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wards changed by said survey so as to materially diminish said park; and at the
same time G. surveyed a tract of land adjoining the tract held in common into lots
and blocks, and together with his co-tenants platted the two tracts as one Carter's
addition, and duly acknowledged and recorded the same, with a block numbered 67
in the G. tract, and the small park aforesaid, not numbered. Held, that the con-
veyance to C. of the park as block 67 did not affect the block 67 afterwards laid off
in the G. tract, and that the assignee in bankruptcy of C. had no right, interest or
equity therein, and should be enjoined, at the suit of G.'s grantee, from selling the
same as the property of C. and thereby casting a cloud on such grantee's title there-
to. Id.
8. A RECITAL IN A DEED THAT THE CONSIDERATION THEREFOR WAS PAID by the gran-
tee is presumptively true. Such presumption may be overcome by parol evidence,
but to have that result, the evidence must be full, clear and satisfactory. The evi-
dence in this case, in support of a finding that the consideration for the conveyance
of the property in question was not made by the grantee named in the deed, re-
viewed and held not to comply with these requirements. Anthony, Adm'x, etc., v.
Chapman et al. Cal. 68.
9. A FICTITIOUS GRANTEE RENDERS INOPERATIVE and void a conveyance purporting to
be made to him. Downing v. Bartels. Col. 506.
See ESTOPPEL, 3: EVIDENCE, 9; FRAUD, 2; MORTGAGE, 1, 2; OREGON DONATION ACT.
1. A DEMURRER MUST BE DIRECTED TO THE WHOLE OF A PLEADING, or to a particular
and separate statement of a cause of action or defense. It cannot be directed to
certain lines thereof. Locke v. Peters. Cal. 725.
2. DEMURRER TO COMPLAINT OBJECTION TO OVERRULING, WHEN NOT WAIVED. —A
plaintiff does not waive his objection to a wrongful ruling of the court in sustaining
a demurrer to his complaint, by filing an amended complaint, when, in consequence
of such ruling, judgment is given for the defendant. Wood v. Mastick. Wash. 549.
See APPEAL, 22; CRIMINAL LAW AND PRACTICE, 7-11; DENVER TOWN SITE, 2; PLEADING
AND PRACTICE.
1. TITLE TO A LOT IN THE ORIGINAL TOWN SITE OF THE CITY OF DENVER, entered by
James Hall, probate judge of Arapahoe county, on May 6, 1865, by virtue of the
act of congress for the relief of the citizens of Denver, approved May 28, 1864 (13
Stats. at Large, 94), can be acquired only in the manner designated by such act and
by the territorial acts carrying the same into effect.-Downing et al. v. Bartels.
Col. 506.
2 THE SAME VALIDITY OF DEED FROM PROBATE JUDGE-ATTACK ON.-The validity of
a deed to a portion of such town site, executed by the successor in office of such
probate judge, in pursuance of the territorial act of February 8, 1872, cannot be
attacked in a strictly legal action of ejectment, by evidence showing that the pre-
liminary steps and conditions required to a valid conveyance had not been com-
plied with by the grantee, prior to the execution of the deed, when the deed is reg-
ular upon its face and purports to have been executed to the person found to be en-
titled thereto under the laws of congress and statutes of Colorado, and by the offi-
cer intrusted by the government with the legal title, and duly authorized to convey.
In executing the authority vested in him by such act, the probate judge exercises
judicial functions, and his voidable acts can only be impeached in direct proceed.
ings to set them aside.-Id.
L DEPOSITION-ADMISSIBILITY OF, AT SUBSEQUENT TRIAL-A deposition taken pend-
ing the action is admissible at the trial thereof, although subsequent to the taking
of such deposition the complaint has been amended, provided the subject matter of
the action and the issues therein have remained substantially the same. Anthony
et al. v. Savage. Utah, 674.
DIRECTORS.
See CORPORATIONS.
See DEDICATION, 3; NUISANCE, 1.
See MURDER AND MANSLAUGHTER, 4.
