stole the trunk.-People v. Nicolosi, (Cal.) 34
P. 824.
Instructions.

and for re-entry if rent should remain due and
unpaid for 10 days. The lessee erected a build-
ing, and the contractor foreclosed a lien there-
on. While the suit was pending the parties
agreed that if the lessor would not serve no-
5. As the evidence clearly proved that a
tice on the lessee's tenants to quit until the suit stolen trunk was found either in the sole posses-
was ended, and would make no extra charge sion of defendant, or the joint possession of de-
for collecting the rent from such tenants, he fendant and the person occupying the room with
might collect such rent and apply to the ground him, the court properly refused to charge that if
rent due him from the lessee. Under such the trunk was only found in a house which de-
agreement the lessor applied the rent upon the fendant occupied jointly with another, equally
amounts first falling due them from the lessee, capable of having committed the theft, then no
the amount collected being less than that due definite presumption of guilt could be made,
the lessor during such times. Held, that the the instruction not being applicable to the facts.
lessor did not waive his right to have the lease-People v. Nicolosi, (Cal.) 34 P. 824.
forfeited for nonpayment by continuing to col-
lect rent under such agreement after service of
notice to pay or vacate; it appearing that the
amounts so collected were applied upon prior
installments.-Carraher v. Bell, (Wash.) 34 P.

469.

LARCENY.

Possession of stolen property, see "Robbery."
instructions, see "Burglary," 3, 4.
Indictment-Description of money.

1. An indictment for robbery, describing
the property stolen as "money, jewelry, and

6. The possession of recently stolen prop-
erty may or may not be a criminating circum-
stance, and whether it is or not depends upon
the facts connected with such possession; the
question whether it is criminating is for the
jury and not for the court.-State v. Walters,
(Wash.) 34 P. 938, 1098.

Law Libraries.

Establishment of in different counties, see
"Counties," 5.

Leases.

hair ornaments," no demurrer or objection to See "Landlord and Tenant."
evidence being taken, is good on motion to ar-
rest judgment, under Pen. Code, § 967, provid-
ing that, in an indictment for larceny of

money, it is enough to allege the larceny to be See "Wills."
of money, without specifying the coin, number,
denomination, or kind thereof.-People v. Chuey
Ying Git, (Cal.) 34 P. 1080.

Evidence.

2. Where a stolen trunk was found, togeth-
er with another one, in defendant's posses-
sion, it was not error for the court to permit
a witness to describe the trunk found with the
one that had been stolen, such evidence not
being given to show that such trunk had been
stolen or lost.-People v. Nicolosi, (Cal.) 34 P.
824.

Sufficiency of evidence.

3. Defendant and two others, A. and C.,
having been drinking together most of the
evening, went to bed more or less drunk, in the
same room at a lodging house. C. did not un-
dress, as did the others. Later defendant and
A. got up and went to a neighboring saloon,
where they sat up till morning. There defend-
ant changed a $20 gold piece. C., in the morn-
ing, stated that he had been robbed of his
pocketbook containing such a piece. Defend-
ant was not shown to have had the pocket-
book, and reasonably accounted for his pos-
session of a $20 gold piece. The bedroom was
unlocked all night. Held no evidence to war-
rant defendant's conviction. State v. Payne,
(Wash.) 34 P. 317.

-

Legacies.

Legislative Power.

Delegation, see "Constitutional Law," 3, 4.

Levy.

Of attachment, see "Attachment,” 2–5.
Of executions, see "Execution," 2.

LIBEL AND SLANDER.
What actionable.

1. Defendants, on the day of a local elec-
tion, published concerning plaintiff, E., the fol-
lowing: "Venality. It is understood that the
Electric Improvement Company will put a large
sum of money into the fight to-day to corrupt
voters. There are scores of voters in every
community that money can buy.
* It is
also reported that E. is to have charge of the
sack." Held, that the article was libelous
per se.-Edwards v. San Jose Printing & Pub.
Co., (Cal.) 34 P. 128.

2. An article describing a person as having
such a mania for destruction that she scatters
poison about the neighborhood for dogs, chick-
ens, and household pets, and alleging that she
poisoned a cow, tried to take her own life, and
attempted the destruction of a family against
whom she had a grudge, is libelous as tending
to excite fear and abhorrence. - Republican
Pub. Co. v. Miner, (Colo. App.) 34 P. 485.

