takers use, raised a presumption of a guilty and felonious intent.. State v. Swayze.
Or. 669.
5. THE SAME-NATURAL MARKS-OWNERSHIP.-The finder of personal property lost or
mislaid, which has such marks of ownership upon it as will enable him to deter-
mine who the owner is, must restore it, and will be deemed guilty of larceny, if
with such knowledge of the true owner he takes it with intent to convert it to his
own use and deprive the owner thereof. But the natural marks on live animals are
not presumed to be marks of ownership. Id.

6. LARCENY NAME OF OWNER OF STOLEN PROPERTY.-Where a defendant is indicted
and convicted for the larceny of the property of one H. W., a new trial should not
be granted because the true name of such owner was H. W. B., when it appears
that he was known by both names, and there was no doubt as to his identity.-Peo-
ple v. Woods. Cal. 495.

7. IN A PROSECUTION FOR LARCENY, WHEN THE TAKING OF THE PROPERTY IS ADMITTED,
the intent with which the same was taken is a question for the jury.-People v. Gri-
der. Cal. 290.

1. PROHIBITION OF SALE OF LIQUORS-CONSTRUCTION OF ORDINANCE.—The provision of
the city charter of Logan City granting power to the city council by ordinance to
"license, regulate, prohibit or restrain" certain persons, places and business, but
which fails to state what acts may be licensed, regulated, prohibited or restrained,
does not authorize the passage of an ordinance prohibiting all persons from selling,
manufacturing, giving away or disposing of any spirituous liquors. Logan City v.
Buck, Utah, 437.

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
he and the plaintiff, an unmarried woman, entered into an agreement whereby they
mutually promised to inter-marry within a reasonable time. In consideration
thereof the agreement provided that "the party of the first part (the defendant's in-
testate) grants and gives to the party of the second part" certain bonds then in his
possession, "all of which he promises to deliver to her on or before the day of their
marriage, to be and become her own absolute property." Held, that such agreement
was an ante-nuptial settlement, the consequences of which could not be avoided by
the defendant's intestate refusing to consummate the marriage. That upon his re-
fusal, after a reasonable time, to marry, the plaintiff, having at all times remained

ready and willing to consummate the contract, was entitled to the bonds. That it
was not for her to have sought him, but it was his duty to have sought her in mar-
riage. Connor v. Stanley, Administrator, etc. Cal. 749.

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
OR MONTH, and nothing is said as to the time of payment for the services to be ren-
dered, the wages of the employee are due and may be demanded at the close of
each day or month, as the case may be. After such demand and non-payment, the
employee may maintain attachment proceedings to recover his wages. De Lappe v.
Sullivan. Col. 107,108.

2. LIABILITY of the MasteR FOR THE ACT OF HIS SERVANT.-A master is liable for the
act of his servant when done within the scope or general course of his employment,
although done contrary to the master's orders. Heenrich v. Pullman Palace Car
Company (U. S. Dist. Ct.) Or. 303.

MECHANICS' LIENS.

1. MECHANICS' LIEN FOR WORK DONE IN CUTTING LUMBER attaches upon the identical
timber cut. Baxter v. Smith et al. Wash. 794.

2. THE MECHANICS' Lien Law of 1877 was intended as a substitute for and repeal of the
law of 1873. No lien under the act of 1873 survived such repeal except as the same
was continued by the act of 1877. Seattie & W. W. R. R. Co. v. Ah Kowe. Wash. 53,
3. THE TIME WITHIN WHICH A MECHANIC, NOT THE ORIGINAL CONTRACTOR, MAY FILE
HIS NOTICE of lien for work done on a railroad is limited by the act of 1877 to thirty
days from the completion of the work or from cessation of labor thereon. Unless
such notice is filed within such time the right to a lien is lost. Id.

4. MECHANICS' LIEN-DESCRIPTION OF PROPERTY.A notice of a mechanics' lien will be
held on demurrer to sufficiently describe the property sought to be charged, when
the same is described therein as "a lot of sawlogs marked 'F. & A.,' now lying in"
a certain slough. Wheeler v. Port Blakeley Mill Company. Wash. 555.

5. THE SAME-REQUISITES Of Statement OF DEMAND. -The notice of such lien must
contain a statement of the full amount of the lienor's demand before any deductions
are made, and also the amount thereof after the deduction of all just credits and
offsets. Unless each of such amounts is stated, the notice is sufficient.

6. MECHANICS' LIENS-REQUISITES OF STATEMENT OF DEMAND.-Judgment affirmed on
authority of Wheeler v. Port Blakeley Mill Co., 2 West Coast Rep. 555. McLeod
v. Port Blakeley Mill Company. Wash. 798.

