Слике страница
PDF
ePub

ditional certificate; it can confer no additional rights, and is, therefore, evidence of none, as against any intervening or pre-existing rights of another. Except as against such intervening rights an additional certificate recorded after the commencement of an action, serves the same purpose, in its admission as evidence, as an original location certificate, and will relate back to the first location. Id.

See INJUNCTION, 1.

MINING CLAIM.

See MECHANIC'S LIENS, L

MINORITY.

See INFANTS, 1.

MISDEMEANORS.

See APPEAL, 8.

MORTGAGE.

1. CHATTEL MORTGAGE-ACKNOWLEDGMENT OF-POSSESSION OF MORTGAGOR.-The fail. ure to properly acknowledge a chattel mortgage is fatal to its validity while the property mortgaged remains in possession of the mortgagor. Wilcox et al. v. Jack son. Col. 326.

2. THE SAME CHANGE OF POSSESSION-ATTACHING CREDITORS.-A chattel mortgage of the stock in trade of a merchant, although followed by an actual change in possession, is invalid as against subsequent attaching creditors of the mortgagor, without notice actual or constructive of the mortgage, unless such change in possession is accompanied by the assumption on the part of the mortgagee of the usual indicia of ownership. And the mere employment of another clerk is not sufficient notice of a change of ownership to put creditors and purchaser upon inquiry. Id. 3. BILL OF SALE ABSOLUTE IN FORM WHEN A CHATTEL MORTGAGE-RECORDING-NoTICE.-A bill of sale absolute in form is considered a chattel mortgage upon proof by parol that it was given to secure a debt, not only as to the parties to it, but also as to third parties who are affected with notice. Such bill of sale is entitled to be filed with the county clerk as a chattel mortgage, under section 46 of the code, page 522; and thereafter it imparts notice to third parties, although the clerk may omit to index the instrument. Necklin v. Nelson et al. Or. 682.

4 CHATTEL MORTGAGE TO SECURE FUTURE ADVANCES-LIEN OF, WHEN ATTACHES.— In the absence of fraud, a chattel mortgage to secure future advances is valid, whether such object be expressed in the mortgage or not. The lien of such mortgage attaches from the date of the advance, and not from the date of the mortgage. Id.

5. FORECLOSURE OF MORTGAGE-PERSONAL JUDGMENT AGAINST GRANTEE OF MORTGAGOR-PLEADINGS.-In a complaint to foreclose a mortgage, an allegation that the grantee of the mortgagor covenanted and agreed to pay the mortgage debt and discharge the mortgage lien is sufficient to sustain a personal judgment against him, although such allegation is made upon information and belief. Pellier v. Gillespie. Cal. 500.

6. FORECLOSURE OF MORTGAGE-Decree, what TO EMBRACE.-A decree in an action to foreclose a mortgage cannot direct a sale of a greater interest than that mortgaged. Thus, where the mortgage merely covered certain lands and improvements owned by the mortgagor at the time of the execution of the mortgage, the decree must be limited to such property, and cannot embrace property of the mortgagor subsequently acquired. Marshall v. Livermore S. V. W. Co. Cal. 631.

7. FORECLOSURE OF SEPARATE MORTGAGES-DECREE-SALE.-The decree in an action for the foreclosure of two mortgages, each being on separate parcels of land, must provide that each parcel should be sold to satisfy the sum for which it was sepa. rately mortgaged. Home and Loan Associates v. Wilkins. Cal. 108.

See DEMURRER, 3; Fraud, 1; MECHANICS' LIENS, 2, 3; TAXATION, 17.

MUNICIPAL COURT OF APPEALS.

See CERTIORARI, 2.

MURDER AND MANSLAUGHTER.

1. MURDER AND MANSLAUGHTER-MALICE, WHEN INFERRED.-The distinction between murder and manslaughter lies in the presence or absence of malice. The existence of malice, like any other fact, may be logically inferred by the jury from all the facts and circumstances of the case, legally proved, the weapon used, the action of the defendant at the time of the killing, and his previous acts and conduct. People v. Samuels. Cal. 382.

