, which had been divided up and sold in parcels, released his mort-
gage and took separate trust deeds upon the different parcels, in amounts
aggregating the original indebtedness, the release of the old mortgage
and taking of the new, may have the effect of continuing the original
lien, yet it does not affect the right of a purchaser of one of the parcels
to require that land subsequently sold should be primarily charged with
payment of the mortgage debt before his land could be taken. Layman
v. Willard et al.,
MUNICIPAL BONDS.
RECITALS.
1. Of authority.-The recitals of officers invested with the ministerial
duty of issuing the bonds of a school district, as to the legality of the
election authorizing their issue, and the existence of the facts necessary
to their validity, are presumptive evidence of the facts so stated, and the
burden is thereby thrown upon the district to overcome such presumption.
Board of Education v. Taft,
SCHOOL BONDS.
2. Authority to issue.-School directors have no authority to issue
bonds of their district, except by virtue of the provisions of the statute,
and where the statute requires a vote of the people authorizing their issue,
bonds issued without such vote are void, even in the hands of an innocent
holder for value. Board of Education v. Taft,
571
NEGLIGENCE.-See CARE.
GENERALLY.
1. Evidence in actions for-Poverty of plaintiff.-In actions for dam-
ages for injuries received in consequence of the negligence of the defend-
ant, evidence of the pecuniary condition of the plaintiff is not admissi-
ble. City of LaSalle v. Thorndike, 232; C. R. I. & P. R. R. Co. v.
Henry,
322
2. Instruction as to.-An instruction that even if the jury believe the
plaintiff may have been guilty of slight negligence, yet if they believe
the defendant was guilty of gross negligence in comparison, the plaintiff
may recover for injuries sustained by reason of such gross negligence, is
erroneous, because it assumes that the defendant was guilty of gross neg-
ligence. Citu of LaSalle v. Thorndike,
282
3. Pleading.-Negligence not averred in the declaration to be the
cause of the injury, will not support a verdict for the plaintiff. C. R. 1.
& P. R. Co. v. Henry,
NEW PROMISE.-See STATUTE OF LIMITATIONS.
1. After discharge in bankruptcy.-A discharge in bankruptcy will
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