7. MECHANICS' LIENS FOR CONSTRUCTION AND REPAIR AGAINST A LESSOR.-Where the
owner of a mill and reduction works leased the same for a term of years, and during
the term the lessee made repairs in the mill, in pursuance of a clause of the lease that
the lessee "at his own cost and expense should make all necessary repairs and im-
provements in and about said mill and reduction works," and an agent of the lessor
had personal and full knowledge that said repairs were being made by the lessee,
and the lessor and his agent failed to give notice, as provided by the statute, that
the lessor would not be responsible for the same: Held, that under sec. 9 of the
lien law, the parties furnishing the materials or labor for said repairs, obtained a
lien for the price of such materials and labor upon the estate or interest of the
owner and lessor of said mill. Gould v. Wise. Nev. 405.

8. THE SAME-WORK AND LABOR IN "CARRYING ON" A MILL.-Under the same circum-
stances, by the proper construction of sec. 19 of the same lien law (of 1875), persons
who performed work and labor, by the employment of the lessee, in "carrying on
or operating the mill, obtained a lien for the price of such work and labor upon the
estate or interest of the owner and lessor of the mill. LEONARD J., dissent ng. Id.
9. CONSTRUCTION OF STATUTES.-In construing a provision of a statute the word "on,”
although found both in the published statutes and in the enrolled bill, may be
treated by the court as a clerical error, and may be read "or," when the latter word
would give a full, consistent and effectual meaning to the provision, in complete
conformity with the general intent of the whole statute, while the word "on" would
render the provision uncertain, delusive, virtually inoperative, and opposed to the

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
and mortgage are both contained in the same instrument, the mortgagee may waive
his remedy by foreclosure, and sue on the note and recover a money judgment.
Frank et al. v. Pickle. Wash. 570.

7. AN UNRECORDED MORTGAGE OF PERSONAL PROPERTY IS ABSOLUTELY VOID as to the
creditors of the mortgagor, although such creditors had actual notice thereof.
'Baxter v. Smith. Wash. 794.

8. EQUITABLE ASSIGNMENT OF MORTGAGE.-Where, in pursuance of an agreement be-
tween a mortgagor and mortgagee, a third party pays off the mortgage debt and
takes a conveyance of the mortgaged premises, such transaction will be construed
as being an equitable assignment of the mortgage so as to entitle the grantee to pri-
ority and protection as against a judgment creditor of the mortgagor whose rights
accrued subsequent to the execution of the mortgage, although at the time of such
conveyance the mortgagee satisfied the mortgage on the record. Matzen v. Shaef-
fer. Cal. 126.

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
being in the commission of an unlawful act, which in its consequences naturally
tends to destroy life, or is committed in the prosecution of a felonious intent, is
murder. People v. Mooney. Idaho, 124.

3.

2. MURDER IN THE FIRST DEGREE.-Under the statute ali murder committed in the per-
petration or attempt to perpetrate robbery is murder of the first degree. Id.
MURDER-MANSLAUGHTER.In case of a homicide committed by the defendants
where the fatal shot was fired while the deceased was retreating, and after all dan-
ger from him was over and while defendant was pursuing him, then the defendant
is guilty of murder or manslaughter as the case may be. People v. Pierson.
Idaho, 809.

4. MUR ER-INSTRUCTIONS DUELING.-When there is nothing in the circumstances
attending a killing to bring the case within the crime of dueling, an instruction that
"when parties by mutual understanding engage in a conflict with deadly weapons,
and death ensues to either, the slayer is guilty of murder," is correct. People v.
Bush. Cal. 575.

5. THE SAME-KILLING AFTER QUARREL QUESTIONS OF FACT.-If, between the quarrel
and the killing, there is a space or interval of time sufficient for an ordinary man to
cool, that may be deemed a reasonable time within the meaning of the rule on the
subject. And if, between the quarrel and the infliction of the mortal wound, the mind
of the defendant is directed to and is taken up by any other subject not in any man-
ner connected with the cause of the quarrel, it may be reasonably supposed that his
attention was called off from the subject of the provocation, and any subsequent
killing of his adversary without other provocation and with a deadly weapon would
be murder. An instruction to such effect is not erroneous as being an instruction
upon matters of fact. Id.

6. THE SAME JUSTIFIABLE HOMICIDE-CONFLICTING INSTRUCTIONS.-A defendant may
justify a killing, although he was the assailant, if he, in good faith, endeavors to
decline any further struggle before the act of homicide was committed. An instruc-
tion to the contrary is erroneous, and is not cured by another instruction, in a dif-
ferent portion of the charge, where the law is correctly stated. In such case it
would be impossible to determine under which of the two contradictory instructions
the jury acted. Id.

7. KILLING AS THE RESULT OF A SIMPLE ASSAULT-MANSLAUGHTER.-The defendant,
after an exchange of words with the deceased, struck him several blows on the
head or face with his fist. The blows did not seem at the time, or immediately
afterwards, to produce any serious results. How severe the blows were did not
appear, but they must have been dealt with considerable force, as the deceased was

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.