increased, causing the frequent floods to extend their area and to be more destructive than they otherwise would have been, and covering thousands of acres of good land in the Sacramento valley with mining debris. And as the rivers are at all times carrying in suspension the lighter earthy matter from the mines, and washing down the heavier debris, they are likely to fill more rapidly in the future in proportion to the quantity of hydraulic tailings than in the past, and to cause much further and greater injury in the future to large tracts of land--probably rendering them, within a few years, unfit for cultivation and inhabitancy. Besides, the discharge from the mines so fouls the water of the American river at all points below as to make it unfit for any domestic use by the inhabitants. And from the same cause the navigation of the Sacramento river has been so greatly impaired that the river, which, until the year 1862, was navigated as far as the city of Sacramento without difficulty by steamers of deep draught, to wit, by boats drawing nine or ten feet of water, has been, since the year 1862, unnavigable as far as the city of Sacramento by boats of deep draught, except during high water, instead of at all times as formerly. And there is imminent danger, if the acts of the defendant and others engaged in hydraulic mining are allowed to continue, that the beds and channels of the lower portion of the American river, and of the Sacramento river below the mouth of the American, will be so filled and choked up by tailings and other deposits that said rivers will be turned from their channels, cutting new waterways, injuring or destroying immense tracts of land and probably will result in greatly impairing the navigation of the Sacramento river. Held, that such acts of the defendant constituted a public nuisance, which might be enjoined in an action in the name of the people of the state, although other mining companies, acting separately and independently of each other, contributed in producing such nuisance. People v. Gold Run Ditch and Mining Co. Cal. 511.

2. COURTS WILL TAKE JUDICIAL NOTICE OF THE NAVIGABILITY OF THE SACRAMENTO RIVER. Id.

3. THE SAME NUISANCE UPON NAVIGABLE STREAM. -Navigable streams are public highways, in which the people of the state have controlling and paramount rights, and all unauthorized intrusions upon the same for purposes unconnected with the rights of navigation or passage are nuisances. Id.

4. THE SAME JOINDER OF PARTIES CONTRIBUTING TO NUISANCE.--In an action to abate a public or private nuisance, all persons engaged in the commission of the wrongful acts which constitute the nuisance may be enjoined jointly or severally. Id. 5. PUBLIC NUISANCE-RIGHT TO CONTINUE CANNOT BE ACQUIRED BY ČUSTOM.-The right of private individuals or corporations to make use of the waters of navigable streams as a place of deposit for their mining debris, so as to destroy the navigability of such streams, cannot be acquired by custom. Id.

Id.

6. THE SAME CANNOT BE ACQUIRED BY PRESCRIPTION.--The right to continue a public nuisance cannot be acquired by prescription. Against such nuisance, however long continued, the state is bound to protect the people; and for that purpose the attorney-general has the power to institute a proceeding in equity in the name of the people to compel the discontinuance of the acts which constitute the nuisance. 7. HYDRAULIC MINING--INJUNCTION SUBJECT TO CONDITIONS.--The plaintiff being entitled, upon the facts found, to a perpetual injunction to compel the discontinu-. ance of the acts complained of, as stated in the preceding opinion, the court cannot make the injunction subject to the condition that "the defendant may at any time, as it may be advised, apply to the court to have the decree and restraining order modified, or vacated, and set aside. And whenever, upon such showing, it shall appear that sufficient means have been provided to impound, detain and hold back such tailings at any point on said American river above Alder creek, and that such means are sufficient to detain all bowlders, cobble-stones, gravel and the heavier sand, then said defendant shall be entitled to have said decree vacated and set aside." Id. 8. RIGHTS OF PERSONS TO USE AND ENJOYMENT OF PROPERTY.--Any person may use his own property in such lawful manner as to him may seem fit, having reference always to the right of others to use their property. But a person cannot use his own property, even in and about a business in itself lawful, if it be used in such a manner as to seriously interfere with another in the enjoyment of his property. Tuebner et al. v. California Street Railroad Co. Cal. 529.

9. THE SAME-NUISANCE-STREET RAILROAD-LICENSE, WHEN NOT A JUSTIFICATION.-The defendant corporation operated a street railroad along a street in that portion of San Francisco usually devoted to dwelling purposes, and, for the purpose of using steam as a motive power in propelling its cars by means of a cable, constructed

a building on a lot adjoining the plaintiff's premises, for use in connection with its street railroad, as a car and engine-house. Such use produced a loud and continu ous noise; caused the plaintiff's house to be constantly shaken and jarred; cracked the plastering in his rooms, and covered his premises and furniture with soot. Held, that such acts of the defendant constituted a nuisance for which it was liable, although the municipality of San Francisco had granted it a franchise to operate its road, and all its structures and machinery were necessary to that end, and were properly constructed. Id.

