with salaries and traveling expenses, without making reference to the plaintiff, is not libelous per se.-Id.

12 (Nev.) In action for libel by words not actionable per se, special damages must be alleged and proved.-Talbot v. Mack, 169 P. 25.

LIENS.

See Attorney and Client, 186-190; Bail-
ment; Bankruptcy, 188; Frauds, Stat-
ute of, 56; Garnishment, 105; Judg-
ment, 780; Mechanics' Liens; Mortgages,
151-186; Municipal Corporations,
519; Pledges; Subrogation, 23.

LIMITATION.

19 (Nev.) In determining whether words charged are libelous per se, they are to be taken in their plain and natural import according to the ideas they convey to those to whom they are addressed; reference being had not only to See Insurance, 812. the words themselves but also to the circumstances under which they were used.-Talbot v. Mack, 169 P. 25.

21 (Nev.) In action for libel there can be no recovery unless the actionable words or assertions referred to the plaintiff at least with reasonable certainty.-Talbot v. Mack, 169 P. 25.

IV. ACTIONS.

(A) Right of Action and Defenses.

70 (Cal.App.) Where original and amended complaint stated an action for libel and slander, it was incumbent upon the plaintiff to file the bond required by St. 1871-72, p. 533.-Huffaker v. McVey, 169 P. 704.

(B) Parties, Preliminary Proceedings, and Pleading.

86(1) (Nev.) Language or terms, which are not libelous per se, when viewed in the light of their general acceptation and understanding in the community or vicinity in which they are used, cannot be made so through the function of force of an innuendo.-Talbot v. Mack, 169 P. 25.

The innuendo will not introduce new matter, nor will it be permitted to aid to the extent of enlarging the meaning of the words or expres

sions used.-Id.

In action for libel, if the words or expressions complained of are ambiguous or equivocal, the innuendo may assign the true meaning the plaintiff believes them to bear; but if the words alone, or the words limited by circumstances duly pleaded, are not defamatory, the innuendo cannot make them so.-Id.

89(2) (Nev.) In action for damages by words not actionable per se, the allegation "that by means of said false, libelous and defamatory publication or publications the plaintiff herein was injured in his reputation and good name and standing to his damage in the sum of $50,000," is insufficient as an allegation of special damages.-Talbot v. Mack, 169 P. 25.

V. SLANDER OF PROPERTY OR
TITLE.

LIMITATION OF ACTIONS.

See Adverse Possession; Death, 39; Railroads, 436; Time; Usury, 109.

I. STATUTES OF LIMITATION. (B) Limitations Applicable to Particular Actions.

31 (Cal.App.) Complaint for failure of defendant physician to effect a cure by operation held not to state cause of action for breach of der Code Civ. Proc. § 340, subd. 3.-Marty v. contract, but for tort, barred in one year, unSomers, 169 P. 411.

34(3) (Cal.App.) Under Code Civ. Proc. § 338, subd. 1, action for damages sustained through reliance on false certificate of acknowledgment of notary was barred in three years.-Peterson v. Title Guaranty & Surety Co., 169 P. 239.

II. COMPUTATION OF PERIOD OF

LIMITATION.

(A) Accrual of Right of Action or Defense.

to recover property 45 (Utah) Action pledged to secure usurious loan held not barments, extending time of payment, and promred where defendant had been accepting payising to keep the property for plaintiff.-Conner v. Smith, 169 P. 158.

47(2) (Wash.) Existence of railroad right of way granted by Act Cong. July 2, 1864, held breach of covenant of warranty, and not of covenant against incumbrances, so that limitations did not run until eviction.-McDonald v. Ward, 169 P. 851.

of deed from land occupied by telegraph line Grantee held constructively evicted as of date and land lying between the line and railroad company's tracks, so that limitations ran from

that date.-Id.

55(5) (Kan.) Action for damages caused by subsidence of surface of land due to mining coal therefrom is not barred by limitations until two years have elapsed after the subsidence.-Walsh v. Kansas Fuel Co., 169 P. 219.

