marriage ceremony was to be performed the next week, and the ac-
knowledgment of the man that the woman was his wife, in the presence
of witnesses, is not sufficient to constitute marriage. Estate of Grimm,
796.

2. PRESUMPTION REBUTTAL.

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- The presumption of marriage arising from

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the illicit cohabitation and reputation of marriage between a man and
woman is rebutted by evidence that no marriage ceremony has in fact
taken place between them. Id.

3. BREACH OF PROMISE of Marriage - IMPROPER MOTIVES OF DEFENDANT.
- INSTRUCTION ASSUMING FACTS NOT PROVED. — In an action for breach
of promise of marriage, where the record discloses no sort of improper
motive on the part of defendant in entering into the alleged contract of
marriage, it is prejudicial error toward him for the court to assume and
to intimate to the jury that evidence exists tending to show such im-
proper motive. Therefore, in such a case, an instruction that " a man
who enters into a contract of marriage with a woman, with improper
motives, and then ruthlessly and unjustifiably breaks it off, does a wrong
to the woman, for which she is entitled to exemplary damages," is erro-
neous. Moore v. Hopkins, 248.

4. CRUELTY OF TREATMENT AS GROUND FOR DIVORCE A MENSA ET THORO. —
Outbreaks of passion and violence on the part of a wife when she is
under the influence of drink and beyond self-control do not constitute
such cruel treatment of the husband as will justify a divorce a mensa et
thoro. Shutt v. Shutt, 519.

5. DRUNKENNESS DOES NOT CONSTITUTE SUCH EXCESSIVELY VICIOUS CONDUCT
on the part of a wife as will justify a divorce a mensa et thoro under the
Maryland code, although it may be accompanied with gross and revolt-
ing language, and lead to disagreeable broils in the family. Id.

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6. MORPHINE HABIT NOT HABITUAL DRUNKENNESS. Proof of habitual in-
toxication produced by the hypodermic administration of morphine will
not sustain a complaint for divorce under the Illinois statute alleging
"habitual drunkenness as a cause of action, for the reason that the
words "habitual drunkenness," as used in the statute, mean that state
or condition which follows from taking into the body, by drinking or
swallowing, excessive quantities of intoxicating liquor. Youngs v. Youngs,
313.

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7. CRUELTY-WHAT IS NOT. — In an action for divorce on the ground of
cruelty, where the violence complained of was provoked by the complain-
ant's attempts to take morphine from her husband while he was attempt-
ing to administer the drug to himself while in a state of partial or total
delirium, and his acts consisted mainly in resisting such attempts, the
complainant cannot set up the treatment thus received by her as extreme
and repeated cruelty within the meaning of the statute. ld.

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8. CONDONATION OF CRUELTY. In an action for divorce on the ground of
cruelty, where it is shown that the last act of violence to the complainant
was committed three months before she ceased to live and cohabit with
the defendant, there is such condonation as will bar the complainant's
right to relief, in the absence of proof of subsequent conduct on the part
of defendant sufficient to do away with such condonation. Id.
9. ALIMONY PERMANENT ALLOWANCE.

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Alimony, in its strict legal
sense, and as used in section 137, Civil Code of California, proceeds only
from husband to wife, and as a means of support for her pendente lite.
Therefore, after divorce, there can be no alimony; but the permanent

allowance provided for in section 139 of such code, which may be given the wife after divorce for an offense of the husband, is not alimony, nor a mere substitute for the wife's interest in the community or separate property of the husband. It is given the wife as compensation for the wrong done to her by the husband. Ex parte Spencer, 266.

10. PERMANENT ALLOWANCE FOR SUPPORT OF WIFE. When a divorce is granted for the offense of the husband, the court may, under section 139, Civil Code of California, independent of the property then in esse, compel him to pay out of his future earnings a suitable monthly allowance for the support of the wife during life, or for a shorter period, having regard to their circumstances, the husband's earnings, or ability to earn money, by way of compensation to the wife for deprivation growing out of his own wrong. Such allowance may be increased or diminished as, in the opinion of the court, the changed circumstances of the parties may warrant. Id.

