juryman is not such an office or place of public trust, honor or emolument as is con-
templated by section S of such act.
1. JUSTICES OF THE PEACE-FEES, FINES AND FORFEITURES, DISPOSAL OF.-
of April 1, 1880, and sections 1457 and 1570 of the penal code, regulating the duties
of justices of the peace as to the disposition of the fines and forfeitures collected by
them, and also as to the disposal of the fees of the justices, in cases in which the
fines were imposed or the forfeitures incurred, are not inconsistent and must be real
together. If the fine or forfeiture was imposed or incurred without costs, or with
costs which were not collected, it is the duty of the justice to collect the costs out
of the fines or forfeitures paid to him, and to report the amount of his fees to the
city treasurer, and pay it into the city treasury, as required by the statute of 1880,
and pay over the residue into the county treasury, as required by sections 1457 and
1570 of the penal code. But if the fine was imposed or the forfeiture incurred with
costs, and the fine or forfeiture with costs were paid, then the entire fine or forfeit-
ure is to be paid into the county treasury, and the fees of the justices are to be paid
into the city treasury. County of Los Angeles v. City of Los Angeles. Cal. 441.
Los Angeles v. Morgan. Cal. 444.
2. Los ANGELES CITY COURT-JUDGE OF-MAYOR.-The mayor of the city of Los An-
geles cannot, by a general deputation, substitute the justices of the peace for said
city to act for him in his place and stead, as the judge of the city court. Id.
3. THE SAME-NO SUCH JUDICIAL OFFICER IS KNOWN to the law as a "justice of the
peace of Los Angeles city and cx officio judge of the city court thereof." Id.
4. DUE-BILLS-JUSTICES' COURT--JURISDICTION.-Due-bills, which specify no place of
payment, are payable at the domicile of the debtor, and an action thereon in the
justices' court must be brought in the precinct in which the maker resides. Klopen-
stine v. Woolf. Utah, 261. Sanders v. Woolf. Utah, 262.
See AMENDMENTS, 1; APPEAL, 10; CORPORATIONS, 3.
JUSTIFICATION.
See CONVERSION, 2.
1. KIDNAPPING—ASSAULT AND BATTERY-ONCE IN JEOPARDY.-An acquittal or con--
viction of an assault and battery is no bar to a subsequent prosecution for kidnap-
ping, although the two offenses were committed by the same act. State v. Stewart..
Or. 229.
1. TEARING DOWN BUILDINGS-WASTE INJUNCTION-TENANT.-The tearing down or
destruction of the demised buildings by a tenant, unless authorized by the terms of
his lease, is waste, and, if threatened, such actions will be restrained by injunction.
Davenport v. Magoon. Or. 323.
2. THE SAME--LEASE-ALTERATION BY TENANT.-A provision of a lease, authorizing
the tenant to alter and repair the demised buildings so as to adapt them to other
business than that for which they were originally intended, does not authorize him
to tear down and destroy such buildings. Id.
3. SERVICE OF A NOTICE TO QUIT ON A TENANT MAY BE PROVED by parol. Chung
Yow v. Hop Chong. Or. 325.
4. NOTICE TO QUIT DESCRIPTION OF PREMISES.-The description of the premises in
such notice, to wit: "The premises situated on the west side of Second street, be-
tween Alder and Morrison streets, Portland, Or., occupied by you as a store," will
be held sufficient, when it appears that such description was correct, and that the
tenant was not misled thereby. Id.
5. LEASE--OFFER AND ACCEPTANCE-SUB-LETTING.-Where the owner of a building
posts up a written notice therein, inviting bids for a lease of the premises, and in
pursuance thereof a bid was handed in, which was accepted by the owner, who
thereupon posted a notice that such bidder was the lessee of the building, and en-
titled to its possession, such facts constitute a valid contract of leasing between the
owner and the bidder, so as to enable the latter to sub-lease the building, without
any further acts on the part of the owner. Id.
1. LARCENY-POSSESSION OF RECENTLY-STOLEN PROPERTY.--The mere possession of re-
cently-stolen property, unconnected with other facts and circumstances tending to
show guilt, is not, of itself, sufficient to warrant a conviction for larceny; it is
merely a circumstance tending to implicate the accused; but if linked with other
facts and circumstances also tending to implicate him, it may amount to direct and
positive proof. People v. Elster. Cal. 33.