3. An article announcing the attempted
murder of a family by poison, giving details of
the atrocity, alleging search for the author, and
directing attention by insinuation to a person
in such manner as would naturally cause sus-
picion to rest on her as the would-be murder-
ess, is libelous on its face.-Republican Pub.
Co. v. Miner, (Colo. App.) 34 P. 485.

Possession of stolen property.
4. A trunk alleged to have been stolen by
defendant was found in a shanty which had
been occupied by defendant and another for sev-
eral weeks. The officer searching for it found
it, with another trunk, under defendant's bed,
covered over with old clothing; and defendant,
when asked what it was, replied that it was
nothing. When ordered to open it, he said he
did not have the key, but when the trunk was
examined the lock was found to be broken, and
a letter was found in it, addressed to defend
ant's brother. Being asked whose name it was,
and how it came there, defendant said it was
his name, and that he put the letter in the
trunk himself. Defendant said that the trunk
had been left there two weeks before by a man
whom he did not know, and who promised to
pay him for keeping it. It was shown that the
trunk had been stolen about two weeks before
it was found in defendant's possession. Held 6. Where the obvious meaning of words in
sufficient to warrant a finding that defendant an article complained of is libelous, innuendoes

4. An article is libelous though it purports
to be and is a publication of rumors.-Republi-
can Pub. Co. v. Miner, (Colo. App.) 34 P. 485.

5. The following words, published in a
newspaper: "Business Changes. McKenzie
Lumber Company, Denver, Attached,” -are ac-
tionable per se.-McKenzie v. Denver Times
Pub. Co., (Colo. App.) 34 P. 577.
Action-Pleading.

in the complaint may be rejected as surplusage. -Republican Pub. Co. v. Miner, (Colo. App.) 34 P. 485.

Action-Evidence.

Liens.

See "Mechanics' Liens."
As defense for conversion, see ""Trover l
Conversion," 2.

For boarding horse, see "Livery Stable K
ers."
Of attachment, see "Attachment," 2-5.
Of innkeeper, see "Innkeeper."
Of mortgages, see "Mortgages," 1.
Of vendor, see "Vendor and Purchaser," 14
Life Insurance.

7. Evidence by the editor of defendants' paper, in which an article charging intention to bribe at a coming election was published, that rumors of the facts published came to him from dozens of persons, and that he published the article in good faith, to prevent what it was feared would occur, is not admissible in mitigation, in the absence of the names of the persons giving him the information, and of evidence that the informants possessed such char- See "Insurance." acter as would warrant belief.-Edwards v. San Jose Printing & Pub. Co., (Cal.) 34 P. 128.

8. Nor is evidence admissible to show particular acts of plaintiff in relation to the use of money in elections prior to such publication, without showing, or offering to show, that defendants had knowledge of such acts at the time of publication, even if otherwise competent.-Edwards v. San Jose Printing & Pub. Co., (Cal.) 34 P. 128.

Damages.

9. In an action for libel in charging probable bribery by plaintiff at a coming election, there was evidence that plaintiff's reputation was that of a person having money under his control for the purpose of corrupting rot ers, and also evidence to the contrary. Held, that the court properly refused to charge that if plaintiff's reputation was bad, prior to the publication, as to the point wherein he claimed to be damaged, the jury might fix nominal damages only. Edwards v. San Jose Printing & Pub. Co., (Cal.) 34 P. 128.

Libraries.

LIMITATION OF ACTIONS.
See, also, "Adverse Possession."

Pleading, sham answer, see "Pleading,” 12
When statute applicable.

1. An action to set aside a decree france lently substituted for another in a proceeding for determination of priority of water ricts a not an action to determine such priority d the time within which such an action may rights, within Gen. St. §8 1796, 1797, prescribing brought after such a decree, but is an actor for relief on the ground of fraud, required by section 2174 to be brought within a certa time after discovery of the fraud.-Peck La eral Ditch Co. v. Pella Irrigating Ditch Co. (Colo. Sup.) 34 P. 988.

2. Though under the general rule, as er pressed in the title of the statute of lins tions, (Code Civil Proc. §§ 312-363.) actis can be commenced within the prescribed pe riods "after the cause of action has accrued." section 359 declares that the title does not of fect actions against stockholders of a corpora tion to enforce a liability created by law.

