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.
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
Wash. 546.
prohibits such sale. Burch, Administrator, etc., v. McDaniel et al.
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. S01.
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
Shively's Astoria," to his
said Welch, and a like portion, including 5 and 13 in "
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 has-
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 Ünited States
On March 6th.
patent was issued to the county judge and his successors in office.
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
return of the property; and if all the property cannot be returned, then to a judg
ment for the value of the whole. In such action, the wrong-doer cannot acquire
the privilege of restoring to the owner a particular article of the property wrongful-
ly detained, or of paying instead its value as found by the jury, nor can he com-
plain that the alternative judgment is for less than the value of the property.
more v. Rupe. Cal. 885.
RESTRICTION ACT.
See CHINESE RESTRICTION ACT.
REVENUE ACTS.
See DUTIES.
RIGHT OF WAY.
See EASEMENTS, 1-3.
See STREETS AND HIGHWAYS.
1. TO CONSTITUTE ROBBERY OR LARCENY THE GOODS MUST HAVE BEEN TAKEN animo
furandi. People v. Keefer. Cal. 878.
2. INSTRUCTIONS IN REGARD TO ROBBERY.-When a defendant is on trial and is con-
victed of the crime of robbery, erroneous instructions relating to the crime of grand
larceny will not warrant a reversal, when the instructions in regard to the crime of
robbery are correct. People v. Riley. Cal. 364.
3. ROBBERY STATEMENT OF PERSON ROBBED-RES GESTA.-On a trial for robbery,
after the prosecuting witness has testified "that he thought that he had been
knocked down and his watch [the property claimed to have been taken] was taken
from him without his consent, but of this he was not certain," the prosecution can
not give evidence of a statement of such witness, made some time after the alleged
robbery occurred, and not in the presence of the defendant, to the effect that he had
"been knocked down and robbed." Such statement forms no part of the res gesta.
People v. Ehring. Cal. 590.
1. A COURT CANNOT BY RULE DEPRIVE A PARTY OF A RIGHT given him by statute.
Wescoat v. Eccles. Utah, 446.
SACRAMENTO BONDS.
See BONDS, 2-4.
1. SALE OF REAL ESTATE-COMMISSIONERS-TIME WHEN ESSENCE OF CONTRACT.-The
respondents authorized the appellants in writing to sell certain real and personal
property for them at a given price, and within a specified time. On the last day of
such time the appellants produced as a purchaser one who professed to be able to
pay the price agreed upon, and willing to do so if the respondents would allow him a
reasonable time to examine the title to the property. This the respondents refused, but
tendered him a deed for the property, which he refused to accept, for want of an op-
portunity to make such examination. Held, that the appellants were not entitled
to the stipulated commission; that time was of the essence of the contract for the
sale; that a reasonable time for the examination of the title could not be implied
where the limit for acceptance was definitely fixed by the terms of the offer; that
to entitle them to commissions the appellants should have produced a purchaser
both able and willing to consummate the purchase within the stipulated time. Wat-
son et al. v. Brooks et al. Or. 815.
REFORMATION.
See FINDINGS, 15.
1. REMOVAL OF CAUSES-CITIZENSHIP OF PARTIES.-The petition for the removal of an
action on the ground that the parties are citizens of different states must show that
such ground of removal existed both at the time of the commencement of the action
and at the time of the application for removal. A petition which only alleges that
the defendant is, and always has been, a citizen of California, and that the plaintiff
is a citizen of Missouri is insufficient. McNaughton v. South Pacific Coast R. R.
Co. (U. S. Cir. Ct.) Cal. 662.
2. THE SAME AMENDMENT OF PETITION. The citizenship of the parties, under such
circumstances, are jurisdictional facts, and must be alleged in the petition. If such
allegations are not made, whether the petition may be amended in the circuit court
so as to show them quære. If the power to allow such amendments be conceded, it
is not a matter which the party removing can demand as a legal right, but only a
matter for the exercise of a sound discretion by the court. Such an amendment
should not be allowed where, after an amendment of the petition in the circuit
court, the record in each court, would show upon its face jurisdiction which would
authorize it to proceed to final judgment. Id.
