3. In an action to have declared valid a mar-
riage contract between plaintiff and defendant, evi-
dence on the part of plaintiff that she had, long
prior to any difficulty between herself and defend-
ant, shown to a third party the contract which de-
fendant claimed to have been a forgery, is compe-
tent, as tending to show the genuineness of the
contract.-Sharon v. Sharon, (Čal.) 22 P. 26.

4. Plaintiff had testified that during a certain
time she was the wife of defendant. Held, that
evidence of a statement by a third person, in her
presence and hearing, during said time, that plain-
tiff desired to bring a suit against defendant for
breach of promise of marriage, was competent and
material. Sharon v. Sharon, (Cal.) 22 P. 26.
5. Evidence that after executing a contract of
marriage plaintiff and defendant secretly occupied
the same bed, concealed the fact that such a con-
tract had been executed, or that they were hus-
band and wife, and held themselves out to the pub.
lic as single and unmarried people, occupied sep-
arate dwelling places, had no common home, and in
all things conducted themselves towards the pub-
lic as unmarried people, does not support a find-
ing that they lived and cohabited together in a
way usual with married people, and that they as-
sumed towards each other marital rights, duties,
and obligation.-Sharon v. Sharon, (Cal.) 22 P. 26.

Married Women.

See, also, Divorce; Homestead; Husband and
Wife.

MASTER AND SERVANT.
Contract of hiring.

1. An agreement to employ a person "perma
nently" means nothing more than that the employ
ment is to continue indefinitely, and until one or
the other of the parties desires, for some good rea-
son, to sever the relation.-Lord v. Goldberg, (Cal.)

22 P. 1126.

Discharge.

2. Plaintiff represented to defendants that he
could bring them a certain amount of trade, and
was employed on a salary, with the understanding
that his employment should be permanent, and that
his salary should be increased as the business in-
creased. Afterwards, upon plaintiff's failure to
bring such amount of trade as he had represented
that he could bring, or such amount as warranted
the salary, defendants offered to make other ar-
rangements with him, giving him a commission on
the business he should bring them, which offer be
refused. Held, that defendants were justified in
dismissing plaintiff from their employ.-Lord v.
Goldberg, (Cal.) 22 P. 1126.

Master's liability to third persons.

3. Where a railway company directs and pro-
cures a trespass to be committed by a contractor
and his employes constructing its road-bed, it is
liable with those who committed it.-Chicago, K.
& W. R. Co. v. Watkins, (Kan.) 22 P. 985.
Negligence of master-Defective

chinery.

ma-

4. Plaintiff, employed in defendant's saw-mill,
was stationed at the foot of a slab chute to keep it
clear. Occasionally the chute became blockaded

with slabs, and it was necessary for plaintiff to go
further up the chute to break the blockade. The
way which plaintiff used in going to the perform-
ance of such duty, and which, according to his tes
timony, was the only way provided by defendant,
led across a rapidly revolving, uncovered shaft,
set with projecting screws. In stepping across
this shaft, plaintiff was caught by it, and injured.
There was evidence that plaintiff was ignorant and
inexperienced. Held, that an instruction was cor-
rect to the effect that if any particular causes of
is to be performed, of which the servant is igno-
danger are connected with a place where service
rant by reason of his want of skill, it is the duty of
the master to inform him what it is he needs to be
watchful of in the discharge of his duties.-Roth
v. Northern Pac. Lumbering Co., (Or.) 22 P. 842.

5. The court instructed the jury that they were
to consider the testimony relating to the revolving
shaft, and, in connection with, that, the testimony
as to whether the effects it might produce were
within the ordinary apprehension of any one look-
ing at it,-"of the plaintiff, for instance, with such
experience as he appears to have had about ma-
chinery. Held, that the quoted words were not
objectionable.-Roth v. Northern Pac. Lumbering
Co., (Or.) 22 P. 842.