Establishment of in different counties, see that such actions must be brought wide "Counties," 5.

LICENSE.

By cotenant, see "Tenancy in Common," 2.
Justifying trespass, see "Trespass," 2.
Of liquor traffic, see "Intoxicating Liquors," 1.
From the government.

1. An ordinance passed by county supervisors, imposing a license tax on persons engaged in sheep raising in the county, is authorized by County Government Act, § 25, subd. 27, conferring on the supervisors power "to license, for purposes of regulation and revenue," all legai business carried on in a county, which provision is not in conflict with, but authorized by, Const. art. 11, § 12, prohibiting the legislature from imposing taxes on counties for county purposes, but permitting it by general law to vest in the corporate authorities thereof the power to assess and collect taxes for such purposes.-El Dorado County v. Meiss, (Cal.) 34 P.

716.

2. Const. art. 11, § 12, prohibiting the legislature from imposing taxes on counties for county purposes, but permitting it by general law to vest in the corporate authorities thereof the power to assess and collect taxes for such purposes, allows the imposition by county authorities of a general license tax applicable to cne doing business in the county, though not a resident thereof, as well as to the residents thereof.-El Dorado County v. Meiss, (Cal.) 34 P. 716.

3. Under the provision of a county ordinance imposing a license tax on persons engaged in "raising, grazing, herding, or pasturing" sheep, one herding and pasturing his sheep in one county, except that he drives them to his farm, in the county imposing the license tax, to be sheared, where they remain but a few days, is not liable for the license tax. El Dorado County v. Meiss, (Cal.) 34 P. 716.

three years after "the liability was created." and therefore an action against a stockholde to enforce his liability for a debt of the car poration cannot be brought after three year after the debt was created, even though mo cause of action may have accrued.-Huat ▼ Ward, (Cal.) 34 P. 335.

3. An action to recover delinquent taxe is not within Code Civil Proc. § 339, providing that an action "upon a contract obligation of liability not founded on an instrument in writ ing" must be brought within two years after the cause of action accrues, but it is with section 338, providing that an action on aiability created by statute, other than a penalty or forfeiture, must be brought within three years. Los Angeles County v. Ballerino, (Cal 32 P. 581, affirmed.-Los Angeles County Ballerino, (Cal.) 34 P. 329.

4. Pol. Code, § 3770, directs that 5 per cent. on the amount of the delinquent tax be collected in addition to such delinquent tax Held, that the added per cent. is not such s penalty or forfeiture as is excepted from the operation of Code Civil Proc. § 338, or as falls within section 340, requiring an action "up a statute for penalty or forfeiture, when the action is given to an individual and the state.” to be brought within one year after the case of action accrues; but the statute contemplates that it shall be collected at the same time and in the same manner as the delinquent tax, and the right to recover it is not lost until the cause of action on the delinquent tax is barred. Los Angeles County v. Ballerino, (Cal.) 32 P. 581. affirmed. Los Angeles County v. Ballerino, (Cal.) 34 P. 329.

--

5. Code 1881, § 26, which reduced the 20year limitation of actions to recover real estate to 10 years, has no retroactive effect, and the claimant of land out of possession had 10 years after the enactment of the Code in which to bring an action for its recovery against a per son who held it adversely at the time of and for two years prior to such enactment. Sohn

Waterson, 17 Wall. 596, and Baer v. Choir, provisions.-People v. Noyo Lumber Co., (Cal.)
32 P. 776, followed.-Moore v. Brownfield, 34 P. 96.
(Wash.) 34 P. 199.

Trusts.

13. The failure of an administrator to make
a settlement within the time provided by law
does not constitute a conversion which sets the
statute of limitations running in his favor.-Al-
len v. Bartlett, (Kan.) 34 P. 1042.

