17. MINING CLAIM-LODE DEPARTING FROM VERTICAL LINES-RIGHT TO. FOLLOW.The patentee of a mining claim cannot follow his lode into an adjoining patented claim, where, in its onward course or strike, it departs from the vertical side lines into such latter claim. If he does so, he is a mere intruder without color of right or title; and in an action of ejectment by the owner of such latter claim, under a tax deed from the original patentee, he cannot dispute the validity of such tax title. Lebanon Mining Company of New York v. Rogers. Col., 310.
18. MINING RULES AND CUSTOMS-EVIDENCE OF-HOW FAR CONTROLLING.-Miners' customs and regulations, once adopted, are presumed to be existing and in force until the contrary is proven, and in actions concerning mining claims, under section 486 of our code of civil procedure, proof thereof must be admitted, and, when not in conflict with the laws of the territory, must govern the decision of the action. Reborado et al. v. Quang Pang Mining Co. Idaho, 835.
19. MINING CLAIM-LIEN OF CO-OWNER FOR EXPENDITURES.-A part owner in a mining claim, who individually undertakes to work and develop it without any agreement with his co-owners, is not entitled to a lien on the whole mine for the amount of his expenditures thereon. Brunswick et al. v. Winters' Heirs. N. M., 472. 20. ACTION TO DETERMINE CONTEST AS TO MINING CLAIM ALLEGATION OF CITIZENSHIP. The complaint in an action brought under section 2,326 of the United States revised statutes, to determine the right of possession of a mining claim between sev eral plaintiffs and the defendants, should allege that all the plaintiffs are citizens of the United States, or have declared their intention to become such. If the complaint only alleges the citizenship of one of the plaintiffs, the action should be dismissed as to the others, but not as to him. Lee Doon et al. v. Tesh et al. Cal., 596.
See ADVERSE POSSESSION, 1; LIENS, 7; PUBLIC LANDS, 3.
See CRIMINAL LAW AND PRACTICE, 16.
1. SUIT TO REFORM A CONTRACT.-In a suit to reform a written instrument it must be shown that the mistake is mutual; and therefore it must appear from the allegations of the bill what the agreement of the parties was and wherein the writing fails to embody it. Durham v. Fire and Marine Insurance Company. (U.S. Cir. Čt.) Or.,
2. CASE IN JUDGMENT.-A bill brought to reform a policy of insurance stated that the several owners of a certain warehouse applied to the defendant for insurance against fire on their interests in said property, with loss, if any, payable to one of them; and that "thereupon "the defendant issued its policy on the interest of that one alone, instead of all: Held, on demurrer to the bill for want of equity, that it did not appear that the defendant ever agreed to insure the interest of but the one of the owners, and therefore it was not shown that the mistake was mutual. Id. See ACCOUNT, 2, 3, 6; ADVERSE POSSESSION, 4; MORTGAGE, 20; NEW TRIAL, 12.
MONEY HAD AND RECEIVED.
See INFANTS, 1; PRINCIPAL AND AGENT, 1, 2.
1. EFFECT OF--IS MERE SECURITY.—In this state a mortgage works no change in the ownership of the property. It is a mere security for the repayment of a debt, and serves simply to create a lien or incumbrance upon the property mortgaged. Sellwood v. Gray et al. Or., 10.
2. THE SAME-FORECLOSURE SALE-JUNIOR INCUMBRANCERS.-A sale under a decree foreclosing a mortgage conveys all the interest of the mortgagor in the premises mortgaged, subject only to the right of junior lienholders to redeem. Id.
3. THE SAME--ACTION AGAINST JUNIOR INCUMBRANCERS.--A purchaser at a sale under a foreclosure suit, whether upon his own mortgage or not, to which a subsequent incumbrancer was not made a party, may maintain a suit to compel such subsequent
incumbrancer to redeem or be foreclosed. If, however, the senior mortgagee has,
since the sale, realized upon other securities given him by the mortgagor, the pro-
ceeds of which were applied in payment of the mortgage debt, his right to compel
such subsequent incumbrancer to redeem or be foreclosed, is lost. Id.
