2. THE SAME PRIVILEGES GRANTED BY LICENSE.—When the county court has exer-
cised its jurisdiction by granting a license for a ferry, and a ferry is established,
forming a connecting link in the public highway, it has exhausted its jurisdiction as
to such highway or places connected, while such franchise exists. Such franchise
gives to the person licensed the exclusive privilege of transporting all persons and
property between such places. The county court cannot establish another ferry be-
tween such places or highways, or between places just outside of or beyond them,
designed to accommodate the same traveling public, without violating the exclusive
privileges secured by the franchises granted to the ferry already established. Id.
3. SALE OF FERRY LICENSE.-Whether a ferry license can be assigned without the con-
sent of the granting power, and whether the county court granting the license has
power to give such consent, quære. If such assignment is void, the right to object
to the same, and to the exercise of the franchise by a party to whom it was not
originally granted, can only be exercised by the state officers in an appropriate pro-
ceeding. Id.
FICTITIOUS GRANTEE.
See DEED, 9.
1. THE FINDINGS SHOULD BE CONFINED to the contested facts, and determined from
the evidence. Findings as to facts admitted by the pleadings are unnecessary.—
Miles v. McCallan. Ariz. 689.
2. FINDING OF FACT, WHEN ESSENTIAL-Under sec. 180 of the practice act in trials of
issues of fact by the court, written findings of fact and conclusions of law, separately
stated, must be made and filed before any judgment can be entered. Such findings
are the foundation for the judgment, and are as necessary to precede it as a verdict
in case of trial by a jury. In the absence of findings there is no presumption that
the judgment is sustained by the evidence, when the issues are tried by the court.-
Reich v. Rebellion S. Min. Co. Utah, 451.
3. JUDGMENT REVERSED FOR FAILURE TO FIND ON A MATERIAL ISSUE. - Hawes v.
Green. Cal. 367.
4. FAILURE TO FIND UPON A MATERIAL ISSUE IS GROUND FOR REVERSAL
- IN THE
ABSENCE OF FINDINGS, the appellate court will presume that the same were waived,
unless the contrary appears by a bill of exceptions. This presumption cannot arise
where the lower court filed a writing designated as its "decision," and intended to
be a finding upon a material issue.-Kimball v. Stormer. Cal. 371.
5. FAILURE TO FIND ON ALL MATERIAL ISSUES cannot be taken advantage of in the
appellate court unless there has been a motion in the court below to make additional
findings to meet the omitted issues.-Eakin v. McCraith. Wash. 785.
6. FAILURE OF A REFEREE TO FIND UPON AN IMMATERIAL ISSUE as to fraud is not
error. Williams v. Gallick. Or. 537.
7. ERRONEOUS FINDING OF THE COURT ON AN IMMATERIAL ISSUE will not warrant a
reversal.-Sweetser v. Dobbins. Cal. 145.
8. FINDING OF JURY-WEIGHT OF EVIDENCE.-A verdict of a jury will not be dis-
turbed on the ground that it is contrary to the weight of evidence, although the tes-
timony of the greatest number of witnesses was opposed to such verdict, unless it
appears that the jury acted so unreasonably in weighing the testimony as to suggest
a strong presumption that their minds were swayed by passion or prejudice, or that
they were governed by some motive other than that of doing justice. Green, Adm'x,
v. Taney. Col. 531.
9. FINDINGS CONFLICT OF EVIDENCE.-If the record discloses a substantial conflict of
testimony upon a material issue, the appellate court will not interfere with the find-
ing of the jury thereon, although they accepted the testimony of one witness as
against those of two. Where, however, such finding is unsupported by the testi-
mony of any witness, the judgment will be reversed. Rankin v. Thompson et al.
10. FINDING OF A REFEREE WILL NOT BE REVIEWED on appeal when there is evidence
to sustain it. Williams v. Gallick. Or. 537.
11. FINDING OF THE LOWER COURT WILL NOT BE DISTURBED when there is evidence
to support it. Baker et al. v. McAllister. Wash. 690.
12. FINDING OF THE JURY WILL NOT BE DISTURBED when the evidence is conflicting.
Coffman v. Brown. Col. 98. Kelly v. Fitzele. Cal. 132. Hallack v. Brisnahen.
Wy. 60,
13. FINDINGS HELD SUPPORTED BY THE EVIDENCE. Collins v. Frost. Cal. 580.
14. FINDINGS SUFFICIENCY OF.-In an action to set aside a sale on the ground of fraud,
where the court finds enough to avoid the sale, it is unnecessary to find more, al-
though everything alleged in regard to such transfer is not found on. Ohleyer, As-
signee, etc., v. Bunce, Cal. 142.