2. MURDER-DEFENDANT'S GOOD CHARACTER.-If the jury believe the defendant guilty of murder, they must so find, notwithstanding his good character. Id.

3. CRIMINAL LAW-MURDER-SELF-DEFENSE-FEAR OF ASSAULT-INSTRUCTIONS.-An instruction given in a prosecution for murder, at the request of the people, that "the bare fear of an assault upon the defendant will not justify homicide, nor the fear that deceased was about to commit a felony, unless defendant believed there was imminent danger thereof," is no ground for reversal. Such instruction was more favorable to the defendant than he was entitled to, as it omitted the element of the reasonableness of the belief. Id.

4. JUSTIFICATION OF HOMICIDE-BURDEN OF PROOF-INSTRUCTIONS.-In a prosecution for murder, where, from all the circumstances surrounding the homicide, as detailed in evidence by the prosecution, nothing is disclosed in any way tending to excuse or justify the homicide, it is incumbent upon the defendant to show such justification or excuse, if any there be. If he neglect to offer any evidence in justification, an instruction which omits to charge concerning the law of self-defense is not error. Cook v. Territory. Wy. 340.

5. INDICTMENT FOR MURDER-VERDICT, SUFFICIENCY OF.-Under an indictment framed in but one count, which charges murder in the first degree, a verdict is sufficient which finds the defendant guilty as charged in the indictment. Id.

6. CRIMINAL LAW-CONCLUSION OF INDICTMENT.-Under the Montana statute, if the substantive averments in an indictment for murder are good and sufficiently describe the crime, the formal concluding words are immaterial. Id.

7. CRIMINAL LAW-MURDER-INDICTMENT- -POSSESSION OF WEAPON.-An indictment for murder need not allege that the weapon with which the homicide was committed was had or held by the defendant at the time of the alleged killing. Territory v. Young. Mont. 468.

8. DUTY OF PROSECUTION TO CALL WITNESS PRESENT AT KILLING - MURDER.-The prosecution in a trial for murder must call every person who was present and witnessed the alleged homicide, if it is within their power, and a failure so to do is ground for reversal. Territory v. Hanna. Mont. 471.

9. CRIMINAL LAW-MURDER-EVIDENCE-REASONABLE DOUBT.-The evidence of the only witness who testified to the act of killing, or connected the defendant with the homicide, reviewed and held so contradictory and improbable as not to exclude every reasonable doubt of the defendant's guilt. Territory v. Adolphson. Mont. 474.

10. RECORD OF CONVICTION OF MURDER, EVIDENCE OF.-The record of conviction is admissible in evidence, for the purpose of showing that the person convicted was implicated in a murder. Harris v. More et al. Cal. 696.

See BAIL, 1; EVIDENCE, 3, 7; INDIANS, 4; INSTRUCTIONS, 7; JURY AND JURORS, 8.

NAVIGABLE STREAMS.

See NUISANCE, 1-7.

NEGLIGENCE.

1 CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS-EXPRESSION OF OPINION BY JUDGE.— 'In an action to recover damages for personal injuries, caused by the alleged negligence of the defendants, when the defense relied on is contributory negligence on the part of the plaintiff, and the evidence is such that the question of contributory negligence is properly submitted to the jury, it is error for the court to remark to the jury that he does not see how the facts alleged to constitute contributory negligence were unreasonable, " or something which an ordinary man would not do." Andrews v. Runyon. Cal: 81.

2. NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-WANT OF CARE.-In an action to recover damages for negligence, the plaintiff cannot recover if he contributed to the disaster by his own negligence, or want of ordinary care and caution, to such an extent that

[graphic]

but for such negligence or want of care on his part, the accident would not have happened. Colorado Central R. R. Co. v. Martin. Col. 563.