4. DEED ABSOLUTE IN FORM WHEN A MORTGAGE.-The facts showing that a deed abso-
lute on its face was intended as a mortgage, must be clear and decisive, so as to sat-
isfactorily establish the intention of the parties. Tested by this rule, the deed
under consideration held not a mortgage. Wilhelm v. Woodcock et al. Or., 54.
5. THE SAME-Agreement to RECONVEY.-An agreement to reconvey, executed by a
grantee to his grantor, at the time of conveyance, is not sufficient to render a deed
absolute on its face a mortgage. Id.
6. MORTGAGE CANNOT MAINTAIN TRESPASS.-A mortgagee of real estate, although
claiming under a deed absolute on its face, has a mere lien on the mortgaged prem-
ises, and cannot maintain an action to recover damages for a trespass thereto.
Pueblo and Arkansas Valley R. R. Co. v. Berhoar. Col., 321.
7. EJECTMENT-DEED GIVEN AS SECURITY For Debt-RedEMPTION-JUDGMENT.-In an
action of ejectment, founded on a deed absolute in form, where the answer set up
that such deed was, in effect, a mortgage, given by the defendant as security for a
debt due the plaintiff, and the court so finds, the judgment should provide that in
the event of the defendant's non-payment of the mortgage debt within a time lim-
ited, the property should be sold and the proceeds applied to the payment thereof.
Healy v. O'Brien et al. Cal., 886.
8. CHATTEL MORTGAGE ON STOCK IN TRADE-RETENTION OF POSSESSION AND RIGHT TO
SELL BY MORTGAGOR.-A chattel mortgage upon a stock of goods in trade, which
permits the mortgagor to remain in possession of the property and dispose of the
same by sale in due course of trade at his discretion, until the maturity of the debt
purporting to be secured by it, is fraudulent and void as to other creditors of the
mortgagor, without reference to the bona fides of the parties. This rule has not been
changed by the statute of this territory providing for the registration of chattel
mortgages, and for an affidavit to accompany the mortgage in which the mortgagor
shall declare that the mortgage is made in good faith, etc., nor by the law making
it a penal offense to sell or remove mortgaged property without the consent of the
mortgagee. Wineburgh et al. v. Shaer. Wash., 204.
9. CHATTEL Mortgage-DeFECTIVE ACKNOWLEDGMENT AND RECORDING.-A chattel
mortgage on the rolling stock of a railroad company situated in Colorado, which
fails to comply with requirements of the statute in respect to acknowledgment and
recording, does not create a lien on such property as against creditors of the com-
pany, proceeding by attachment and execution, or purchasers from the company in
good faith. Frank et al. v. Denver and Rio Grande Railway Co. et al. (U. S. Čir.
Ct.) Col., 459.
10. MORTGAGE OF AFTER-ACQUIRED PROPERTY-RIGHTS OF MORTGAGEE.--A mortgage
of property to be after-acquired by the mortgagor only attaches as a lien on such
property in the condition in which it comes into the mortgagor's hands. If such
property is subject to mortgages or other liens for the purchase price, the general
mortgage does not displace them, although they may be junior to it in point of
time. Id.
11. CHATTEL MORTGAGE-SALE of MortgAGED PROPERTY-CONSENT OF MORTGAGEE.
Under the statutes of this territory making the willful sale of property upon which
there is a chattel mortgage, without the written consent of mortgagee, larceny, and
declaring said sale void, evidence of an oral consent of the mortgagee of the sale of
such property is admissible as explaining the intention of the mortgagor in making
such sale. Mills v. Glennon. Idaho, 824.
12. CERTIFICATES OF PURCHASE OF SWAMP LAND-MORTGAGE OF.-A purchase at a
foreclosure sale, and a sheriff's deed in pursuance thereof, of swamp lands held by
the mortgagor, under certificates of purchase, passes to the purchaser all the rights
of the mortgagor under his contract with the state. If a subsequent incumbrancer
of such lands, after an unrecorded assignment to him of such certificates of pur-
chase, acquire the state title, it is his duty to convey the same to the purchaser
under the prior mortgage sale. In an action to compel such conveyance, the judg-
ment should not provide for a conveyance only in case the detendant did not pay to
plaintiff the amount of his lien. Henderson v. Grammar et al. Cal., 182.
