PROMISSORY NOTE-Continued.
Negligence charged against defendant, being that he did not read the note signed,
it may be shown that he can read by giving him papers to read. (Kan.) 580.
Negligence of party executing a negotiable note in not reading it, and relying on
reading and representations of a stranger, held to render him liable thereon
to a bona fide holder. (Kan.) 580.
Negotiable note is not destroyed by incorporating therein a waiver of all relief
from appraisement, stay, exemption and homestead laws. (Kan.) 790.-
Presumption that note was indorsed before maturity, and that the party sued
thereon is a bona fide holder, is not overthrown by matters which at most are
only suspicious. (Kan.)
Protest is only prima facie evidence of facts contained therein, and it may be con-
tradicted. (Cal.) 43.
See FICTITIOUS PAYEE, 580; ESTOPPEL, 570; EVIDENCE, 263.
PROOF OF HANDWRITING. See EVIDENCE, 580.
PROTEST. See PROMISSORY NOTE, 43.
PUBLICATIONS PRIVILEGED. See LIBEL, 609.
Contract for sale of land entered under the homestead law before the title is per-
fected is void. (Kan.) 100.
Deed executed after grantor had perfected his title under homestead law, and
had made a contract to sell the land before such title was perfected, will be
presumed to be founded on a new contract, and will pass the title. (Kan.)
100.
Partition of tract occupied in common by several parties, under license from gov-
ernment before survey, gives to each tenant the right to enjoy in severalty
the temporary possession they enjoyed in common; it does not anticipate the
survey and divide the land subsequently ascertained by it. (Cal.) 270.
Patent is merely for the purpose of confirming the title, when an act of congress
is in itself a grant, and such grant is a higher evidence of title than the pat-
ent. (Mont.) 322.
Publication and approval of survey by the United States surveyor for California,
in the absence of an application to have it returned to the district court, has
the same effect and validity as if a patent had been issued. (Cal.) 397.
Specific performance of contract to convey an interest in lands before the title is
perfected, and in fraud of the laws of the United States, will not be enforced.
(Kan.) 97, 100.
Forfeiture of office by mayor of Topeka for alleged acts and omissions in regard
to enforcement of prohibitory liquor laws and ordinances relating to bawdy
houses discussed, steps necessary to establish such forfeiture defined, and de-
murrer to petition sustained. (Kan.) 828.
Jurisdiction of court in quo warranto proceedings, as a general rule, will not be
exercised where some other plain and adequate remedy exists. (Kan.) 828.
Supreme court has original jurisdiction conferred upon it by Const. art 3, § 3, in
proceeding in quo warranto, which is just what was understood to be quo war-
ranto jurisdiction when the constitution was adopted, and this cannot be
diminished or increased by the legislature, though its exercise may be by cre-
ation of new offices or abolition of offices, on additional grounds of forfeit-
ure. (Kan.) 828.
Supreme court has jurisdiction to oust any person from office who is holding the
same without any sufficient right thereto, whether the office has been usurped,
or the incumbent's term of office has expired by lapse of time, or the incum-
bent has forfeited his right to hold the office any longer by reason of some
official misconduct on his part; and has jurisdiction to oust the incumbent
from office where he is holding the same without right, although the ques-
tion of his right to hold the office, or the question of forfeiture, if that is in
the case, has never before heen presented to any court for judicial determi
nation. The court may determine the question of right of forfeiture for it-
self. (Kan.) 823
Supreme court cannot oust an officer from his office until it has been judicially
determined that he has no right to hold the same; and if the alleged ground
for ousting the officer is that he has forfeited his office by reason of some
acts or omissions on his part, it must then be judicially determined, before
the officer is ousted, that these acts or omissions ipso facto and of themselves
work a forfeiture of the office. Mere misconduct, if it does not itself work a
forfeiture, is not sufficient. The court has no power to create a forfeiture,
and no power to declare a forfeiture where none already exists. The forfeit-
ure must exist in fact before the action is commenced. (Kan.) 828.
See INSURANCE, 840.
Cattle-guards, as used in the statute, requiring railroad companies to fence their
right of way, means such guards as are reasonably sufficient to prevent the
ingress and egress of animals into and out of the premises, and a pit under
the track is not sufficient where the company owns the fee-simple or merely
has an easement-such guard must extend the whole width of the right of
way. (Kan.) 800.
