§ 3. The legality of a marriage must be determined by the law of the state in which the ceremony was performed.-Ollschlager's Estate v. Widmer (Or.) 717.

$40. Under B. & C. Comp. § 788, subd. 30, and independent thereof, the burden of proof is on the one objecting to the validity of a marriage, however celebrated, whether regular or irregular, or however proved.-Ollschlager's Estate v. Widmer (Or.) 717.

40. Proof of a marriage, whether solemnized in strict conformity with law or not, entered into in good faith and under the belief that the ceremony is legal, overcomes any presumptions arising out of prior meretricious relations.-Ollschlager's Estate v. Widmer (Or.) 717.

$40. Evidence of the declarations and conduct of the parties, together with other proof, held not to overcome the presumption of the existence of a valid marriage between them. Ollschlager's Estate v. Widmer (Or.) 717.

40. The fact that no record of a marriage license required by the law of a sister state can be found many years after an alleged marriage in that state does not overcome the presumption invoked in support of the legality of the marriage.-Ollschlager's Estate v. Widmer (Or.) 717.

§ 40. The failure to find a record of a marriage license held only a circumstance tending to question the marriage.-Ollschlager's Estate v. Widmer (Or.) 717.

§ 40. Where there is evidence creating a foundation for the presumption of marriage, the presumption can only be overcome by the most cogent and satisfactory evidence.-Ollschlager's Estate v. Widmer (Or.) 717.

§ 40. A legal marriage will be presumed, where a man and wife have lived together as husband and wife, and have held themselves out as such.-Weatherall v. Weatherall (Wash.) 822. $40. Under Ballinger's Ann. Codes & St. § 4470 (Pierce's Code, § 6269), the authority of an officiating officer performing a marriage ceremony will be presumed.-Weatherall v. Weatherall (Wash.) 822.

$47. Declarations held admissible to prove marriage. Weatherall v. Weatherall (Wash.) 822.

§ 48. Evidence of cohabitation and reputation held admissible to prove marriage.-Weatherall v. Weatherall (Wash.) 822.

§ 50. Evidence of marriage held sufficient, under Ballinger's Ann. Codes & St. §§ 4470, 4471 (Pierce's Code, $$ 6269, 6264).-Weatherall v. Weatherall (Wash.) 822.

MARRIED WOMEN.

See Husband and Wife.

MASTER AND SERVANT.

See Work and Labor.

Rights of employers to recover pledged stock purchased by employé and pledged for his own debt, see Corporations, $123.

I. THE RELATION.
(A) Creation and Existence.

§ 6. In an action to recover on a contract of employment and for foreclosure of a laborer's lien, evidence held insufficient to show employment by defendant.-Findlay v. Hildenbrand (Idaho) 790.

(B) Wages and Other Remuneration. § 80. Evidence by one of plaintiff's assignors that he was hired by C. was rendered proper by subsequent testimony that C. was authorized by defendant's general manager to employ men for the work in question.-Greenlaw Lum-. ber & Timber Co. v. Chambers (Colo.) 1091.

§ 80. Where the evidence was conflicting whether plaintiff and his assignors were hired to work for defendant by some one having authority, the question was for the jury.-Greenlaw Lumber & Timber Co. v. Chambers (Colo.) 1091.

§ 80. In an action against an under sheriff for services in watching a house and goods, plaintiff's testimony held to establish a prima facie case, so that the court was not warranted in granting a nonsuit before he finished testifying.-Roach v. Rutter (Mont.) 555.

held to state a cause of action.-Roach v. Rut§ 80. A complaint in an action for services ter (Mont.) 555.

III. MASTER'S LIABILITY FOR INJURIES TO SERVANT.

(A) Nature and Extent in General. § 92. A servant, under his right to hospital treatment, held not entitled to treatment at the hospital or elsewhere by a specialist.-Miller v. Camp Bird, Limited (Colo.) 1105.

§ 97. Employer furnishing defective appliances held liable to an employé only when danger would be reasonably apprehended from their use.-Hill v. Atchison, T. & S. F. Ry. Co. (Kan.) 447.

§ 97. If persons of ordinary prudence would not anticipate danger from defective appliance, liability to employé does not arise.-Hill v. Atchison, T. & S. F. Ry. Co. (Kan.) 447.