1. GRAIN BAGS MANUFACTURED IN THE UNITED STATES, RETURN OF, FREE OF DUTY.—
Under Section 9 of the Act of Congress, of February 8, 1875, grain bags manufac
tured in the United States, when exported filled with American products, may be
returned to the United States free of duty, notwithstanding such bags were manu.
factured from foreign material, and at the time of exportation the manufacturers
were paid a "drawback" for duties on such material.—Balfour et al. v. Sullivan,
Collector, etc. (U. S. Cir. Ct.) Cal. 228.
2. THE PROVISION OF SUCH SECTION authorizing the return, "under such rules and
regulations as shall be prescribed by the Secretary of the Treasury," does not author-
ize that officer to prohibit the return unless duties are paid.-Id.
DUTIES ON WEARING APPAREL (note), 679.
1. THE OWNER OF AN EASEMENT OF WAY HAS NO RIGHT TO POSSESS THE LAND as such
upon which it is imposed. He has a right merely to enjoy the way.
The owner
of the land burdened with the easement is, in law, in possession of the land. Con-
sequently the mere exercise of the right of way, either by the owner thereof or his
tenants, will not give him actual possession of the land upon which it is imposed.
Lachman et al. v. Barnett et al. Nev. 259.
2. THE OWNER OF SUCH EASEMENT IS NOT JUSTIFIED IN TAKING FORCIBLE POSSESSION
of the land upon which it is imposed, from the fact that the owner of such land has
obstructed his right of way. Id.
3. RIGHT OF WAY OF THE NORTHERN PACIFIC RAILROAD THROUGH THE PUBLIC LANDS
IS AN EASEMENT therein, and such an interest in the land, that personal articles
attached to the soil and annexed to the easement within the boundaries of the right
of way become a part of the land, and therefore partake of and are included in the
exemption from taxation that belongs to the right of way, and hence a tax levied
upon "twenty miles of railroad" constructed upon, over or through such right of
way, in the territories of the United States, is a tax levied upon property that is
exempt from taxation, and therefore void. N. P. R. R. Co. v. Carland, Mont. 326.
4. ANY ENCROACHMENT UPON THE QUIET ENJOYMENT OF AN EASEMENT, whether created
by grant or prescription, will be prevented by injunction. Id.
1. JUDGMENT IN AN ACTION OF EJECTMENT SHOULD BE FOR THE PLAINTIFF when the
defendant has no claim to the demanded premises beyond what his naked possession
gave him, and at the time of the commencement of the action the plaintiff had the
legal title, and was entitled to the possession. Shaeffer v. Matzen et al. Cal. 129.
2. EJECTMENT FINDINGS EVIDENCE. A finding for the plaintiff in an action of eject-
ment is supported by the evidence, when the defendant offers no evidence, and the
plaintiff gives in evidence a judgment roll showing a judgment in his favor, and
against the defendant, an execution duly issued thereon, a sale of the demanded
premises to him; also a writ of attachment and a sheriff's return, showing a levy
thereunder, which had never been released, and evidence that subsequent to the
levy of the attachment, and prior to the judgment, defendant was in possession of
the premises. Royon v. Guillee. Cal. 759.
3. EJECTMENT-FORECLOSURE DECBEE, WHO BARRED BY.-In an action of ejectment
by the owner of a lease-hold, after the plaintiff has proved, prima facie, his right to
recover the demanded premises, a defendant who claims under a foreclosure decree
against the owner in fee, must show affirmatively that the plaintiff, or his assignors,
were barred by such decree. Enos v. Cook et al. Cal. 733.
4. TRESPASS FOR MESNE PROFITS EJECTMENT JUDGMENT.-Damages for withholding
real property, or for the rents and profits thereof, cannot be recovered in an action of
ejectment, unless judgment is also given for the recovery of the possession. Locke
. Peters. Cal. 725.
5. TITLE FROM COMMON GRANTOR-EJECTMENT.-In an action of ejectment, where both
plaintiff and defendant deraign title from a common grantor, such grantor's right of
possession cannot be denied by either. Rego v. Van Pelt. Cal. 903.
