creditor to be applied in satisfaction of a particular obligation, when the same is not
so applied, and the obligation is otherwise discharged. It is not necessary in such
action to allege a promise to repay. Stewart v. Phy. Or. 536.
See BONA FIDE PURCHASER, 1; PLEADING AND PRACTICE, 2, 3.
1. SUBORNATION OF PERJURY, INDICTMENT FOR.-To sustain an indictment for procur-
ing a person to commit perjury, it is necessary that perjury has in fact been com-
mitted. It cannot be committed unless the witness swears to what was false, will-
fully and knowingly. Consequently the indictment must aver, not only that the
statements made by the witness were false in fact, and that he knew them to be
false, but also that the party procuring him to make those statements knew that
they would be intentionally and willfully false on the part of the witness, and thus
that the crime of perjury would be committed by him United States v. Evans (U.
S. Dist. Ct.) Cal. 611.
PLACE OF TRIAL.
See VENUE.
1. Demurrer-AVERMENT OF LEGAL CONCLUSIONS.-A complaint need allege only facts
sufficient to constitute a prima-facie cause of action. If superfluous matters are al-
leged as legal conclusions, an objection thereto cannot be raised by demurrer.
allegations of the complaint, omitting those objected to by the defendant, held to
state a good cause of action, and to be free from ambiguity or uncertainty. Camp-
bell et al. v. Taylor. Utah, 541.
2. DEMAND, WHEN MUST BE MADE AND AVERRED.-Where a demand is necessary to
fix the liability of sureties on an undertaking, it is parcel of the contract, and must
be made before the commencement of an action for the breach of the undertaking,
and in the action itself it must be averred and proved. It cannot be made after the
commencement of the action, except as the basis of a new action. Morgan v. Men-
zies et al. Cal. 882.
3. A DEMAND FOR PAYMENT IS NOT NECESSARY TO THE STATEMENT of a cause of action
by an attorney to recover the reasonable worth of his services. Gibbs v. Davis.
Or. 825.
4. CAUSES OF ACTION, STATEMENT OF.-In an action on several bills of exchange, all
bearing the same date, payable to the same party, due at the same time, the better
practice is for the complaint to contain a separate statement on each bill.
ever, the complaint contains but a single statement, an order overruling a demurrer
thereto will not be disturbed.-Dawson v. Lail. Ariz. 396.
5. CROSS-COMPLAINT JOINDER OF CAUSES OF ACTION-DEMURRER.-An objection to a
cross-complaint on the ground that several causes of action are unlawfully joined
must be taken by demurrer, which specifically states the objection. If such de-
murrer is overruled, and an exception saved, the right to be heard thereon upon ap-
peal is waived by afterward pleading over. Green, Administratrix, etc. v. Taney.
Col. 531.
6. TRIAL BY JURY, CONSENT OF PARTIES TO.- A trial of issues of fact by a jury, which
should have been tried by the court, is error. Such error is waived by the parties
consenting to a trial by a jury. Id.
7. A DEFENDANT WHO CONSENTS TO TRY A CASE WITHOUT A JURY THEREBY WAIVES his
right to afterwards object that the plaintiff's remedy was in law rather than in
equity.-Walla Walla v. Moore et al. Wash. 214.
8. PLEADING CONTRACT FOR CONVEYANCE OF LAND.-In pleading a defense arising out of
a contract for the conveyance of land, it is not necessary to allege that such con-
tract was in writing. The statute of frauds has changed the rule of evidence, not
the rule of pleading. Tucker, Executrix, Etc., v. Edwards. Col. 400.
9. INCONSISTENT PLEAS-WHEN ALLOWABLE. -Under the practice prior to 1877, the
several parts of each plea could not be repugnant to each other; but separate special
pleas in the same answer might be inconsistent without rendering the pleading ob-
noxious to demurrer. Id.
10. ACCORD AND SATISFACTION-ELECTION-PLEADING.-In pleading his readiness to
perform an accord agreement, where the promisee is given the privilege of electing
between two alternative promises on the part of the promisor, it is sufficient for the
latter to aver his constant readiness and willingness to perform either, at least until
the promisee has indicated his choice. An actual tender of performance need not
be averred. Id.
