negative the fact of his having been otherwise directed. A party can
not make one case by his pleading and a different one by his proof, and
recover. Gormley v. Day, 185.
2. When the ground of action has ceased to exist. A court will not
award a peremptory writ of mandamus when the right sought to be en-
forced is or has become a mere abstract right, the enforcement of which,
by reason of some change of circumstances since the commencement of
the suit, can be of no substantial or practical benefit to the petitioner.
Ibid. 185.
3. So where an ordinance of a village vacating a street was repealed
before it went into effect, but after the filing of a petition for a mandamus
to compel the village clerk to post copies of the same or give the relator
copies thereof, the court will not award the writ, as to do so would sub-
serve no beneficial purpose. Ibid. 185.
4. Whether action is premature. Where a village clerk, by the char-
ter of the village, is given thirty days after the passage of all ordinances
within which to post up copies thereof, a proceeding by mandamus, com-
menced before the expiration of that time, to compel him to post an ordi-
nance, must fail, the clerk not being in default when the suit was brought.
Ibid. 185.
5. As to matters involving discretion—of time of receiving probate
of will.
Where the exercise of a discretion is involved, a writ of man-
damus will not be allowed against an inferior court or tribunal. So the
discretion of the county or probate court as to the time it will receive
probate of a will, or which of two papers purporting to be the wills of the
same person, shall be passed upon first, will not be interfered with by
The People ex rel. Storey v. Knickerbocker, 539.
1. Presumptions in respect thereto-long continued absence of for-
mer husband. Where a marriage in fact is shown, the law raises a strong
presumption in favor of its legality, and the burden of proof is on the
party contesting its validity to show that it is not valid. Johnson v.
Johnson, 611.
2. So, although the presumption in favor of the validity of a marriage
in fact, and of the innocence of the contracting parties, may conflict with
that of the continued life of a former husband or wife not heard from
for a period less than seven years prior to the second marriage, yet if
neither presumption is aided by proof of facts or circumstances coöper-
ating with it, the presumption of the validity of the second marriage must
prevail over the other. Ibid. 611.
MARRIAGE. VALIDITY OF MARRIAGE.
3. Where a woman, six years after her husband was last heard from, is
married to another man, and the validity of the latter marriage is brought
in question many years afterward, on the presumption that her former
husband was living at the time of such last marriage, the court may take
into consideration the fact that the former husband has not since that
time been heard from; and in such case the dissolution of the former
marriage by death or divorce before her second marriage will be pre-
sumed. Johnson v. Johnson, 611.
4. The general presumption is that life continues for seven years after
an absent party is last heard from, and after the lapse of that time, death
is presumed; but the presumption is not conclusive, and may be rebutted
by proof of facts and circumstances inconsistent with and sufficient to
overcome it. Ibid. 611.
NEGLIGENCE OF MASTER-INJURY TO SERVANT.
1. Duty of master to use proper precautions for the safety of the
servant-as, in the unloading of cars, to avoid collisions, etc. In an
action to recover for personal injuries resulting from alleged negligence,
it appeared the defendant company put the plaintiff and others of its
servants to work unloading a railroad freight car standing on a spur of
a side-track having connection with other tracks only at one end, and
being a track not used for passing trains, and there being nothing to lead
the laborers to believe the car they were unloading would be disturbed,
and while so engaged the loaded car was violently struck by other cars
which became detached from an engine used in switching cars in the
yard, whereby the plaintiff was injured. It was held, that it was the duty
of the defendant not to have brought on this peril without timely notice
to the laborers so engaged; that either the cars ought not to have been
brought into the position they were, without notice, or it should have
been first ascertained that no danger to the laborers could result there-
from, and that the failure to do so was gross negligence. North Chicago
Rolling Mill Co. v. Johnson, 57.
