Local and Special Laws. Discretion of county officers. See “Constitutional Law," 7-10. 6. Section 8 of the county government de (Laws 1891, p 296,) authorizing the distrie attorney of any county, and making it bis dry , Location. to institute suit for money paid out by the Of mining claim, see "Mines and Mining," 1-4. vests the attorney with a discretion in determi board of supervisors without authority of lot, ing whether to bring suit which a court om Magistrate. not control by mandamus. - Boyne T. Brow, (Cal.) 34 P. 707. See "Justices of the Peaces." Who may petition for writ. 7. The petitioners nominating a candidata Maintenance. for a public office have such special and pedir interest in having his name appear on the di Of wife, see "Husband and Wife," 11, 12. cial ballots as is necessary to entitle then a maintain an action to require the exteny Malice. state to certify the fact of his dominating to the various county clerks in the district-> Definition, see "Criminal Law," 52. son v. Osborn, (Kan.) 34 P. 747. MALICIOUS PROSECUTION. Marriage. Malicious attachment. See "Divorce;" "Homestead;" "Husband est Wife." 1. There can be no recovery for the malicious suing out of a writ of attachment against real estate without probable cause, MASTER AND SERVANT. when it does not appear that it was fully executed, as required by Code Civil Proc. § 542, See, also, “Negligence;" "Principal and Azer." and that a copy of the writ, description of the "Railroad Companies." property, and notice were left with the occupant of the property, or posted thereon, as well / Wages. as filed with the recorder of the county.-Maskell v. Barker, (Cal.) 34 P. 340. 1. The fact that plaintiff entered defeat ant's service at a certain rate per monta, es Probable cause. labored continuously thereafter till the edo 2. The voluntary dismissal of an action is the time for which he asks wages, while i not an admission of want of probable cause. | tinued throughout, may be overcome bire raises a presumption that the rate of stages of Asevado v. Orr, (Cal.) 34 P. 777. dence that the old contract was endal, sada new one begun, with no particular wages sont MANDAMUS. fied; and such evidence, if contradicted , is the the jury alone. -Burden v. Cropp, (Wash.) : Compelling reapportionment of assessment, ef. P. 834. fect of laches, see "Municipal Corporations," Negligence of master. 45. 2. Plaintiff, a saw operator in defenderit Refusal of writ where remedy would be factory, while cleaning snow from logs prepara ineffective. tory to sawing them, was ordered by defandast "not to take so much time in cleaning the word 1. Mandamus will not lie to compel the but to go over it quickly," and, while gari district attorney to institute a suit to recover a log from which he had not cleaned the 205 money unlawfully paid out by the board of su- his finger was cut by contact with the sur pervisors, as the court could not compel him to Held, that such order did not establish on prosecute it, and it will not undertake by man gence on defendant's part.-Wanner r, Kista damus what cannot be accomplished.-Boyne v. (Colo. App.) 34 P. 1014. Ryan, (Cal.) 34 P. 707. 2. A writ of mandamus to compel the sec- sorting and carting away ore on a roadmap 3. Plaintiff was employed by defendent is retary of state to affix the state seal to and constructed across the face of a body of one countersign a commission issued by the govern- with a precipice 75 feet below it, and a bat or to one appointed by him to office will not be running 30 feet above it. A shot having been denied because the commission would confer fired to dislodge ore above the road way, geod on the person appointed no actual right and er workman, experienced in such €8761 therefore the writ would require the secretary ment, by direction of defendant's foremet, to do a useless thing. --State v. Barber, (Wyo.) amined the bank above the roadway by letis 34 P. 1028. hinuself duwn from the top, and fell for Compelling court to entertain appeal. loose ore with a pick. After this examinades 3. Mandamus is the proper remedy to re that the roadway was safe, and to set to rest was made, plaintiff was told by the forma instate an appeal properly taken to the district again. Shortly after the bank above the mounts court, and which it has refused to entertain for supposed want of jurisdiction.