11. OVERRULINg Demurrer, WAIVER OF EXCEPTION TO.-In an action on a judgment
where the defendant pleads nul tiel record and an accord and satisfaction, an excep-
tion, to the sustaining of a demurrer to each latter plea is not waived by proceeding
to trial on the issue raised by the former. Tucker v. Edwards. Col. 400.
12. PLEADING FACTS CONSTITUTING FRAUD.-In an action to annul a conveyance on the
ground of fraud, when the facts constituting the fraud are not clearly known by
the plaintiff, the same may be alleged in the alternative. Rasmussen et al. v.
McKnight et al. Utah, 205.
13. IN SUCH ACTION, WHEN THE FRAUD CONSISTS IN TAKING A DEED in the name of a
married woman, and in giving a mortgage to the grantor in the name of her hus
band, he being the person who committed the fraud, the wife is a necessary and
proper party whether she was a particeps criminis to the fraud or not. Id.
14. VENUE, WHEN MUST BE ALLEGED.—In an action to recover the possession of specific
personal property, the jurisdiction of the court must be shown by an allegation in
the complaint of the place of detention. A failure to make such allegation can not
be taken advantage of after verdict when the sheriff's return shows that the property
was taken in the county over which the court had jurisdiction. Stiles v. James.
Wash. 212.
15. EQUITABLE Defenses MAY BE INTERPOSED to an action at law.
Col. 612, 102.
16. DEFENSE NOT PLEADED, WHEN MAY BE TAKEN ADVANTAGE OF. If a defense, legal
or equitable, to which the defendant is entitled to the benefit, be not averred in the
answer, but is fully established by the plaintiff in attempting to make out his case
in the first instance, the plaintiff will be deemed to have waived the absence of aver-
ment, and cannot recover if objection be taken by the defendant. Id.
17. PLEA SHOULD Present a SINGLE ISSUE.-The object of a plea, is, to present and try
a single issue, which may decide the suit, without putting the parties to the expense
of trying all the issues in the case. But one issue can be presented by plea, without
leave of the court, and in a suit upon a patent the court will not ordinarily permit a
party to present and try upon pleas all the issues that can be raised, except the
single issue as to infringement. Giant Powder Co. v. Safety Nitro Powder Co., (U.
S. Cir. Court). Cal. 79.
18. DELAY IN ASKING LEAVE TO FILE SEVERAL PLEAS will not be encouraged.
19. THE COURT MAY GRANT LEAVE TO FILE AN ANSWER after the time for answering has
expired, where no default has been entered. Sieber v. Frink. Col. 98.
20. A DEFENDANT IS BOUND BY AN ADMISSION IN HIS ANSWER as to the amount due
from him to the plaintiff, and it is error for the court to order judgment to be en-
tered upon a verdict for a less amount. Coffman v. Brown, Col. 98.
21. PERMITTING COUNSEL IN HIS ARGUMENT TO READ TO THE JURY A PORTION OF AN
OPINION OF THE SUPREME COURT is not error sufficient to warrant a reversal. Such
practice, however, is not to be commended. People v. Forsythe. Cal. 288.
22. A PLAINTIFF CANNOT DISMISS AN ACTION OF HIS OWN MOTION after the defendant
has answered and averred matters upon which affirmative relief is asked, growing
out of the transactions set forth in the complaint. Clarke et al. v. Hundley, Judge,
etc. Cal. 215.
23. SERVICE OF PAPERS SECTION 685 OF THE CODE OF CIVIL PROCEDURE OF IDAHO,
WHICH PROVIDES that service of papers may be made by leaving the same in the
office of an attorney in a conspicuous place, etc., is in derogation of the common
law, and must be strictly construed. Warner v. Teachenor et al. Idaho, 21.
24. AN AFFIDAVIT IN PROOF OF SUCH SERVICE must state that all the conditions of the
statute authorizing such service have been substantially complied with, or it will be
disregarded. Id.