6. The statute in force when plaintiff con-
tracted to construct an irrigating ditch required
actions to enforce liens to be brought in 90
days after filing the statement. Plaintiff did
not complete the contract or file the statement
until after the taking effect of the law of
March 12, 1890, which permitted actions with-
Interruption by legal proceedings.
in one year after filing statement, and re-
14. Defendant in foreclosure having died
pealed all previous laws, but provided that
such repeal should not "affect any right or pending suit, the filing of a supplemental com-
remedy * existing, instituted, or pend-plaint, substituting the heirs and representa-
ing under the laws hereby repealed.'
tives, is not the commencement of a new ac-
Held,
that the statute of 1890 applied, and plaintiff's Code Civil Proc. § 385, providing that an ac-
tion, as regards the statute of limitations;
action was not barred.-Garland v. Bear Lake
& River Waterworks & Irrigation Co., (Utah,) tion shall not abate by death of a party, but
may be continued against his successor in in-
terest, and the substitution of defendants is
Savings & Loan Soc. v. Wackenreuder, (Cal.)
34 P. 219.

* *

34 P. 368.

Running of statute - Accrual of cause not the beginning of a new action.-Hibernia
of action.

7. The right to begin a proceeding to revive
an original judgment under Rev. St. 1887, §
4498, declaring that this may be done if the
purchaser of real estate sold on execution fails
to recover possession thereof "in consequence
of some irregularity in the proceedings concern-
ing the sale," does not accrue until the period
of redemption has expired.-Cantwell v. Mc-
Pherson, (Idaho) 34 P. 1095.

8. The right to begin a proceeding to revive
an original judgment under Rev. St. 1887, §
4498, which declares that this may be done if
the purchaser of real property sold on execution
fails to recover possession thereof "because the
property sold was not subject to execution and
sale," does not accrue until that fact is known
to the purchaser.-Cantwell v. McPherson,
(Idaho) 34 P. 1095.

New promise.

15. A new promise to pay a debt barred by
the statute of limitations will not be implied
from part payment, where the circumstances of
the payment rebut the inference of such prom-
ise.-Jones v. Langhorne, (Colo. Sup.) 34 P. 997.
16. Where the part payment is in money re-
alized from assets transferred by the debtor to
the creditor, the new promise is not to be im-
plied as of a date later than the transfer.-
Jones v. Langhorne, (Colo. Sup.) 34 P. 997.
Pleading.

the

17. Under the California practice, when all
the facts that defendant would be required to
prove to sustain his plea of the statute of lim-
itations appear on the face of the complaint,
9. Rev. St. U. S. § 1047, provides that no
defendant may take advantage thereof by de
suit or prosecution for any penalty or for- murrer; but, to uphold a demurrer, the com-
feiture, pecuniary or otherwise, accruing under plaint must show, not that the cause of action
the laws of the United States, shall be main- may be barred, but that it is barred.-Palmtag
tained, except in cases where it is otherwise. Roadhouse, (Cal.) 34 P. 111.
specially provided, unless the same is com-
menced within five years from the time when
the penalty or forfeiture accrued. Held that,
where land was subject to forfeiture more
than five years before the action to forfeit it
was commenced, and was not conveyed by, the
owner, but was held by such owner in viola-
tion of the statute rendering it forfeitable with
in five years next before the commencement of
such action, the action was not barred.-United
States v. Tithing Yard and Offices, (Utah,) 34
P. 55; Same v. Church Coal Lands, Id. 60;
Same v. Church Farm, Id.

Disabilities and exceptions.

18. Conceding that a demurrer on
ground that the complaint does not state facts
sufficient to constitute a cause of action, be-
action is barred by the statute of limitations,
cause it appears on the face thereof that the
is a sufficient plea of the statute, yet, where
the demurrer specifies a particular section of
the statute as relied upon, that section_only is
pleaded.-Bank of San Luis Obispo v. Wicker-
sham, (Cal.) 34 P. 444.

Liquidated Damages.

See "Damages," 2, 3.

Liquor Selling.

10. The fact that a mortgagor was the gen-
eral attorney of the mortgagee in other mat-
ters does not make the position of the mort- See "Intoxicating Liquors."
gagor a fiduciary one, or render it anything but
adverse to the mortgagor's interest, as far as
the mortgage is concerned, so as to estop him
to set up the statute of limitations to an ac-
tion of foreclosure. - Palmtag v. Roadhouse,
(Cal.) 34 P. 111.

11. Code Proc. § 123, providing that, if a
cause of action accrues against any person who
is out of the state, it may be commenced with-
in the time limited after his return into the
state, applies to a nonresident who came into
the state after the cause of action had accrued.
-Weber v. Yancy, (Wash.) 34 P. 473.

