FORECLOSURE.

See MORTGAGE, 5-7; STATUTE OF LIMITATIONS, 8.

FRAUD.

1. MORTGAGE OF PERSONAL PROPERTY-POSSESSION BY MORTGAGOR— FRAUD.— A mortgage of the stock in trade of a merchant, by the terms of which the mortgagor is to remain in possession of the goods, to sell and dispose of the same as the owner, and remit the proceeds of the sales to the mortgagee, is a fraudulent transfer as against other creditors of the mortgagor. Speigelberg et al. v. Hersch & Co. et al. N. M. 129.

2. CONVEYANCE TO HINDER, DELAY AND DEFRAUD CREDITORS — PURCHASER WITH NOTICE-ATTACHMENT OF PROPERTY FRAUDULENTLY CONVEYED.-A conveyance of property made with intent to hinder, delay and defraud the creditors of the grantor is void, both as against the grantee and a subsequent purchaser with notice, although the latter may have paid a valuable consideration. The property so conveyed may be levied upon and sold at the instance of the creditors of the fraudulent grantor as if no conveyance had ever been made. Bull v. Ford. Cal. 527. 3. ALLEGATION OF FRAUDULENT INTENT-SPECIAL DEMURRER.-An allegation that a conveyance was made "with intent to hinder, delay and defraud the creditors" of the grantor is a sufficient averment of fraudulent intent to sustain a judgment. Whether the same would be sufficient if objected to by special demurrer, quære. Id. 4. FRAUDULENT REPRESENTATIONS-SALE-RIGHTS OF DEFRAUDED VENDEE.-One who has been induced by false and fraudulent representations to purchase a business and stock in trade need not upon discovery of the fraud take steps to rescind the contract. He may retain the property and prosecute his claim for damages either by an original action, or as a counterclaim to an action against him for the purchase price, brought by the party committing the fraud. If such contract of purchase was an entirety, the separate value of the stock, aside from the value of the goodwill of the business, need not be alleged in the answer. Herefort v. Cramer. Col. 229. 5. FRAUDULENT REPRESENTATIONS-SALE--MEASURE OF DAMAGES--PLEADINGS.-The measure of damage in an action for fraudulent representations in the sale of both real and personal property is the same. It is the difference between the value of the property as it actually existed on the day of sale, and its value as it was represented to be. Such damages need not be separately pleaded. Id.

FUTURE ADVANCES.

See MORTGAGE, 4.

GEORGETOWN, CHARTER OF.

See CONSTITUTIONAL LAW.

GOODS SOLD AND DELIVERED.

1. ACTION FOR GOODS SOLD AND DELIVERED-EVIDENCE-VARIANCE.--A complaint for certain cattle sold and delivered is not sustained by evidence that such cattle were delivered to the defendant to be slaughtered and the meat sold on commission. Evans v. Bailey et al. Cal. 427.

GRAND JURY.

See JURY AND JURORS, 7.

GRANT.

See BOUNDARIES; Deeds.

GUARANTY.

L CONTRACT TO CARRY STOCK CONSTRUED-GUARANTY.-The defendant Levy, being indebted to a firm of stock brokers for moneys advanced by them in stock transactions, arranged with another firm of brokers, Eppstein & Co., that the latter firm should take up the stocks, paying to the first firm the amount due it, and carry the stocks for him. In this arrangement the defendant Baldwin executed the following guarantees:

PURCHASE

"San Francisco, March 10, 1879-M. J. Levy in account with Eppstein & Co.
1879
March 10, 1,250 Belcher, 61.
March 10, 250 Mexican, 40.

E. and O. Ex....

Com.

$ 8,125 00
10,000 00
45 30

... $18,170 30

"I herewith guarantee the above account, to wit, $18,170 30, in gold coin, against
any loss for sixty days from date, and agree to make good any loss that may be sus-
tained thereon, in reselling the above stock, balance to be paid with interest at 11
per cent. per month.
E. J. BALDWIN."

The term of the guarantee was extended from time to time until July 25th, 1879,
with the consent of the guarantor, at which date the stock was sold by E. & Co., they
claiming a balance due them of $4,023 57. Held, that E. & Co. were entitled to
protect the security in their hands by paying the assessments levied thereon, and to
deduct the amounts so paid from the proceeds of sales; that the guarantor was liable
for the balance due E. & Co. on July 25th, 1879, with interest thereon from such date
at the rate of one and one-fourth per cent. per month. Marshall v. Levy et al
Cal. 698.