3. THE SAME-RAILROAD COMPANY-MASTER AND SERVANT.-The plaintiff in error, in anticipation of an attack upon its train by robbers, provided breech-loading shotguns and immunition for their defense. These guns were placed by the superintendent of the company in charge of the train baggage-master, with instructions to keep the guns unloaded and wrapped up in a blanket, except when passing over that portion of the road where an attack was apprehended. Upon reaching a certain station on the road the guns were to be unpacked and charged, ready for use; and after passing the same on the return of the train, the cartridges were to be withdrawn and the guns again wrapped up, and, upon reaching the headquarters of the company, the package was to be delivered to the station baggage-master, to be kept over night, and upon the return of the train he was to replace the package. The plaintiff, a conductor on the train, who had entire command thereof, and knew of the foregoing regulations, was injured by the accidental discharge of one of the guns when the same were being replaced on the train by the station baggage-master. Held, that, whether the company was guilty of negligence in not providing gunracks or other suitable means for transporting the guns, was a question for the jury; that the plaintiff, as conductor of the train, was charged with the duty of seeing that the instructions of the superintendent were observed; and that the injury resulted from the negligence of a fellow-servant, for which the company was not liable. Id.

4. CARRIERS OF PASSENGERS-NEGLIGENCE-COLLISION-PARTIES.-When a passenger on a carrier vehicle is injured by a collision resulting from the mutual negligence of those in charge of it and another vehicle, the party injured may recover from the proprietors of either or of both. Where both are sued, the plaintiff may ordinarily dismiss as to either, and, if it turn out that one was not guilty of negligence, he may, on sufficient evidence, take a verdict against the other. Tompkins v. Claystreet Hill R. R. Co. et al. Cal. 537.

5. THE SAME PROOF OF NEGLIGENCE-INSTRUCTIONS.-A passenger by one carrier, in an action against a different carrier to recover for an injury occasioned by a collision between such carriers, must prove negligence on the part of the defendant. As against such latter carriers there is no presumption of negligence arising from the fact of the injury. The defendant is entitled to an instruction in conformity with this rule; and a general instruction to the effect that the plaintiff must make out his case by a preponderance of evidence is not equivalent thereto. Id. 6. THE SAME RELEASE OF ONE CARRIER-ESTOPPEL.-Such passenger, if he receives compensation from one carrier, in consideration of which he discharges and releases it from all liability on account of the injury, is estopped from denying the liability of such carrier, and he cannot afterward maintain an action against the other carrier for the same injury. Id.

7. STREET RAILROAD-NEGLIGENT KILLING OF CHILD IN STREET.-In an action against a street railroad company for killing a child of very tender years, as it was attempting to cross the street, the verdict must be for the defendant, unless the evidence establishes that the death of the child was caused by want of ordinary care on the part of the agent of the company in the management of the car, and that the person having care of the child took all proper precaution for its safety. Roller v. Sutter-street R. R. Co. Cal. 691. 8. NEGLIGENCE-WORK DANGEROUS IN ITSELF-MASTER AND SERVANT.—A railroad company, whenever it calls upon an employé to perform work under dangerous conditions, is bound to provide him with the ordinary means of protection, and its failure to do so is negligence, unless the right to have such means of protection furnished has been waived by the employé. C'Rorke v. U. P. R. R. Co. (U. S. Cir. Ct.)

Col. 203.

9. THE SAME ASSUMPTION OF RISK BY EMPLOYE.-Where an employé has been accustomed to do such work day after day for several months, knowing the same to be dangerous, but without making complaint or demanding the ordinary means of protection, it must be presumed that he assumed the risks of his employment, and if he is injured therein the company is not liable. Id. 10. EXPULSION OF PASSENGER-DUTY OF EXPELLED PASSENGER-CARE AND CAUTION REQUIRED OF. —A passenger expelled from a railroad car is not required to use the utmost care and caution to avoid injury; it is sufficient if he uses such prudent care as is reasonable under the circumstances. Whether it was prudent for a passenger, after his expulsion from a car, during which he received an injury, to walk to a place other than the nearest dwelling-house, is a question for the jury. Under section 487

[blocks in formation]

of the civil code, the passenger expelled is under no duty to go to the nearest dwelling-house. Bland v. S. P. R. R. Co. Cal. 78.