2. The attempt to bring a train of cars on the switch to a point where
the defendant's servants were engaged in unloading a car, where the grade
was a descending one, without notice to them, or any signal by the bell
or whistle of the engine of the approach on such track, and without hav-
ing the moving cars under control by proper and sufficient couplings
and brakes attached, the yard-master knowing that men were engaged all
around the car they were unloading, was gross negligence on the part of
the defendant. Ibid. 57.
3. As to whose duty it was to see that the appliances for controlling
the moving cars were in proper order, etc. In such an action, where
the injury resulted from the uncoupling of certain cars in a train being
MASTER AND SERVANT.
NEGLIGENCE OF MASTER-INJURY TO SERVANT.
switched in the defendant's yard, so that they could not be controlled
by the engine, and from a defective brake on one of the detached cars
which struck the car on which the plaintiff was engaged at work, it was
held to be wholly immaterial whose duty it was to inspect the couplings
of the cars, brakes, etc., or how on that occasion the engineer handled his
train, and that proffered evidence in such respect was properly excluded.
North Chicago Rolling Mill Co. v. Johnson, 57.
4. As to what is negligence-evidence in respect thereto—custom
at other places as to the mode of handling railroad cars. Where the
charge of negligence of a defendant is the sudden starting of a detached
car upon which the plaintiff was engaged in unloading brick, withont
previous notice or warning, by the collision of other cars being pushed
back, evidence tending to show that the pushing of the cars instead of
pulling them was not negligence, is inadmissible. The custom in other
yards as to pushing or drawing cars in such a case is wholly immaterial.
Ibid. 57.
5. Proof of custom as to watchfulness of railroad laborers in
loading and unloading cars. In an action by a laborer employed by
defendant, to recover for an injury caused by the collision of other cars
being switched, with the one on which he was unloading brick, without
any signal or warning, the court sustained an objection to this question
asked by the defendant of a witness, who was a switchman: "What, if
any, was the rule or custom as to laborers unloading and loading cars,
and switchmen, with reference to the laborers looking out for the move-
ment of their car while being loaded or unloaded?" Held, that the ruling
was correct, as it was not shown there was any rule or custom in this
respect. If the men were enjoined to keep a lookout constantly for the
approach of trains while at work, that fact was susceptible of proof.
Ibid. 57.
SERVANT TAKING THE HAZARD.
6. If a person knowing the hazards of his employment as the busi-
ness is conducted, voluntarily continues therein, without any promise of
the master to do any act to render the same less hazardous, the master
will not be liable for any injury he may sustain therein, unless it may be
caused by the willful act of the master. Stafford v. Chicago, Burling-
ton and Quincy Railroad Co. 244.
FELLOW-SERVANTS.
7. Who to be so regarded. Servants of the same master, to be co-
employes or fellow-servants, so as to exempt the master from liability on
account of injuries sustained by one resulting from the negligence of the
other, must be such as are directly coöperating with each other in a par-
ticular business, that is, the same line of employment,-or such that
their usual duties shall bring them into habitual association, so that they
MASTER AND SERVANT. FELLOW-SERVANTS.
may exercise a mutual influence upon each other promotive of proper
caution. North Chicago Rolling Mill Co. v. Johnson, 57.
8. The relations of the servants must be such that each, as to the
other, by the exercise of ordinary caution can either prevent or remedy
the negligent acts of the other, or protect himself against its conse-
quences. Where there is no right or no opportunity of supervision, or
where there is no independent will, and no right or opportunity to take
measures to avoid the negligent acts of another without disobedience to
the orders of an immediate superior, the doctrine exempting the master
can have no application. Ibid. 57.
9. Injury to one servant from the negligence of another liability
of the common master. Where one servant is injured by the negligence
of a fellow-servant, the duties of both being such as to bring them into
habitual association, so that they may exercise an influence upon each
other promotive of proper caution, and the master is guilty of no negli-
gence in the employment of the servant causing the injury, the master
will not be liable for the injury. Stafford v. Chicago, Burlington and
Quincy Railroad Co. 244.