-State v. Dis way fell down, and knocked plaintiff over the trict Court of First Judicial District, (Mont.) precipice below. Eeld, that there was no ei 34 P. 298. dence of negligence on defendant's part--Bus by mandamus to recognize an attempted appeal ing, "" because of the liability of the stick to 4. The superior court will not be required nett v. Tintic Iron Co. , (Utah.) 34 P. 61 from an order which is not appealable.-State break in the hands of the person holding it v. Parker, (Wash.) 34 P. 149. so obvious that a master may assume that To municipal boards and officers. servant ordered to undertake it will s42 5. The fixing of water rates requires the comprehend the hazard, and he is not been exercise of discretion and judgment, and, where for failure to give warning.- Watts P. Hert the board authorized by law to fix such rates (Wash.) 34 P. 423, 771. has exercised its discretion by passing an order Dangerous premises. for that purpose, it cannot be compelled by 5. A cable railway company, in construo mandamus to change its judgment, or to take ing its power house so that the doorway throng further action on the order.-Jacobs v. Board which cars are taken out is only a few inches Supr's City and County of San Francisco, (Cal.) / wider than the cars, and the track on whid 34 P. 630. they are run out is on a slight up grade, and it open bei ween the tracks, so that employes, in Morgan v. Carbon Hill Coal Co., (Wash.) 34 6. A railroad company which sets a laborer tin, (N. M.) 34 P. 536; Martin v. Atchison, T. gang are fellow servants, although the foreman authority to direct the men under him to as- sist an engineer in moving cars, could not bind the master by such an order, so as to make it Negligence of vice principal. 17. In an action for injuries received by plaintiff while on a hand car from being struck by a work train, the evidence showed that plain- work on the track must bear in mind that, in the company was not liable because of the neg- work train and section men.-Atchison, T. & S. F. R. Co. v. Martin, (N. M.) 34 P. 536; Martin V. Atchison, T. & S. F. R. Co., Id. companies liable for injuries received by an em. ploye in consequence of the negligence of its where dangers are apparent.-Jennings v. Ta- plying with the latter's directions to assist him | er track repairers along the railroad, it being in taking apart some rollers on one side of the the custom for such employes to ride on man room in which he worked, he was caught in loaded with ties, and is thrown from the re, some belts and rollers, which he could not see while in a standing position, by the train e on account of the darkness of the room, and denly starting without any usual signal, as the which were not protected by any guards or ringing of the bell or the sounding of the white railing. The only lantern in the room, the fore- tle, and where his foreman saw him in te man had at the place of the accident. The evi- position before he directed the conductor to dence on plaintiff's part tended to show that start the train, and the conductor also saw hin he had never been in that part of the room, in the same position before motioning with his and did not know of the location of machinery hand for the engineer to go on, it is a goestige in that place. Held, that a verdict for plaintiff for the jury whether decedent was guilty of would not be disturbed on the ground that he such contributory negligence as to prevent any had assumed such risk, or was guilty of con- recovery for his death, under Civil Code, tributory negligence.Gisson v. Schwabacher, 422.-Union Pac. Ry. Co. v. Geary, (Kan.) 3 (Cal.) 34 P. 104. P. 887. 23. In an action against a stea mship com 29. There can be no recovery for the death pany for personal injuries sustained by falling of an employe caused by a fire-damp explos 10 through the hatchway of defendant's vessel, resulting from an officer of the company a the court properly refused to charge that ing his lamp, when he was induced to do so by the verdict must be for defendant if plaintiff the statement of deceased, who had been knew, or could by ordinary care have learned, that spot for some hours, that there was no fire that it was defendant's custom to sometimes camp there.-Morgan v. Carbon Hill Coal Co. have the hatchway open and sometimes closed, (Wash.) 34 P. 152, 772. when he would have occasion to descend the 30. Iu an action against a steamship consame in the course of his employment.