6. QUIT-CLAIM DEED-EFFECT OF.-A quit-claim deed, even prior to the Act of Febru-
ary 22, 1854, operates as a conveyance in California, although there was no precedent
estate or interest in the grantee, and enables him to maintain ejectment if his
grantor could have done so. Id.
7. EJECTMENT BY TENANT IN COMMON-PLEADING OUSTER.-The complaint in an action
of ejectment by a tenant in common against his co-tenant, which avers that the lat-
ter is in possession of the common property, and the whole thereof, withholds the
possession of the whole thereof from plaintiff and excludes him from the same, suffi-
ciently alleges an ouster. Id.
See ADVERSE POSSESSION, 3; CANCELLATION, 5; Deed, 5; DENVER TOWN SITE, 2; FOR-
CIBLE ENTRY AND DETAINER, 2; JUDGMENT, 10: TENANTS IN COMMON.
1. ACT PROVIDING FOR SPECIAL ELECTION.-Where an act of the legislature providing
for a special election on the question of the removal of a county-seat designates that
such election shall be conducted, and the votes cast thereat shall be counted and
returned, by certain officers and boards named therein, but fails to state the individ-
uals who shall constitute the same, it will be presumed that the Legislature referred
to the officers and boards of the same name existing under the general election laws.
Wells et al. v. Taylor et al. Mont. 252.
2. DISQUALIFICATION OF ELECTION OFFICERS, EFFECT OF.-Where no question is raised
as to the fairness of the vote and the honesty of the count, an election will be valid
although the officers conducting the same were not duly sworn or chosen, and did
not possess the qualifications requisite for their office.-Id.
3. BRIBERY OF VOTERS, WHAT IS.-An election to determine the removal of a county.
seat will not be invalidated by the fact that prior to the election certain inhabitants
of the county presented an offer to the voters, in the form of a bond, conditioned for
the building of certain county buildings at a designated place, provided a majority
of the votes cast were in favor of changing the county-seat to such place. Such an
offer was not bribery.—Id.
4. REMOVAL OF COUNTY-SEAT OF JEFFERSON COUNTY.-Where a majority of the votes
cast on the election to determine the questiou whether the county-seat of Jefferson
County should be removed from Radersburg to Boulder City were in favor of such
latter place, the officers of such county may make such removal, although the
County Commissioners failed to make the order contemplated by Section 6 of the
act of 1883, causing the books, records, papers, and effects of the county to be re-
moved.-Id.
5. ADMISSION OF VOTERS-EVIDENCE OF.-In an action to determine the result of an
election, the admissions of certain voters, made after the election, to the relator,
touching their qualifications as electors, are not competent evidence.-People ex rel
Dean v. Commissioners of Grand County. Col. 113.
6. ELECTION TO DETERMINE THE REMOVAL OF COUNTY-SEAT.-In the election to deter-
mine the removal of the county-seat of Grand County from Hot Sulphur Springs
to Grand Lake, the votes cast by the local voters at such latter place in favor of
Grand Lake, west side, should be counted for Grand Lake.-People ex rel. Dean v,
Commissioners of Grand County. Col. 113.
7. FINDINGS OF THE LOWER COURT in an action to determine the result of such elec-
tion reviewed, and held supported by the evidence.—Id.
1. INDICTMENT FOR EMBEZZLEMENT BY A BAILEE.-The sufficiency of an indictment is to
be tested by the requirements of the criminal practice act, and not by the rules of
the common law. Under such act an indictment for embezzlement by a bailee is
sufficient, which charges that the defendant, on a day and at a place certain, "hav-
ing been intrusted as bailee by one Hill with two certificates of deposit of money in
a certain bank, to wit, one for the sum of five thousand dollars and the other for
the sum of four thousand dollars, both payable to the order of and both being the
property of said Hill; did collect and receive thereon and therefor from said bank,
and as bailee, was by said bank and said Hill intrusted to carry and convey from
said bank to said Hill money to the amount and value of nine thousand dollars, pro-
ceeds of said two certificates; and said defendant being so as aforesaid intrusted as
bailee with said certificates and said money to said amount of nine thousand dollars,
the property of said Hill, afterward on, etc., at, etc., did fraudulently, and felon-
iously convert the same and the proceeds thereof to his own use, contrary," etc.