GUARDIAN AD LITEM.

See GUARDIAN AND WARD, 5; INFANTS, 2.

GUARDIAN AND WARD.

1. GUARDIAN AND WARD-SALE OF MINOR'S REAL ESTATE, ORDER FOR--DESCRIP-
TION OF LAND IN.-An order of the probate court for the sale of real estate belong
ing to a minor, must describe the land to be sold with sufficient definiteness and
certainty as to admit of its identification without reference to any extraneous mat-
ter; otherwise a sale based thereon is void. A description of such lands as "twenty
and one-half acres of the rancho Golita, being the share of a tract of thirty-one acres
allotted to said minors by a decree of the district court of Santa Barbara county, in
a suit in partition wherein the guardian herein and mother of said minors was plaint-
iff and said minors were defendants," is insufficient. Hill v. Wall. Cal. 501.
2. SALE OF LAND BY GUARDIAN-STATUTE OF LIMITATIONS.-Section 1806 of the code
of civil procedure prescribing three years next after the termination of the guardian-
ship of a minor for a recovery by the minor or his grantee of real estate sold by his
guardian, only applies to sales by guardians appointed by the probate courts of this
state. McNeil v. First Congregational Soc. Cal. 421.

3. GUARDIAN AND WARD-SALE OF LAND BY GUARDIAN APPOINTED BY FOREIGN
COURT.-One appointed guardian of a minor by the courts of a foreign state, has no
authority, as such, to sell the lands of his ward situated in this state. Id.

4. THE SAME-NATURAL GUARDIAN-SALE OF LAND BY-LEGISLATIVE AUTHORIZA
TION. The mother of Francis W. Paty had no power, as his natural guardian, to
transfer his real property, nor did she derive power for that purpose from the act
of the legislature of May 6th, 1861, authorizing his guardian to sell and convey cer-
tain real estate. Id.

5. GUARDIAN AD LITEM, ORDER APPOINTING-JUDGMENT ROLL.-An order appointing
a guardian ad litem for a minor defendant constitutes no part of the judgment roll.
Brady v. Page et al. Cal. 695.

See LEASE, 3.

HABEAS CORPUS.

1. HABEAS CORPUS-PRISONER DENIED SPEEDY TRIAL.-A prisoner who has not been
brought to trial within the time required by section 8 of the habeas corpus act,
may apply to be discharged on habeas corpus. In re Garvey. Col. 247.

2. THE SAME DETENTION OF PRISONER FOR FIVE TERMS.-A prisoner who is held in
custody for five successive terms of court without being tried, is entitled to be dis-
charged on habeas corpus. Id.

2. PETITION FOR A DISCHARGE ON HABEAS CORPUS DENIED.-Ex parte Finley on Ha
beas Corpus. Cal. 192.

See BAIL, 4; CHINESE RESTRICTION ACT, 4-6

HIGHWAY.

See STREETS AND HIGHWAYS.

HOLIDAY.

See JURY AND JURORS, 11.

HOMESTEAD.

1. FINDINGS HOMESTEAD-RESIDENCE.-Finding that the defendants did not nor did either of them reside on the demanded premises at the time of filing their declaration of homestead held supported by the evidence. Grange v. Gough et al. 604.

HOMICIDE.

See MURDER AND MANSLAUGHTER.

HUSBAND AND WIFE,

Cal.

1. COMMUNITY PROPERTY, PROOF OF HUSBAND AND WIFE.-It is not necessary to prove that property is, in fact, the product of the joint efforts of the husband and wife in order that it may be declared community estate. If it is acquired after marriage by the efforts of the husband alone, but not by gift, devise or descent, or by exchange of his individual property, or from the rents, issues or profits of his separate estate, it belongs to the community, although the wife rendered no assistance in its acquisition. Lake v. Lake. Nev. 159.

2. SEPARATE AND COMMUNITY PROPERTY-PROFITS-LABOR AND SKILL OF SPOUSES.The profits of separate property which accrue mainly from the property rather than from the joint efforts of the husband and wife, or either of them, belong to the owner of the property, although the labor and skill of one or both of the spouses may have been given to the business. On the contrary, if profits come mainly from the efforts or skill of both, they belong to the community. Id.