2. PREVIOUS CONVICTION OF GRAND LARCENY-IMPRISONMENT.-When a defendant is
convicted of an assault with intent to commit robbery, and of a previous conviction
of grand larceny, he may be sentenced, under section 671 of the penal code, to im-
prisonment for the term of his natural life, or for ten years, or for any number of
years not less than ten. People v. Brooks. Cal. 53.
See EXECUTORS AND ADMINISTRATORS. 3.
1. ACTION FOR-VARIANCE-PARTIES PLAINTIFF.-In an action for libel, proof that the
libelous words were published of the plaintiff and a third person, is not a fatal
variance. In such actions, when the injury is several, each person injured must sue
alone. Robinett v. McDonald. Cal. 787.
1. SALE OF SPIRITUOUS LIQUORS-LICENSING OF BY COUNTY.-Under section 11, article
XI of the constitution, the boards of supervisors of counties have power to regulate
the sale of spirituous liquors within their counties, by imposing a license upon the
retail sale of such liquors. Ex parte Walters. Cal. 28.
2. JUDGMENT REVERSED on the authority of Ex parte Walters, ante, page 28. People v.
Dwyer. Cal. 438.
See COUNTY GOVERNMENT ACT, 3.
1. COUNTY LICENSE COLLECTOR-APPOINTMENT OF.-The general power conferred on
boards of supervisors to license business and collect license taxes within their
respective counties, includes the power to appoint an agent to make such collections
There is nothing in section 5 of article XI of the constitution conflicting with such
power. People v. Ferguson. People v. Ponet. Cal. 45.
See GROWING CROPS, 1; JUDGMENT, 6; MECHANICS' LIENS; MORTGAGES.
LIFE INSURANCE.
See INSURANCE, 1.
LOCATION OF MINING CLAIM.
See MINES AND MINING, 2-11.
LOS ANGELES.
See JUSTICES' COURT, 2, 3.
LOST DOCUMENTS.
See EVIDENCE, 10, 18, 20, 21.
1. A CAUSE OF ACTION FOR MALICIOUS PROSECUTION IS BARRED in two years. Taylor
v. Bidwell. Cal. 479.
1. MANDAMUS AGAINST SUPERVISORS JUDGMENT.-In mandamus against a board of
supervisors, on a judgment recovered against the county, the judgment should
order the board to allow the judgment, and should not direct its payment by them.
The treasurer is the proper person to pay. Johnson v. Supervisors of Sacramento
County. Cal. 478.
2. SACRAMENTO BONDS-MANDAMUS.-Ordered that a writ of mandate issue to the
municipality of Sacramento, and its authorities annually to levy and collect for
municipal purposes on all real and personal property within the city limits, except
such as are exempt by law, a tax of one hundred cents on the one hundred dollars,
and that fifty-five per cent. of the revenue thus derived within the city limits for
municipal purposes be set apart and appropriated to an interest and sinking fund,
to be applied to the annual interest and final redemption of the bonds issued for the
city indebtedness, in accordance with the act of the legislature of the state, adopted
April 24, 1858. Meyer v. Brown. Cal. 106.
3. EQUITY JURISDICTION--REMEDY AT LAW.-Under section 721, R. S., suits in equity
in the United States courts cannot be sustained in any case where a plain, ade-
quate and complete remedy may be had at law. Hausmeister v. Porter, treasurer,
etc. (U. S. Cir. Ct.) Cal. 594.
4. MANDAMUS AN ADEQUATE REMEDY AT LAW.-Where the treasurer of a city refuses
to pay coupons due upon bonds out of funds in the treasury, expressly provided for
that purpose by the statute, and refuses to set apart a portion of the taxes collected,
as a sinking fund for the payment of bonds of the city, as required by the statute,
a writ of mandamus, to compel the performance of those duties, affords a plain,
adequate and complete remedy at law; and a bill in equity will not lie at the suit of
a bond-holder, merely to restrain the application of the funds, so provided, to other
objects of city expenditures, the said bill not being ancillary to any other pending
proceeding at law to obtain payment. Id.
MANSLAUGHTER.
See MURDER AND MANSLAUGHTER.
MARITIME LAW.
See ADMIRALTY.