25. DISMISSAL OF PARTY-JUDGMENT.-The entry of an order dismissing an action as to
a certain defendant, ousts the court of jurisdiction of such person, and a judgment
subsequently entered against him, without vacating such order, is void. Sere v.
McGovern et al. Cal. 892.
26. A PAPER IS FILED WHEN IT IS DELIVERED TO THE PROPER OFFICER, and by him re-
ceived for filing, whether the same is indorsed as filed or not. Wescoat v. Eccles.
Utah, 446.
creditor to be applied in satisfaction of a particular obligation, when the same is not
so applied, and the obligation is otherwise discharged. It is not necessary in such
action to allege a promise to repay. Stewart v. Phy. Or. 536.
See BONA FIDE PURCHASER, 1; PLEADING AND PRACTICE, 2, 3.
1. SUBORNATION OF PERJURY, INDICTMENT FOR.-To sustain an indictment for procur-
ing a person to commit perjury, it is necessary that perjury has in fact been com-
mitted. It cannot be committed unless the witness swears to what was false, will-
fully and knowingly. Consequently the indictment must aver, not only that the
statements made by the witness were false in fact, and that he knew them to be
false, but also that the party procuring him to make those statements knew that
they would be intentionally and willfully false on the part of the witness, and thus
that the crime of perjury would be committed by him. United States v. Evans (U.
S. Dist. Ct.) Cal. 611.
PLACE OF TRIAL.
See VENUE.
1. DEMURRER-AVERMENT OF LEGAL CONCLUSIONS.-A complaint need allege only facts
sufficient to constitute a prima facie cause of action. If superfluous matters are al-
leged as legal conclusions, an objection thereto cannot be raised by demurrer.
allegations of the complaint, omitting those objected to by the defendant, held to
state a good cause of action, and to be free from ambiguity or uncertainty. Camp-
bell et al. v. Taylor. Utah, 541.
2. DEMAND, WHEN MUST BE MADE AND AVERRED.—Where a demand is necessary to
fix the liability of sureties on an undertaking, it is parcel of the contract, and must
be made before the commencement of an action for the breach of the undertaking,
and in the action itself it must be averred and proved. It cannot be made after the
commencement of the action, except as the basis of a new action. Morgan v. Men-
zies et al. Cal. 882.
3. A DEMAND FOR PAYMENT IS NOT NECESSARY TO THE STATEMENT of a cause of action
by an attorney to recover the reasonable worth of his services. Gibbs v. Davis.
Or. 825.
4. CAUSES OF ACTION, STATEMENT OF. In an action on several bills of exchange, all
bearing the same date, payable to the same party, due at the same time, the better
practice is for the complaint to contain a separate statement on each bill. If, how-
ever, the complaint contains but a single statement, an order overruling demurrer
thereto will not be disturbed.-Dawson v. Lail. Ariz. 396.
5. CROSS-COMPLAINT-JOINDER of Causes oF ACTION-DEMURRER.-An objection to a
cross-complaint on the ground that several causes of action are unlawfully joined
must be taken by demurrer, which specifically states the objection. If such de-
murrer is overruled, and an exception saved, the right to be heard thereon upon ap-
peal is waived by afterward pleading over. Green, Administratrix, etc. v. Taney.
Col. 531.
6. TRIAL BY JURY, CONSENT OF PARTIES TO.-A trial of issues of fact by a jury, which
should have been tried by the court, is error. Such error is waived by the parties
consenting to a trial by a jury. Id.
7. A DEFENDANT WHO CONSENTS TO TRY A CASE WITHOUT A JURY THEREBY WAIVES his
right to afterwards object that the plaintiff's remedy was in law rather than in
equity.- Walla Walla v. Moore et al. Wash. 214.
8. PLEADING CONTRACT FOR Conveyance of LAND.-In pleading a defense arising out of
a contract for the conveyance of land, it is not necessary to allege that such con-
tract was in writing. The statute of frauds has changed the rule of evidence, not
the rule of pleading. Tucker, Executrix, Etc., v. Edwards.
