OF POLICY FOR

BREACH OF PROMISSORY
WARRANTY,

dicial Code, § 263, ceases to be effective without ] X. FORFEITURE
further order of the court on the hearing of the
motion for a temporary injunction.-Pack v.
Carter, 184.

COVENANT, OR CONDITION SUBSEQUENT.

(B) Matters Relating to Property or Interest Insured.

330 (U.S.C.C.A.) A corporation, issuing bonds by a deed of trust on all its property to secure a renewal note, held to incumber its personal property, within a fire policy declaring that the same should be void on the property becoming incumbered.-Hartford Fire Ins. Co. of City of Hartford, Conn., v. Downey, 237. XII. RISKS AND CAUSES OF LOSS. (A) Marine Insurance.

251 (U.S.C.C.A.) Evidence held to show that the discontinuance of a manufacturing 402 (U.S.C.C.A.) An insurer of cargo, unbusiness was caused by the issuance of a pre- der the terms of the policy, held liable for a loss caused by the capsizing of a lighter used in liminary injunction in an infringement suit restraining the further manufacture of the article, discharging.-Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 101. and to entitle the successful defendant to recover damages on the injunction bond.-Grushlaw v. Phoenix Knitting Works, 61.

INSOLVENCY.

See Bankruptcy; Receivers, 77.

INSTRUCTIONS.

XIII. EXTENT OF LOSS AND LIA-
BILITY OF INSURER.

(A) Marine Insurance.

478 (U.S.C.C.A.) The words "on fire," in an exception in a marine policy warranting free from particular average unless the vessel "be stranded, sunk or on fire," held to open the warranty if a structural part was on fire, re

To jury, see Criminal Law, 798-811, gardless of extent.-Thames & Mersey Marine 1056; Trial, 213–261.

INSURANCE.

V. THE CONTRACT IN GENERAL. (B) Construction and Operation. 146 (U.S.C.C.A.) Words of exception in a policy, if doubtful in meaning, are to be construed most strongly against the party for whose benefit they are intended.-Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 101.

Ins. Co. v. Pacific Creosoting Co., 101.

Under the facts shown a vessel held to have been on fire to such an extent as to open a warranty in a marine policy on cargo "free from particular average unless the vessel * * be stranded, sunk or on fire."-Id. Under the English law where a marine policy contains a warranty free from particular average, unless the vessel be stranded, sunk, or on fire, insurer held liable for loss to cargo of vessel stranded, etc., though not resulting therefrom.-Id.

XVIII. ACTIONS ON POLICIES. 175 (U.S.C.C.A.) A provision of an insur-646 (U.S.C.C.A.) The burden of proving ance policy held to mean that there should be no contract until the policy was delivered and accepted during insured's good health, and that, if so delivered, the term of insurance and the time of payment should be reckoned from June 1, 1903.-Rushing v. Manhattan Life Ins. Co. of New York, 520.

IX. AVOIDANCE OF POLICY FOR MIS-
REPRESENTATION, FRAUD, OR
BREACH OF WARRANTY OR
CONDITION.

(B) Matters Relating to Property or In-
terest Insured.

273 (U.S.C.C.A.) A cargo policy held to imply no warranty on the part of the insured of the seaworthiness of a lighter used in discharging the cargo at the end of the voyage.-Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 101.

that a loss of insured cargo by the capsizing of a lighter on which it was loaded was due to unseaworthiness of the lighter rests upon the insured, who relies upon it as a defense.-Thames & Mersey Marine Ins. Co. v. Pacific Creosoting Co., 101.

INTENT.

I. RIGHTS AND LIABILITIES IN
GENERAL.

11 (U.S.C.C.A.) A trust company, receiving interest with knowledge that a party claimed the same, held properly charged with interest on the amount collected.-Baltimore Trust Co. v. Bellevue Mills Co., 283.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

≈9 (U.S.C.C.A.) Tests for determining whether a corporation is "engaged in business," within the meaning of Corporation Tax Act Aug. 5, 1909, § 38 (1), considered.-Traction Cos. v. Col-644 (U.S.C.C.A.) In action under Antilectors of Internal Revenue, 360.

731 (U.S.C.C.A.) Right of a plaintiff to recover on notes held not res judicata because of the judgment in an action in which they were in suit but the issue was not tried nor deter50; mined.-Northwestern Port Huron Co. v. Babcock, 27.