3. THE SAME-APPLICATION, WHEN SHOULD BE MADE.-This action was commenced in
the fourth district court of the state of California, on August 1, 1879; defendant
demurred August 22, 1879. The demurrer was overruled. It answered September
12, 1879. Plaintiff demurred to that part of the answer, setting up new matter as
a defense, October 2, 1879. The new constitution of California of 1879 having in
the meantime taken effect, the case was transferred into the superior court as the
successor of the district court, and on January 23, 1880, was assigned to depart-
ment No. 7 of the superior court. On March 22, 1880, the demurrer to the answer
was sustained. An amended answer was filed April 1, 1880, which put the case at
issue. The constitution of 1879, and the statutes passed in pursuance thereof, pro-
vide that "the superior courts shall always be open (legal holidays and non-judicial
days excepted) and they shall hold
regular sessions commencing on the
first Mondays of January, April, July and October, and special sessions at such
other times as may be prescribed by the judge or judges thereof." On January 21,
1884, the defendant filed a petition to remove the case to the United States circuit
court, on the ground that the parties were citizens of different states. Held, that
under the act of congress of 1875, providing that the application for removal must
be made "before or at the term at which said cause could be first tried," the appli-
cation in this case came too late; that the four general sessions of the superior
court required to be held are "terms" within the meaning of the act. Id.
4. TRANSFER OF CAUSE TO FEDERAL COURT.-An order of the lower court refusing a
motion to transfer the cause to the federal court can not be reviewed on an appeal
from the judgment alone. Rough v. Booth. Rough v. Simmonds. Cal. 72.
5. THE BOND REQUIRED ON SUCH TRANSFER MUST BE SIGNED by the principal. Id.
1. REMOVAL OF COUNTY SEAT-LEGISLATIVE AUTHORITY OVER.-The act of February
11, 1881, regulating the removal of county seats, and providing that "not less than
two thirds of all the legal votes cast shall be necessary to effect the removal of the
county seat of any county in this state," is not in conflict with section 2, article 14,
of the constitution, which declares that "no county seat shall be removed unless a
majority of the electors voting on the proposition vote therefor." Alexander v.
People. Col. 92.
1. REPLEVIN OF JOINT PROPERTY. - Personal property incapable of division, and own-
ed by two or more joint owners, or tenants in common, cannot be replevied by one
or more of such owners from the owners who have the exclusive possession thereof.
Hill et al. v. Seager. Utah. 673.
2. ACTION FOR CLAIM AND DELIVERY-JUDGMENT.-Under the code, a defendant who
recovers judgment in an action for the claim and delivery of personal property
where the same has been delivered to the plaintiff, is entitled to a judgment for a
return of the property; and if all the property cannot be returned, then to a judg-
ment for the value of the whole. In such action, the wrong-doer cannot acquire
the privilege of restoring to the owner a particular article of the property wrongful-
ly detained, or of paying instead its value as found by the jury, nor can he com-
plain that the alternative judgment is for less than the value of the property.
more v. Rupe. Cal. 885.
RESTRICTION ACT.
See CHINESE RESTRICTION ACT.
REVENUE ACTS.
See DUTIES.
RIGHT OF WAY.
See EASEMENTS, 1-3.
See STREETS AND HIGHWAYS.
1. TO CONSTITUTE ROBBERY OR LARCENY THE GOODS MUST HAVE BEEN TAKEN animo
furandi. People v. Keefer. Cal. 878.
2. INSTRUCTIONS IN REGARD TO ROBBERY.-When a defendant is on trial and is con-
victed of the crime of robbery, erroneous instructions relating to the crime of grand
larceny will not warrant a reversal, when the instructions in regard to the crime of
robbery are correct. People v. Riley. Cal. 364.
3. ROBBERY STATEMENT OF PERSON ROBBED-RES GESTE.-On a trial for robbery,
after the prosecuting witness has testified that he thought that he had been
knocked down and his watch [the property claimed to have been taken] was taken
from him without his consent, but of this he was not certain," the prosecution can
not give evidence of a statement of such witness, made some time after the alleged
robbery occurred, and not in the presence of the defendant, to the effect that he had
"been knocked down and robbed.” Such statement forms no part of the res gesta.
People v. Ehring. Cal. 590.
1. A COURT CANNOT BY RULE DEPRIVE A PARTY OF A RIGHT given him by statute.
Wescoat v. Eccles. Utah, 446.
SACRAMENTO BONDS.
See BONDS, 2-4.