E) Absence, Nonresidence, and Concealment of Person or Property.

130 (Okl.) In action for slander of title based on prevention of sale, plaintiff need not show enforceable contract with prospective pur-85(2) (Utah) Comp. Laws 1907, § 2888, exchaser; it being sufficient to show that such purchaser was able, ready, and willing, and would have purchased but for defendant's wrongful act.-Smith v. Autry, 169 P. 623.

LICENSES.

See Contracts, 131; Negligence, 32; Physicians and Surgeons, 6; Telegraphs and Telephones, 15.

I. FOR OCCUPATIONS AND PRIVI-
LEGES.

34 (Mont.) Where city officials exacted payments from plaintiff for the privilege of keeping a pop corn wagon on a street corner in violation of an ordinance, plaintiff cannot recover if the city had the right to permit him for a price to occupy the street, although the method was irregular.-Brush v. City of Hele

cludes the time of a debtor's absence from the state, from the period of limitations though process might have been served at place of abode of his family.-Keith-O'Brien Co. v. Snyder, 169 P. 954.

Under Comp. Laws 1907, § 2888, statute of limitations runs only while debtor is openly in state, and immediately on his leaving it statute again ceases to run until his return, and in computing time all periods of absence must be added together.-Id.

(H) Commencement of Action or Other Proceeding.

130(3) (Kan.) Plaintiff whose action is disposed of otherwise than on merits cannot in new action brought within year ingraft causes that are barred upon causes pleaded in first action that are not barred.-Brice-Nash v. Hutchinson Interurban Ry. Co., 169 P. 189.

Cause of action for damages for personal in

142 (Cal.) Under statute of limitations, a new promise made to one partner to pay a partnership debt inures to the benefit of all the partners.-Dixon v. Bartlett, 169 P. 236. 148(4) (Cal.) A promise to pay a foreign See Bailment, 18. note merely extends the time for suing on the note, and does not constitute a new cause of action, or change the obligation to other than a foreign note, barred in two years by Code Civ. Proc. § 339, subd. 1.-Dixon v. Bartlett, 169

A letter: "As to what I owe you, F., *
you will be paid. As for Jack, there are. some
things between us that need adjusting. It was
my impression that the notes did not run out
for another year"-to partners, held sufficient See Railroads,
as a new promise to pay.-Id.

IV. OPERATION AND EFFECT OF
BAR BY LIMITATION.

167(1) (Cal.) Where, in action by stockholder's executor to recover dividends, stock

holder's widow was substituted and claimed See Banks and Banking, 176, 180; Usury, dividends under a pledge of the stock, running of limitations held not a defense.-Savings Union Bank & Trust Co. v. Crowley, 169 P. 67.

LOCAL OPTION.

See Intoxicating Liquors, 32, 327.
LOGS AND LOGGING.

Pledgee receiving stock pledged during ex-
istence of secured obligation and still in pos-
session, held to have a lien of which she could
not be divested without payment notwithstand- See Woods and Forests.
ing running of limitations.-Id.

V. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.

179(3) (Cal.) An allegation that "on March 9, 1912," in "writing signed by the defendant, in consideration of the foregoing facts, he ac- See Master and Servant, 121, 233, 239. knowledged said indebtedness and promised to pay the same," is sufficient, as pleading the legal effect of a new promise after limitations have expired.-Dixon v. Bartlett, 169 P. 236.

58(2) (Kan.) In action for malicious prosecution and false imprisonment growing out of suspected origin of fire destroying plaintiff's insured house, admission of evidence that plaintiff was guilty of violation of prohibitory law was unwarranted.-Tersina v. Liverpool & London & Globe Ins. Co., 169 P. 559.

68 (Okl.) Where the evidence shows that prosecutor laid all the facts before competent counsel, and acted in good faith upon his advice, he is exonerated from liability for exemplary damages.-Jones Leather Co. v. Woody, 169 P.

878.