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

§§ 101, 102. Where there is danger in the work, the master has discharged his duty to furnish a safe place and appliances when he furnishes suitable means of obviating the danger.-Bridges v. Los Angeles Pac. Ry. (Cal.) 586.

§§ 101, 102. In a servant's action for injuries through lead poisoning while working in defendant's factory, an instruction held proper.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

S$ 101, 102. A master must exercise ordinary care to furnish its servants with a reasonably safe place in which to work, and to provide for the reasonable safety of the servants in the course of their employment.-Jachetta v. San Pedro, L. A. & S. L. R. Co. (Utah) 100.

§§ 101, 102. The duty of a railroad to exercise ordinary care to furnish its servants engaged in the work of repairing the roadbed with a reasonably safe place in which to work begins from the time the servants board a train to be carried to their work.-Jachetta v. San Pedro, L. A. & S. L. R. Co. (Utah) 100.

§§ 101, 102. Whenever a master employs a servant or changes the character of his work, it is the master's duty at the inception of and during such employment to furnish the servant a reasonably safe place to work.-Benner v. Wallace Lumber & Mfg. Co. (Wash.) 145.

§ 107. A master is liable for failure to furnish safe appliances, resulting in injury to a servant.-Bridges v. Los Angeles Pac. Ry. (Cal.)

586.

§ 118. A mining company must use reasonable care to provide its servants with a reasonably safe place of work, having due regard to the nature and place of the employment and

§ 121. Whenever a master employs a servant or changes the character of his work, it is the master's duty, at the inception of and during such employment, to properly safeguard saws and other dangerous machinery.-Benner v. Wallace Lumber & Mfg. Co. (Wash.) 145.

§ 121. Under Laws 1907, p. 448, c. 205, § 1, defendant held not relieved from liability for an injury to a servant received at an unprotected knot saw because it had once properly protected the saw. Benner v. Wallace Lumber & Mfg. Co. (Wash.) 145.

§ 129. A mining company would be liable for the death of a miner caused by the explosion of powder stored in the mine if it was negligent in storing the powder and knew or should have known that caps were kept with the powder, and the explosion would not have occurred without such negligence, though it could not be directly attributed to the negligence of any one.-O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

(C) Methods of Work, Rules, and Orders. $146. A master is bound to honestly and faithfully require the observance of rules promulgated for the safety of employés, and his duty does not end upon prescribing them.O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

(D) Warning and Instructing Servant. § 150. Where the business is a dangerous one, and the master, with notice of the servant's ignorance of the danger, fails to properly warn him, he cannot escape responsibility because he used the utmost care to reduce the

danger.-Pigeon v. W. P. Fuller & Co. (Cal.)

976.

§ 151. A master may not delegate to subordinates the duty of warning a servant of the dangers of the employment.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

§ 153. A complaint for injuries to a minor child by dangerous machinery held to state a cause of action.-Schoner v. Allen (Okl.) 191.

(E) Fellow Servants.

§ 185. A master held not liable for an injury to a servant under Civ. Code, § 1970, as it stood prior to the amendment of March 6, 1907 (St. 1907, p. 119, c. 97).-Bridges v. Los Angeles Pac. Ry. (Cal.) 586.

§ 185. Delegation by a master of the duty to furnish safe appliances and a safe place to work to a fellow servant of an employé held not to exonerate the master.-Bridges v. Los Angeles Pac. Ry. (Cal.) 586.

§ 190. Negligence of foreman held that of a fellow servant, and plaintiff not entitled to recover.-Morris & Co. v. Lunn (Kan.) 15.

§ 198. One having the general control and supervision of railroad repair work and giving general directions respecting the movements of work trains is a vice principal, and not a fellow servant, of the laborers employed to do repair work. Jachetta v. San Pedro, L. A. & S. L. R. Co. (Utah) 100.

$198. Employés working under a superintendent in repairing a roadbed of a railroad are not while being carried by a train to their work fellow servants of the train crew.-Jachetta v. San Pedro, L. A. & S. L. R. Co. (Utah) 100.

umbia Pulp & Paper Co. (Wash.) 480.

§201. A mining company held liable for the death of a miner caused by an explosion resulting from the concurrent negligence of itself and decedent's fellow servant.-O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

(F) Risks Assumed by Servant. dinary risks of using certain appliances so that § 209. A servant held to have assumed the orhe could not recover for an injury occasioned thereby.-Goure v. Storey (Idaho) 794.