1. SALE OF REAL ESTATE-COMMISSIONERS-TIME WHEN ESSENCE OF CONTRACT.-The
respondents authorized the appellants in writing to sell certain real and personal
property for them at a given price, and within a specified time. On the last day of
such time the appellants produced as a purchaser one who professed to be able to
pay the price agreed upon, and willing to do so if the respondents would allow him a
reasonable time to examine the title to the property. This the respondents refused, but
tendered him a deed for the property, which he refused to accept, for want of an op
portunity to make such examination. Held, that the appellants were not entitled
to the stipulated commission; that time was of the essence of the contract for the
sale; that a reasonable time for the examination of the title could not be implied
where the limit for acceptance was definitely fixed by the terms of the offer; that
to entitle them to commissions the appellants should have produced a purchaser
both able and willing to consummate the purchase within the stipulated time. Wat-
son et al. v. Brooks et al. Or. 815.
2. A SALE OF PERSONAL PROPERTY IN THE POSSESSION OF THE VENDOR carries with it a
warranty of title, including a warranty against incumbrances. Baker v. McAllis-
ter. Wash. 690.
3. BREACH OF WARRANTY OF TITLE-RECISSION.-Where personal property is sold with
warranty of title, and at the time of sale the same is subject to a lien not known to
the vendee, by reason of which said property is taken and kept from the vendee,
without negligence or fault on his part, such taking will of itself, at the option of
the vendee, work a recission of the contract of sale, and be a good defense to an
action for the purchase price. Id.
4. THE SAME PAYMENT OF LIEN BY VENDEE.-The vendee under such contract need
not discharge the existing lien. If, however, he does so, the amount so paid should
be set off against the purchase price. Id.
5. IMPLIED WARRANTY-SALE BY WRITTEN CONTRACT.-PAROL EVIDENCE. -The vendor
of personal property in his possession warrants his title to the same by implication.
Whether such sale be by written bill or sale or oral, the implied warranty of title
may be rebutted by parol. The law does not generally imply warranties as to qual-
ity. As to such warranties the rule is caveat emptor, and the purchaser has no
remedy except in cases of express warranty or fraud. If the contract of sale be
reduced to writing, nothing which is not found therein, except that which the law
implies, forms part of the contract. When such contract contains no warranty, or
expresses the waranty that is given by the vendor, parol evidence is inadmissible to
show the existence of a warranty in the former case, or to extend it in the latter.
Johnson v. Powers. Cal. 740.
6. INFORMALITY IN THE DELIVERY OF PERSONAL PROPERTY SOLD BY AN EXECUTRIX DOES
NOT VITIATE the sale so as to render it impossible of subsequent ratification by the
probate court. Id.
7. A SALE OF THE PROPERTY of an estate without an order therefor by the probate court,
may be subsequently ratified by such court, or by the parties interested in such
estate, so far as their interest is concerned. Brewster v. Baxter. Wash. 791.
S. A CONDITIONAL SALE, DEPENDENT UPON AN ACT to be done, such as the payment of
the consideration within a certain time, which is not done, does not pass the title to
the vendee. Sere v. McGovern. Cal. 892.
See CONTRACT, 1; FERRIES, 3.
1. BOARD OF SUPERVISORS OF SAN FRANCISCO-FORMATION OF.-The consolidation act of
the city and county of San Francisco regulates and determines the formation of the
board of supervisors of such city and county until changed or superseded by pro-
ceedings under article XI of the constitution of 1879. People ex rel. Dougherty v.
Board of Election Commissioners, etc. Cal. 366.
See STREETS AND HIGHWAYS, 6.
SATISFACTION.
See ACCORD AND SATISFACTION.
See CRIMINAL LAW AND PRACTICE, 15.
SOLDIERS' ADDITIONAL HOMESTEAD SCRIP.
1. SPECIFIC PERFORMANCE OF A WRITTEN CONTRACT FOR THE SALE OF LAND will be
refused when the description of the land, in the light of surrounding circumstances,
is not sufficient to enable the court to determine the precise tract of land intended
to be disposed of. Richards v. Snider et al. Or. 282.
2. CONTRACT FOR SALE OF LAND-SPECIFIC PERFORMANCE.-A written agreement for
the sale of land, which reserves to the vendor the privilege of foreclosing all the
rights of the vendee, in case of the non-payment of the purchase price, may be spe-
cifically enforced by the vendor. It is not necessary for him to resort to the reme-
dy of foreclosure. Wood v. Mastick et al. Wash. 549.
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