3. THE SAME PROFITS RESULTING FROM HOTEL.--The profits resulting from the ordinary use of a hotel, the separate property of the husband, either from renting or carrying on the business himself, belong to the husband as his separate estate.--Id. 4. HUSBAND AND WIFE--SEPARATE PROPERTY-RENTS, ISSUES AND PROFITS.- All the property owned by a husband at the date of his marriage, as well as that subsequently purchased by him, and the rents, issues and profits thereof, up to March 7th, 1865, the date of the first statute governing the property rights of husband and wife, belongs to him as his separate property. Under such statute the rents, issues and profits of the separate estate of the husband did not become common property. Id. 5. PROPERTY ACQUIRED DURING COVERTURE COMMUNITY PROPERTY. Property acquired during coverture presumptively belongs to the community, and the burden is on the person asserting the contrary to overcome such presumption by proof, sufficiently clear and satisfactory to convince the court or jury of the correctness of his claim. Id.

See CHINESE RESTRICTION ACT, 7-9; MARRIED WOMEN, HUSBAND'S SEPARATE ESTATE, (Editorial). 193.

IMPROVEMENTS.

See MECHANIC'S LIEN, 3.

INDEX.

See APPEAL, 20.

INDIANS.

1. INDIAN COUNTRY-UMATILLA RESERVATION.-The Umatilla Indian reservation is a place within the geographical limits and general jurisdiction of the state of Oregon; but it is also a tract of country to which the Indian title is not extinguished, and which has been permanently set apart by treaty as a reservation for the sole and exclusive use of the Indians thereon, and is therefore "Indian country" within the meaning of that phrase, as used in the revised statutes. United States v. Barnhart et al. (U. S. Cir. Ct.) Or. 590.

2. INTERCOURSE WITH INDIAN TRIBES.-The United States has jurisdiction over the intercourse with tribal Indians, and Congress may prohibit and provide for the punishment of acts relating to or affecting such intercourse anywhere in the United States. Id.

3. JURISDICTION OF UNITED STATES COURTS OVER CRIMES COMMITTED ON THE RESERVATION.-The United States courts of the district of Oregon have jurisdiction over all crimes committed on the Umatilla reservation by a white man on the property or person of an Indian, and vice-versa, so far as the same have been defined by an act of congress. Id.

4. PLEA OF AUTREFOIS ACQUIT.-B. and A. were indicted in the United States court for the crime of manslaughter, committed in killing Indian William on the Umatilla reservation, and pleaded to the indictment a former acquittal, from which plea it appeared they had been indicted and tried in the state court for the murder of said Indian, and acquitted, to which plea there was a demurrer: Held, That the crime of which the defendants were acquitted in the state court was not the same as that charged in the indictment in the United States court, and therefore the plea was bad. Id.

5. INTRODUCTION OF LIQUORS INTO INDIAN RESERVATION-SEIZURE OF PROPERTY USED FOR.-Property in the possession of a person other than the owner, who is using it for the purpose of introducing spirituous liquors upon an Indian reservation, may be seized by the government agent in charge of such reservation, and delivered over to the proper officer, to be proceeded against for forfeiture. If such agent surrenders the property to the owner, upon demand, he does not thereby admit the illegality of the seizure. Webb v. Nickerson. Or. 485.

6. THE SAME JUSTIFICATION OF SEIZURE, HOW ALLEGED.-In an action brought in a state court against the government, agent, for a wrongful taking of such property, the agent may justify his seizure under section 2,140 of the United States revised statutes, although the state court had no jurisdiction of the offense for which the seizure was made. Such justification, however, to be available as a defense, must allege that the person introducing the spirituous liquors was either a white person or an Indian. Id.

INDICTMENT.

See CRIMINAL LAW AND PRACTICE, 1; ESCAPE FROM STATE PRISON; FALSE REPRESENTATIONS; MURDER AND MANSLAUGHTER, 4-6.

INFANTS.

1. MINORITY-PERIOD OF, WHEN TERMINATES-STATUTE OF LIMITATIONS-EJECTMENT. A male person born on the eleventh day of April, 1855, becomes of age, under section 26 of the civil code, at the first minute of the eleventh day of April, 1876. His right of action for recovery of real estate in the adverse possession of another commences to run from such day, and expires after a period of five years, on the tenth day of April, 1881. Ganahl et al. v. Soher et al. Cal. 609.