15. FINDINGS OF A JURY ON SPECIAL ISSUES SUBMITTED TO THEM, in an action for the
reformation of a deed for an alleged mistake, are merely advisory to the court. If,
in such action, the court files findings as to all the facts in issue, in which, after
reciting that a jury had been empaneled to try special issues, and had rendered a
verdict, it is stated, "Now, from said verdict and the testimony adduced in said
cause, after due consideration, the court finds the following facts," a judgment
entered upon such findings will not be reversed for an erroneous instruction to the
jury as to the character of the evidence necessary to warrant the relief asked.
Sweetser v. Dobbins. Cal. 145.
16. FINDINGS OF JURY IN EQUITABLE ACTION-SETTING ASIDE VERDICT.-The findings
of a jury on issues submitted to them in an equitable action are advisory only. The
court may set aside such verdict and find the facts itself. Johnson et al. v. Powers.
Cal. 740.
17. AMENDMENT OF FINDINGS.-When trial is by the court, the court may at any time
before judgment amend its findings of facts, notwithstanding a motion for a new
trial has been made. Calhoun v. Gilliland, Adm'r, etc. Wash. 285.
18. SUPREME COURT CAN NOT INFER ONE FACT FROM OTHER FACTS FOUND.-The only
inferences which it can draw from the findings are inferences of law. De Celis et al.
v. Porter et al. Cal. 144.
19. JUDGMENT IN DE CELIS V. PORTER, 1 WEST COAST REP. 575, MODIFIED as to the
date from which interest should be allowed. Id.
20. A FINDING THAT AN ACTION WAS COMMENCED AND THAT JUDGMENT therein was
duly given and made," includes a finding of facts necessary to give the court juris-
diction. Wetmore v. Rupe. Cal. 885.
See ADVERSE POSSESSION, 3; NEW TRIAL, 2; 4.
FORCIBLE ENTRY AND DETAINER.
1. FORCIBLE ENTRY AND DETAINER-APPEAL FROM COUNTY COURT.-An action under
the forcible entry and detainer act, originally brought in the justice's court, and
thence appealed to the county court, can not be taken to the supreme court on ap-
peal. It must be taken, if at all, on writ of error. Such action does not involve
any question as to the title to land. Brandexburg v. Reithman. Col. 774.
2. THE SAME-EJECTMENT.-The statutory action of forcible entry and detainer has not
been enlarged by section 267 of the civil code. Such section does not abolish all
distinctions between that action and the action of ejectment. Id.
1. FORGERY-INDICTMENT, SUFFICIENCY OF.-Under the latter clause of Section 775 of
the general statutes, an indictment for forgery is sufficient which charges that the
defendant "did counterfeit and forge the handwriting of another to a certain prom-
issory note, dated, etc., for the sum of, etc., with the intent to damage and defraud
such person," etc. Such indictment need not set out a copy of the instrument upon
which the forgery is predicated, nor charge the act to have been done falsely or
feloniously.-Cohen v. People, etc. Col. 528.
2. THE SAME EVIDENCE OF PASSING FORGED INSTRUMENT-Intent.-Under such in-
dictment evidence that the defendant uttered or passed the instrument forged, for
the purpose of raising money thereby, is admissible, as tending to show the intent
with which the handwriting was forged. Id.
3. THE SAME INSTRUCTIONS. The court instructed the jury "that if they believed
from the evidence that the defendant signed the name, claimed to have been
forged, to the note in evidence, with the intention of obtaining money thereon, and
did obtain money thereon, they should find him guilty. Held, that such charge was
erroneous, because it omitted to instruct the jury that they must also believe that
such signing was forged or counterfeited, and with intent to damage or defraud. Id.
See CANCELLATION, 1.
1. AN INDICTMENT FOR FORNICATION IS SUFFICIENT THAT CHARGES that the defendant and a certain woman "did then and there unlawfully live together in an open state of fornication. King v. The People, etc. Col. 307.
2. EVIDENCE IN A PROSECUTION FOR FORNICATION REVIEWED-and held to-establish an overt act on the part of the defendant. Id.
FORTHCOMING BOND; see PARTIES, 1.
See CORPORATIONS, 6-8; FERRIES.
1. FORECLOSURE SALE, HOW ATTACKED FOR FRAUD.-A sale by the trustees of a railroad mortgage, under a decree of foreclosure, and in strict compliance with the terms thereof, will not be set aside on motion of a bondholder not a party to the record. If the trustees combine with others to defraud the bondholders, or any of them, or if they did not act in good faith, relief may be had in a suit properly brought for that purpose, in which all the persons interested are joined as parties. Meyer et al., Trustees, etc., v. Utah, etc., Railway Company. Utah, 471.