§ 216. In an action for injuries to an employé by a fellow servant attempting to drive a spike in an angry manner, plaintiff held not to have assumed the risk, as a matter of law.Miller v. Camp Bird, Limited (Colo.) 1105.

§ 217. A servant does not assume the risk, unless he thoroughly comprehends the danger," and voluntarily undertakes the risk.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

§ 217. An employé does not assume a risk, unless he voluntarily does so, with knowledge of the danger.-Miller v. Camp Bird, Limited (Colo.) 1105.

§ 219. A servant does not assume the risk of hidden dangers.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

§ 221. A servant held not a vice principal, so that his promise to repair a defective chain used by another servant did not relieve the latWolk v. Smith (Wash.) 138. ter of the risk assumed in continuing its use.

(G) Contributory Negligence of Servant. § 234. The complaint, in an action by a servant for personal injuries, held bad, as showing contributory negligence.-Goure v. Storey (Idaho) 794.

$236. Where plaintiff was ordered to work at an unprotected knot saw, by direction of the foreman, it was not obligatory on him to provide or change the guard.-Benner v. Wallace Lumber & Mfg. Co. (Wash.) 145.

(H) Actions. Instructions as to weight and sufficiency of evidence, see Trial, § 194.

§ 252. A letter written by a servant's attorney, inclosing a letter from the servant's physician, held a sufficient notice of injury under Employer's Liability Act 1893, p. 129, c. 77.Miller v. Camp Bird, Limited (Colo.) 1105.

$258. A complaint in a servant's action for injuries, alleging that defendant negligently failed to warn plaintiff of the dangers of the work, held to sufficiently aver that defendant knew, or ing.-Pigeon v. W. P. Fuller & Co. (Cal.) 976. should have known, that plaintiff needed warn

§ 258. The allegations of a complaint for personal injuries by a servant held not to show that the ropes, pulleys, and wheelbarrow referred to in the complaint were in any way defective in construction, or that there was any impropriety in the manner of their operation.Goure v. Storey (Idaho) 794.

§ 262. The defense that a servant's injuries were caused by the negligence of a fellow servant must be pleaded.-O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

§ 198. A trackman and a brakeman held not engaged in a common employment, and

§ 284. Whether an inaccuracy in a notice, under Act 1893, p. 129, c. 77, was intended to mislead, and did in fact mislead, is for the jury. Miller v. Camp Bird, Limited (Colo.) 1105.

§ 286. Whether a master owed a servant the duty of instructing the latter as to the risk of possible injury from working in defendant's white lead factory held for the jury.-Pigeon v. W. P. Fuller & Co. (Cal.) 976.

§ 286. In an action for a miner's death by the explosion of dynamite stored in a magazine near where he was working, whether the employer exercised reasonable care to provide decedent a reasonably safe place of work, considering the nature of his employment and the attendant dangers, held for the jury.-O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

§ 286. In an action for the death of a miner by an explosion of dynamite in a magazine, whether the employer knew or by exercise of reasonable care should have known that certain rules were not being observed held for the jury. O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

§ 286. In an action for injuries to a servant, whether defendant was negligent was for the jury.-Hale v. Crown Columbia Pulp & Paper Co. (Wash.) 480.

§ 288. A servant in a white lead manufactory could not be held as a matter of law to have known that the inhalation of the fumes

and dust had a tendency to produce lead poisoning.-Pigeon v. W. P. Fuller & Co. (Cal.)

976.

$289. In an action for injuries to a servant, whether plaintiff was negligent was for the jury.-Hale v. Crown Columbia Pulp & Paper Co. (Wash.) 480.

§ 291. An instruction that the master is not responsible for injuries resulting from the negligent execution of details of the work held inapplicable to the evidence.-Hale v. Crown Columbia Pulp & Paper Co. (Wash.) 480.

§ 293. An instruction requiring a master to keep the machinery and appliances in "sound" repair held not error.-Hale v. Crown Columbia Pulp & Paper Co. (Wash.) 480.

§ 294. Whether the superintendent of railroad repair work was negligent in directing the movement of a work train held properly submitted to the jury.-Jachetta v. San Pedro, L. A. & S. L. R. Co. (Utah) 100.