12. Under Code Civil Proc. § 338, subd. 4,
which provides that an action for relief on
the ground of fraud or mistake must be begun
in three years after the cause accrues, and
that the cause is not deemed accrued until
the discovery by the aggrieved party of the
facts constituting the fraud or mistake, a
relator suing in the name of the state to can-
eel a patent of lands for fraud of the pur-
chaser is not an aggrieved party, within the
meaning of the section, so that his ignorance
of the fraud can exempt the action from its

LIS PENDENS.

Purchase pendente lite.

Property held by defendant in replevin
under a redelivery bond is in custodia legis,
and persons claiming title thereto by purchase
from him pending suit are bound by a final
judgment against him.-Sherburne v. Strawn,
(Kan.) 34 P. 405.

LIVERY STABLE KEEPERS.
See, also, "Nuisance," 1.
Lien.

Civil Code, § 3051, providing that livery
stable keepers shall have a lien dependent on
possession for feeding horses, gives no lien to
a livery stable keeper for boarding a horse,
placed in his charge by a person other than the
owner, without the owner's knowledge or au-
thority.-Lowe v. Woods, (Cal.) 34 P. 959.

Local and Special Laws.

See "Constitutional Law," 7-10.

Location.

Discretion of county officers.

6. Section 8 of the county government act (Laws 1891, p 296,) authorizing the district attorney of any county, and making it his day, to institute suit for money paid out by the board of supervisors without authority of law,

Of mining claim, see "Mines and Mining," 1-4. vests the attorney with a discretion in determin

Magistrate.

See "Justices of the Peaces."

Maintenance.

Of wife, see "Husband and Wife," 11, 12.

Malice.

Definition, see "Criminal Law," 52.

MALICIOUS PROSECUTION.

Malicious attachment.

1. There can be no recovery for the malicious suing out of a writ of attachment against real estate without probable cause, when it does not appear that it was fully executed, as required by Code Civil Proc. 8542, and that a copy of the writ, description of the property, and notice were left with the occupant of the property, or posted thereon, as well as filed with the recorder of the county.-Maskell v. Barker, (Cal.) 34 P. 340.

1. Mandamus will not lie to compel the district attorney to institute a suit to recover money unlawfully paid out by the board of supervisors, as the court could not compel him to prosecute it, and it will not undertake by mandamus what cannot be accomplished.-Boyne v. Ryan, (Cal.) 34 P. 707.

2. A writ of mandamus to compel the secretary of state to affix the state seal to and countersign a commission issued by the governor to one appointed by him to office will not be denied because the commission would confer on the person appointed no actual right and therefore the writ would require the secretary to do a useless thing.-State v. Barber, (Wyo.) 34 P. 1028.

Compelling court to entertain appeal.

ing whether to bring suit which a court not control by mandamus. - Boyne v. Ryn, (Cal.) 34 P. 707.

Who may petition for writ.

7. The petitioners nominating a candidate for a public office have such special and peculiar interest in having his name appear on the of cial ballots as is necessary to entitle them to maintain an action to require the secretary of state to certify the fact of his nomination te the varions county clerks in the district-Si son v. Osborn, (Kan.) 34 P. 747.

Marriage.

See "Divorce;" "Homestead;" "Husband and
Wife."

MASTER AND SERVANT. See, also, "Negligence;" "Principal and Agent:” "Railroad Companies."

Wages.

1. The fact that plaintiff entered defend ant's service at a certain rate per month, and labored continuously thereafter till the end of the time for which he asks wages, while t tinued throughout, may be overcome by er raises a presumption that the rate of wages dence that the old contract was ended, and a new one begun, with no particular wages specfied; and such evidence, if contradicted, is fr the jury alone.-Burden v. Cropp, (Wash.) 34 P. 834. Negligence of master.

2. Plaintiff, a saw operator in defendant's factory, while cleaning snow from logs prepar tory to sawing them, was ordered by defendat "not to take so much time in cleaning the wood, but to go over it quickly," and, while sawing a log from which he had not cleaned the snow, his finger was cut by contact with the saw. Held, that such order did not establish p gence on defendant's part.-Wanner v. Kinde, (Colo. App.) 34 P. 1014.