6. In an action for injuries to an employe of de-
fendant, caused by the alleged careless mainte-
nance of machinery, consisting of an iron rod and
chain suspended in a building, it appeared that the
injury occurred while plaintiff, whose main work
was in the yard outside the building, knowing
nothing of the condition of the rod, chains, etc.,
was engaged, as directed, with one or two other
employes, in moving a crane having an arm which
projected about a foot and a half beyond the rod
and chain, and which it would strike unless the
latter were moved out of the way. Held, that a
verdict for plaintiff was not contrary to an in-
struction that, if the accident was caused by
plaintiff or his co-employes "carelessly or negli
gently moving the arm of the crane against said
suspended rod and chain, the plaintiff cannot re-
cover;" there being no evidence requiring the jury
to find that the crane was moved carelessly or
negligently. Monaghan v. Pacific Rolling Mill
Co., (Cal.) 22 P. 590.

7. The finding of the jury that the machinery
was defective and unsafe is supported by evidence
showing that the rod and chain were unfastened,
loose jointed, and liable every day to be dislocated
by a blow from the crane.-Monaghan v. Pacific
Rolling-Mill Co., (Cal.) 22 P. 590.

the alleged careless maintenance of machinery,
8. In an action for personal injuries caused by
consisting of an iron rod, with a hook at each end
by which it was attached to a chain, which at its
lower end was connected with a lever, the whole
hanging suspended from a beam, an averment in
a complaint "that said machinery and apparatus
were then and there unsafe, and the chain afore-
said was not securely fastened, and the hook afore-
said was defective and unfit for the purpose of
holding and supporting said chain and lever, and
by reason thereof the said chain fell from said
book and down upon the plaintiff, "clearly includes
a defect in the method by which the rod and chain
were attached; the phrase "by reason thereof" not
being referable solely to some defect in the texture
or strength of the hook.-Monaghan v. Pacific
Rolling-Mill Co., (Cal.) 22 P. 590.

454.

2. If it is necessary that there be some one per-
sonally liable in order to support a lien for mate-
rials furnished under a contract void for want of
record, such liability is found in the person of the
subcontractor to whom the materials are furnished;
but it is not necessary that the owner be personally
liable.-Davies-Henderson Lumber Co. v. Gott-
schalk, (Cal.) 22 P. 860.

3. The legislature has the power to provide
that if the contract for the construction of a build-
ing is not executed and filed in a certain manner
the owner shall become liable to the material-men
and laborers for the value of their materials and
labor.-Kellogg v. Howes, (Cal.) 22 P. 509.
Property subject to.

4. Under Code Civil Proc. Cal. § 1183, giving
to material-men a lien on property for the construc-
tion, repair, or alteration of which they have fur-
nished materials, those who have furnished mate-
rials for the construction of a hoisting and pump-
ing works building, pipes, gallows frame, and
track, under a single contract with a mining com-
pany, have a lien on the whole mine, and not on the
several structures merely, since they form a part
of the mine itself.-Silvester v. Coe Quartz Mine
Co., (Cal.) 22 P. 217.

5. Comp. St. Mont. § 322, exempts homesteads
from forced sale on execution, or any other final
process from a court. Section 323 provides that
such exemption "shall not affect any laborer's or
mechanic's lien." Held, that a homestead is not
exempt from a lien of a plasterer who performs
work and labor in plastering a building, and in
setting a mantel therein.-Merrigan v. English,
(Mont.) 22 P. 454.

6. Code Civil Proc. Cal. § 1185, provides that,
if the person causing the construction of a build-
ing on land does not own the fee-simple thereof,
then only his interest in such land shall be subject
to the contractor's lien for such building; and sec-
tion 1192 provides that, when the construction of a
building upon land is known to the owner of any in-
terest therein, such interest shall be subject to the
contractor's lien. Held that, where the construc-
tion is at the instance of a leaseholder, with the
knowledge of the owner of the fee, not only the
leasehold interest, but also the fee, is subject to
such lien.-West Coast Lumber Co. v. Newkirk,
22 P. 231, 232, 80 Cal. 275.

For what obtained.

