MINES AND MINING (Continued).

from claiming the same ground as a part of the New Year or any location, so long as the Mohawk is a valid subsisting claim. (Allyn v. Schultz, 152.)

See Public Lands, 1.

MORTGAGE.

1. MORTGAGE-ACTION TO DECLARE DEED ABSOLUTE MORTGAGE—EVIDENCE-PREPONDErance InsuffiCIENT.—A mere preponderance in the evidence is insufficient to prove a deed absolute on its face a mortgage. It must be shown that it was executed, delivered, accepted, and intended as a mortgage by clear and certain and conclusive evidence. (Sullivan v. Woods, 196.)

2. MORTGAGES DEED ABSOLUTE SATISFACTION OF PRIOR MORTGAGE DEBTS CONTEMPORANEOUS AGREEMENT TO RECONVEY-OPTION TO PURCHASE EVIDENCE.-Where defendant, a mortgagor, in satisfaction of his mortgage debt, gave a deed absolute to his mortgagees of the mortgaged property, and took at the same time an agreement wherein the mortgagees bound themselves to allow him to repurchase within six months for the amount of the indebtedness and to reconvey, he to have the use of the premises in the mean time upon payment of fifteen dollars a month as interest, and the evidence shows that at the time the deed was made the note was surrendered and the mortgage canceled, such agreement is simply an option to purchase, the intention of all parties as shown by the transfer being to save the expense of foreclosure. (Sullivan v. Woods, 196.)

See Witnesses, 1, 2.

MORTGAGEE IN POSSESSION.

Levy, how made. See Attachment, 5, 6.

MOTION. See Practice, 1.

MULTIFARIOUSNESS. See Malicious Prosecution, 1.

MURDER. See Criminal Law, 6, 12, 16, 17, 18.

NATIONAL BANKS.

1. NATIONAL BANKS-TAXES AND TAXATION

SHARES REV. STATS.

U. S., SEC. 5219, CITED AND CONSTRUED-TERRITORIAL ACT (LAWS ARIZ. 1893, ACT No. 85, APPROVED APRIL 13, 1893), IN CONFORMITY THEREWITH, VALID.-The power to tax national bank associations as fixed by section 5219, supra, is confined and limited to the shares of such associations, and such shares may be included in the valuation of the personal property of the owners and holders of such shares. The same taxes may be imposed on such shares as are im

NATIONAL BANKS (Continued).

posed by the authority of the state on other personal property. The limitations on the power to tax such shares are: 1. "That the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state," and 2. "That the shares of any national banking association, owned by non-residents of any state, shall be taxed in the city or town where the bank is located, and not elsewhere." The statute of Arizona, supra, providing for the taxation of shares of national bank stock complies strictly with said act of Congress. (Consolidated National Bank v. Pima County, 142.)

2. SAME-SAME-SAME-FAILURE TO TAX SHARES OF BUILDING AND LOAN ASSOCIATIONS-INDIVIDUAL MONEY-LENDERS-DOES NOT AFFECT VALIDITY OF TAX.-The failure of the Revenue Act of Arizona to provide for taxing the shares of building and loan associations and of money of private citizens loaning money does not make the tax in question illegal. (Consolidated Nat. Bank v. Pima County, 142.)

3. SAME-SAME-SAME ASSESSMENT AS PERSONALTY-VALID-LAWS ARIZ. 1893, ACT No. 85, APPROVED APRIL 13, 1893, CITED AND CONSTRUED. The assessment of shares of national bank stock as personal property, substantially in conformity with the law for the assessment of other personal property, is valid, though the act of April 13, 1893, specially prescribed a mode for the assessment of such shares, the purpose of such latter act being to provide a mode of ascertaining the ownership of such property, to the end that it might be assessed. (Consolidated Nat. Bank v. Pima County, 142.) See Banks and Banking, 1.

NEGLIGENCE. See Ordinary Care, 1; Roads and Highways, 1.

NEGOTIABLE INSTRUMENTS.

1. NEGOTIABLE INSTRUMENTS-PrincIPAL AND AGENT-ACCEPTANCE OF ADVANCE INTEREST PAID BY PRINCIPAL-RELEASE OF SURETY-RECEIPT OF INTEREST BY AGENT OF PAYEE-RATIFICATION.-The payee of a note does not by receiving advance interest paid to his agent, who was not authorized to receive any advance interest, ratify the unauthorized act of his agent so as to release a surety upon the note, unless he had full knowledge when he received the interest that it had been paid to such agent before it was due. (McGlassen v. Tyrrell, 51.)

