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 between 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 priority 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. Shaeffer. 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 perpetration 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 danger 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 manner 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 instruction to the contrary is erroneous, and is not cured by another instruction, in a different 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.

Id.

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. 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.

the compiled laws governing this subject, sections 308 and 309, are mandatory, and
unless they are observed the appellate court acquires no jurisdiction. McLaughlin
v. Upton, Assignee, etc. Wy. 57.

7. AN OBJECTION TO A MOTION FOR A NEW TRIAL ON THE GROUND that the same was not
made in time is not waived by arguing such motion. Id.

8. NEW TRIAL-CONFLICT OF EVIDENCE.-An order granting a defendant a new trial,
after a verdict convicting him of embezzlement, will not be reversed, when the evi-
dence is conflicting. People, etc. v. Burt. Cal. 721.

9. WHEN THE EVIDENCE IS CONFLICTING, an order denying a motion for a new trial will
not be disturbed on the ground that the same is insufficient to justify the verdict.
People v. Forsythe. Cal. 288.

10. WHERE THERE IS A SUBSTANTIAL CONFLICT OF EVIDENCE on a material issue, the ap-
pellate court will not reverse an order of the lower court granting a new trial. Daris
v. Utah Southern Railroad Company. Utah, 453.

11. NEW TRIAL GRANTED on the ground of newly discovered evidence. People v. Carty.
Cal. 591.

See APPEAL, 14, 29; SUPERSEDEAS, 1.

NORTHERN PACIFIC R. R. CO.

See CONTRACT, 4; DEED, 2, 4; EASEMENTS, 3; TAXATION, 13, 17.

NOTICE.

See BONA FIDE PURCHASER, 1, 2; CONSTITUTIONAL LAW, 7, 8.

NUISANCE.

1. NUISANCE—ABATEMENT OF BY MUNICIPALITY. -A city, the charter of which empow
ers it to "make regulations to secure the general health of the inhabitants, to de-
clare what shall be a nuisance, and to prevent and remove the same," may by ordi-
nance define, classify and enact what things or classes of things, and under what
conditions and circumstances such specified things are to constitute and be deemed
a nuisance. But it cannot, by a mere resolution, declare a particular thing,
such as a water ditch, a nuisance, which has not theretofore been pronounced to be
such by law, or so adjudged by judicial determination, and order its summary re-
moval. Whether such ditch is public nuisance must be judicially determined
before it can be lawfully abated, either by the public or an individual. City of
Denver v. Mullen. Col. 852.

2. THE SAME-BESIDES THE REMEDY BY INDICTMENT, a civil action lies to prevent or
abate a public nuisance, on behalf of the public, by its proper officers. Id.

OBLIGATION.

See CONTRACTS, 5.

OREGON DONATION ACT.

1. "OREGON DONATION ACT," TITLE UNDER.-Under this act, by which there "is
granted" to every man answering to a certain description, or if married, to him and
to his wife in equal parts, a tract of land of specified area, upon certain prescribed
conditions of selection, and in consideration of residence and cultivation for a certain
period, the United States holds the position of seller and the donee that of pur-
chaser. As soon as the necessary selection has been made, and the prescribed resi
dence and cultivation completed, the transaction is closed, so far as the sale is con-
cerned. Final proof is no part of the consideration which the grantee gives, but is
merely evidence to satisfy the land office that the right of the grantee is perfect, and
entitles him to a patent. The act, and not the patent, works the transfer of title.
The patent is formal and solemn evidence, and when issued relates back as of the
date when a fit grantee, rendering full consideration, had appeared. Title under
this donation act is always complete before a patent issues, and the patent issues by
virtue of a title complete, and not otherwise. Brague v. Schofield et al. W. I.

485.

2. THE SAME-PARTITION BY MINORS-ACQUIESCENCE-ESTOPPEL.-Previous to 1853,
Amos Short, who was married, had duly selected, under the Oregon donation act,
a tract of land, which is the subject-matter of the present controversy, and with

his wife had resided upon and cultivated it in full compliance with said act,
so as to entitle himself and wife to a patent, subject to survey by the United States
surveyor. In 1853 he died, leaving a widow and children. All the requirements
of said act had been complied with, and the widow and children of Amos Short,
held, prior to and in the year 1855, in undivided shares, all disposable interest in
and to said tract of land, and were entitled to a patent therefor from the United
States. In 1855 they agreed to make, and did make, a parol division or partition
of this whole tract into halves; the east half was assigned to the widow, and the
west half to the children. This partition was, of course, subject to the survey and
division made by the surveyor-general, and to the division line which he might de-
termine. The children, assuming that the west half belonged to themselves, pro-
ceeded in 1856 to make a partition of it and to determine their own shares in sev-
eralty. To this end, those who were of age applied personally, and those who were
minors applied by guardian, to the proper probate court for a partition. Proceed-
ings were thereupon had, by which the probate court, in form at least, decreed a
partition of the west half among the children. To this partition all of the children
actually and willingly consented by each, either personally or by guardian, taking
possession and control of his or her portion in severalty, and by mutually paying
and accepting owelty sufficient to fully equalize all the allotments. In 1874 the
United States surveyor-general divided the land between the widow and the heirs,
and among the heirs themselves, in exactly the same manner in which they them-
selves had partitioned it in 1856. Under these partitions, G. H. Short, one of the
minor children, became entitled to and possessed of a share of said west half, known as
lot 7, which is the land in controversy. He held and used that lot as his own until
1865. In that year his guardian, acting under direction of the court of probate,
sold said lot to the appellee, Schofield, for a fair price, which, under direction of
the court, was applied in paying a mortgage upon the premises and other debts
proved and allowed against said minor's estate. . H. Short became of age in 1866.
In 1878, twelve years after attaining his majority, during which interval he had not,
by word or act, objected to any of the foregoing proceedings, he gave to the appel-
lant's grantor a quitclaim deed of all his right, title and interest in the said dona-
tion claim; and about the same time the other heirs gave to the appellant's grantor
similar deeds of their respective interests. At the execution of these latter convey-
ances, periods varying from eight to twenty-one years had elapsed since each one
of the heirs had become of age, during which times none of them had made any
objection to the various proceedings above described. Meanwhile the appellees
have put upon the premises permanent improvements of great value. Held, that
even if the proceedings in the probate court for the partition and for the sale were
irregular, the said heirs were estopped by their long acquiescence, after attaining
their majority, from objecting to the regularity and validity of the partitions which
had been made, or of the sale of the land by order of the probate court; and that
their quitclaims to appellant's grantor conveyed no right, title or interest in the
premises. Id.