-Smith pany for personal injuries sustained by falling v. Occidental & Oriental Steamship Co., (Cal.) | through the hatchway of defendant's Fessel inte 34 P. 84. the hold, it appeared that defendant Deglinen 24. In an action against a steamship com- ly omitted to light the passageway; that plaitis pany for personal injuries sustained by falling and other employes passed down a stairsa through the hatchway of defendant's vessel, to the hatchway; and that one man preedel eridence that plaintiff had previously worked on plaintiff. The latter testified that he could not the vessel, and had opportunity to learn the po- see the hatchway; that he tried to stand there sition of the hatchway, and that it was open but the men pressed him from behind, and be on certain occasions, was not conclusive that he fell in; and that there was room for the me had such knowledge.--Smith v. Occidental & to stand if it had been lighted. His cordant Oriental Steamship Co., (C 34 P. 84. while on the vessel, and the extent of his 25. In an action for injuries to an employe knowledge of the danger by reason of his pre in a mine, alleged to have resulted from negli- vious experience, did not clearly appear. Hic gent blasting, and from failure to make a that the question of plaintiff's contributor Des proper examination to discover loose pieces of ligence was for the jury.-Smith v. Occidental ore after the blast, it is error to ask a witness & Oriental Steamship Co., (Cal.) 34 P. 84 if the blast was prepared and the examination made in the ways usual in that mine, when it Material Men. does not appear that the injured employe knew what those ways were.-Bennett v. Tintic Iron See “Mechanics' Liens." Co., (Utah.) 34 P. 61. 26. Plaintiff was injured by an explosion in Meander Line. defendant's mine, while working with a pick where blasting had been done shortly before by See “Boundaries,” 3. fellow miners, and in an action therefor there was evidence, though conflicting, that it was Measure of Damages. not the duty of the foreman to be present when every blast was made, to see that all the char. See “Damages." ges exploded, but that it was the duty of plaintiff's fellow servants to do the blasting. The MECHANICS' LIENS. evidence also showed that sometimes a piece of powder was accidentally dropped into the debris Validity of contract for erecting buildby a workman, and that such a piece could be exploded by the blow of a pick. Held proper ing. to charge the jury that “one of the risks which 1. Failure of the contract for erecting! a servant takes upon himself is the negligence building to comply substantially with Code of his fellow servants in the same common em- Civil Proc. $8 1183, 1184, relating to mechanployment, and in this case the men engaged in ics' liens, does not render the contract Foid. blasting were in law fellow servants with Lumber Co. v. Wooldredge, 27 P. 431, 90 Cal plaintiff;” and if plaintiff was injured by their 578, followed.-Dunlop v. Kennedy, (Cal.) 34 P. negligence, and deferdant had no reason to be 92. lieve such men were incompetent, or careless, 2. A contract for erecting & building. then the jury should find for defendant, unless it which provides that 25 per cent of the sun was the duty of the foreman to superintend the after completion of the building, and the rest to be paid shall remain unpaid until 35 dass blasting, and see that all the blasts, had ex mainder be paid in partial payments equal to ploded.-Kelly v. Cable Co., (Mont.) 34 P. 611. 75 per cent. of the value of the work and maContributory negligence. terial done and furnished at the time of such 27. An employe of a street-car company who Proc. $ 1184, providing that the contract price payments, sufficiently complies with Code Civil has to push a car through a doorway, by push- shall, by the terms of the contract, be made ing on the side, and who, instead of letting go payable in installments at specified times after on reaching the doorway, attempts to pass commencement of the work, and on the com; through the space between the side of the door- pletion of the work, provided that at least 25 way and the car, which is only 34 inches, per cent. of the whole contract price shall be where there is nothing to prevent his seeing the made payable at least 35 days after final com danger, is guilty of contributory negligence. - pletion of the contract.-Dunlop F. Kennedy, Jennings y. Tacoma Railway & Motor Co., (Cal.) 34 P. 92. (Wash.) 34 P. 937. 