7. Where the court finds that plaintiff is en-
titled to a lien for work done, consisting of "cer-
tain improvements, additions, alterations, and re-
pairs, to-wit, painting and papering of walls,
and other portions of the basement story
of said building, and certain structures or articles
affixed and appurtenant thereto, and placed there-
on," it will be presumed that the evidence sup-
ported the finding, though some of the work was
spoken of as "counters, side-board, shelving, ice-
box, partitions, and wainscoting;" there being
nothing to show that they were not among the ar
ticles affixed and appurtenant thereto."-Sind-
linger v. Kerkow, (Cal.) 22 P. 932.

Who may claim.

8. Gen. St. Colo. c. 65, provides a lien for al
who do work, etc., by contract with the owner,
etc.; but it is sufficient if the contract be either
express or implied, and with an authorized agent
for and on behalf of the owner.-Williams v. Un-
compalgre Canal Co., (Colo.) 22 P. 806.

9. Code Civil Proc. Cal. § 1183, (as amended in
1887,) provides, as to mechanics' liens under build-
ing contracts, that "all such contracts shall be in
writing when the amount agreed to be paid there
under exceeds $1,000," and recorded; otherwise
they shall be void. Section 1184 provides that no
part of the contract price shall, under such con-
tract, be payable before commencement of the
work, but in installments, after work is com-
menced, with a provision for retaining 25 per cent.
until completion, and that, if any "such contracts"
shall not conform "to the provision of this section,"
the work done and materials furnished shall be

personal instance of the owner. Held that, where
the contract price is less than $1,000, the contract
need not be in writing, nor 25 per cent. of the price
reserved until after completion of the contract.-
Sindlinger v. Kerkow, (Cal.) 22 P. 932.

10. Code Civil Proc. Cal. § 1183, providing liens
for contractors, laborers, and material-men, re-
quires the construction contract, where the amount
exceeds $1,000, to be in writing, and to be filed in
the recorder's office of the county where the prop-
erty is situated; otherwise it shall be void; "and
in such case the labor done and materials furnished
by all persons aforesaid, except the contractor,
shall be deemed to have been done and furnished
at the personal instance of the owner, and they
shall have a lien for the value thereof." Held
that, where the contract is not recorded, the ma-
terial-men are entitled to a lien without regard
to the amount due on such contract. Following
Kellogg v. Howes, 22 P. 509.-Davies-Henderson
Lumber Co. v. Gottschalk, (Cal.) 22 P. 860.

11. As the contract is void, and nothing due
or to become due to the contractor, it is not nec-
essary for the material-men to give notice to the
owner of the amount they are entitled to, as pro-
vided for by section 1184, in cases where there is a
recorded contract. Following Kellogg v. Howes,
22 P. 509.-Davies-Henderson Lumber Co. v. Gotts-
chalk, (Cal.) 22 P. 860.

Notice of claim.

12. A claim of lien, filed by a material-man, giv
ing the names of several persons to whom different
portions of the material were furnished at different
times, without any designation as to what portion
was furnished to each severally, does not sufficient-
ly comply with Code Civil Proc. Cal. § 1187, re-
quiring the claim to state "the name of the person
by whom he was employed, or to whom he fur-
nished the materials."-Gordon Hardware Co. v.
San Francisco & S. R. R. Co., (Cal.) 22 P. 406.

13. A description, in a claim of lien filed by a
material-man, of the materials furnished as "nails,
spikes, iron, steel, picks, shovels, and other like
material," is too indefinite and uncertain to sustain
the lien.-Gordon Hardware Co. v. San Francisco
& S. R. R. Co., (Cal.) 22 P 406.

14. The fact that a claim of lien, filed by a mate-
rial-man, included more than was due him, if the
error was without fraud, will not defeat his right
to recover.-Harmon v. San Francisco & S. R. R.
Co., (Cal.) 22 P. 407.

15. Under Code Civil Proc. Cal. § 1187, providing
alia, the name of the owner or reputed owner of
that a contractor's claim of lien shall contain, inter
the realty, if known, where such name is not known,
the claim need aver nothing on that subject.-West
Coast Lumber Co. v. Newkirk, 22 P. 231, 232, 80 Cal.

275.