11. OWNER OF BUILDING-NEGLIGENCE-INJURY FROM AWNING.-An owner of a building who erects an awning thereon over a public street, or who allows an awning erected by a prior owner to remain, under a license so to do from the city authorities, on condition that the same be securely fastened, is liable to anyone who, without fault, is injured through the owner's neglect to keep the awning in repair. Such liability exists, although at the time of the injury the building was occupied by a tenant. Jessen v. Sweigert. Cal. 586.

12. ACTION FOR NEGLIGENCE-VARIANCE BETWEEN ALLEGATIONS AND PROOF.-In an action to recover damages for a fire alleged to have been caused by a defective flue, evidence that such fire was caused by the entire want of a flue is not a fatal variance, when it appears that the party objecting was not misled as to the meaning of the averment. Denver, South Park & Pacific R. R. Co. v. Conway. Col. 682. 13. NEGLIGENCE, ACTION FOR-INTEREST NOT ALLOWED.-In an action to recover damages for injury to property caused by negligence, interest on the value of the property injured or destroyed is not recoverable, as the same is not authorized by the statute. Id.

See CONTRACT, 1; MARRIED WOMEN, 1; TELEGRAPH COMPANIES.

NEGOTIABLE INSTRUMENTS.

1. PROMISSORY NOTE-FAILURE OF CONSIDERATION.-A promissory note given in part for a definite, sum which was represented to have been allowed the payee by the probate court for his services as guardian of the maker, is wanting in consideration to the extent of such sum, if the probate court never made such allowance. Estudillo v. Aguirre. Cal. 694.

NEW TRIAL.

1. MOTION FOR NEW TRIAL, JURISDICTION OF COURT OVER.-The jurisdiction of a court to hear and determine a motion for a new trial lies dormant until it is called into exercise by the final submission of the motion, in a legal manner, upon a bill of exceptions, statement of the case, or other papers designated in the notice of motion. And it may be called into exercise by the submission of the motion itself, or by a motion to deny or dismiss the motion for want of prosecution, upon the ground that the party moving for the new trial has failed or neglected to serve or file within legal time the statement or other paper upon which he proposed to move; and when thus called into exercise, and the court, in the exercise of its jurisdiction, has heard and decided the motion, its order is final and conclusive; and it is not erroneous to disSuch order is reviewabie miss or deny a motion afterward made to set it aside.

only on appeal. But it is otherwise if such order has been inadvertently or prematurely made. Odd Fellows' Savings Bank v. Deuprey. Cal. 533.

2. NEW TRIAL-GROUND FOR AFFECTING ONE PARTY ONLY.-An objection, good as a ground for a new trial on the part of one party only, if not raised by him, cannot be relied on by another party. Beach v. Hodgdon. Cal. 610.

3. NEW TRIAL-NEWLY-DISCOVERED EVIDENCE-CUMULATIVE EVIDENCE.-An order refusing a new trial on the ground of newly-discovered evidence, will not be reversed if the newly-discovered evidence is merely cumulative, and every material fact stated in the moving party's affidavits is contradicted by counter affidavits. Kelleher v. Kenney et al. Cal. 432.

4. NEWLY-DISCOVERED EVIDENCE OF FACT KNOWN AT TRIAL EVIDENCE FOR IMPEACHING WITNESS.-Newly-discovered evidence of a fact, known at the trial, as to a matter about which one of the witnesses testified, is no ground for a new trial, when no diligence is shown for not using the fact as evidence, or when such evidence would tend to impeach a witness. People v. Lyle. Cal. 349.

5. NEW TRIAL-ORDER GRANTING WILL NOT BE PRESUMED ERRONEOUS.-The appellate court will not presume error nor an abuse of discretion in the action of the lower court in granting a new trial. Johnston, executor, v. Hancock et al. Cal. 418. upon substan6. CONFLICT OF EVIDENCE-VERDICT--NEW TRIAL.-A verdict rendered tially conflicting evidence cannot be disturbed and a new trial granted, except for Winans v. Sierra Lumber Co. Cal. 277. errors of law occurring at the trial.