3. A contract for erecting a building, and 28. Where decedent, engaged in repairing a also for improvements on an adjoining lot rua railroad track, climbs on a car loaded with ties, ning "westerly," is not avoided by the fact that which are to be distributed by himself and oth the recorded memorandum of the contract ex roneously uses the word "easterly," nor is the Rights of material men-Duty of owner to protect. 12. Under Code Civil Proc. $ 1184, requir- tained until 35 days after completion, partial payments, however they are specified as to time, may be safely made, provided no notice v. Kennedy, (Cal.) 34 P. 92. 13. All that material men can require, in such case, is that at the time they serve writ- the contract and said section.-Dunlop v. Ken- nedy, (Cal.) 34 P. 92. 14. It does not prejudice persons furnishing 15. The owner of a building who, out of the contract price, has paid laborers who were on the ground that there could be no privity him to pay them.-Dunlop v. Kennedy, (Cal.) 34 P. 92. 16. The purchaser of lands whereon the ven: lien.-Rice v. Carmichael, (Colo. App.) 34 P. 17. Comp. Laws, $ 1520, provides that a every contractor or other person having charge Section 1524 requires the claimant to file alia, the name of the person by whom he was employed, or to whom he furnished the mate 10. Under Comp. Laws, $S 1520, 1522, owner, within three days after be obtains that the lienor has, by virtue of a contract heretofore made with H. and with K., his con- tractor, furnished materials and done work in act. agent of the owner.-Rowland v. Harmon, (Or.) 27. A person who has so furnished msteris 34 P. 357. for a reduction mill on a mining claim cansat 19. The fact that a notice of lien states contend that his lien attached when the miii su $150 as the sum to be credited on the account, commenced, and before it was used in coased when a preponderance of the evidence shows tion with the mine, and therefore before it be that it should be $152.50, does not affect the came appurtenant 'to the mine, as the rilis validity of the notice, when the claimant is nei- a part of the mine, and not å mere apparte ther willful nor negligent in failing to give nance. - Williams v. Mountaineer Gold Min. Ce credit for the extra $2.50, and contends for (Cal.) 34 P. 702. the correctness of his statement in good faith. 28. Conceding the mill to be appurtenant to - Rowland v. Harmon, (Or.) 34 P. 357. the mine, such contention cannot be sustained 20. It is essential to the validity of a me for the further reason that one who has to chanic's lien that the notice of lien shall con- nished material for a structure must be bed tain, as required by the statute, a statement of to have anticipated its future use. Williams T. the claim, and the name of the person to whom Mountaineer Gold Min. Co., (Cal.) 34 P. 70% claimant furnished material, or for whom he Priority. performed labor.-Dillon v. Hart, (Or.) 34 P. 817. 29. One who contracts with an irrigation 21. A notice of lien, which states that claim-company to construct its ditch has a lien ou be ant had a contract with A. for furnishing lum- ditch which has priority over a trust deei era ber and material used in erecting a dwelling cuted by the irrigation company before the cos house on ground, describing it, belonging to B., tractor commenced work, under Laws 10 who caused the dwelling house to be erected, 24.-Garland v. Bear Lake & River Wate and that the value of such lumber and material works & Irrigation Co., (Utah,) 34 P. 368. was a specified. sum, is not sufficient to create Validity of contractor's bond-Failure a lien, because it fails to state the name of the to record building contract. person to whom the materials were furnished, or to connect the person with whom claimant 30. Code Civil Proc. Cal. $ 1183, proriis had the contract with the owner of the ground that a building contract which is not recorde: and building, as required by Hill's Cole, gs before work is commenced thereunder, bers 3669, 3673.32 P. 620 affirmed.-Rankin o the contract price exceeds $1,000, shall be fet, Malarkey, (Or.) 31 P. 816. and no recovery_thereon can be had by eitb 22. Where materials are furnished to the party thereto. Held, that a bond for $3* head of a firm having a contract for the erec- given by the contractor to the owner to see tion of a building, and in his statement for å the latter against claims and liens for labor 09 lien the material man names only the individ materials, and which refers to a written on ual member with whom he dealt as the contract that has not been recorded, made b-ten tractor, in the absence of evidence that the the principal and obligee, is not within the owner was misled or injured by the failure meaning of the statute, and may be enforest of the subcontractor to correctly state the firm without violating the above section, Kipada name of the contractors, such error will not in- v. Allspaugh, 27 P. 662, 91 Cal. 234, followed validate the lien.