71(1) (Okl.) Where evidence fails to show malice in instituting proceedings and absence of probable cause, it is the duty of the court, on request, to direct a verdict for defendant.Jones Leather Co. v. Woody, 169 P. 878.

MALPRACTICE.

See Physicians and Surgeons, 18.

MANDAMUS.

I. NATURE AND GROUNDS IN GEN

ERAL.

which was refused by state treasurer, mandamus will not lie to compel payment.-Id.

117 (Idaho) When state board of equalization has determined mileage of power company's electric lines in county and assessed a valuation, duty of state auditor under Laws 1913, c. 58, § 96, to certify such amount to county may be enforced by mandamus.-Kootenai County v. State Board of Equalization of State of Idaho, 169 P. 935.

117 (Utah) Comp. Laws 1907, § 2421, subd. 15, empowering state auditor to bring suits for official delinquencies in tax matters, authorizes mandamus proceedings against county officials to enforce proper assessment of coal lands.— Ririe v. Randolph, 169 P. 941.

Mandamus to compel county officers to properly assess coal lands cannot be maintained after assessment had been completed and assessment roll had passed beyond defendants' control, although Comp. Laws 1907, § 2545, confers certain powers regarding property escaping taxation.-Id.

(C) Acts and Proceedings of Private Corporations and Individuals.

129 (Cal.App.) Stockholder's right to inspect corporate books may be enforced by writ of mandate.-Webster v. Bartlett Estate Co., 169 P. 702.

(Ariz.) The function of a writ of mandate is to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station, and issues when the party has no legal remedy and the duty is clear and indisputable.-Dey v. McAl- See Homicide. ister, 169 P. 458.

MANSLAUGHTER.

MARK.

16(1) (Cal.App.) On mandamus to compel superior court to grant application to prosecute See Evidence, ~511. action in forma pauperis, where it appears that since proceeding was commenced the lower court had granted application, petition will be dismissed.-Wait v. Superior Court in and for Sacramento County, 169 P. 916.

16(2) (Utah) Mandamus cannot be maintained against delinquent public official if his functions regarding matter involved are ended. -Ririe v. Randolph, 169 P. 941.

II. SUBJECTS AND PURPOSES OF
RELIEF.

(A) Acts and Proceedings of Courts,
Judges, and Judicial Officers.

31 (Ariz.) Mandamus will issue where a judge refuses to set a cause for trial, because, in his opinion, there may be another cause pending on appeal which involves the same issues.-Dey v. McAlister, 169 P. 458.

31 (Wash.) Where a judge refuses to issue a writ of habeas corpus or to proceed to a hearing and makes entry, "Application for writ denied," mandamus will not lie to compel issuance or hearing.-State v. Mackintosh, 169 P. 990.

(B) Acts and Proceedings of Public Offì-
cers and Boards and Municipalities.
74(4) (Ariz.) Board of county supervisors,
which is required to canvass returns of elec-
tion, may by mandamus be compelled to can-
vass returns, where it failed to perform its
duty as required by law.-Hunt v. Campbell,
169 P. 596.

79 (Kan.) A writ of mandamus will not issue to compel board of education of a city of the second class to employ an additional teacher in any particular school in city.-Miles v. Undenstock, 169 P. 221.

MARRIAGE.

See Adultery,12; Breach of Marriage
Promise; Divorce; Husband and Wife;
Rape, 52.

28 (Okl.) Marriage being a civil contract, no legal forms or religious solemnities or special mode of proof are required at common law, and marriage may result without formalities required of parties as evidence of their assent to marriage contract. Coleman v. James, 169 P. 1064.

40 (4) (Okl.) As presumption is in favor of marriage and against concubinage, the fact that a man and woman have openly lived as husband and wife for a considerable time, and are reputed as such, may give rise to presumption of previous actual marriage.-Coleman v. James, 169 P. 1064.

47 (Okl.) Where a man and woman lived together, and question is whether their relation is matrimonial or meretricious, their declarations during such relation as to the nature thereof are admissible.-Coleman v. James, 169 P. 1064.