16. The claimant of a lien for materials furnished
set out in its notice that the claimant undertook to
such quantities as it might require, each parcel to
furnish to a certain mining company explosives in
be paid for at delivery, or as soon thereafter as
might be, with interest upon such payments in case
of delay.' Held, that this notice was in substantial
compliance with Code Civil Proc. Cal. § 1187, re-
quiring such claimant to state the terms, time giv-
en, and conditions of his contract, wherein the
words "time given" mean the time of payment
for the materials furnished.-California Powder
Works v. Blue Tent Consolidated Hydraulic Gold
Mines, (Cal.) 22 P. 391.

17. Code Civil Proc. Cal. § 1187, which provides
that the notice of a claim for a mechanic's lien
must be filed within 30 days after the completion
of the improvement, alteration, etc., does not refer
to the operation of a mine, for which explosives
are furnished by a claimant, as the thing to be
completed.--California Powder Works v. Blue Tent
Consolidated Hydraulic Gold Mines, (Cal.) 22 P. 391.

18. As the right to a lien for materials furnished
does not attach until the materials have been used,
plaintiff does not lose such right by a failure to file
its claim within 30 days after the materials were
furnished.-California Powder Works v. Blue Tent
Consolidated Hydraulic Gold Mines, (Cal.) 22 P. 391.

6. Rev. St. U. S. § 2322, (Act Cong. May 10, 1872,)
provides that locators of mining claims on any min-
-eral vein, lode, or ledge, where no adverse claim ex-
ists, on May 10, 1872, shall have the exclusive right
of possession and enjoyinent of all the surface in-
cluded within the lines of their locations, and of
all veins, lodes, and ledges, etc. Sections 2325
and 2326 prescribe the manner for settling con-
flicting or adverse claims. Section 2336 provides
that, where two or more veins cross each other,
the prior location shall be entitled to all ore or
mineral contained within the space of intersec-
tion, but the subsequent location shall have the
right of way through the space of intersection,
etc. Section 2344 provides that nothing contained
in the above sections shall be construed to impair,
in any way, rights in mining property acquired
under existing laws. Held that, while defendants'
failure to adverse plaintiffs' application for a pat
ent for a mining claim will not enable plaintiffs
to maintain ejectment for a true cross-vein locat
ed by defendants before the location of plaintiffs'
claim, section 2344 does not, ex proprio vigore, re-
serve out of the grant rights other than cross-veins
acquired prior to the act of 1872; but secures the
protection of such rights to those only who avail
themselves of the adverse procedure prescribed
by the act.-Lee v. Stahl. (Colo.) 22 P. 436.

7. Rev. St. U. S. § 2336, provides that, where two
or more veins unite, the oldest or prior location shall
take the vein below the point of union, including
all the space of intersection. Held, that veins
which unite on the "dip," or in their downward
course, are within the act, but not veins which
unite on the "strike, "or on their horizontal exten-
sion.-Lee v. Stahl, (Colo.) 22 P. 436.

Conveyances.

8. Under Laws Cal. 1880, p. 181, providing that
it shall not be lawful for the directors of any min-
ing corporation to sell or dispose of the mining
ground of the corporation without the consent or
ratification of the holders of two-thirds of the cap-
ital stock, in writing, signed by such stockholders,
or by resolution duly passed at a stockholders'
meeting, a conveyance of such ground without such
consent does not pass title.-McShane v. Carter,
(Cal.) 22 P. 178.

9. Such consent cannot be presumed from the
mere fact of the conveyance, even though it is un-
der the corporate seal.-McShane v. Carter, (Cal.)

22 P. 178.

10. The term "mining ground," as used in such
statute, includes a ditch and water-right, by means
of which a mine is operated, as an appurtenance
thereof.-McShane v. Carter, (Cal.) 22 P. 178.

11. The deed of a mining corporation does not
pass the title to its mining land, unless it is shown
to have been ratified by two-thirds of its stock-
holders, as is provided by Laws Cal. 1880, p. 131.
Following McShane v. Carter, 22 P. 178.-Pekin
Mining & Milling Co. v. Kennedy, (Cal.) 22 P. 679.
Mining leases.