159 (U.S.C.C.A.) The measure of damages recoverable by a lessor for failure of the lessee to erect a building required by the lease held not different because the lessor was also a lessee for 99 years, and not owner of the fee.-Illinois Surety Co. v. O'Brien, 413.

VIII. RENT AND ADVANCES.

(A) Rights and Liabilities. 1992 (U.S.C.C.A.) That there was an outstanding lease having a short time to run on property leased for a long term held, under the facts shown, not a defense to an action for rent against the surety of the second lessee.-Illinois Surety Co. v. O'Brien, 413.

See Public Lands.

LANDS.

LEASE.

I. STATUTES OF LIMITATION. (A) Nature, Validity, and Construction in General.

(U.S.C.C.A.) An action by the United States against a corporation to recover divi dends on stock owned by plaintiff held not barred by a state statute by limitations.-Chesapeake & Delaware Canal Co. v. United States, 406.

(B) Limitations Applicable to Particular Actions.

22 (U.S.C.C.A.) An action brought December 26, 1913, founded on a contract under seal executed March 30, 1907, was not barred by limitations.-Baltimore Trust Co. v. Bellevue Mills Co., 283.

31 (U.S.C.C.A.) Burns' Ann. St. Ind. 1894, § 294, limits to two years an action for injuries to a passenger suing in tort or on contract.-Baltimore & O. R. Co. v. Reed, 192.

II. COMPUTATION OF PERIOD OF
LIMITATION.

(E) Absence, Nonresidence, and Conceal-
ment of Person or Property.

85 (U.S.C.C.A.) Rev. Codes Mont. § 6458, providing that limitation shall not run in favor of a person during his absence from the state, held to apply to suits against executors and administrators.-Smith v. Smith, 465.

88 (U.S.C.C.A.) A Maryland corporation, operating a road between Chicago and New York through Indiana and doing business in Indiana, held not a nonresident, within statute of limitations, Burns' Ann. St. Ind., 1894, § 298.-Baltimore & O. R. Co. v. Reed, 192.

IV. OPERATION AND EFFECT OF
BAR BY LIMITATION.

169 (U.S.C.C.A.) Action by passenger, injured by derailment of train in Indiana during trip from Chicago to New York, held governed by laws of Indiana as to limitations, within Rev. St. Ohio 1890, § 4990.—Baltimore & O. R. Co. v. Reed, 192.

LIMITATION OF LIABILITY.

See Carriers, 158; Shipping, 141.

MACHINERY.

See Internal Revenue, 9; Landlord and Ten- See Mechanics' Liens, 32.

120.

MAIL.

See Post Office.

MANDAMUS.

See Exceptions, Bill of, 53.

MARINE INSURANCE.

See Insurance, 402, 478.

MARRIAGE.

See Divorce.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

MASTER AND SERVANT.

See Commerce, 27; Election of Remedies, 12; Release.

I. THE RELATION.

(B) Statutory Regulation.

(F) Risks Assumed by Servant. 204 (U.S.C.C.A.) Under Employers' Liabil ity Act U. S. §§ 3, 4, assumption of risk is a defense where the carrier's negligence, other than its violation of a safety statute, contributed to the injury.-Columbia & P. S. R. Co. v. Sauter, 150.

not assume the risk of schedule speed on a track fect in the track is obvious.-Norfolk & W. Ry. not reasonably safe for that speed, unless the deCo. v. Gillespie, 552.

13 (U.S.C.C.A.) Under Act March 4, 1907,219 (U.S.C.C.A.) A railway engineer does §§ 2, 3, statute held violated where station agent, working 5 hours a day as operator, also worked 12 hours as agent, contrary to directions.-Oregon-Washington R. & Nav. Co. v. United States, 142.

III. MASTER'S LIABILITY FOR IN-
JURIES TO SERVANT.

(G) Contributory Negligence of Servant. 228 (U.S.C.C.A.) Rev. St. Mo. 1909, § 7828, does not deprive employers of the defense of contributory negligence to actions for injuries caused by unguarded machinery.-Northern Central Coal Co. v. Hughes, 619.

