takers use, raised a presumption of a guilty and felonious intent.. State v. Swayze. 6. LARCENY NAME OF OWNER OF STOLEN PROPERTY.-Where a defendant is indicted 7. IN A PROSECUTION FOR LARCENY, WHEN THE TAKING OF THE PROPERTY IS ADMITTED, 1. PROHIBITION OF SALE OF LIQUORS-CONSTRUCTION OF ORDINANCE.—The provision of LOCATION OF MINE. See MINES AND MINING, 2, 3. MANDAMUS. See BONDS, 4; EXECUTORS AND ADMINISTRATORS, 5. MANSLAUGHTER. See MURDER And ManslaughTER; CRIMINAL LAW AND PRACTICE, 2. MARRIAGE CONTRACT, See CANCELLATION, 1. MARRIAGE SETTLEMENT. 1. ANTI-NUPTIAL SETTLEMENT, BREACH OF.-Prior to the death of defendant's intestate ready and willing to consummate the contract, was entitled to the bonds. That it MARRIED WOMEN. See HUSBAND and WIFE. MASTER AND SERVANT. 1. UNDER A CONTRACT OF EMPLOYMENT WHERE THE WORK IS TO BE DONE BY THE DAY 2. LIABILITY of the MasteR FOR THE ACT OF HIS SERVANT.-A master is liable for the MECHANICS' LIENS. 1. MECHANICS' LIEN FOR WORK DONE IN CUTTING LUMBER attaches upon the identical 2. THE MECHANICS' Lien Law of 1877 was intended as a substitute for and repeal of the 4. MECHANICS' LIEN-DESCRIPTION OF PROPERTY.A notice of a mechanics' lien will be 5. THE SAME-REQUISITES Of Statement OF DEMAND. -The notice of such lien must 6. MECHANICS' LIENS-REQUISITES OF STATEMENT OF DEMAND.-Judgment affirmed on 7. MECHANICS' LIENS FOR CONSTRUCTION AND REPAIR AGAINST A LESSOR.-Where the 8. THE SAME-WORK AND LABOR IN "CARRYING ON" A MILL.-Under the same circum- general intent of the entire statute. This is especially so when the provision is borrowed, without other material change, from previous statutes on the same subject, in all of which the word was "or." Id. 10. THE SAME.-in the absence of all testimony, and of any objection at the trial, the court will infer that the land used in connection with the mill, and to which the lien was declared to extend, was reasonably convenient for the use of said mill, under the requirements of the statute. Id. 11. LEONARD, J., dissented from a portion of this decision, holding that under a correct construction of the whole statute, the estate of the lessor, under these circumstances, was liable only to a lien for materials and labor in repairing or constructing, and not for labor in carrying on or operating. Id. 12. MECHANICS' LIEN.-Evidence held sufficient to sustain the findings. McGuire et al. Logus et al. Or. 825. See ADMIRALTY, 18. MESNE PROFITS. See EJECTMENT, 4. MINES AND MINING. 1. WORK ON MINING CLAIM, WHEN MAY BE DONE.-Prior to the act of congress of May 10, 1872, there was no law of Congress requiring annual labor to be done on mining claims in order to hold them. When that act speaks of the amount of work to be performed or improvements to be made each year, it means each year from and after its passage. Consequently, work done on a mining claim prior to May 10, 1872, cannot be considered the first, or any part of the first, annual expenditure required by that act, and the several amendments thereto. Thompson v. Jacobs et al. Utah, 430. 2. PRIOR LOCATION OF A MINING CLAIM IS NOT INVALIDATED BY A MISTAKE OF THE RECORDER in recording such location by a name somewhat different from that stated in the certificate of location. Weise v. Barker. Col. 108. 3. A VALID LOCATION OF A MINING CLAIM CAN NOT BE MADE while the same is in the actual possession of other prior locators. The description of a mining claim, as the same appears in the complaint and on the record, held sufficient. Id. See FRAUD, 2. MORTGAGES. Such 1. DEED ABSOLUTE ON ITS FACE, WHEN A MORTGAGE.-Whether a deed given in consideration of the grantee's assuming and paying the debts of the grantor is an absolute sale of the land conveyed, or a mere mortgage to secure the repayment of such debts, depends upon the intention of the parties at the time of conveyance. intention may be ascertained by evidence, oral or otherwise, of the situation of the parties, the value of the consideration in connection with the value of the property conveyed, the conduct of the parties before and after the conveyance, and of all the sorrounding circumstances tending to explain the real character of the transaction. The evidence in this case reviewed, and the conveyance in question held to be a mortgage. Stephens v. Allen et al. Or. 193. 2. DEED ABSOLUTE ON ITS FACE, WHEN A MORTGAGE.-A deed absolute on its face, given by A. to B., for real estate therein described, and a bond given by B. to A., agreeing to convey to A. a portion of the same property at a stipulated time, although given on the same date and for the same price, if not intended to be a mortgage or security for money by the parties themselves, and do not appear to be such on the face of the instruments, will be held to be an absolute bargain and sale, and not a mortgage. Winters v. Swift et al. Idaho, 184. 3. THE INTENTION OF THE PARTIES IS TO BE LEARNED, first, from the instruments themselves; secondly, from parol testimony; and when ascertained, will be carried out by the courts. Id. 4. A MORTGAGE OF CERTAIN PROPERTY OF A CORPORATION, held to be created by a sheriff's sale, and certain contracts made by the defendant with two of the directors of the corporation, in their names, but for the benefit of the corporation. Pioneer Gold Mining Company v. Baker, (U. S. Cir. Court). Cal. 383. 5. IN A SUIT BY THE CORPORATION TO REDEEM from such mortgage, the directors who made the contracts are not necessary or indispensable parties, where they claim no individual interest, and no relief is asked against them. Id. 6. NOTE SECURED BY MORTGAGE-WAIVER OF REMEDY BY FORECLOSURE.