12. Defendant, a corporation, agreed to lease to
plaintiff, for one year, the right to work and mine
certain mining ground, the gross products thereof
to be equally divided between plaintiff and defend-
ant. Held, that such agreement was not a lease,
even though the parties so termed it, and so was
not within the statute (St. Cal. 1880, p. 131) de-
claring all leases of mining ground by corporations
unlawful unless ratified by the stockholders, but
was an agreement for the working of a mine on
shares, and a promissory note given to plaintiff for
his share of the products was upon a valid consid-
eration.-Hudepohl v. Liberty Hill Con. Min. &
Water Co., (Cal.) 22 P. 339.

Minor.

See Adoption; Infancy; Parent and Child.

Misjoinder.

Of causes, see Quieting Title, 14.

MORTGAGES.

See, also, Chattel Mortgages.
Sale under power, see Sheriffs and Constables,
3, 4.

What constitutes.

1. Where an indebtedness existing at the time
of the execution of a deed, the purpose of the deed
as a security therefor, and the continuance of the
relation of debtor and creditor, are admitted, such
deed operates as a mortgage, though it be in form
absolute, under Civil Code Cal. § 2924, providing
that "every transfer of an interest in property,
other than in trust, made only as a security for the
performance of another act, is to be deemed
mortgage;" and a defeasance executed subse-
oy the deed would be reconveyed upon payment
quently, and reciting that the legal title conveyed
of the indebtedness secured therein, does not
change the effect of the deed. Hall v. Arnott,
(Cal.) 22 P. 200.

Construction and effect.

-

2. Where a mortgage is given in the form of
an absolute deed, with a separate defeasance clause
reciting that the legal title will be reconveyed on
payment of the debt secured, the mortgagor, or
those claiming under him, can require no more than
a reconveyance of the interest originally conveyed
by the mortgage.-Hall v. Arnott, (Cal.) 22 P. 200.

3. Under Civil Code Cal. § 2926, providing that
a mortgage is a lien upon everything that would
pass by a grant of the property, a mortgage stipu-
lating that "all boilers, engines, and fixed machin-
ery shall be deemed to be included in said prop-
erty" covers fixtures such as soap-kettles, candle
machines, a gun-metal digester, and a boiler, in
the absence of evidence aliunde to the contrary.-
Lavenson v. Standard Soap Co.. (Cal.) 22 P. 184.
Priority of lien.

4. R. took a mortgage of property with full
knowledge that one F. held a prior mortgage there-
on for the original purchase money. Afterwards
R. assigned his mortgage to S., informing him
that there was another mortgage upon the prop
erty, but the latter made no inquiry as to the title
of the property, nor made any examination of the
records. Held, that F. was entitled to the prior
lien.-Short v. Fogle, (Kan.) 22 P 323.
Rights of mortgagee..

5. Under Hill's Code Or. § 326, a mortgages
ises until after foreclosure and sale; but where he
cannot recover possession of the mortgaged prem-
obtains possession of such premises in any peace-
able mode without force, he may retain possession
of such premises, as against the mortgagor or any
person claiming under him subsequent to the mort-
gage, until his mortgage debt is paid.-Cook v.
Cooper, (Or.) 22 P. 945.

6. A mortgagee in possession may lawfully
take down or carry away buildings erected by him
on the land mortgaged, the materials of which
were his own, and not so connected with the soil
that they cannot be removed without prejudice to
it.-Cook v. Cooper, (Or.) 22 P. 945.

7. A mortgagee in possession can remove such
chattels without resorting to equity. - Cook v.
Cooper, (Or.) 22 P. 945.

Fixtures.

8. Where, in an action to foreclose a mortgage
which has been destroyed, no issue is raised as to
the right of the mortgagee to sell fixtures which
were attached to the realty after the execution of
the mortgage, and the decree is silent as to that
question, the right must be governed by the gen-
eral rule that the mortgagee may sell such fixtures.
-Dutro v. Kennedy, (Mont.) 22 P. 763.

9. If the mortgagor endeavors to remove the
fixtures on the mortgaged land, he may be enjoined,
or the mortgagee may sue for damages, or bring
an action of claim and delivery, after he has pur-
chased the property at sheriff's sale.-Dutro v.
Kennedy, (Mont.) 22 P. 763.

10. In such case a complaint for damages for
unlawfully withholding and detaining the goods