$295. In an action for a servant's death by the explosion of dynamite in a magazine, an instruction on assumed risk which ignored decedent's appreciation of the risk held properly refused. O'Brien v. Corra-Rock Island Mining Co. (Mont.) 724.

MATERIALITY.

Of alteration of written instrument, see Alteration of Instruments. Of evidence in criminal prosecutions, see Criminal Law, § 390.

MAXIMS.

Of equity, see Equity, §§ 65, 66.

MECHANICS' LIENS.

IV. OPERATION AND EFFECT.
(C) Priority.

Effect of recording declaration of homestead. after filing of lien and record of notice, see Homestead, § 95.

MEETINGS.

Of municipal council, see Municipal Corporations, § 96.

Of trustees of reclamation district, see Drains, § 76.

Of cause of action in judgment, see Judgment, $$ 570, 631.

MINES AND MINERALS.

Articles constituting fixtures on mining claim, see Fixtures, § 1.

Removal of fixtures from mining claim, see Fixtures, § 32.

I. PUBLIC MINERAL LANDS. (B) Location and Acquisition of Claims. Computation of time of filing locations, see Time, § 11.

§ 17. A discovery shaft which was bisected by the west end line of the claim was sufficient to support a location, so that such location was not affected by the fact that a subsequent location overlapped the west end line and included the discovery.-Tiggeman v. Mrzlak (Mont.) 77.

17. The location of a claim, the discovery shaft for which was within the boundaries of another claim located prior thereto by the same person, was invalid, and the ground covered by the subsequent location was vacant for all purposes.--Tiggeman v. Mrzlak (Mont.) 77.

$ 19. Where defendants did all acts required for the valid location of a mining claim, it was immaterial as against subsequent locators that the only valid notice of location was posted after the notice was recorded.-Green v. Gavin (Cal. App.) 761.

$ 20. The lines of a lode claim could not be so fixed as to include ground not covered by the original location.-Tiggeman v. Mrzlak (Mont.) 77.

defects in the original location certificate of a § 21. An amended certificate, filed because of mining location, may not include territory so as to injuriously affect intervening rights.-Washington Gold Min. & Mill. Co. v. O'Laughlin (Colo.) 1092.

§ 21. Comp. St. 1887, div. 5, § 1477, requir ing one discovering any lode mining claim to make a declaratory statement thereof describing it in the manner provided by the laws of the United States, did not require the declaratory statement to describe the claim by metes and bounds. Tiggeman v. Mrzlak (Mont.) 77.

§ 21. The declaratory statement of the discovery of a lode mining claim sufficiently identifies the claim if, by any reasonable construction, in view of the surrounding circumstances, the description therein notifies subsequent locators that the particular part of the ground claimed has been located.-Tiggeman v. Mrzlak (Mont.) 77.

§ 21. Any deviation from the calls in the declaratory statement filed upon the discovery of a lode claim in making claimant's survey did not prejudice an adverse claimant where such deviation reduced the length of the end lines of the claim where it conflicted with the adverse claim. --Tiggeman v. Mrzlak (Mont.) 77.

§ 21. Notwithstanding Comp. St. 1887, div. 5, § 1477, where the original monuments locat

p. 593, c. 362, defining trusts, the court will not determine the question whether the contract made prior to the amendment is obnoxious to the act as originally enacted.-Grogan v. Chaffee (Cal.) 745.

§ 17. A contract between a manufacturer of an article of commerce and a retail dealer buying the same held not invalid as tending to create a monopoly.-Grogan v. Chaffee (Cal.) 745.

§ 17. A contract between a manufacturer of olive oil and a retail dealer held not invalid as in restraint of trade, notwithstanding Civ. Code, §§ 1673-1675.-Grogan v. Chaffee (Cal.) 745.

MORTGAGES.

Of homestead, see Homestead, § 95.
On personal property, see Chattel Mortgages.
Venue of action to redeem, see Venue, § 5.

I. REQUISITES AND VALIDITY. (A) Nature and Essentials of Conveyances as Security.

$ 32. Construing, pursuant to Civ. Code, § 1652, an instrument expressing on its face an absolute present grant, held, that it was not a mortgage.-Cooley v. Miller & Lux (Cal.) 981.

III. CONSTRUCTION AND OPERA

TION.

(D) Lien and Priority.

Priority of tax lien, see Taxation, § 510.