On issue of common-law marriage, declarations of alleged husband, deceased, that he was not married to alleged wife, and deeds executed by him as a single man, are admissible to disprove such relation.-Id.

50 (1) (Okl.) In a will contest by one claiming to be the widow of testator, evidence held not sufficient to show that relation between plaintiff and testator were meretricious and not matrimonial.-Coleman v. James, 169 P. 1064.

50(4) (Okl.) Party's admissions of fact of his marriage, when deliberately made, are entitled to great weight; but denials are entitled to little weight in opposition.-Coleman v. James, 169 P. 1064.

109 (Okl.) Where funds are in state treasury to satisfy warrant duly drawn against such funds, mandamus may issue to compel payment by state treasurer.-Dunlop v. Wilkin-65 (Cal.) The same liberality in setting Hale State Bank, 169 P. 893. aside defaults in actions for divorce is present, if not with more force, when the action is for annulment of marriage.-Benson v. Benson, 169 P. 369.

Where, under Laws 1910-11, c. 130. state printer let contract for printing, and state auditor, after claims growing out of contract had

default judgment of annulment of marriage, an|872. Owing to the great increase of matter affidavit of merits is not required, and therefore heretofore classified to this section, we have inartificiality in an affidavit of merits is imma- made a new subdivision, consisting of numterial.-Id. ber sections 346-420, at the end of this topic, where the matter in this and future index-digests will be found.

MARRIED WOMEN.

See Husband and Wife.

MARSHALING ASSETS AND SE-
CURITIES.

See Assignments for Benefit of Creditors,
311.

(Cal.) The right to marshal is a mere equity which may never be invoked to accomplish inequity, and can only become vested by due demand, and cannot be invoked long after sales of trust property and disbursement of the money.-Harrington v. Taylor, 169 P. 690.

MASTER AND SERVANT.

See Intoxicating Liquors, 169; Trial, 252.

I. THE RELATION.

(B) Statutory Regulation.

162. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future index-digests will be found.

II. SERVICES AND COMPENSATION. (B) Wages and Other Remuneration.

77 (Or.) Under notice posted by company and payment by employé of hospital fees, held, that contract resulted, requiring company to furnish physician's services to employé, whose duty it was to apply for such services before employing another physician.-Crites v. Willamette Valley Lumber Co., 169 P. 339.

101, 102(2) (Idaho) Employer must use ordinary care in providing employé with a reasonably safe place to work, but is not an insurer of the safety of such place.-Brayman v. Russell & Pugh Lumber Co., 169 P. 932.

101, 102(8) (Idaho) Master must exercise ordinary care, as to provide servant with reasonably safe working place, tools, and appliances, and to maintain them in reasonably safe condition.-Selhaver v. Dover Lumber Co., 169

P. 1169.

101, 102(8) (Okl.) A master in furnishing a reasonably safe place to work, and maintaining it in a reasonably safe condition, is held to that degree of care which ordinarily prudent Ponca City Ice Co. v. Robertson, 169 P. 1111. person would exercise under circumstances.

121(2)(Idaho) Master must guard dangerous machinery if it can be consistently done with reasonably proper and effectual operation or conduct of business.-Selhaver v. Dover Lumber Co., 169 P. 1169.

(D) Warning and Instructing Servant.

158 (Idaho) To render a master liable for failure to instruct an inexperienced servant, it must appear that injury was the result of servant's unskillfulness or lack of knowledge. Whether employé used diligence to find em--Selhaver v. Dover Lumber Co., 169 P. 1169. ployer's physician to entitle him to recover fees paid other physician, employer having contracted to furnish medical services, was question for jury.-Id.

If employé requiring services of employer's physician is ignorant as to who latter is, he must ascertain from employer; but when he knows name and residence of physician, he should apply where it is reasonable to suppose doctor may be found.-Id.

Employé or his wife held not guilty of such lack of diligence in attempting to secure at-. tendance of employer's physician as would preclude recovery from employer of fees paid other physician.-Id.