13. MORTGAGE OF CORPORATE PROPERTY-CONTRACT WITH DIRECTORS.-A mortgage
of certain property of a corporation held, upon a review of the evidence, to have
been created by a sheriff's sale, and certain contracts made by the defendant with
two of the directors of the corporation, in their name, but for the benefit of the
corporation. Pioneer Gold Mining Company v. Baker. (U.S. Cir. Ct.) Cal., 361.
14. DEED WHEN A MORTGAGE-PAROL EVIDENCE ADMISSIBLE TO SHOW.-Parol evi-
dence is admissible to show that a written instrument was intended as a mortgage,
not for the purpose of contradicting or varying its terms, but to raise an equity su-
perior to it, and to give it effect according to the true intent and purpose of the par-
ties. Id.
15. MORTGAGE HOW CREATED PERSONAL OBLIGATION OF MORTGAGOR NOT NECES-
SARY. A mortgage may be created as well without as with an accompanying per-
sonal obligation of the mortgagor to pay the debt secured, or attempted to be
secured, thereby. In the one case the property alone is charged with the lien; in
the other the mortgagee has the additional security of the personal obligation of
the mortgagor. And a mortgage debt chargeable only against certain property is,
in effect, a debt with limited means of satisfaction or enforcement. Id.
16. THE SAME-CONDITIONAL SALE.-Where there is a doubt whether a transaction
was intended to be a conditional sale or a mortgage, equity will hold it to be a mort-
gage. Id.
17. THE SAME-MORTGAGOR'S RIGHT OF REDEMPTION WHEN NOT LOST.-The right of
a mortgagor to redeem from a mortgage is not limited by a strict performance, or
tender of performance, on his part, upon the very day his mortgage becomes due.
Id.
18. FEDERAL WILL FOLLOW STATE COURTS IN CONSTRUING CIVIL CODE.-In giving
effect to a mortgage executed under the provisions of the California civil code, the
courts of the United States will be guided by the construction put upon such pro-
visions by the supreme court of California. Id.
19. CORPORATION'S POWER TO MORTGAGE-MORTGAGE VALID WHEN EXECUTED.-A
mortgage of a corporation, if valid when executed, is not affected by the circum-
stance that certain persons, who, at that time, had a right to receive some of its stock
on surrender of stock of another company, subsequently made the exchange. Donohoe
v. Mariposa L. & M. Co. Cal., 168.
20. REFORMATION OF MORTGAGE BY HUSBAND AND WIFE-CLERICAL MISTAKES.-
A mortgage by a husband and wife, properly executed and acknowledged, may be
reformed so as to express the intentions of the parties, where the description of the
mortgaged premises contain clerical mistakes which are confessed by the mortgagors.
Savings & L. Soc. v. Meeks. Cal., 272.
See PLEDGE, 3; TAXATION, 6–8.
1. MUNICIPAL CORPORATIONS-CREATION OF-FRANCHISE.-The right to enjoy and ex-
ercise the franchise of a municipal corporation depends on a compliance with the
provisions of the statute which authorizes the organization of such corporations.
People v. Riverside. Cal., 124.
2. The Same—USURPATION OF FRANCHISE-ACTION FOR--PARTIES.-The statutory
action, under section 803 of the code of civil procedure, lies against a defendant
that has usurped the franchise to be a municipal corporation, although it never ex-
isted as a corporation. In such action the trustees of the defendant need not be
joined. Id.
3. MUNICIPAL CORPORATIONS-POWER OF CITY COUNCIL.-The city council of a mu-
ticipality has no authority to abridge the terms of the city officers, as the same
exist under the city charter. Carpenter v. People. Col., 553.
4. MUNICIPAL CORPORATIONS LIABILITY OF FOR DAMAGES CAUSED BY PUBLIC
WORKS.-A municipal corporation is not liable for special, consequential damages
to adjoining property, resulting from work, such as a street improvement, lawfully
done by it, without malice, unless such liability is imposed by statute or the organic
law of the state. But it is liable for such damages, under a constitutional provis-
ion, that "private property shall not be taken or damaged for public use without
just compensation having been first made or paid into court for the owner," although
the owner of the property damaged, during the progress of such work, made no
effort to protect his property. Reardon et al v. City and County of San Francisco.