9. INCONSISTENT PLEAS-WHEN ALLOWABLE. Under the practice prior to 1877, the
several parts of each plea could not be repugnant to each other; but separate special
pleas in the same answer might be inconsistent without rendering the pleading ob-
noxions to lemurre
3. PURCHASE OF STATE LADNS BY CHINESE.-A citizen and subject of the Chinese em-
pire, who is a bona fide resident of the State of Nevada, is entitled, under the laws
of the United States and of such State, to locate or purchase any of the public
lands belonging to such State. State ex rel. Fook Ling v. Preble. Nev. 43.
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4. SALE OF PRE-EMPTOR'S POSSESSORY RIGHT BY ADMINISTRATOR.-An administrator is
entitled to the possession of a tract of land entered under the pre-emption laws by
his intestate, and may sell, under direction of the probate court, any right of pos-
session of the land that may have fallen to him by virtue of his administration.
Nothing contained in sections 2263 and 2269 of the United States revised statutes
prohibits such sale. Burch, Administrator, etc., v. McDaniel et al. Wash. 546.
5. SALE OF "SOLDIERS' ADDITIONAL HOMESTEAD SCRIP.' -In the absence of a further
equitable showing, money paid for the purchase of "Soldiers' Additional Home-
stead Scrip," cannot be recovered back on the ground of a total failure of considera-
tion. Under sections 2306 et seq., of the United States revised statutes, the right
to locate and make entries under such scrip belongs to the soldiers alone, and a con-
tract for a sale thereof is against the policy of the law.-Mackintosh v. Renton,
Holmes & Co. Wash. 777.
6. DISTRICT COURT HAS NO JURISDICTION OF A CONTROVERSY TO DETERMINE the con-
flicting rights of claimants to a portion of the public domain, when such controversy
is already undetermined before the department of the interior. Hays v. Parker.
Wash. 801.
7. DECISION OF THE TIDE LAND COMMISSIONERS.-The commissioners under the acts of
1872 and 1874, to dispose of the state tide lands, were authorized to decide who was
entitled, in certain cases, to be preferred as a purchaser thereof, and their determin-
ation of the matter cannot be questioned elsewhere, except for an error of law or a
fraud extrinsic and collateral to the contest, by which a full and fair hearing of the
matter was prevented. Shively v. Welch et al. (U. S. Cir. Ct.) Or. 713.
8. SETTLER UNDER THE DONATION ACT.-It does not appear that James Welch was ever
a "settler" under the laws of the provisional government or the donation act upon
the donation patented to John M. Shively and wife; and if he was, upon his aban-
donment of all such claims thereto in 1860, and before he was entitled to the grant,
his wife had no interest in it or the consideration received therefor.-Id.
9. CONVEYANCE TO ONE PERSON UPON A CONSIDERATION MOVING FROM ANOTHER.--In 1860
John M. Shively, in consideration that James Welch abandoned his claim to be a
"settler" upon the former's donation claim, conveyed a certain portion thereof to
said Welch, and a like portion, including 5 and 13 in "Shively's Astoria," to his
wife Nancy. Held, that Nancy did not hold said blocks under her husband but
the grantor, Shively, and therefore she was entitled under the acts of 1872 and 1874
(Ses. L. 129, 76) to purchase the tide land in front of said blocks, although her hus-
band had quit-claimed the same to Shively in 1850. Id.
10. TOWN SITE OF RED BLUFF STATUTES AFFECTING CERTIFICATES OF TITLE-TRUST
ESTATE CONVEYANCE BY TRUSTEE.-On May 1st, 1865, Ann Wasson, then a widow
with a child by a former husband, the plaintiff here, entered upon and took posses-
sion of certain lots forming part of the town site of Red Bluff. She resided there
with her child until her marriage, in 1866, to Wasson; thereafter she, her husband
and the plaintiff continued to live and occupy said premises as her property until
her death in 1867, when she died intestate, leaving surviving her as her heirs at law,
her husband and the plaintiff. Said town site had been entered at the office of the
register of the land office of the United States, by the county judge of Tehama
county, in trust for the several use and benefit of the occupants thereof, under acts
of congress providing for the reservation of town sites upon the public lands of the
United States. Thereafter said trustee purchased the lands under the provisions of
an act of congress applicable to his trust, and on September 29, 1866, a United States
patent was issued to the county judge and his successors in office. On March 6th,
1868, the legislature passed an act authorizing the trustee to distribute the town
lots held by him in trust, and to issue certificates of title to the inhabitants of said
town in accordance with their respective interests. On July 9th, 1868, Wasson.