3. Plaintiff was employed by defendant in sorting and carting away ore on a roadway constructed across the face of a body of cr with a precipice 75 feet below it, and a bank running 30 feet above it. A shot having bea fired to dislodge ore above the roadway, anoth er workman, experienced in such emplerment, by direction of defendant's foreman. examined the bank above the roadway by letting himself down from the top, and felt for loose ore with a pick. After this examination that the roadway was safe, and to set to wes was made, plaintiff was told by the foreras? again. Shortly after the bank above the roadway, fell down, and knocked plaintiff over the precipice below. Held, that there was no evi dence of negligence on defendant's part.-B4. The superior court will not be required nett v. Tintic Iron Co., (Utah,) 34 P. 61. by mandamus to recognize an attempted appealing," because of the liability of the stick to 4. The danger of moving cars by "stalfrom 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 s servant ordered to undertake it will see and comprehend the hazard, and he is not Habe for failure to give warning.-Watts v. Hart, (Wash.) 34 P. 423, 771.

3. Mandamus is the proper remedy to reinstate an appeal properly taken to the district court, and which it has refused to entertain for supposed want of jurisdiction.-State v. District Court of First Judicial District, (Mont.)

34 P. 298.

To municipal boards and officers.

5. The fixing of water rates requires the exercise of discretion and judgment, and, where the board authorized by law to fix such rates has exercised its discretion by passing an order for that purpose, it cannot be compelled by mandamus to change its judgment, or to take further action on the order.-Jacobs v. Board Supr's City and County of San Francisco, (Cal.) 34 P. 630.

Dangerous premises.

5. A cable railway company, in construct ing its power house so that the doorway through which cars are taken out is only a few inches wider than the cars, and the track on which they are run out is on a slight up grade, and in

open between the tracks, so that employes, in
pushing a car out, have to push on the side, and
push rapidly until they reach the doorway, and
then let go and catch it again after it has pass-
ed through the doorway, is not guilty of negli-
gence which will render it liable to an employe
who, by failing to let go in time, is caught be
tween the side of the doorway and a car, as
there is no hidden danger.-Jennings v. Tacoma
Railway & Motor Co., (Wash.) 34 P. 937.

Morgan v. Carbon Hill Coal Co., (Wash.) 34
P. 152, 772.

13. A section hand on a hand car going to
his place of work to aid in repairing the rail-
way, and the conductor and engineer of a
working train also engaged in repairing the
railway, are fellow servants, and the company
is not liable for injuries to the section man
caused by the negligence of the conductor and
engineer. Atchison, T. & S. F. R. Co. v. Mar-
tin, (N. M.) 34 P. 536; Martin v. Atchison, T.
& S. F. R. Co., Id.

6. A railroad company which sets a laborer
to work near an overhanging embankment, with
knowledge on the part of its foreman that there 14. The engineer and fireman of a locomo-
is a crack in the embankment, conspicuous from tive and a common laborer, all of whom are en-
the rear, but not visible from the front, is lia-gaged in moving cars from a spur track, are
ble to the laborer for injuries sustained from fellow servants, and the latter cannot recover
the falling of the embankment, since it failed from the master for the former's negligence.-
to provide him with a safe place in which to Watts v. Hart, (Wash.) 34 P. 423, 771.
work.-Elledge v. National City & O. Ry. Co.,
(Cal.) 34 P. 720; Id. 852.

7. The fact that the embankment may
have been secure when the excavation com-
menced, and that it became unsafe by the pro-
cess of excavation, does not affect the com-
pany's liability to plaintiff, who entered its em-
ploy a few hours before he was injured, since,
so far as he is concerned, the place was danger-
ous when he was set to work.-Elledge v. Na-
tional City & O. Ry. Co., (Cal.) 34 P. 720; Id.
852.

Defective appliances.

8. A master does not warrant absolutely
the safety of the appliances used in conducting
his business, but performs his duty if he fur-
nishes his servants with such as are reasonably
safe and adequate.-Watts v. Hart, (Wash.) 34
P. 423, 771.

Pleading.

9. In an action for injuries to an employe,
an allegation that defendant's foreman and
agents were "negligent and careless" is not
equivalent to alleging that they were "incom-
petent."-Kelly v. Cable Co., (Mont.) 34 P. 611.