-Where a note 7. AN UNRECORDED MORTGAGE OF PERSONAL PROPERTY IS ABSOLUTELY VOID as to the 8. EQUITABLE ASSIGNMENT OF MORTGAGE.-Where, in pursuance of an agreement be- See ATTACHMENT, 11; EVIDENCE, 16, 17; RECEIVER, 2; TAXATION, 19, 21. MULTIPLICITY OF SUITS. See TAXATION, 12, 18. MUNICIPAL CORPORATIONS. See STREETS AND HIGHWAY, 1-6; TAXATION, 25. MURDER AND MANSLAUGHTER. 1. MURDER, WHAT IS.-Under the statutes of this territory, the killing of a human 3. 2. MURDER IN THE FIRST DEGREE.-Under the statute ali murder committed in the per- 4. MUR ER-INSTRUCTIONS DUELING.-When there is nothing in the circumstances 5. THE SAME-KILLING AFTER QUARREL QUESTIONS OF FACT.-If, between the quarrel 6. THE SAME JUSTIFIABLE HOMICIDE-CONFLICTING INSTRUCTIONS.-A defendant may 7. KILLING AS THE RESULT OF A SIMPLE ASSAULT-MANSLAUGHTER.-The defendant, found dead on the following day from their effect. It did not appear that the defendant had any intention to kill the deceased. Held, that such killing amounted to merely manslaughter and not murder. People v. Munn. Cal. 745. 8. THE SAME DISTINCTION BETWEEN MURDER AND MANSLAUGHTER-MALICE.—In cases of homicide committed by violence, it is important to consider the character of the weapon with which the homicide was committed. If the means employed be not dangerous to life, or if the blows causing death are inflicted with the fist, and there are no aggravating circumstances, the law will not raise the implication of malice aforethought, which must exist to make the crime murder. Unless such malice exists the homicide amounts simply to manslaughter. Id. 9. THE SAME-INSTRUCTIONS.--An instruction in this case, to the effect that "if a man knowingly and wilfully does an act unlawful in itself, and produces harm, the law conclusively infers that such harm was intended; the law presumes that the natural necessary and even possible consequences were intended by the author of the act; if of sound mind, the natural and proximate consequences; and if the act intended was unlawful, even the possible consequences," is erroneous, as ignoring all distinction between the intent to commit an act amounting only to a misdemeanor, and one that would, if committed, be a felony. Id. 10. WHERE THE DEFENDANT SEEKS TO JUSTIFY A HOMICIDE ON THE GROUND that the killing was necessary to protect the person of his wife, evidence on the part of the prosecution tending to show the bad character of the woman alleged to be the wife of the defendant, and that she kept a house of prostitution, with a view of showing that the deceased was upon the premises for purposes other than felonious, is proper. People v. Pierson. Idaho, 809. 11. AN INSTRUCTION, that "if the jury believes from the evidence beyond a reasonable doubt, that the defendant killed deceased on account of a desire for revenge for some real or imagined injury, then defendant is guilty of murder," is proper. Id. 12. WHEN THE DECEASED WAS SLAIN WHILE ENDEAVORING TO ESCAPE from the defendant and had succeeded in wholly withdrawing in good faith from the vicinity of defendant and his house, and all danger to the person of defendant, to his habitation or to any one residing therein was over, then the killing can neither be justified, excused or mitigated by declarations of defendant made to another person shortly before the homicide, and evidence thereof was properly refused. Id. 13. ACCESSORY AFTER THE FACT-CONCEALMENT OF DEAD BODY.-If a defendant has done no act which would make him responsible for a murder, the fact that he aided in concealing the dead body would render him liable only as an accessory after the fact. For such offense he could not be found guilty under an indictment for murder. People v. Keefer. Cal. 878. 14. CONSPIRACY TO COMMIT MISDEMEANOR-MURDER.-One who simply encourages another to commit a misdemeanor upon the body of a third person, which did not and could not cause death, or any serious injury, is not liable for the murder of such third person by his co-conspirator, when such killing was neither aided, advised nor encouraged by him, nor involved in nor incidental to any act by him aided, advised or encouraged. Id. 14. ONCE IN JEOPARDY-NEW TRIAL-MURDER.-A defendant having been once tried upon an indictment for murder, and found guilty of murder of the second degree, who afterwards, on his own motion, has the verdict set aside and a new trial granted him for errors in the admission of evidence, may on such new trial be convicted of murder of the first degree. Id. 16. PLEA OF ONCE IN JEOPARDY-MURDER OF TWO PERSONS AT SAME TIME AND BY SAME ACT. The murder of two persons by the same act, according to the weight of authority, constitutes two offenses, for each of which a separate prosecution will lie, and a conviction or acquittal in one case does not bar a prosecution in the other. But where two persons are directly concerned in the murder of two others, although the killing takes place at the same point of time, it does not follow necessarily that the murder of the two was accomplished by the same act. People v. Majors. Cal. 580. 17. JURISDICTION WHEN DEFENDANT IS UNDER LIFE IMPRISONMENT.-The court has jurisdiction to try a defendant for murder, although he is at the time under sentence of life imprisonment for another crime. People v. Majors. Cal. 580. 18. MOTION FOR NEW TRIAL-PLEA OF FORMER CONVICTION-APPEAL.-The superior court has jurisdiction to try a defendant for the crime of murder, although an appeal has been taken, and is still pending in the supreme court, from an order denying him a new trial on a plea of former conviction. No appeal lies from such order. Id. |