2. SAME ADVANCE INTEREST-Release of SURETY.—While the acceptance of interest in advance from the principal on an overdue note may operate as an extension of the time of payment, and thus release the surety, it is not conclusive. (McGlassen v. Tyrrell, 51.) 3. SAME PRINCIPAL OR SURETY-EVIDENCE-ONE TO WHCM CREDIT GIVEN PRINCIPAL.-Evidence that McGlassen went to borrow three hundred dollars, but that the lender only agreed to make the loan

NEGOTIABLE INSTRUMENTS (Continued).

if Chandler would sign the note, is sufficient evidence to authorize a judgment against Chandler as the real party in interest, to whom the credit was given. (McGlassen v. Tyrrell, 51.)

See Bonds, 6, 7.

NEGOTIATION.

Of bonds. See Bords, 6, 7.

NEW TRIAL.

Necessity for obviated by modification of judgment rendering error harmless. See Appeal and Error, 6.

See Criminal Law, 15.

NON-NEGOTIABLE INSTRUMENT. See Choses in Action, 1.

NONSUIT.

Involuntary not granted. See Trial, 1.

NOTICE.

Constructive. See Executions, 2.
Judicial. See Evidence, 3.

Of elections. See Schools, 3, 4.

OBLIGATION DEFINED. See Harrison Act, 1.

OFFICES AND OFFICERS.

1. OFFICES AND OFFICERS-BONDS-STATUTE FIXING AMOUNT INCREASE BY EXECUTIVE OFFICER-VOLUNTARY BOND-DURESS.-Where the statute requires a bond of ten thousand dollars, a bond increased by the direction of the President of the United States to thirty thousand dollars, and voluntarily given, is not void as to the sureties on the ground of duress. (Smith v. United States, 57.)

2. SAME-SAME-REFUSAL TO STOP PAYMENT ON DRAFT IN HANDS OF DEFAULTING OFFICER-RELEASE OF SURETIES.-The refusal of an inspector of the interior department to telegraph to the treasury department to stop payment upon a draft in the hands of a defaulting public oflicer, when requested by a surety upon such officer's bond so to do, does not prevent the government from recovering the full amount of the bond from such surety. (Smith v. United States, 57.)

3. OFFICES AND OFFICERS-COUNTY TREASURER-DUTIES-SALARY AS EXOFFICIO TAX-COLLECTOR-LAWS 1889, ACT No. 47; LAWS 1891, ACT No. 52; Laws 1893, ACT No. 87, SEC. 4; LAWS 1895, Act No. 51, CITED AND CONSTRUED.-Act No. 47, Laws 1889, supra, and Act No. 52, Laws 1891, supra, made treasurers in all counties ex officio tax collectors, and Act No. 87, Laws 1893, section 4, supra, fixed the

OFFICES AND OFFICERS (Continued).

salaries of treasurers, and provided "that no county treasurer shall receive any compensation other than in this section provided." In 1895, the counties were reclassified, Laws 1895, Act No. 51, supra, and the annual salary of the treasurers of counties of each class as fixed therein were declared to be in full for services, except where otherwise provided. Upon putting Graham County into another class, the county treasurer thereof must continue to perform the same services theretofore required of him as ex officio tax-collector, and he cannot collect any other salary than that expressly prescribed by statute. (Dysart v. County of Graham, 123.)

4. OFFICES AND OFFICERS-COURT COMMISSIONERS NOT COUNTY OFFICERS -FEES AND SALARY-HABEAS CORPUS-REV. STATS. ARIZ. 1887, PARS. 647, 1967, 577, CONSTRUED.-A court commissioner, appointed pursuant to paragraph 647, supra, whose compensation is fixed by paragraph 1967, supra, at four dollars for each day employed, and fifty cents for each order, is not a county officer, and therefore is not within the provisions of paragraph 577, supra, relating to salaries and fees of county officers, providing "no fee or compensation ... must be charged by any officer . . . for services

rendered upon habeas corpus." (Cochise County v. Johnston, 242.) 5. SAME-COUNTY OFFICERS-FEES-SALARY-HABEAS COrpus - - REV. STATS. ARIZ. 1887, Par. 577, CONSTRUED-BENEFIT OF PETITIONER.— Paragraph 577, supra, is a provision for the benefit of those who may apply for the writ of habeas corpus, and is not intended to be an immunity of the county from paying county officers for such services. (Cochise County v. Johnston, 242.)

sum

...