§ 181. That an intervening lien was of record when defendants satisfied a prior mortgage did not preclude them from alleging and proving that they were ignorant of the existence of such intervening lien when the mortgage was released.-Stitt v. Stringham (Or.) 252.

IV. RIGHTS AND LIABILITIES OF PARTIES.

Parol or extrinsic evidence of collateral agreement as to insurance, see Evidence, § 441. § 200. On foreclosure there was no error in refusing to allow any deduction from the debt on account of taxes levied against the property, as by Const. art. 13, § 4, it is only the tax "levied upon the security" that the owner may pay

and have deducted from the amount thereof.John Brickell Co. v. Sutro (Cal. App.) 948.

§ 201. Payment of premium for insurance by the mortgagor to the mortgagee held not a sufficient consideration for the mortgagee's promise to take out the insurance which was nudum pactum, unless a part of the mortgage transaction.-Hudson v. Ellsworth (Wash.) 463.

§201. Mortgagee's agreement to procure insurance with money advanced by the mortgagor not being based on a consideration, and the mortgagee having taken no. steps to perform the engagement, he was not liable for loss of the property from fire.-Hudson v. Ellsworth (Wash.) 463.

bringing the money into court, but the reason for the rule ceases when action is instituted to recover the debt.-Murray v. O'Brien (Wash.) 840.

§ 302. "Foreclosure" and "law day" are synonymous in the sense that it is the time when the mortgagor declares a default, and submits his case to a court of competent jurisdiction.Murray v. O'Brien (Wash.) 840.

§ 302. The tender of the amount due on a mortgage held to have been made in aid of affirmative relief sought by defendant on foreclosure and as a basis for the filing of an amended petition in intervention in which cancellation of the debt was asked and obtained.-Murray v. O'Brien (Wash.) 840.

§ 302. The rule that a mortgage lien is discharged by a tender of the debt held not available to one seeking affirmative relief in a foreclosure suit.-Murray v. O'Brien (Wash.) 840.

$ 302. "Foreclosure" defined as used with reference to the rule under which a mortgage is discharged by a tender before foreclosure. Murray v. O'Brien (Wash.) 840.

§ 317. A purchaser of real estate assuming a mortgage, and paying it, cannot thereafter assign the same to another as security for a debt. -Ellis v. Bashor (Idaho) 214.

§ 319. Evidence held to conclusively establish fact that mortgage debt had been paid.Ellis v. Bashor (Idaho) 214.

X. FORECLOSURE BY ACTION.

(E) Parties and Process.

§ 427. Under Rev. Codes, § 4520, it is presumed that, on foreclosure the mortgagor will represent the interests of the grantee in an unrecorded conveyance.-Harding v. Harker (Idaho) 788.

§ 436. The owner of a half interest in mortgaged property acquired after suit to foreclose held entitled to intervene, and protect its interest. Murray v. O'Brien (Wash.) 840.

(F) Pleading and Evidence.

§ 452. An allegation in a complaint to foreclose that certain of the defendants claimed some interest in the mortgaged premises, but that it was subsequent to the mortgage, held sufficient on demurrer.-Wardlow v. Middleton (Cal.) 738.

(J) Sale.

§ 5288 (Pierce's Code, § 868), a mortgage fore§ 512. Under Ballinger's Ann. Codes & St. closure sale of, or bid on, an entire tract for a certain sum, will be deemed to be for the average amount per acre.-Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 848.

§ 512. Ballinger's Ann. Codes & St. Supp. § 5276, relating to rights of third persons to question mode of mortgage foreclosure sale, means such as claim adversely to mortgagor and mortgagee and such as acquire interest after the mortgage but before foreclosure.-Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 848.

DEBT.

§ 235. An indorsee of a note secured by a mortgage is the owner of the mortgage without a further assignment thereof.-Stitt v. Stringham (Or.) 252.

VII. PAYMENT OR PERFORMANCE
OF CONDITION, RELEASE,
AND SATISFACTION.

§ 302. A tender of the amount due on a morton law day need not be kept good by

§ 512. Sale of mortgaged premises in action of third persons for sale of separate portions. -Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 848.

held appurtenant and properly sold together as § 512. Uplands and lease of the harbor area one tract in mortgage foreclosure.-Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 848.

§ 512. If uplands and harbor area are separate tracts, sale thereof as one parcel under mortgage decree authorizing the sale held not a substantial irregularity.-Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 848.