2. VOIDABLE PATENT TO MINING CLAIM, ATTACK ON.-A patent from the United States to a mining claim may be avoided in equity for fraud, mistake or misrepresentation practiced upon the government. The validity of such patent, however, cannot be questioned unless the facts constituting the fraud, mistake or misrepresentation are stated in the pleadings. Whether the United States government is a necessary party to an action to set aside a patent on such grounds, quære. Parley's Park Silver Mining Company v. Kerr. Utah, 432.
3. FRAUDULENT CONVEYANCE-RESULTING TRUST-DISMISSAL OF SUIT.-A voluntary conveyance from an insolvent debtor to his wife does not create the latter a trustee of the creditors of the former. Such conveyance may be set aside at the instance of the creditors on the ground of fraud. A bill in equity against such grantee to have her declared a trustee for the creditors, and for an accounting of the rents and profits of the land conveyed, should not be dismissed. An amendment to the prayer
of such bill should be allowed, and the appropriate relief granted. Perea et al., Administrators, etc., v. Gallegos. N. M., 423.
4 FRAUDULENT TRANSFER-EVIDENCE HELD SUFFICIENT TO JUSTIFY the finding that the sale under which the plaintiff claims title was fraudulent and void as to his vendor's creditors. Wideman v. Franks. Cal., 376.
See ACCOUNTING, 2; CANCELLATION, 1-4; FINDING, 14; PATENTS, 2; PLEADING AND PRACTICE, 12, 13.
1. A FUGITIVE FROM JUSTICE CHARGED WITH A FELONY has no right to be heard on any appeal made in his behalf. People v. Tremayne. Utah, 207.
2. NEITHER AN ORDER FORFEITING A DEFENDANT'S BAIL for failure to appear at the trial, nor an order refusing to entertain a motion to set aside the same while the defendant was still a fugitive from justice, nor an order directing the payment of the forfeited bail money into the treasury are appealable. Id.
See CRIMINAL LAW AND PRACTICE, 21.
See JURY AND JURORS: CRIMINAL LAW AND PRACTICE, 3, 4, 6, 9, 10.
1. THE DISTRICT COURT HAS JURISDICTION OF AN ACTION for an accounting brought by a ward against the executor of his deceased guardian, although such guardian was appointed in another state. Ong v. Whipple, Executor, etc. Wash. 798.
2. GUARDIAN AND WARD-SETTLEMENT OF ACCOUNTS.-When a ward attains its majority, the office of guardian ceases, and it is the duty of the latter to exhibit to the probate court and settle his account with the ward. Such accounting should only
include transactions during the ward's minority. Transactions subsequent thereto
must be settled in an action at law. In re Allgier. Cal. 876.
3. ACCOUNTING BY EXECUTORS OF DECEASED GUARDIAN.-The executors of a deceased
guardian have no authority to present such guardian's account with his ward to the
probate court for settlement, nor has the court authority to receive or act upon it.
Such settlement can only be had in a court of equity, by a proceeding against the
executors of the deceased guardian and other necessary parties. Id.
HABEAS CORPUS.
See CRIMINAL LAW AND PRACTICE, 13.
HIGHWAYS.
See STREETS AND HIGHWAYS.
1. A HOMESTEAD FOR THE USE OF THE SURVIVING WIFE OF A DECEDENT can not be set
apart under section 1465 of the Code of Civil Procedure, so as to include a part of
the separate estate of the decedent when there is common property.—Estate of
Lord, deceased. Cal. 129.
2. A FINDING THAT CERTAIN PARCELS OF LAND OF A DECEDENT, which his widow prays
may be set apart to her as a homestead, could not be divided, will not be sustained
when the allegations of the petition for the homestead show the contrary. Id.
3. WHEN THERE IS NO VALID HOMESTEAD IN EXISTENCE, an order of the Court setting
the same aside to an insolvent is a nullity. Matzen v. Shaeffer. Cal. 126.
4. HOMESTEAD-EXISTING INDEBTEDNESS-EXEMPTION.-A debtor may declare a
homestead upon his property, so as to render the same exempt from execution as
against an existing indebtedness which has not been reduced to judgment nor be-
come a statutory lien upon the exempted premises by attachment or otherwise,
although the effect of allowing the exemption will be to leave the debtor insolvent.
-Barnett et al. v. Knight et al. Col. 864.
5. HOMESTEAD STATUTES, CONSTRUCTION OF.-Homestead exemption is entirely a
creature of statute. The statutes authorizing it are not in derogation of the com-
mon law, for at common law the creditor had no right to sell the debtor's land.
Such statutes should be liberally construed. Id.