10. Burden of proof-negligence of master. In a suit by a servant
against his employer to recover damages for a personal injury from neg-
ligence of a fellow-servant, if it is claimed that the master was guilty of
negligence in selecting or retaining incompetent servants, the burden is
on the plaintiff to prove it. Ibid. 244.
MEASURE OF DAMAGES.
DEATH FROM NEGLIGENCE.
1. In action by next of kin. The question of the compensation to
be awarded to the next of kin of a deceased person, under the statute,
(chap. 70, sec. 2,) for their pecuniary loss from his death, is not in its
nature capable of exact determination. Therefore the jury should cal-
culate the damages in reference to a reasonable expectation of benefit, as
of right, or as of grace or favor, from the continuance of the life.
of Chicago v. Keefe, Admr. 222.
CONVEYANCE BY MORTGAGOR TO MORTGAGEE.
Whether an extinguishment of the mortgage. See MORTGAGES
AND DEEDS OF TRUST, 1.
REFORMING DEEDS, ETC., IN EQUITY.
1. As to description of land in deed of assignee in bankruptcy-
correcting as against creditors. See CHANCERY, 18.
2. To identify land under misdescription in deed. See EVIDENCE, 4.
MORTGAGES AND DEEDS OF TRUST.
CONVEYANCE BY MORTGAGOR TO MORTGAGEE.
1. Whether an extinguishment of the mortgage. Where the mort-
gagor conveys the mortgaged premises to the mortgagee and another,
and the mortgagee afterwards conveys to that other, this will extinguish
the mortgage. Lyntan v. Gedney, 388.
SATISFACTION OF MORTGAGE.
2. Satisfaction by one of two joint mortgagees, good. Where a
mortgage is given by a debtor to two persons, to secure the payment of
a sum of money to them jointly, either one of them, on payment to him,
may enter satisfaction of the mortgage upon the record thereof, and if he
is dead, proof of his signature and that of the attesting witness will be
sufficient to show satisfaction. Ibid. 388.
3. Power of the court to put purchaser in possession of land—ex-
ceptions to the general rule. See CHANCERY, 19, 20.
CONVEYANCE IN TRUST TO SECURE CREDITORS.
4. Preference of creditors—what creditors to be preferred, within
the terms of an agreement-whether a lien is necessary. An agreement
between a debtor and a trustee to whom the former had land conveyed
to secure his creditors, provided that the trustee should sell the lands
and apply the proceeds, first, to the payment of all incumbrances on the
land, whether secured by mortgage or otherwise, amounting to $16,000,
after which other debts were to be paid. It appeared that at the date of
the conveyance and agreement, the debtor owed A $12,000 and B $4000,
which debts were not incumbrances or liens on the lands, but no one
else claimed such preference, and also that the debts due A and B were
those intended by the parties, and that the trustee afterward, by his letter,
and schedule and exhibit in bankruptcy, declared that he held the lands
in trust to secure the claims of A and B: Held, that the fact that the
debts of A and B were not liens upon the lands could not defeat the
trust, and that they were entitled to be first paid out of the proceeds of
the lands. Rankin v. Barcroft & Co. et al. 441.
5. Subrogation-in favor of trustee or debtor paying preferred debt.
Where a person accepts time drafts drawn on him by a debtor in favor
of a creditor, and takes a conveyance of land in trust, out of which to
pay, first, such indebtedness, and afterward other debts, and he pays a
portion of such preferred debt, he will not be entitled to be subrogated,
as to such payment, to a prior lien which may be held by the preferred
creditor. In such case, the person making the payment occupies the
position of mortgagor or debtor, and has no preference, as to the pay-
ment made, over the other creditors secured. Ibid. 441.
6. Bankruptcy-its effect upon trust property in the hands of a
bankrupt. Upon an adjudication in bankruptcy, the debt due a trustee
so adjudged, if any, on account of his trust, and his property rights in
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