Such indictment does not charge more than one offense, and need not specify the
nature of the bailment.-People v. Hill. Utah, 476.
2. INFORMATION FOR EMBEZZLEMENT BY POSTMASTER.-The circuit court has jurisdic-
tion to try offenders for misdemeanors and offenses not capital or otherwise infa-
mous, such as embezzlement by a postmaster, under section 5483 of the revised
statutes, upon informations filed by leave of the court. Whether an information
presents a proper case for granting leave to the United States attorney to file it, is
a question for the exercise of a sound discretion by the court.-United States v.
Reilley, (U. S. Cir. Ct.) Nev. 688.
3. AN INFORMATION FILED BY LEAVE OF THE COURT WILL NOT BE STRICKEN from the
files where it is verified by the direct positive affidavit of the United States attor-
ney, and upon being arrested upon a warrant issued thereon, the prisoner has been
examined and held to answer for the offense charged therein.—Id."
1. CONDEMNATION OF LAND-JURISDICTION OF COUNTY COURT OVER.-When the award
of the jury, in a proceeding for the condemnation of land, shows that the amount of
compensation to be paid the owner exceeds the amount to which the jurisdiction of
the county court is limited, the court must dismiss such proceedings at the costs of
the petitioner. Denver & Rio Grande Railway Co. v. Otis. Col. 120.
2. ACTION FOR CONDEMNATION OF LAND-FORM OF VERDICT.-In an action for the
condemnation of land for the use of a railroad, a verdict is sufficient in form which
finds, in effect, that the defendants are entitled to damages in the sum named there-
in. Oregon Railway Co. v. Bridwell et al. Or. 821.
3. THE SAME-FORM OF JUDGMENT.--In such action, no judgment in personam against
the plaintiff can be rendered. The judgment should appropriate the right of way
to the plaintiff's use after payment of the damages assessed by the jury. Id.
4. CONDEMNATION OF LAND-PLEADING EVIDENCE.-In an action to condemn a parcel
of land for a public street, when the complaint alleges that the defendants are the
owners of the land sought to be condemned, the plaintiffs cannot give evidence that
the defendants had already dedicated such land as a street, for the purpose of affect-
ing the question of damages. City of San Jose v. Reed et al. Cal. 883.
ENDORSEMENT.
See NEGOTIABLE INSTRUMENTS, 2, 3.
1. EQUITY WILL INTERFERE TO PROTECT RIGHTS WHEN it sufficiently appears that the
evidence by which such rights can be established, is liable to be lost. N. P. R. R.
Co. v. Carland. Mont. 326.
See CANCELLATION; CORPORATIONS, 6-8.
ESTATES OF DECEASED PERSONS.
1. THE DISTRICT COURT OF A TERRITORY IS NOT A UNITED STATES DISTRICT OR CIRCUIT
COURT. When the United States comes into court to enforce its rights, it must
come in as any other suitor, and the proceedings in such action must be in accord-
ance with local laws in force at the time in the state or territory where such action
is pending. United States v. Hailey, Administrator, etc. Idaho,.324.
2. IN PROSECUTING A CLAIM AGAINST AN ADMINISTRATOR, THE PROBATE LAWS IN FORCE
where the action is pending must govern and determine the method of procedure. Id.
3. A CLAIM IN FAVOR OF THE UNITED STATES AGAINST THE ESTATE OF A DECEASED PER-
SON must be presented for allowance before an action can be maintained thereon. Id.
4. THE CIRCUIT COURT HAS NO JURISDICTION OF AN ACTION BROUGHT BY AN ADMINIS-
TRATOR against a former administrator of the same estate, who had been removed
from his office, to obtain an accounting and a judgment for the balance of the prop-
erty of such estate in the hands of the latter. Such an action is within the exclu-
sive jurisdiction of the County Court. Adams, Adm'r, etc., v. Petrain et als.