Sufficiency of evidence.

15. A section man and the foreman of the
gang are fellow servants, although the foreman
has charge of the men, hires and discharges
them, and directs their work, if he also works
as the other men, and has nothing to do with
paying them. O'Brien, C. J.. dissenting.-At-
chison, T. & S. F. R. Co. v. Martin, (N. M.) 34
P. 536; Martin v. Atchison, T. & S. F. R. Co.,
Id.

16. A foreman who had no other duty than
to load cars, and is not shown to have had any
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
the duty of the men to obey him; and where
they did obey him they assumed the risk.-
Watts v. Hart, (Wash.) 34 P. 423, 771.

Negligence of vice principal.

17. In an action for injuries received by
plaintiff while on a hand car from being struck
tiff and other section men were going, of their
by a work train, the evidence showed that plain-
own volition, earlier than usual to their work;
that the work train was running on telegraphic
orders; and that the men on the hand car knew
of the company's order that "every man at
work on the track must bear in mind that, in
operating the road under telegraphic orders, a
train may pass at any moment." Held, that
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.

Negligence of fellow servants.

10. Plaintiff was injured by a fall while
employed as a carpenter by defendant, and in
an action therefor he alleged that the fall re-
sulted from the incompetency of H., a coserv-ligence of any superior servant controlling the
ant, and that because of the careless and un-
skillful treatment of the wound by a surgeon
employed by defendant it was necessary to
amputate plaintiff's leg. The evidence failed
to show any lack of skill by H., or the neces-
sity for his exercise of any particular skill,
or that defendant had knowledge of any in-
competency of H. of which plaintiff was igno-
rant. Plaintiff's evidence tended to show that
H. was not working with plaintiff at the time
of his injury, and that plaintiff had stated
that he alone was to blame; that the surgeon
employed was duly qualified, under the laws
of the state, to practice his profession; and it
failed to show any injury to the leg, as a re-
sult of a lack of skill. Held, that a nonsuit
was properly directed.-Jorgenson v. Butte &
Montana Commercial Co., (Mont.) 34 P. 37.
Fellow servants and vice principals-
Who are.

11. Knowledge as to the dangerous character
of the place in which plaintiff was set to work,
by the road master of defendant railroad com-
pany, who was charged with performing what-
ever duty the company owed its employes, is
imputable to the company itself, so as to render
it liable for plaintiff's injuries.-Elledge v. Na-
tional City & O. Ry. Co., (Cal.) 34 P. 720; Id.
852.

12. One appointed by a mining company, as
required by law, to examine its mine daily for
fire damp, with authority to forbid men from
working in any part of the mine which may
seem unsafe, is not a vice principal of the com-
pany, so as to make the latter liable for his
negligence in opening a lamp to light his pipe
while engaged in conversation in the mine.

18. The fact that an engineer once ran his
train in 40 minutes over a distance scheduled
for an hour, though he knew that hand cars
and sectionmen might be on the track up to
10 minutes before schedule time, no accident
having in fact occurred, does not show that he
was unfit for his position, and that the com-
pany ought to have discharged him after no-
tice.-Holland v. Southern Pac. Ry. Co., (Cal.)
34 P. 666.

19. A bridge carpenter, employed by a rail-
road company, who is injured while loading
timbers from a bridge on a car for transporta-
tion to another point, is entitled to the benefit
of Gen. St. 1889, c. 23, § 93, making railroad
companies liable for injuries received by an em-
agents, or mismanagement of its engineers, or
ploye in consequence of the negligence of its
other employes.-Chicago, K. & W. R. Co. v.
Pontius, (Kan.) 34 P. 739.
Assumption of risks.

20. The doctrine that a servant has a right
to assume that his master has furnished him a
safe place in which to work, does not apply
where dangers are apparent.-Jennings v. Ta-
coma Railway & Motor Co., (Wash.) 34 P. 937.

21. Where a master and servant are equal-
ly ignorant of the dangers incident to the work,
the servant assumes the risk.-Watts v. Hart,
(Wash.) 34 P. 423, 771.

22. Plaintiff was employed as a sack sewer
in defendant's flour mill, and to do such other
work as the foreman might direct. In com-