(A) Nature and Extent in General. 88 (U.S.C.C.A.) That employé was on his way home, or had remained after he was free to leave, held not to make him any less an employé as respected a safe place to work.-258 (U.S.C.C.A.) Count alleging that railBrownell Improvement Co. v. Sweeney, 58.

(B) Tools, Machinery, Appliances, and Places for Work.

(H) Actions.

road company required engineer to run train faster than the speed which it had fixed as necessary for safety held to show actionable negligence. Norfolk & W. Ry. Co. v. Gillespie, 552.

113 (U.S.C.C.A.) That a clearance of but 270 (U.S.C.C.A.) In an action for injuries eight inches was provided between the side of to a servant while oiling an engine, evidence as the doorway of a roundhouse and an engine to whether the engine was reasonably safe for held not negligence which rendered the compa-pumping was in material.-Gillespie v. Collier, ny liable for the death of a hostler killed in at- 534. tempting to mount a passing engine.-Hogan V.274 (U.S.C.C.A.) Evidence as to practice on New York Cent. & H. R. R. Co., 328.

jobs in same city of riding on hoists in buildings in course of construction held admissible in action for death of employé falling from such a hoist.-Alfred E. Norton Co. v. Byers, 295.

116 (U.S.C.C.A.) A plank, supported between two girders of a bridge, on which a workman was obliged to lie to paint the under side of parts of the bridge held to be a "scaffolding" within the meaning of New York Labor Law. New York, N. H. & H. R. Co. v. Mooney, 172. Labor Law, N. Y. § 18, making an employer responsible for furnishing safe, proper, and suitable scaffolding for use of employés, applies al-286 (U.S.C.C.A.) In employe's action for though the injured employé himself built, or helped to build, the defective structure.-Id.

129 (U.S.C.C.A.) That defect in track or machinery, or in operation of train, contributed to derailment, held not to eliminate lack of guard rail and proper elevation of the outside rail as proximate causes.-Norfolk & W. Ry. Co. v. Gillespie, 552.

(C) Methods of Work, Rules, and Orders. 137 (U.S.C.C.A.) A train engineer held not chargeable with negligence for failing to give proper warning of his approach to a gang of track workmen, where he blew the whistle when half a mile distant.-Delaware, L. & W. R. Co. v. Caboni, 177.

278 (U.S.C.C.A.) Testimony as to rocking of engine and leaning of tender just before derailment held not to warrant inference that there was a low joint in the track.-Norfolk & W. Ry. Co. v. Gillespie, 552.

injuries, whether railroad trestle was still under employer's control, and whether plank alongside the trestle was used as a walkway with the employer's permission, held for the jury.Brownell Improvement Co. v. Sweeney, 58.

286 (U.S.C.C.A.) In action for death of railroad engineer in derailment, evidence held to make question for jury as to whether speed required by company's schedule was reasonably safe.-Norfolk & W. Ry. Co. v. Gillespie, 552.

Evidence held to make question for jury as to company's negligence in not having a higher elevation of the outside rail on a curve.-Id.

Whether speed required by railroad schedule was negligent, in view of manner of construction of track, held question for jury, even though proper construction was question which should not be left to the jury.-Id.

A railroad company held negligent in failing to station a watchman or lookout to give warning of the approach of trains to laborers work-289 (U.S.C.C.A.) Whether employé was neging on the track.-Id.

(E) Fellow Servants.

190 (U.S.C.C.A.) Foreman's order held within the scope of his activities, and a direction of an employé in the performance of his duty, within Labor Law N. Y. § 200, as amended by Laws 1910, c. 352.-Alfred E. Norton Co. v. Byers, 295.

ligent in riding, by foreman's direction, on hoist from which he fell and was killed, held a question for the jury.-Alfred E. Norton Co. v. Byers, 295.

289 (U.S.C.C.A.) Whether derailment of train, killing engineer, was due to his negligence, held a question for the jury, where the evidence was conflicting as to the speed of the train.-Norfolk & W. Ry. Co. v. Gillespie, 552.

291 (U.S.C.C.A.) Instruction as to nonapplicability of defenses of assumption of risk, etc., held not objectionable, as leading the jury to suppose there was no substantial defense.Brownell Improvement Co. v. Sweeney, 58.

MASTERS IN CHANCERY.

See Equity, 409.

MECHANICS' LIENS.