Or. 198.
See ACCOUNT STATED, 1, 3, 4; APPEAL, 39, 40, 43, 45; BILL OF EXCEPTIONS, 2; CANCELLATION, 2, 3, 5; DEED, 6, 8; DENVER TOWN SITE, 2; DEPOSITIONS, 1; EMINENT DOMAIN, 4; EQUITY, 1; FINDINGS, 8-13; FORGERY, 2; INJUNCTION, 4; MORTGAGES, 1-3; NEW TRIAL, 8-11; ROBBERY, 3; SALES, 5.
EXCEPTIONS.
See BILL OF EXCEPTIONS.
1. Two HORSES USED BY A JUDGMENT DEBTOR IN CARRYING ON A FARM ARE EXEMPT from execution, although their owner does not devote himself exclusively to husbandry, and may sometimes use them for purposes other than that of farming. McCue v. Tunstead. Cal. 896.
See HOMESTEAD, 4-6; PLEDGE, 2; SUPPLEMENTARY PROCEEDINGS.
EXECUTORS AND ADMINISTRATORS.
1. CAUSE OF ACTION-WHEN AND WHERE IT ARISES.-A cause of action given by statute to an administrator to recover damages for the death of his intestate, arises out of such death and where it occurred, and not the appointment of the adminis trator or the place where it was made.—Lung Chung v. N. P. Ry. Co. (U. S. Dist. Ct.) Or. 88.
2. NEITHER AN EXECUTOR NOR ADMINISTRATOR IS LIABLE TO PROCESS of garnishment; nor can an allowed and approved claim against the estate of the deceased be levied upon and sold under an execution against the claimant.-Norton Ez'r etc. v. Haydon. Nev. 41.
3. PROBATE COURTS-ACTIONS AGAINST ADMINISTRATOR.-Whether a probate court has jurisdiction of an action at law to recover a judgment against an administrator, and to enforce the same by execution, quære.-Pirea Adm'r etc. v. Gallegos. N.
4. PURCHASE OF TRUST ESTATE BY EXECUTOR OF CESTUI QUE TRUST.-The maker of a promissory note, secured by a trust deed of land, which authorizes the trustee to sell such lands upon a default in the payment of the note, can not object to a purchase at such sale by the executor of the beneficiary under the trust deed, when such purchase resulted greatly to his advantage.-Dusing v. Nelson. Col. 110.
5. SUBSTITUTION OF ADMINISTRATOR-MANDAMUS TO COMPEL.-Mandamus does not lie to compel the substitution of an administrator in the place of a deceased plaintiff, and to obtain a re-trial of an action in which a judgment of non-suit was entered after the death of the plaintiff. Such judgment is not void on its face, and should be set aside before an application for mandamus is made by the administrator.-Elliot, Administrator, etc. v. Paterson, Judge, etc. Cal. 376.
See ESTATES OF DECEASED PERSONS; ESTOPPEL, 2; GUARDIAN AND Ward, 1, 3.
EXHIBITS.
See EVIDENCE, 2.
1. FERRIES, JURISDICTION OF COUNTY COURT TO ESTABLISH.-The primary object of the statute conferring jurisdiction upon the county courts to establish roads and license ferries for the transportation of persons and property across streams, which obstruct land travel using public ways, is to secure the public accommodation. For the attainment of this end, but as subordinate to it, when a ferry franchise is granted, the right to take lawful tolls is conferred as an equivalent for the obligations to accommodate the traveling public. Although the taking of such tolls is privati juris, and incident to the franchise, a ferry is publica juris, and cannot be created without a license, and is a thing of public interest and use. It can only exist in connection with some highway or place where the public have rights. The grant of a ferry franchise over a stream, to and from a place where there is no highway, or in which the public have no rights, would be void and inoperative. Montgomery et al v. Multnomah Railway Company. Or. 640.
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