Compensation for land condemned is the value of it at the time of trial, and not
at the date of the summons. (Cal.) 38.
Complaint in condemnation proceedings held sufficient. (Cal.) 38.
Cross-examination of plaintiff in action to recover damages, by reason of appro-
priation of alley by railroad company, held improperly restricted. (Kan.)
678.
Evidence that other parties were in the habit of getting off a train on the side
where there was no platform, is inadmissible in an action by a passenger who
was injured in so doing. (Cal.) .46.
Lot-owner whose property abuts on an alley, the fee of which is not in him, can
only recover for the loss of his special right to pass and repass over and
through such alley when it has been appropriated for the use of a railroad.
(Kan.) 678.
Negligence of a party injured will prevent his recovering damages therefor,
whether the company were negligent or not, but this is a defense that must
be proved by the company. (Cal.) 46.
Negligence in getting off a train on the side where there is no platform, there.
being a platform on the other side, is a question for the jury, under all the
circumstances, and will not per se warrant a nonsuit. (Cal.) 46.
See COMMON CARRIER, 639; EJECTMENT, 193; MASTER AND SERVANT, 1, 657;
NEGLIGENCE, 605, 657; STREETS, 6; TAXATION, 376.
Crops growing on land from which a party has been ejected, as between him and
plaintiff in the ejectment, will be considered realty, and if any part has been
severed defendant may recover it or its value, but cannot claim restitution
of the premises to harvest the crops. (Cal.) 33.
RECEIVER. See CORPORATION, 116.
RECORD. See APPEAL, 312; CRIMINAL LAW AND PROCEDURE, 313.
Purchase at tax sale by party who has taken a warranty deed as security for
money due him from the owner, recorded his deed, taken possession, and
publicly claimed to be the owner of the land, will be considered a redemption
of the premises from taxes. (Kan.) 601.
See TAX DEED, 875.
REFEREE. See NEW TRIAL, 41.
REGISTRATION ACT. See CONSTITUTIONAL LAW, 618.
RELIGIOUS BELIEF. See WITNESS, 84.
Information furnished by the clerk of the court below may be relied on by an at-
torney as to when a remittitur was filed, though he is mistaken. (Cal.) 489.
Judgment rendered by a department is not final until the expiration of 30 days,
unless the chief justice and two associate justices approve it, and no remitti-
tur should be issued by the clerk until that time. (Cal.) 489
Justice of peace has jurisdiction in replevin where value of property does not ex-
ceed $1,000, and the value stated in the affidavit governs, and judgment for
full value may be rendered in case a return of the property cannot be had, and
for damages for withholding it, and costs. (Kan.) 842
REQUISITION FOR FUGITIVE FROM JUSTICE.
Expenses of agent duly appointed by the governor to receive prisoner, incurred
in good faith in an unsuccessful attempt to execute the warrant, may be re-
covered by him in an action against the board of county commissioners of
the county where the crime was committed. (Kan.) 818.
Expenses incurred by agent in receiving prisoner in another state, on issue of a
second warrant, may also be recovered in such action. (Kan.) 818.
RESIDENCE. See DIVORCE, 122.
RES JUDICATA.
Decision of supreme court on error from district court becomes the law of the
case for all subsequent proceedings, not only as to points expressly decided,
but as to all questions necessarily involved in the decision. (Kan.) 809.
RETURN. See HABEAS CORPUS, 751.
RIPARIAN RIGHTS. See LYTLE CREEK, 732; WATER RIGHTS, 901.
RISKS OF EMPLOYMENT. See MASTER AND SERVANT, 748.
RULES OF SUPREME COURT. See PRACTICE And Procedure, 537.
Instruction, under circumstances, that title passed, held erroneous, and that the
question of fact should have been submitted to the jury. (Kan.) 566.
See FRAUDULENT CONVEYANCE, 642; WAREHOUSEMAN, 165; WARRANTY, 790.
SAN FRANCISCO.
Constitutionality of Order No. 1,719 of the board of supervisors of city and county
of San Francisco regulating drainage, heating of public laundries, and clos-
ing them on Sunday, affirmed. (Cal.) 728.