-First Presbyterian Church Lumber Co. v. Neal, 21 P. 192, 90° Cal. 213. of Hutchinson v. Santy, (Kan.) 34 P. 974. overruled; McFarland, J., holding that the 23. Mechanic's Lien Act 1889, (Sess. Laws cases are distinguishable. — Kiessig . Alls1889, p. 249,) requires a person wishing to avail paugh, (Cal.) 34 P. 106. himself thereof to file with the county recorder Enforcement. a statement signed and sworn to by claimant, 81. A person who has furnished material for and, if a subcontractor, to serve a copy thereof a structure on a mining claim for a corporation on the owner at or before the time of filing. which he found in possession of the mire. Held, that the filing of a subcontractor's unveri- claiming it all, cannot enforce a lien fied fied statement, of which a copy was served on against the structure instead of the whole clain, the owner, and which was afterwards verified and therefore invalid, on the ground that, whe without notice to the owner, established no lien. he furnished the materials, the corporation bsd -Rice v. Carmichael, (Colo. App.) 34 P. 1010. not yet acquired title to that portion of the 24. Where work on a building is abandoned claim on which the structure was erected, as by the owners, the statement for a lien must be title cannot be tried in such an action.-Wi. filed within four months after the abandon- liams v. Mountaineer Gold Min. Co., (Cal) 31 ment, which, for such purpose, is equivalent to P. 702. completion; and the time of such abandon 32. Where the complaint in an action to ment is to be determined by the actual cessa- foreclose a mechanic's lien alleges that there tion of work, and not by the secret purposes was no contract between the owner and the of the owners.-Chicago Lumber Co. v. Merri- person who erected the building, there can be mack River Sav. Bank, (Kan.) 34 P. 1045. no judgment on proof that there was, and it is 25. An understanding between one who con. error for the court, on finding the latter, and tracted to build a church and the majority of without an amendment, to render judgment the trustees of the church that it should be ac- for plaintiff to the extent of 25 per cent of the çepted as completed when it was not so in fact contract price, which the owner failed to keep is not conclusive on the question of the time back, as required by the statute.-Reed F. Nors of completion. as against subcontractors claim- ton, (Cal.) 34 P. 333. ing to have filed lien statements within the stat 33. The fact that a bill to enforce a me utory time, First Presbyterian Church of chanic's lien shows that the improvement be Hutchinson v. Santy, (Kan.) 34 P. 974. longs to one person, and the land to others, all Filing lien against structures merely of whom are made parties, does not reader the -Improvements on mining claims. bill demurrable.-Post v. Miles, (N. M.) 34 P. 26. Under Code Civil Proc. § 1183, providing Co. v. Same, Id. 586; Stahlin v. Same, Id.; Mountain Eleetrie that mechanics, material men, etc., performing 34. Code 'Civil Proc. $ 1184, relating to me labor or furnishing material in the construction chanics' liens, requires that 25 per cent of of any building or other structure, shall have the whole contract price shall be made payable a lien upon the property upon which they have at least 35 days after the final completion of bestowed labor or furnished materials, and that the contract. Sections 1193, 1195, authorize any person who performs labor on any mining a claimant, on establishing his lien, to recover claim has a lien upon the same, a lien for ma- costs and an attorney's fee. Held, in an action terial furnished for structures on a mining by a material man to enforce his claim agairst claim, to be used in operating the same, filed the 25 per cent. of the contract price retained against the structures, is invalid, as it must be by the owner, that the costs and attorner's fee filed against the whole claim. Williams v. are chargeable against the premises where the Mountaineer Gold Min. Co., (Cal.) 34 P. 702. sum so retained was not sufficient to satisfy |