6. CONVEYANCE BY DEBTOR OF HOMESTEAD IN CONSIDERATION OF FUTURE SUPPORT.-
A conveyance by an insolvent debtor of his homestead, the value of which is less
than that allowed by statute, is not void as against an existing general creditor,
although part of the consideration for such conveyance is an agreement on the part
of the grantee to aid in the future support of the grantor. Id.
See MURDER AND MANSLAUGHTER.
1. COMMUNITY PROPERTY-HUSBAND'S POWER OF DISPOSITION OVER.-Subsequent to
the husband-and-wife act of 1879, a husband cannot enter into a valid contract for
the sale of community property without his wife joining therein. A vendee under
such contract, with knowledge that the subject matter thereof was community prop-
erty, cannot recover damages for the husband's failure to convey. Holyoke v. Jack-
son. Wash. 788.
2. WIFE'S LIABILITY FOR GOODS SOLD FOR FAMILY USE.-A wife cannot be held liable,
under section 10 of the act of 1878, in an ordinary action for goods sold and deliv
ered, when such goods were sold upon the order of the husband, although the same
were devoted to family use.
Smith v. Sherwin. Or. 813.
HYDRAULIC MINING.
See INJUNCTION, 2.
1. AN INDICTMENT FOR FORNICATION IS SUFFICIENT THAT CHARGES that the defendant
and a certain woman "did then and there unlawfully live together in an open state
of fornication." King v. The People, etc.
2. EVIDENCE IN A PROSECUTION FOR FORNICATION REVIEWED-and held to -establish an
overt act on the part of the defendant. Id.
FORTHCOMING BOND; see PARTIES, 1.
See CORPORATIONS, 6-8; FERRIES.
1. FORECLOSURE SALE, HOW ATTACKED FOR FRAUD.-A sale by the trustees of a rail-
road mortgage, under a decree of foreclosure, and in strict compliance with the
terms thereof, will not be set aside on motion of a bondholder not a party to the re-
cord. If the trustees combine with others to defraud the bondholders, or any of
them, or if they did not act in good faith, relief may be had in a suit properly
brought for that purpose, in which all the persons interested are joined as parties.
Meyer et al., Trustees, etc., v. Utah, etc., Railway Company. Utah, 471.
2. VOIDABLE PATENT TO MINING CLAIM, ATTACK ON.-A patent from the United States
to a mining claim may be avoided in equity for fraud, mistake or misrepresentation
practiced upon the government. The validity of such patent, however, cannot be
questioned unless the facts constituting the fraud, mistake or misrepresentation are
stated in the pleadings. Whether the United States government is a necessary
party to an action to set aside a patent on such grounds, quære. Parley's Park
Silver Mining Company v. Kerr. Utah, 432.
3. FRAUDULENT CONVEYANCE-Resulting TruST-DISMISSAL OF SUIT.-A voluntary
conveyance from an insolvent debtor to his wife does not create the latter a trustee
of the creditors of the former. Such conveyance may be set aside at the instance of
the creditors on the ground of fraud. A bill in equity against such grantee to have
her declared a trustee for the creditors, and for an accounting of the rents and pro-
fits of the land conveyed, should not be dismissed. An amendment to the prayer
of such bill should be allowed, and the appropriate relief granted. Perea et al., Åd-
ministrators, etc., v. Gallegos. N. M., 423.
4 FRAUDULENT TRANSFER-EVIDENCE HELD SUFFICIENT TO JUSTIFY the finding that the
sale under which the plaintiff claims title was fraudulent and void as to his vendor's
creditors. Wideman v. Franks. Cal., 376.
See ACCOUNTING, 2; CANCELLATION, 1-4; FINDING, 14; PATENTS, 2; PLEADING AND
PRACTICE, 12, 13.
1. A FUGITIVE FROM JUSTICE CHARGED WITH A FELONY has no right to be heard on any
appeal made in his behalf. People v. Tremayne. Utah, 207.
2. NEITHER AN ORDER FORFEITING A DEFENDANT'S BAIL for failure to appear at the
trial, nor an order refusing to entertain a motion to set aside the same while the
defendant was still a fugitive from justice, nor an order directing the payment of
the forfeited bail money into the treasury are appealable. Id.
See CRIMINAL LAW AND PRACTICE, 21.
See JURY AND JURORS: CRIMINAL LAW AND PRACTICE, 3, 4, 6, 9, 10.
1. THE DISTRICT Court has Jurisdiction of aN ACTION for an accounting brought by
a ward against the executor of his deceased guardian, although such guardian was
appointed in another state. Ong v. Whipple, Executor, etc. Wash. 798.
2. GUARDIAN AND WARD-SETTLEMENT OF ACCOUNTS.-When a ward attains its major-
ity, the office of guardian ceases, and it is the duty of the latter to exhibit to the
probate court and settle his account with the ward. Such accounting should only
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