Cal., 758.
5. DEFECT IN SIDEWALK-INJURY Caused by-LIABILITY OF CITY.-The city of Olym-
pia, under its charter and the statutes of the territory, is liable in an actien by a
private person for an injury caused by the neglect of the city to repair a defect in
one of its sidewalks. Hutchinson v. City of Olympia. Wash., 349.
MUNICIPAL COURT OF APPEALS.
1. MUNICIPAL COURT OF APPEALS-DISMISSAL OF APPEAL-CERTIORARI.-The muni-
cipal court of appeals of the city and county of San Francisco had power to dismiss
an appeal for failure to prosecute it, under section 980 of the code of civil proced-
ure. An erroneous dismissal of an appeal, for such failure, cannot be reviewed on
certiorari. Alexander v. Municipal Court of Appeals. Cal., 235.
1. JOINT ASSAULT RESULTING IN DEATH-LIABILITY THEREFOR.-Where two persons
assist in committing an assault upon another, and inflict injuries upon him from
which death resulted, each are equally liable therefor. People v. Weber. Cal.,
2. LYING IN WAIT-KILLING PERSON OTHER THAN THE ONE INTENDED.-An assassin
who lies in wait, harboring a murderous design to slay a human being, is guilty of
murder in the first degree, although he did not kill the particular person he designed
to. State v. Murray. Or., 16.
3. INSANITY-OPINION OF NON-PROFESSIONAL WITNESS-INTIMATE ACQUAINTANCE.-An
intimate acquaintance of a person accused of crime, may, under section 696 of the
civil code, testify as to his opinion of the mental sanity of such person, the reason
for such opinion being given, but he cannot detail all the conversations had with
such person, or give his statements literally or in substance. Id.
4. THE SAME THE OPINIONS OF NON-PROFESSIONAL WITNESSES as to the mental condi-
tions of a prisoner are not admissible in evidence, except under the circumstances
provided for in section 696 of the civil code. To warrant such testimony, the wit-
ness must be an "intimate" acquaintance of the prisoner. What constitutes an
"intimate" acquaintance commented on. Id.
5. CRIMINAL LAW-INSTRUCTIONS AS TO GRADE OF CRIME-EVIDENCE.-In a prosecu-
tion for murder, the court must instruct the jury as to all the law applicable to the
evidence, and it is error, unless there be an entire absence of evidence to prove a
particular grade of crime, to exclude such grade from the consideration of the jury.
But an instruction as to any degree of crime which is not supported by the evidence
is unnecessary. Territory v. Salazar. N. M., 251.
6. THE SAME-MURDER--TIME FOR PASSION TO SUBSIDE--SUFFICIENCY OF A QUES
TION FOR COURT.-In a prosecution for murder, whether the time which elapsed
between the provocation and the mortal stroke, was sufficient for the heat of passion
to subside, is a question for the court. The evidence reviewed and held that in this
case a sufficient time had elapsed. Id.
7. THE SAME-ERRONEOUS INSTRUCTION WITHOUT INJURY.-Where the evidence shows
that the defendant was guilty of murder in the first degree, an instruction as to
murder in the second degree is in his favor, and, although erroneous, will not war-
rant a reversal. Id.
MANSLAUGHTER-INSTRUCTIONS-CONVICTION.-In a prosecution for
murder, when the defendant is convicted of manslaughter, an instruction as to what
is necessary in order to reduce an unlawful killing from murder to manslaughter, if
erroneous, will not warrant a reversal, as the defendant could not have been injured
thereby. People v. Swift. Cal., 215.
9. CRIMINAL LAW-MURDER AND MANSLAUGHTER-INSTRUCTIONS.-The evidence re-
viewed and held sufficient to warrant the court in submitting the question as to the
degree of the homicide to the jury, and in refusing an instruction that the facts only
made out a case of manslaughter. People v. Callaghan et al. Utah, 742.