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1. PERMANENT ALLOWANCE TO WIFE-CONTEMPT OF HUSBAND IN NOT PAYING. When the court granting a divorce has ordered the husband to pay a permanent monthly allowance for the support of his divorced wife, it may imprison him for contempt for violation of its order. His only remedy is to purge himself of such contempt by showing, to the satisfaction of the court, that he is unable to obey the order, and that his inability has not been caused by his own act for the purpose of avoiding payment. When imprisoned for violation of such order, be is not entitled to his discharge upon habeas corpus, if the court, finding him able to pay the allowance, has jurisdiction as shown by the record ld. 12. ALIMONY MAY BE ALLOWED IN AN ACTION TO HAVE A MARRIAGE DECLARED VOID because the defendant at the time of such marriage was the husband of another woman who is still living. Lea v. Lea, 692. 13. SUIT FOR DIVORCE, WHAT IS. A SUIT TO HAVE A MARRIAGE DECLARED VOID because one of the parties was incompetent to enter into it is properly styled a suit for a divorce, and the woman who is plaintiff in such suit may be awarded alimony pendente lite. Id.

See HOMESTEAD, 1; Husband and Wife, 12; WILLS, 22, 23.

MARRIED WOMEN.

See ESTOPPEL, 3-5; WILLS, 25, 26.

MASTER AND SERVANT.

1. ONE WHO IS OPERATING A COAL MINE BY THE AID OF CARS AND
OTHER MACHINERY, while he is not an insurer of the safety of his
employees, is yet bound to do all that human care, vigilance, and fore-
sight can reasonably do, consistent with the practical operation of the
mine, to put and keep it and the instrumentalities there used in a safe
and good condition. South West Imp. Co. v. Smith, 59.

2. MASTER WHO UNDERTAKES TO RUN DANGEROUS MACHINERY WITH
INSUFFICIENT HELP, in consequence of which a servant is injured, 13
guilty of negligence, and is answerable to the servant so injured. Id.
3. A MASTER MAY BE HELD ANSWERABLE FOR INJURIES SUFFERED BY Á
SERVANT through the neglect of the master to supply with sufficient
brakes a train of cars which was being operated in a coal mine, in wh.ch
the servant was employed, or from the operating of such cars in the

absence of insufficient help, whereby there was a failure to properly
sprag or chock them. Id.

4. MASTER'S PRESUMPTIVEe Knowledge of DANGEROUS MACHINERY. — An
electric light company is presumed to know the dangerous character and
condition of its wires, endangering the person and life of its employee in
the discharge of his duty; and ignorance of the danger on the part of
the company will not excuse it from liability to an employee who is in-
jured without notice of the peril to which he is exposed. Myhan v.
Louisiana etc. Co., 436.

5. DUTY TO WARN EMPLOYEE OF DANGEROUS MACHINERY.

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An electric light

company is bound specially to warn its employee of the nature of the
danger arising from coming in contact with its exposed wires, and it
will not be excused in case of injury, unless it proves that the employee
well knew the danger, and, notwithstanding, exposed himself willingly
and deliberately to it. Id.

6. EMPLOYEE'S PRESUMPTIVE IGNORANCE OF DANGEROUS MACHINERY. - An
employee of an electric light company is presumed to be ignorant of the
danger arising from coming in contact with exposed wires, and in case of
injury the burden of positive proof is on the company to show notice and
knowledge of the danger on the part of the employee. Id.

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7. CONTRIBUTORY NEGLIGENCE - DANGEROUS EMPLOYMENT. It is not con-
tributory negligence on the part of an employee to engage in a danger-
ous occupation. The risk assumed by the servant is the ordinary
hazard incident to the employment, and unless the act causing the
injury is necessarily and inevitably dangerous, no negligence can be
imputed to him. Id.