Employer which contracts to furnish employés with medical attendance is liable to employé, who uses reasonable diligence to secure services of company's physician in illness, for fees paid other physician.-Id.

In servant's action against employer for breach of contract to furnish medical attendance, testimony of another employé held admissible to show custom of keeping attendant in office of doctor in his absence had not always been observed.-Id.

III. MASTER'S LIABILITY FOR INJURIES TO SERVANT. (A) Nature and Extent in General. 85 (Mont.) A master does not insure his employé's safety.-Barry v. Badger, 169 P. 34. 86 (Cal.) In the absence of evidence as to the exact work in which the employé was engaged when injured, whether intrastate or interstate the employer's liability is not governed by the federal Employers' Liability Act.-Terry v. Southern Pac. Co., 169 P. 86.

(E) Fellow Servants.

196 (Idaho) Servants co-operating at the time of an injury, in the particular business in hand, or whose usual duties bring them into habitual association, or into a relation of influence upon each other promotive of proper caution, are "fellow servants."-Brayman Russell & Pugh Lumber Co., 169 P. 932.

(F) Risks Assumed by Servant. ~203(1) (Cal.) Doctrine of assumption of risk means that the law implies, as a part of the contract of service, that the servant assumes all the ordinary risks of the business not caused by the direct negligence of his employer.Schuh v. R. H. Herron Co., 169 P. 682.

217(13) (Cal.) If a servant goes to work in a place which he knows to be dangerous, he asH. Herron Co., 169 P. 682. sumes the risk arising therefrom.-Schuh v. R.

nished by the master, knowing it to be defecIf a servant accepts for his use a tool furtive and dangerous, he assumes the risk of injury therefrom.-Id.

219(4) (Idaho) Employé assumes risk of employment where he knows of defective appliances, or where defects are so obvious that with reasonable attention he could have known of them, and where he does or should comprehend danger or risk incident to their defective condition.-Selhaver v. Dover Lumber Co., 169 P. 1169.

(G) Contributory Negligence of Servant.

228(1) (Cal.) Abolition of defense of assumption of risk by the Employers' Liability Act did not destroy defense of contributory neg

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

ligence.-Schuh v. R. H. Herron Co., 169 P.278(3) (Cal.App.) In widow's action for

682.

233(4) (Idaho) Where employé assumes duty of keeping machinery upon which he is working in proper adjustment, his failure to do SO is contributory negligence.-Selhaver v. Dover Lumber Co., 169 P. 1169.

239 (Idaho) Servant's failure to make proper use of guard furnished by master is contributory negligence.-Selhaver V. Dover Lumber Co., 169 P. 1169.

247 (5) (Cal.) If employé is ordered to examine a tool for defects and report the same, if any, before using it, and, failing to do so, is injured from a defect which ordinarily careful examination would have disclosed, neglect of his duty to obey the order would be a contributing cause of his injury.-Schuh v. R. H. Herron Co., 169 P. 682.

If an employé, ordered not to shift a belt while the shafting is in motion, nevertheless does so and is injured thereby, he would be guilty of negligence contributing to his injury. -Id. (H) Actions.

death of employé, evidence held sufficient to show master's negligence in not furnishing servant with proper appliances to protect him from breathing noxious acid fumes.-Neugebauer v. Gladding, McBean & Co., 169 P. 714.

278(14) (Cal.App.) In action by widow of employé whose death was alleged to have resulted from his inhalation of fumes of hydrofluoric acid which he was applying to terra cotta, evidence held to sustain a finding that employer knew work was dangerous.-Neugebauer v. Gladding, McBean & Co., 169 P. 714.

278(20) (Cal.App.) In widow's action for death of employé, evidence held sufficient to show master's negligence in not warning deceased of his danger from breathing noxious acid fumes.-Neugebauer v. Gladding, MeBean & Co., 169 P. 714.