7. STATEMENT ON MOTION FOR NEW TRIAL-TRANSCRIPT--WHAT MUST SHOW.--Papers purporting to be a statement on a motion for a new trial will not be considered by the appellate court when the transcript fails to show that either a motion for a new

trial was filed in the lower court, or that a notice thereof was served upon the adverse party, as required by section 287 of the code of civil procedure. First National Bank of Helena v. McAndrews. Mont. 478.

8. DIVORCE-NEW TRIAL OF PORTION OF ISSUES.--In an action for a divorce and a division of the community property, the lower court has power to order a new trial of the issues relating to the character and disposition of the property alone, if material error occurred in the trial of and affecting that branch of the case only, without ordering a retrial of all the issues presented by the pleadings. Lake v. Lake. Nev.

159.

See APPEAL, 22; EVIDENCE, 10; JURY AND Jurors, 2, 10.

NOTICE.

1. NOTICE OF PRIOR EQUITY.-A purchaser of real property for a valuable consideration is not affected by notice of a prior adverse equity received from a stranger or person not interested in the property; nor will mere rumors or hearsay concerning such equity and communicated by such person be sufficient to put him on inquiry and charge him with knowledge of the facts that he might have thereby learned. Parkhurst v. Hosford (U. S. Cir. Ct.) Or. 311.

See ASSIGNMENT, 1-2; ATTACHMENT, 2; INJUNCTION, 1; LANDLORD AND TENANT: MECHANICS' LIENS, 3; MORTGAGE, 2-3; NUISANCE, 2; PUBLIC Lands, 5.

[ocr errors]

NOTICE OF APPEAL.

See APPEALS, 9-11, 13.

NUISANCE.

1. HYDRAULIC MINING-PUBLIC NUISANCE TO NAVIGABLE STREAM-RIGHT OF PUBLIC TO ENJOIN. The record of the case shows that the Gold Run Ditch and Mining Company has been since August, 1870, a corporation existing under the laws of the state of California, for the purpose of mining by the hydraulic process, and selling water to miners and others; and that it is now, and its predecessors have been for several years last past, in possession of five hundred acres of mineral land, situated adjacent to the North Fork of the American river, and of certain mines on said land, which it works by the hydraulic process. The natural surface of this land lies about one thousand feet above the river; and all the material of the mines upon the land-consisting of about twenty millions cubic yards of material composed mostly of sand, gravel, small stones, cobbles and bowlders, mixed with small particles of gold-is capable of being worked off into the river. For the purpose of mining this tract of land by the hydraulic process the company has conducted to its mines, by means of ditches and iron pipes, a large quantity of water, which it uses and will continue to use, under a vertical pressure of several hundred feet, discharging water through "little giants" and "monitors," and dumping all the tailings from its mines into the river. In that manner it has been carrying on its mining operations upon said land for about eight years last past; and up to the time of conmencing this action, and during about five months of each year of said period, has been daily discharging into the said river between four and five thousand cubic yards of solid material from its said mine, to wit, of bowlders, cobbles, gravel and sand, making a yearly discharge of at least six hundred thousand cubic yards, and will continue to discharge that quantity annually if the working of said mine be permitted to continue, and at such rate it will require some thirty years to mine out and exhaust said mineral land. Of the material thus discharged into the river a large portion has been washed, from the place of discharge or dump, down the river, and, commingled with tailings from other hydraulic mines, and still other material which is the product of natural erosion, has been deposited in the beds and channels of the American and Sacramento rivers and their confluents, but mostly in the American, and upon lands adjacent to both rivers. The deposits of this material upon the beds and along the channels of the rivers, and through the Suisun bay and into the San Pablo and San Francisco bays, have already filled and raised the beds of both rivers. The bed of the American has been raised from ten to twelve feet, and in some places more, and the bed of the Sacramento, to a great extent below the mouth of the American, from six to twelve feet. In consequence, the beds of the two rivers have shallowed and their channels widened so that the depths of the rivers have greatly lessened and their liability to overflow has been materially

« ПретходнаНастави »