8. EMPLOYEE MAY ACT UPON PRESUMPTION that the employer will not
expose him to unnecessary risk, and has taken all necessary precautions,
and may rely upon the care and trust to the superior knowledge, infor-
mation, and judgment of the employer. Id.

9. EMPLOYEE IS NOT BOUND TO INQUIRE AS TO LATENT, but only patent,
defects in machinery, and may presume that this inquiry has been made
by the employer, upon whom the duty devolves; and although the ser-
vant may know of the defects, this will not defeat his claim for damages
for injury, unless it is shown that he knew that the defects were
dangerous. Id.

10. MASTER IS LIABLE FOR SUBJECTING HIS SERVANT, THROUGH NEGLI-
GENCE, to greater risks than those which fairly belong to the employ-
ment, and the servant need only raise a reasonable presumption of
negligence on the part of the master, in order to recover for an injury
received. Id.

11. SERVANT'S Knowledge of Dangerous AgeNCY. - Ignorance, on the part
of a servant, of the dangerous character of the agency which he is called
upon to use is no part of his cause of action for an injury sustained in the
use of such agency. Hence, in an action by a street-car driver to recover
for an injury from a vicious horse furnished for his use by the company, he
need not allege his knowledge or lack of knowledge of the viciousness of
the animal. Donahue v. Enterprise R. R. Co., 854.

12. SERVANT'S DUTY TO KNOW OF DANGEROUS AGENCY. - A servant suing
to recover for personal injury need neither allege nor prove his ignorance
or lack of means of knowing that the agency which he was called upon
to use was dangerous and unsafe, as it is the duty of the master to know
this. That the servant knew or ought to have known the dangerous
AM. ST. REP., VOL. XVII. -63

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character of the agency involves his contributory negligence, and is sa
affirmative defense, imposing the burden of proof on the master. Id.
13. RISKS ASSUMED, AND RIGHTS TO INSTRUCTIONS RELATING THERETO.
A servant assumes the risks ordinarily incident to his employment, but
he has the right to expect his employer to provide machinery, tools, and
appliances reasonably safe for his use, and he assumes no risks growing
out of their defective character, unless he has been fully advised that
they are defective and dangerous, or such defect or danger is apparent.
Rummel v. Dilworth, 827.

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14. DUTY TO PROTECT YOUNG SERVANTS. — It is the duty of the master to
take notice of the age and ability of young servants, and to use ordinary
care to protect them from risks which they cannot properly appreciate,
and to which they should not be exposed. Id.

15. INSTRUCTIONS AS TO RISKS QUESTION OF FACT. If a young servant em-
ployed in one capacity is injured while performing a different and more
dangerous duty, which should have been performed by another and older
servant, it is a question of fact for the jury whether the young servant
had been sufficiently warned and instructed as to the dangerous employ-
ment, and whether the master had done all that was reasonably neces
sary to protect the servant. Id.
16. RISKS ASSUMED BY Servant.

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Id.

-A servant must know the dangers of his
employment, by actual experience in the employment, or by instructions
of his master, before he can be held to have assumed them.
17. RIGHT OF SERVANT TO PROTECTION. -The scope of duty within which
a servant is entitled to protection is to be defined by what he was em-
ployed to perform, and what, with the knowledge and approval of his
master, he did perform, rather than by the verbal designation of his
position and employment. Id.

18. A MINOR no less than an adult servant takes upon himself the ordinary
hazards incident to the service in which he is engaged. South West Imp.
Oo. v. Smith, 59.

19. EMPLOYEE HAVING FULL Knowledge of THE EXISTENCE OF A DEFECT
IN MACHINERY, and continuing its use until the happening of an accident
chargeable to the defect, and by which he is injured, cannot recover of
his employer therefor. Odell v. New York etc. R. R. Co., 650.
20. A SERVANT IS ANSWERABLE TO A FELLOW-SERVANT INJURED BY HIS
NEGLIGENCE. - Where two or more persons are engaged in the same
general business of a common employer, in which their mutual safety de-
pends somewhat upon the care exercised by them respectively, each owes
to the other a duty, resulting from their relation of fellow-servants, to
exercise such care in the prosecution of their work as men of ordinary
prudence use in like circumstances, and he who fails in that respect is
responsible for the resulting physicial injury to his fellow-servant. Hare
v. McIntire, 476.