1. MARRIED WOMAN'S CONTRACT-SEPARATE ESTATE-SECURITY FOR HUSBAND'S
DEBTS. The assignment by a married woman of a note and mortgage of real estate,
the same being her separate property, as collateral security for the payment of her
husband's debts, without any fraud or improper inducements on the part of her hus-
band, and with the intention of binding her separate estate, is a valid contract, and
enforceable in equity against her separate estate. Cartan, McCarthy & Co. v. David
et al. Nev. 182.
2. THE SAME-INTENTION, HOW EXPRESSED.-The intention of a married woman to
charge her separate estate need not be expressed in any set form of words. It may
be inferred from the particular circumstances of the transaction, when the same are
such as to leave no reasonable doubt that such was her intention. Id.
3. THE SAME A MARRIED WOMAN can, under the statute, 1 Comp. L., sections 159,
169, make any disposition of, or contract concerning, her separate property that she
desires. Id.
4. NOTE AND MORTGAGE, ASSIGNMENT OF BY MARRIED WOMAN-ACKNOWLEDGMENT.—
The assignment, by a married woman, of a note and mortgage of real estate belong.
ing to her, may be made by merely indorsing the back of the note. Such note and
mortgage are mere chattels, and an assignment thereof is not such a contract affecting
real estate as the statute requires to be acknowledged separate and apart from her
husband. Id.
5. THE SAME-COLLATERAL SECURITY-STATUTE OF FRAUDS INDEPENDENT UNDER-
TAKING.If the assignment of such note and mortgage by the wife was made for
the purpose of securing the note of her husband, at the time the husband's note was
given, and as part of the same transaction, the consideration for the husband's note
must be regarded as the consideration for the collateral security of the wife, and no
new or additional promise by her is necessary. The transaction must be treated as
an original undertaking on the part of the wife, and cannot be considered as a mere
parol promise to pay the debt of another. Id.
See DEED, 6, 8; HUSBAND And Wife.
1. MASTER AND SERVANT-NEGLIGENCE. - In an action to enforce an employer's lia-
bility for an injury occasioned to an employee, through the employer's failure to
exercise ordinary care in supplying suitable appliances for the work to be done, an
instruction as to the liability of the defendant for not exercising ordinary care in
the selection and employment of proper fellow-servants is erroneous, where no ques-
tion in regard to such liability is raised by the pleadings or evidence. Willis v.
Oregon Ry, etc. Co. Or. 240.
2. THE SAME-COMMON EMPLOYMENT-VICE-PRINCIPAL.-A master is not liable to a
servant for an injury occasioned by a fellow-servant engaged in a common employ-
ment. He is liable, however, for an injury to a servant occasioned by the negli
gence of a vice-principal, to whom he has committed the substantial control of the
business and the power to do all acts necessary to its conduct. Id.
3. THE SAME THE FOREMAN OF A GANG OF LABORERS engaged in erecting a shed
under the direction of a superior, is a fellow-servant with the rest of such laborers,
and if an injury happens to one of them through the negligence of such foreman,
their principal is not liable. Id.
See NEGLIGENCE, 4; TRUSTS, 1.
See ADMIRALTY, 2-7; ATTORNEYS, 2-4; CONTRACTS, 2; DAMAGES, 2; TELEGRAPH
COMPANIES.
1. MECHANIC'S LIEN-NAME OF OWNER-STATEMENT.-The same person may be both
the owner and the reputed owner of a building, and a statement in a mechanie's
claim of lien that a certain name is the name of the owner of the building on which
his work was done, is none the less positive because it is also declared to be the
name of the reputed owner. Arata et al v. Tellurium Gold and Silver Mining Co.
et al. Cal. 151.
2. THE VERIFICATION OF A MECHANIC'S CLAIM OF LIEN, which states that the same
"is true" is sufficient. The omission to state of the affiant's "own knowledge," is
not a defect. Id.
3. LABORER'S LIENS-PLEADINGS JUDGMENT.-In an action to enforce laborers' liens,
where the complaint does not aver that any money was due the contractor, but the
answer presents that issue, judgment consistent with the case, as presented by the
complaint and answer, may be given. Such judgment cannot exceed the amount
due the contractor. O'Donnell et al. v. Kramer et al. Cal. 197.
4. FORECLOSURE OF MECHANIC'S LIEN-FORM OF JUDGMENT.-In an action to enforce
a mechanic's lien, a judgment in effect "that the claimant claims the benefit of the
law of liens of mechanics and others upon real property, to wit, chapter 2, title
IV, part III, of the code of civil procedure," cannot be entered by default. Arata
v. Tellurium etc. Mining Co. Cal. 151, 290.