281 (8) (Cal.) That it was not unusual in a machine shop for those using lathes to shift the belt by striking it with the bare hand did not establish that this method was not negligent or dangerous.-Schuh v. R. H. Herron Co., 169 P. 682. mat-288 (2) (Mont.) Evidence that plaintiff coal miner was injured by falling boulder held not to establish assumption of risk as matter of law. Barry v. Badger, 169 P. 34.

25034. Owing to the great increase of ter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future index-di-288(3) (Utah) One employed to operate gests will be found.

264(1) (Cal.App.) In action for death of employé, the allegation of negligence was sufficient, and additional allegation of wanton negligence might or might not be proved, and failure to prove it would not affect result of proof of master's negligence.-Neugebauer v. Gladding, McBean & Co., 169 P. 714.

264(1) (Utah) Where an injured servant alleged several acts of the master's negligence, he may recover on proof of less than all of them.-Urich v. Utah Apex Mining Co., 169 263.

a drilling machine in a mine held not as a matter of law to assume risk of injury from falling rock at place other than his immediate place of work, though he was required to inspect his place of work.-Urich v. Utah Apex Mining Co., 169 P. 263.

293 (8) (Okl.) In action for servant's death, instruction on master's duty to furnish and maintain a reasonably safe place for work, held not misleading. Ponca City Ice Co. v. Robertson, 169 P. 1111. P.293(15) (Cal.) In a personal injury action based upon the breaking of a rafter upon which plaintiff stood, an instruction as to defendant's duty to exercise ordinary care to discover hidden defects in the rafters held not erroneous.Bruce v. Western Pipe & Steel Co., 169 P. 660.

264 (10) (Colo.) The servant to recover for personal injuries must do so on the allegations of his complaint.-Denver & R. G. R. Co. v. Thompson, 169 P. 539.

265(5) (Mont.) Evidence that plaintiff coal miner was employed by defendants and was injured by falling boulder establishes no cause of action.-Barry v. Badger, 169 P. 34.

A master's culpable negligence cannot be inferred from happening of an accident injuring his employé unless master had exclusive control of dangerous instrumentality causing injury. Id.

265 (8) (Colo.) Where plaintiff was injured when an air coupling on a hoist parted and one end struck him, no presumption of negligence in pushing the hoist too far arose from the mere happening of the accident.-Denver & R. G. R. Co. v. Thompson, 169 P. 539.

Servant injured by parting of air coupling on hoist, evidence not showing cause of accident,

was not entitled to recover.-Id.

274(7) (Cal.) In machinist's action against his employer for injuries received while attempting to shift a moving belt, evidence that defendant had posted notices directing employés to examine tools before use, and report and not use them if defective, and not to shift belts while the shafting was in motion was admissible on the issue of contributory negligence.-Schuh v. R. H. Herron Co., 169 P. 682.

276(2) (Cal.App.) In widow's action for death of an employé, evidence held to justify conclusion that employé's use of hydrofluoric acid in the course of his employment caused his death.-Neugebauer v. Gladding, McBean & Co., 169 P. 714.

348 (Okl.) Workmen's Compensation Act must be construed as a whole, and all pretection the compensation was fixed, and who sumptions are in favor of those for whose proby its terms are deprived of ordinary remedies open to others.-Wick v. Gunn, 169 P. 1087.

To defeat an award for injuries under Workmen's Compensation Act, the case must come clearly within the statutory exceptions barring the award.-Id.

365 (Kan.) Workmen's Compensation Act does not extend to the case of a workman engaged in interstate commerce, who without his employer's fault is injured in the course of his employment.-Matney v. Bush, 169 P. 1150.

371 (Cal.) An employer cannot be required to pay compensation, unless it is shown that the accident arose out of and in the course of the employment.-Casualty Co. of America v. Industrial Accident Commission, 169 P. 76.

278(1) (Okl.) In action for death of a de-373 (Cal.App.) A road construction foreman ceased employé, alleged to have been caused who was struck by a workman whom he disby employer's negligence, evidence held to rea- charged for insubordination and refusal to obey sonably support a verdict for plaintiff.-Ponca instructions received an injury “arising out of