21. INDEPENDENT CONTRACTOR IS ONE WHO, EXERCISING INDEPENDENT EM-
PLOYMENT, CONTRACTs to do a piece of work according to his own methods,
and without being subject to control of his employer, except as to the
result of his work. Powell v. Construction Co., 925.

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22. EMPLOYER OF INDEPENDENT CONTRACTOR NOT LIABLE FOR LAtter's
NEGLIGENCE WHEN. One who employs a fit and proper person as an
independent contrator to do work not in itself unlawful, or a nuisance,
or necessarily attended with danger to others, is not responsible for such
contractor's negligence, nor for that of his subcontractor or servants. Id

23. STIPULATION THAT WORK SHALL BE DONE TO SATISFACTION OF EM-
PLOYER'S ENGINEER, EFFECT OF. — The fact that a general railway con-
tractor sublets a part of the work embraced in his own contract, and
stipulates that the work is to be done in a thorough and workman-like
manner, to the satisfaction of his chief engineer, is not evidence of such
an assumption of a right to control, as to the details or methods of doing
the work, as will make him responsible for the wrongs of such subcon-
tractor or of his servants. Nor does the fact that the contract provides
that the track is to be laid as far as such engineer shall order take it out
of the rules applicable to independent contractors. Id.

24. INDEPENDENT CONTRACTOR LIABLE FOR ACTS OF SERVANT LENT TO HIM
WHEN. -The fact that one is the general servant of one employer does
not, as matter of law, prevent him from becoming the particular ser-
vant of another, who may become liable for his acts. If he was perform-
ing a special service for an independent contractor, he will be, as to that
particular service, the servant of him for whom such service was per-
formed, although he may be the general servant of another. Id.
25. PAROL EVIDENCE ADMISSIBLE TO SHOW RELATION OF PARTIES DIFFER-
ENT FROM THAT STATED IN CONTRACT. Although upon the face of a
written contract the relation between the parties thereto seems to be that
of employer and independent contractor, it is competent to show that the
parties, as matter of fact, by their conduct, put a different construction
upon it, and that in fact the relation was that of master and servant. Id.
See CARRIERS, 13, 14-19; RAILROAD COMPANIES, 8, 9.

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MINOR SERVANTS.

See MASTER AND SERVANT.

MONOPOLIES.

See CONTRACTS, 6-8; CORPORATIONS, 11-16.

MORTGAGES.

1. PRIORITY AS BETWEEN ASSIGNEES OF BONDS SECURED BY ONE MORT
GAGE. -As between the assignees of two bonds maturing at different
times, and secured by one mortgage, there are no priorities, in the absence
of express stipulation on the subject, and each is entitled to share pro
rata in the proceeds of the sale of the mortgaged premises, if not suffi
cient to pay the mortgage debt in full. Gordon v. Hazzard, 857.

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2. VOID FORECLOSURE SALE EFFECT ON PURCHASER OR HIS GRANTEE.
- Where a mortgagee becomes the purchaser of the mortgaged property
at a void foreclosure sale, obtains his deed, enters into possession, and
then conveys the premises, his grantee, or any successor in interest of
the latter, is an assignee of the mortgage debt and mortgage, and con-
sidered as a mortgagee in possession. Cooke v. Cooper, 709.
3. RIGHTS OF MORTGAGEE IN POSSESSION AFTER DEFAULT. While a mort-
gagee cannot maintain a possessory action to recover possession of the
mortgaged premises by reason of the default of the mortgagor, still, if
he can make a peaceable entry upon the mortgaged premises after condi-
tion broken, he may do so, and may thereafter maintain such possession
against the mortgagor and every person claiming under him subsequent
to the mortgage, subject to be defeated only by the payment of his debt.

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