See PUBLIC LANDS, 8, 9.

OUSTER.

See EJECTMENT, 7.

PARTICULARS.

See BILL OF PARTICULARS.

PARTIES.

1. AN ACTION ON A FORTHCOMING BOND MAY BE BROUGHT in the name of the sheriff, for
the use and benefit of the real parties in interest, against the sureties on such bond,
without joining their principal, and without showing that judgment has been ob-
tained against the principal or that the plaintiff has exhausted his remedies against
him. Wagner v. Romero. N. M. 269.

2. DEFECT OF PARTIES IN ACTION AGAINST PARTNERSHIP.-In an action against a part-
nership a defect of parties, consisting in a failure to name the individuals composing
the firm, is waived by the appearance of the defendants, without specifically ob-
jecting to the defect. Baxter et al. v. Scoland et al. Wash. 552.

the compiled laws governing this subject, sections 308 and 309, are mandatory, and
unless they are observed the appellate court acquires no jurisdiction. McLaughlin
v. Upton, Assignee, etc. Wy. 57.

7. AN OBJECTION TO A MOTION FOR A NEW TRIAL ON THE GROUND that the same was not
made in time is not waived by arguing such motion. Id.

8. NEW TRIAL-CONFLICT OF EVIDENCE.-An order granting a defendant a new trial,
after a verdict convicting him of embezzlement, will not be reversed, when the evi-
dence is conflicting. People, etc. v. Burt. Cal. 721.

9. WHEN THE EVIDENCE IS CONFLICTING, an order denying a motion for a new trial will
not be disturbed on the ground that the same is insufficient to justify the verdict.
People v. Forsythe. Cal. 288.

10. WHERE THERE IS A SUBSTANTIAL CONFLICT OF EVIDENCE on a material issue, the ap-
pellate court will not reverse an order of the lower court granting a new trial. Davis
v. Utah Southern Railroad Company. Utah, 453.

11. NEW TRIAL GRANTED on the ground of newly discovered evidence. People v. Carty,
Cal. 591.

See APPEAL, 14, 29; SUPERSEDEAS, 1.

NORTHERN PACIFIC R. R. CO.

See CONTRACT, 4; DEED, 2, 4; EASEMENTS, 3; TAXATION, 13, 17.

NOTICE.

See BONA FIDE PURCHASER, 1, 2; CONSTITUTIONAL LAW, 7, 8.

NUISANCE.

1. NUISANCE-ABATEMENT OF BY MUNICIPALITY. -A city, the charter of which empow
ers it to "make regulations to secure the general health of the inhabitants, to de-
clare what shall be a nuisance, and to prevent and remove the same," may by ordi-
nance define, classify and enact what things or classes of things, and under what
conditions and circumstances such specified things are to constitute and be deemed
a nuisance. But it cannot, by a mere resolution, declare a particular thing,
such as a water ditch, a nuisance, which has not theretofore been pronounced to be
such by law, or so adjudged by judicial determination, and order its summary re-
moval. Whether such ditch is a public nuisance must be judicially determined
before it can be lawfully abated, either by the public or an individual. City of
Denver v. Mullen. Col. 852.

2. THE SAME BESIDES THE REMEDY BY INDICTMENT, a civil action lies to prevent or
abate a public nuisance, on behalf of the public, by its proper officers. Id.

OBLIGATION.

See CONTRACTS, 5.

OREGON DONATION ACT.

1. "OREGON DONATION ACT," TITLE UNDER.-Under this act, by which there "is
granted" to every man answering to a certain description, or if married, to him and
to his wife in equal parts, a tract of land of specified area, upon certain prescribed
conditions of selection, and in consideration of residence and cultivation for a certain
period, the United States holds the position of seller and the donee that of pur-
chaser. As soon as the necessary selection has been made, and the prescribed resi-
dence and cultivation completed, the transaction is closed, so far as the sale is con-
cerned. Final proof is no part of the consideration which the grantee gives, but is
merely evidence to satisfy the land office that the right of the grantee is perfect, and
entitles him to a patent. The act, and not the patent, works the transfer of title.
The patent is formal and solemn evidence, and when issued relates back as of the
date when a fit grantee, rendering full consideration, had appeared. Title under
this donation act is always complete before a patent issues, and the patent issues by
virtue of a title complete, and not otherwise. Brague v. Schofield et al. W. T.

485.

2. THE SAME-PARTITION BY MINORS-ACQUIESCENCE-ESTOPPEL.-Previous to 1853,
Amos Short, who was married, had duly selected, under the Oregon donation act,
a tract of land, which is the subject-matter of the present controversy, and with