claiming as heir at law of his wife, obtained from the trustee the certificate of title
to the premises in dispute, in his own name, which were afterwards conveyed by
mesne conveyances to the defendant. Held, that the widow, under the aforesaid
acts of congress, as the original and bona fide occupant of said lots, became vested
with an equitable title to the same, as her separate property, which she would have
had a right to perfect, had she lived, by obtaining from the trustee, when he came
to execute his trust, under the regulations prescribed by the state, a certificate of
legal title; upon her death, before such regulations had been prescribed, her interest
vested in her husband and the plaintiff as tenants in common, each entitled to an
undivided half of the premises; that the legal title obtained by the husband, and
his entry thereunder, inured to the benefit of the plaintiff, and was held by him in
trust for her; and that the defendant, who took such land with notice of the equi-
table rights of the plaintiff, as shown by the county records, could acquire no greater
rights therein than his grantor had. Eversdon v. Mayhew. Cal. 726.
See DEED, 1-5; DENVER TOWN SITE, 2; EASEMENTS, 3; OREGON DONATION ACT.
1. COUNTY CLERK OF HUMBOLDT COUNTY, SALARY OF.-On February 28, 1876, the
offices of county clerk, auditor and recorder of Humboldt county were united in
the same person.
On that date the legislature passed an act fixing the annual salary
of the person filling such offices at five thousand dollars. Subsequently Humboldt
county was organized as a county of the second class, and the offices of auditor and
recorder were separated from that of county clerk. The annual salary of the county
clerk was thereupon fixed by the board of supervisors at two thousand seven hundred
dollars. Held that the act of February 28, 1876, was intended to regulate the salary of
such offices only while they were united in the same person. That when the organiza-
tion of the county government was changed, and the offices were separated, no one
of the three officers was entitled to receive the salary intended for the three; and
as the act did not provide for the separation of the three offices, it became inopera-
tive when such separation occurred. Kinsey, County Clerk, etc., v. Kellogg, etc. Cal.
368.
2. THE SAME.As there was no operative law fixing the compensation of the county
clerk after Humboldt county became organized as a county of the second class, the
board of supervisors had authority to fix the compensation of that officer. Id.
See COUNTY CLERK; COUNTY GOVERNMENT, 2.
1. ACTION TO QUIET TITLE-ALLEGATIONS OF COMPLAINT.--A complaint to quiet title is
sufficient, which alleges ownership in the plaintiff in the land in controversy, and
that the defendant claims an estate or interest therein adverse to him, which claim
is without right, and that defendant has no estate, right, title or interest. Rough
v. Simmons. Cal. 831. Rough v. Booth. Cal. 832.
QUIT CLAIM DEED.
See EJECTMENT, 6.
See BONDS, 1; See CORPORATIONS, 13; NEGLIGENCE, 1, 2.
1. ORDER SETTLING A RECEIVER'S ACCOUNT WILL BE AFFIRMED when no error ap-
pears. Montgomery v. Merrill. Col. 140.
2. OBJECTIONS AND EXCEPTIONS TO THE ALLOWANCE OF A VERIFIED ACCOUNT of a re-
ceiver appointed in an action for the foreclosure of a mortgage need not be verified.
Id.
RED BLUFF TOWN SITE.
See PUBLIC LANDS, 10.
1. IN AN EQUITABLE ACTION THE COURT HAS POWER TO REFER THE SAME to a refe-
ree to take the testimony, and to decide the action upon the testimony so taken.
In reviewing such evidence the appellate court may weigh the same with a view to
a just determination, uninfluenced by the proposition that the court below had su-
perior facilities to judge of the credibility of witnesses. Sieber v. Frink. Col. 98.
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