Wharf on Channel street is within the jurisdiction of the board of harbor com-
missioners, and such street is under the control and regulation of the state,
and dockage and wharfage and tolls may be collected by such board. (Cal.)
393.
SENTENCE. See CRIMINAL LAW AND PROCEDURE, 191.
SERVICE. See PARTNERSHIP, 275; PRACTICE, 717.
SERVICE BY PUBLICATION.
Affidavit for service by publication by an authorized agent of the plaintiff, other-
wise correct, closing with the words "to the best of his knowledge, informa-
tion, and belief," is defective and insufficient, but not void, and plaintiff,
after judgment, may, with leave of court, make it positive and sufficient by
amendment. (Kan.) 632.
Judgment obtained upon service by publication only, held properly reopened on
application of defendant; and, further held, that a continuance obtained by
plaintiff, in consequence of which the hearing was not had until more than
three years after judgment was entered, did not deprive defendant of his
right to have judgment reopened. (Kan.) 614.
Minors will be presumed to be over the age of 14, in which case no service of
summons on the mother or person having them in charge is required unless
the contrary appears. (Cal.) 418.
Instruction in action against a sheriff for attaching and levying on plaintiff's
goods, that contained a recital of the service of notice and of writs of attach-
ment and execution, held properly refused. (Cal.) 30.
See WRIT OF RESTITUTION, 33.
SOVEREIGNTY. See INTOXicating Liquors, 593.
Judgment should not be entered on special finding inconsistent with the general
verdict and with each other, apparently entitling both parties to judgment.
(Kan.) 517.
SPECIAL ISSUES. See ESTATES OF DECEDENTS, 741.
SPECIFIC PERFORMANCE.
Contract need not be signed by party seeking to enforce it if it is signed by de-
fendant, nor is mutuality essential. (N. M.) 222.
Equity may, when contract for sale of real estate is specifically enforced as to
part of the land only, apportion the contract price, although no apportion-
ment is provided in the contract. (Kan.) 809.
See PUBLIC LANDS, 97.
STATE LANDS.
Actual settlers only can acquire lands belonging to the state which are suitable
for cultivation, under section 3, art. 17, of the state constitution. (Cal.) 411.
STATE ROAD. See HIGHWAY, 669.
Judicial notice will not be taken of the distance of private property from the seat
of government, and its consequent exemption from the operation of a law,
and such exemption must be proved. (Mont.) 25.
See CONSTRUCTION, 322.
STATUTE OF FRAUDS.
Agreement that $650 shall be paid as soon as it can be earned off from a tract of
50 acres over the amount necessary for family support, cannot be pronounced
as matter of law incapable of performance within a year, in the absence of
evidence of the earnings or expenses. (Kan.) 100.
Contract whereby B. agrees to convey to M. property belonging to B.'s wife in
consideration of the transfer of certain bank stock and the execution of cer-
tain notes, in addition, is void if not in writing. (Kan.) 850.
Parol agreement, which fairly and reasonably interpreted, admits of full perform-
ance within the year, although not likely to be so performed, will not be ad-
judged void. (Kan.) 100.
See TRUSTS AND TRUSTEES, 804.
STATUTE OF LIMITATIONS.
Adverse possession or holding to make the statute run, where one enters in sub-
servience to the title of another, must be clear and positive, and brought home
to the owner. (Mont.) 298.
"Conceal," as used in Code Civil Proc. § 21, held to refer to acts of the party within
the state, and that a concealment that would prevent the statute from run-
ning was not shown. (Kan.) 168.
Death of debtor operates to suspend the statute until an administrator is ap-
pointed. (Kan.) 110.
Money had and received wrongfully may be recovered, although the wrong was
committed more than three years before the action was brought when the
money was received within three years. (Kan.) 784.
Municipal bonds not being barred by the statute, the coupons are not. (Cal.)
See BANKS AND BANKING, 887; CRIMINAL LAW AND PROCEDURE, 574; Fraud,
787; PRINCIPAL AND AGENT, 782.
STATUTES CITED, CONSTRUED, ETC.
STATUTES CITED, CONSTRUED, ETC.-Continued.
UNITED STATES-Continued.
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