I. NATURE, GROUNDS, AND SUB-
JECT-MATTER IN GENERAL.

II. TITLE, CONVEYANCES, AND
CONTRACTS.

(B) Conveyances in General.

54 (U.S.C.C.A.) Under contract for sale of mining claims, failure to secure patents because minerals were exhausted held not a breach entitling purchaser to rescind; the parties having dealt only with the possessory title.-Trinity Gold Dredging & Hydraulic Co. v. Beaudry, 269. MINORS.

See Infants, 78, 80.

MISREPRESENTATION.

55 (U.S.C.C.A.) Page & A. Gen. Code Ohio, See Fraud. $$ 8308, 8310, giving liens to mechanics and materialmen, are remedial, and must be liberally construed.-E. A. Kinsey Co. v. Heckermann, 544.

II. RIGHT TO LIEN.

MONEY RECEIVED.

See Interest, 11.

MONOPOLIES.

See Appeal and Error, 679; Judgment, 644.

(A) Nature of Improvement. 32 (U.S.C.C.A.) Machines, furnished to a manufacturer occupying leased premises and remaining personal property, held subject to lien II. TRUSTS AND OTHER COMBINAunder Page & A. Gen. Code Ohio, §§ 8308, 8310, as machines furnished for altering a manufactory.-E. A. Kinsey Co. v. Heckermann, 544.

Under Page & A. Gen. Code Ohio, §§ 8308, 8310, machinery furnished for altering a manufactory is subject to lien, though remaining a chattel in leased premises, the leasehold in which has no value.-Id.

VII. ENFORCEMENT.

260 (U.S.C.C.A.) Under Rev. Codes Idaho, 85118, which requires suit to enforce a mechanic's lien to be brought within six months after it is filed, the lien is void as to all incumbrancers not made parties to a foreclosure suit within the six months.-D. W. Standrod & Co. v. Utah Implement-Vehicle Co., 65.

MINES AND MINERALS.

I. PUBLIC MINERAL LANDS. (B) Location and Acquisition of Claims. 23 (U.S.C.C.A.) To entitle a part owner of a mining claim to forfeit the interest of another part owner for failure to contribute to assessment work for any year, he must have done the amount of work required by statute to protect the title to the claim for that year.-Pack v. Thompson, 181.

29 (U.S.C.C.A.) Mining claims acquired by location under the statute, when perfected, held property which may be bought or sold, and will pass by descent.-Trinity Gold Dredging & Hydraulic Co. v. Beaudry, 269.

38 (U.S.C.C.A.) A preliminary injunction held properly granted to restrain forfeiture of the interest of a part owner of mining claims, under Rev. St. § 2324 (Comp. St. 1913, § 4620). -Pack v. Thompson, 187, 188, 189, 191.

TIONS IN RESTRAINT

OF TRADE.

28 (U.S.C.C.A.) Plaintiff to sustain action under Anti-Trust Act, § 7, for violations of sections 1 and 2, brought prior to Act Oct. 15, 1914, § 5, cannot rely on guilt of defendants decreed in suit by United States.-Buckeye Powder Co. v. E. I. Du Pont de Nemours Powder Co.. 319.

That a majority of the stock of corporations the former corporations participated in a conwas owned by a corporation did not show that spiracy to injure another suing under AntiTrust Act, § 7.-Id.

Instructions in action under Anti-Trust Act, § 7, for violations of sections 1 and 2, held not objectionable as charging that, after a monopoly had obtained a foothold, competitors entered the field at their peril.-Id.

MORTGAGES.

See Bankruptcy, 181; Corporations.
471, 479; Vendor and Purchaser, 231.
III. CONSTRUCTION AND OPERA-

a

TION.

(D) Lien and Priority.

mortgage does not invalidate it as against 175 (U.S.C.C.A.) Negligent failure to record subsequent unsecured creditors.-Hicks v. Second Nat. Bank of Cincinnati, Ohio, 615. VI. TRANSFER OF PROPERTY MORTGAGED OR OF EQUITY OF REDEMPTION.

274 (U.S.C.C.A.) Rights under mortgage recorded as mortgage of real estate held not affected by sale of electric transmission lien appurtenant to leasehold interest separate therefrom, nor by forfeiture of lease.-Stearns Lighting & Power Co. v. Central Trust Co., 442.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER
139 C.C.A.-44