6. OFFICES AND OFFICERS-OFFICIAL BONDS-FAILURE OF PRINCIPAL TO SIGN SEVERAL BONDS-SURETIES-LIABILITIES - REV. STATS. ARIZ. 1887, PARS. 3078, 3081, CITED AND CONSTRUED.-Paragraph 3078, supra, provides that "all official bonds shall be in form joint and several," and paragraph 3081, supra, provides that "when the penal amounts to more than one thousand dollars, the sureties may become severally liable for portions of not less than five hundred dollars," etc. Where ten sureties have signed an official bond under the provisions of paragraph 3081, supra, each becomes severally liable, and in a suit upon such bond, the liability of the principal being fixed by law, and such principal having entered upon the duties of his office and received the emoluments thereof, and the sureties having signed the bond for the faithful performance of the duties of such office, it would be a good obligation against them, and for any default on his part they should be held, even in the absence of his signature as principal. (Pima County v. Snyder, 45.) 7. SAME-SAME-SAME-REV. STATS. ARIZ. 1887, PAR. 3079, CONSTRUED AND HELD DIRECTORY.-Paragraph 3079, supra, requiring the principal to sign an official bond where his liability is fixed by operation of law, is directory. (Pima County v. Snyder, 45.)

OFFICES AND OFFICERS (Continued).

8. SAME-SAME-SIGNATURE OF PRINCIPAL-NAMED IN BOND-SUFFICIENT TO BIND SURETIES.-Where the complaint shows that the name of the principal appears in the body of an official bond, and the bond is delivered and accepted as his official bond, the same is a valid signing of the bond, notwithstanding the omission of the final signature of such officer. (Pima County v. Snyder, 45.)

9. SAME-SAME-SAME-SIGNATURE TO OATH OF OFFICE-SUFFICIENCY TO BIND SURETIES.-Where the principal omits to sign his name to an official bond, but accepts the office, and has his bond signed by his sureties, and signs his name to the oath of office annexed to the bond, this is a signing of the bond, and his sureties must be held. (Pima County v. Snyder, 45.)

10. OFFICES AND OFFICERS-RECEIVER OF LAND OFFICE-BOND-RULINGS OF INTERIOR DEPARTMENT-NOT PART OF CHANGE OF RULING— SURETIES RELEASE OF.-It appears from the evidence that money misappropriated by the receiver of public moneys in the Tucson Land District was received by him for the sale of public lands, and for no other purpose. The ruling of the department of the interior in force at the time the defendant's bond was executed was, that payments before entry had been allowed and certificate given simply made the receiver of the land office the agent of the entryman, and were not public moneys. Subsequent thereto, and in view of such misappropriation, it was ruled that the moneys so paid were public moneys, and upon such later ruling the government issued patents to entrymen whose payments were misappropriated. Held, the former ruling was no part of the contract between the sureties upon the receiver's bond and the government, and that the moneys being in fact public moneys, a mere change in the ruling of the department as to what were public moneys did not release the sureties from their liability upon his bond. (Smith v. United States, 57.) 11. OFFICES AND OFFICERs-Sheriff-DAMAGES-CONVERSION OF PROPERTY-LEVY OF EXECUTION-EVIDENCE-ADMISSIBILITY-JUDGMENT IN FORMER ACTION WHERE MEASURE OF DAMAGES DIFFERENT.-In an action by Daniel Noonan against Gray, as sheriff, and the sureties of his official bond, for damages caused by the levy of an execution against Mrs. J. A. Noonan, on certain personal property belonging to plaintiff of the value of $1,395, to which defendants pleaded a general denial, a judgment-roll in a former case of plaintiff against one Gray individually which shows that such judgment was on a complaint for the value of the property and for injury to the business of plaintiff is not competent evidence of the value of the property taken, that being the sole measure of damages in the present case. (Gray v. Noonan, 167.)

12. SAME-SAME-SAME-EVIDENCE-JUDGMENT-IDENTITY OF PARTIES -ADMISSIBILITY.-Where there is no evidence to show that in the judgment in a former case rendered against Gray individually the