1. CONFIRMATION OF MEXICAN GRANT-SURVEYOR GENERAL'S REPORT.-The confirm-
ation by act of congress of a private land-claim in New Mexico or Colorado, upon
the recommendation of the surveyor general, under the act of 1854, (10 U. S. Stat.,
308, sec. 8), is equivalent to a grant de novo, of the lands embraced within such con-
firmation, although the same exceeds eleven square leagues to each grantee. United
States v. Maxwell Land Grant Company et al. (U. S. Cir. Ct.) Col. 514.
2. THE SAME-SURVEY-SETTING ASIDE PATENT-FRAUD.-Where such confirmation
is of a grant within certain named out-boundaries, and through the fraud of the
United States officers the survey and patent thereof is so made as to include a large
quantity of land lying without such boundaries, such patent will be set aside at the
instance of the United States, as against subsequent purchasers under the patent,
when the clause contains recitals upon its face showing the amount of land intended
to be confirmed. Id.
1. MINING LAWS-CONFLICT BETWEEN UNITED STATES AND STATE. The laws of the
United States are paramount with respect to the acquisition of title to mineral lands
on the public domain; the laws of the state or territory must not conflict therewith,
and so far as they do, they are entirely nugatory. Johnson et al. v. McLaughlin et
al. Ariz. 178.
2. THE SAME-LOCATION OF MINING CLAIM-RECORDING LOCAL REGULATIONS.-The
location of a mining claim, recorded in the recorder's office of the proper county, in
strict compliance with the laws of the United States and of the territory of Arizona,
is not valid, because not recorded with and examined by the local district recorder,
in compliance with the local regulations of the mining district. Id.
3. FAILURE TO COMPLY WITH THE LOCAL REGULATIONS OF A MINING DISTRICT will
not work a forfeiture of a prior location, unless such regulation prescribes a forfeiture
as a penalty for its non-observance. Id.
4. MINING CLAIM-LOCATION-NOTICE-MARKING BOUNDARIES.-Simply posting a no-
tice and erecting a discovery monument is not a valid location of a mining claim,
although the notice stated that the locator claimed twenty days within which to
make the boundaries and to record the claim. Such claim is open to relocation at
any time before the original locator marked his boundaries on the ground. Newbill
et al. v. Thurston et al. Cal. 367.
5. LOCATION OF MINING CLAIM-NOTICE-DESCRIPTION.-The notice of location of a
mining claim must describe the property sought to be located by reference to natural
objects or permanent monuments, which can be seen by the eye and made the basis
for a survey.
A description made entirely by reference to the boundary lines of
four other locations is insufficient. Baxter Mountain Gold Mining Co. v. Patterson
et al. N. M. 77.
6. MINING CLAIM-FAILURE TO PERFORM WORK--RELOCATION.-Failure to perform
the required annual amount of work on a mining claim, under section 2324 of the
United States revised statutes, renders such claim open to relocation, provided the
original locators have not resumed work upon the claim after failure and before such
relocation. Russell v. Brousseau. Cal. 781.
7. ENTRY UPON THE ACTUAL POSSESSION OF ANOTHER, for the purpose of laying a
foundation for a pre-emption claim to lands, cannot be made. Dù Prat, exécutrix,
v. James et al. Cal. 651.
8. MINING CLAIMS-PERFORMANCE OF WORK.-Performance annually of the specified
amount of labor is a condition which must be complied. Failure so to do opens the
land for other locations.
9. RIGHT OF ORIGINAL LOCATOR TO PERFORM THE LABOR AFTER A FAILURE, and have
the benefit of his location, is dependent upon his having performed the labor before
relocation. Id.
10. LABOR REQUIRED IN LOCATING MINING CLAIM.-Personal expenditures made in
traveling about matters connected with the claim, and the value of the time thereby
consumed, are not labor performed on the mine. Id.
11. BOUNDARIES OF CLAIM by permanent monuments and stakes at the corners, and by
distinctly marking the location on the ground, are sufficient. Id.
12. MINING LAW--ADVERSE CLAIM.-In a suit brought under section 2326, U. S. R. S.,
to determine the right of possession of an adverse mining claim, the title of each
party to the disputed premises is brought in question, and each party must make
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