2. INFANT'S POWER TO NOMINATE ATTORNEY-SERVICE OF SUMMONS ON INFANT-APPOINTMENT OF GUARDIAN AD LITEM.—An infant over the age of fourteen has not power to nominate an attorney, nor has the court authority to appoint a ad litem to appear for such infant defendant until after summons has b upon him. McCloskey v. Sweeney. Cal. 290.

ardian

INFORMATION.

See ASSAULT WITH DEADLY WEAPON; CRIMINAL LAW AND PRACTICE, 3; Larceny, 1, 2; PLEADING AND PRACTICE, 2.

INFORMATION AND BELIEF.

See ASSIGNMENT, 5; MORTGAGE, 5; REMOVAL OF CAUSES, 4; STREETS AND HIGHWAYS, 6.

INJUNCTION.

1. HYDRAULIC MINING-ORDINARY BUSINESS OF CORPORATION-INJUNCTION.-It is no part of the general and ordinary business of a corporation to do unlawful acts, such as dumping mining debris, tailings and other refuse matter from a mine, into water courses which wash the debris and materials down upon and spread them over the land of another, rendering it valueless for agricultural or other purposes. The doing of such acts may be restrained by a temporary injunction, at the instance of the party injured, without notice to the corporation, although the effect of such injunction will be to prevent the successful carrying out of the business in which the corporation is engaged. Hobbs v. Amador and Sacramento Canal Co. et al. Cal. 523. 2. PRELIMINARY INJUNCTION, MODIFICATION OF- JUDICIAL DISCRETION.-The court that grants a preliminary injunction, may, in the exercise of its judicial discretion, modify the same at any time before the case terminates in a final judgment; and the order of modification will not be disturbed, unless there has been an abuse of discretion. Id.

See CONTEMPT; NUISANCE, 1; TAXATION, 16.

INSANE PERSONS.

1. INSANITY-OPINION OF NON-PROFESSIONAL WITNESS.-Upon the trial of an issue involving the sanity of a person, the opinion of a non-professional witness, based upon his own observations, is competent evidence, and is entitled to weight, according to the intelligence of the witness, his means of information and the character of the derangement. Parkhurst v. Hosford (U. S. Cir. Ct.) Or. 311.

INSOLVENCY.

1. INSOLVENCY JUDGMENT AFFIRMED. In re Laswell. Cal. 221

INSTRUCTIONS

1. INSTRUCTIONS-REFUSAL TO GIVE ON ACCOUNT OF LENGTH.-The court cannot refuse to give instructions requested, on account of their length, when the same are handed in at the time prescribed by the court's rules. Andrews v. Runyon. Cal. 81. 2. INSTRUCTIONS-EVIDENCE-Where the evidence warrants it, the court must give every instruction asked, which suggests a theory of the case not suggested by the instructions given. People v. Wong Chow. Cal. 131.

3. INSTRUCTIONS PARTLY CORRECT AND PARTLY INCORRECT. —A refusal to give instructions partly correct and partly incorrect is not ground for a reversal of the judgment. Garlick v. Bowers. Cal. 501.

4. INSTRUCTIONS ASKED FOR, WHICH HAVE ALREADY BEEN GIVEN in substance, may be refused. People v. Righetti. Cal. 380.

5. INSTRUCTIONS ASKED FOR, IF THE SAME HAVE ALREADY BEEN GIVEN in substance, may be refused. Cook v. Territory. Wy. 340.

6. AN INSTRUCTION, ALTHOUGH ERRONEOUS, IF NOT PREJUDICIAL TO THE DEfeated PARTY, is not ground for reversal. Winans v. Sierra Lumber Co. Cal. 277.

7. INSTRUCTIONS GIVEN IN ABSENCE OF DEFENDANT.-Giving instructions to the jury, in a prosecution for murder, in the absence of the defendant, will not warrant a reversal, if subsequently, and while the defendant is present, the court directs the jury to disregard his former instructions, and then instructs them to the same effect as previously. People v. Soto. Cal. 46.

8. OBJECTIONS TO INSTRUCTIONS MUST BE MADE AT TRIAL.-Objections to instructions will not be considered by the appellate court, unless the same were made and saved at the trial in a proper bill of exceptions. Territory v. Young. Mont. 468.

9. INSTRUCTIONS GIVEN BY A COURT OF ITS OWN MOTION, to which no exceptions are taken, are not grounds for reversal. Cook v. Territory. Wy. 340.