10. THE SAME SELF-DEFENSE-BURDEN OF PROOF.-In a prosecution for murder, after
the homicide is proved beyond a reasonable doubt, the burden of proof devolves
upon the defendant to show, by a preponderance of evidence, that the killing was
the result of sudden passion or in necessary self-defense. Id.
11. MALICE HOW MAY BE DEFINED.-A definition of the word "malice," as used in
connection with the degrees of homicide, may be given in the language of the statute.
Id.
12. SELF-DEFENSE, WHAT CONSTITUTES.-A killing is justified if at the time thereof the
deceased was attacking the defendant, and the attack was of such a character as to
imperil the life, or do some great bodily harm, and so imminent and pressing that a
man of ordinary prudence, in the same or like circumstances, would believe that it
was necessary to take the life of his assailant, to save his own or prevent his receiv
ing great bodily harm, and the defendant, so menaced, acted in good faith and used
no more force than was necessary to save his own life or prevent great bodily harm
to himself, although it afterwards appeared that such danger was only apparent and
not real. Id.
13. DECLARATIONS WHEN PART OF RES GESTAE. -The declaration of the deceased, that
the defendant shot him, if made a few seconds after the shot was fired, is admissi-
ble as part of the res gestae. The rule is different as to declarations of the defend-
ant made after he had gone several miles from the place of the homicide. Id.
14. DYING DECLARATIONS REDUCED TO WRITING ARE ADMISSIBLE.-Dying declara-
tions, which are taken down in writing at the time they were uttered, although not
signed by the deceased, are admissible in evidence, if it appears that such declara-
tions were made under the present apprehension of impending death. Id.
15. EVIDENCE-DEFENDANT WITNESS IN OWN BEHALF.-Where a defendant in a crim-
inal prosecution becomes a witness in his own behalf, the court may direct the at-
tention of the jury to such fact, if the credibility of the witness and the weight of
his evidence is left exclusively to the jury. Id.
16. CRIMINAL LAW-WHO ARE PRINCIPALS.-All persons concerned in the commission
of a felony, whether they directly commit the act constituting the offense, or aid
and abet in its commission, though not present, may be indicted, tried and punished
as principals, under section 168 of the criminal practice act. Id.
17. THE SEPARATION OF THE JURY, DURING THE PROGRESS of the trial, will not war-
rant a reversal. Id.
18. MURDER-SELF-DEFENSE-INSTRUCTIONS--EXPRESSION OF OPINION BY JUDGE.—In
a prosecution for murder, where the defense rely upon a justification of the killing,
and evidence tending to show such justification is given, it is error warranting a
reversal, for the court, in refusing to give certain instructions concerning the law of
self-defense, to remark that he does so because he "does not remember any testi-
mony given tending to show that the deceased ever made an assault upon the de-
fendant, or that that there was any attempted assault made by deceased at the time
of the killing, but the jurors are the exclusive judges of the facts of the case."
State v. Warren. Nev., 102.
19. CRIMINAL LAW-MURDER-INSANITY AS A DEFENSE.-If the evidence shows that
the defendant, in a prosecution for murder, at the time of the killing was laboring
under such a defect of reason as not to know the nature and quality of the act he
was doing was wrong, the defense of insanity will be established; but if it appear
that the accused, although suffering from mental derangement, had capacity and
reason sufficient to enable him to distinguish between right and wrong, as to the
particular act he did; that he had a knowledge and consciousness that it was wrong
and criminal, and would subject him to punishment, the defense will fail. Such
defense, under section 159 of the criminal code, must be established beyond a rea-
sonable doubt. State v. Murray. Or., 16.
20. MURDER VOLUNTARY STATEMENT OF PRISONER EVIDENCE OF.-A voluntary state-
ment made by a defendant charged with murder, before the coroner's clerk, is ad-
missible in evidence against him. People v. Martinez. Cal., 76.
21. THE SAME-DEGREE OF GUILT-MALICE-PROVINCE OF JURY-In a prosecution for
murder, it is the province of the jury, under proper instructions from the court, to
determine the degree of the defendant's guilt; and a finding that the killing was
done with malice aforethought, if there is any evidence to sustain it, will not be dis-
turbed.
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