10. ABATEMENT OF PENDING ACTION--DAMAGES.--In an action to recover damages for injuries caused by such nuisance, the fact that the defendant has, since the commencement of the action, remedied the evil complained of, does not interfere with plaintiff's right to recover for injuries sustained before the commencement of the action. Id.

11. MEASURE OF DAMAGES-VALUE OF INJURY.-In such action the plaintiff need not prove his injury by value; it is for the jury to determine a reasonable sum as proper compensation. Id.

NUL TIEL RECORD.

See JUDGMENT, 1.

OATH.

See JURY AND JURORS, 6.

OCCUPATION.

See POSSESSION.

ORDERS.

See APPEAL, 2-6, 18; CERTIORARI, 10; NEW TRIAL, 5.

OWNERSHIP.

See LARCENY, 1; STREETS AND HIGHWAYS, 6.

PAROL EVIDENCE.

See EVIDENCE.

PARTIES.

See APPEAL, 1, 6, 11; LEASE, 3; MARRIED WOMEN: NEGLIGENCE, 4; Nuisance, 1, 3; STREETS AND HIGHWAYS, 4, 5; SWAMP LANDS, 8, 9: TRUSTS..

PARTITION.

See STATUTE OF LIMITATIONS.

PARTNERSHIP.

1. PARTNERSHIP, HOW CREATED ESSENTIAL ELEMENTS OF. -A partnership is a contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profits and bear the loss in certain proportions. Cogswell v. Wilson. Or. 489. 2. THE SAME AGREEMENT TO SHARE PROFITS AND Loss.--To constitute a partnership inter se mere community of interest is not sufficient; there must be an agreement to share in the profits and loss. Such agreement must provide for an interest in the profits as profits, and not for a mere division of the gross earnings, and such profits must be shared as the result of the adventure or enterprise, and not simply as a measure of compensation. Id.

3. THE SAME-BREACH OF PARTNERSHIP AGREEMENT-DISSOLUTION OF PARTNERSHIP. — The existence of a partnership does not depend upon the fact that each of the partners has in all things complied with his agreement. If the contract has been made, property and labor contributed, and the partnership business commenced, the partnership continues until legally dissolved. Id.

4. THE EVIDENCE REVIEWED, and held that a partnership existed between the defendant and the plaintiff's vendor. Id.

5. PARTNERSHIP LANDS-SALE OF BY ONE PARTNER TO BONA FIDE PURCHASER.-The equitable interest of a partner in land purchased by his copartner is discharged by a transfer of the legal title by the latter to a purchaser for value and without notice. McNeil v. First Congregational Soc. Cal. 421.

6. ACTION BETWEEN PARTNERS TO RECOVER ASCERTAINED BALANCE-PLEADINGS.-An action may be maintained by one partner against his copartner for the balance found due upon a settlement of the partnership affairs. In such action no express promise to pay such balance need be shown; it is sufficient if the sum has been ascertained and agreed upon by the act of both partners. But an averment of the settlement by the plaintiff is material, and without it his complaint is fatally defective. An averment that at the time of dissolution there was in the hands of the defendant "clear profits," amounting to a sum stated, is not equivalent to an allegation of settlement. Bean v. Gregg. Col. 241.

7. ASSIGNMENT OF FIRM PROPERTY BY ONE PARTNER FOR BENEFIT OF CREDITORS.-A voluntary assignment of all the firm property, made by one partner in favor of a creditor, without the knowledge or assent of his partner, and against his previously expressed wishes, is invalid. Wilcox v. Jackson. Col. 326.

PATENTS.

1. PROCESS AN INVENTION DISTINCT FROM MECHANISM PRODUCING THE PROCESS.-A process by which a new result is obtained is a different thing from the mechanism by which it is carried out, and is a distinct, severable and independent patentable invention. Scrivner et al. v. Oakland Gas Co. (U. S. Cir. Ct.) Cal. 197.

2. REISSUE ENLARGING THE PATENT AFTER LONG DELAY VOID.-The original patent was for the mechanism by which a new and useful result was produced. The patent, after eleven years delay, was reissued in such form as to embrace a claim for the process as well as for the mechanical means by which the process was carried out. Held, that the reissued patent for the process is void. Id.

PAYMENT.

1. APPROPRIATION OF PAYMENTS-DEBTOR AND CREDITOR- GENERAL PAYMENT.-A debtor may direct, on paying money to his creditor, the appropriation of it to a particular account or item of indebtedness; but if he make or indicate no such appropriation, the creditor may apply the money as he pleases. Where money is paid generally on an account without any appropriation it should be applied to the first items in the account. And in an action to recover a balance due on a running account, the debtor cannot be heard to dispute the validity of the items so paid. Mackey v. Fullerton et al. Col. 569.

1. PARTIAL DEFENSES AT

See ASSIGNMENT, 1; CERTIORARI, 8.

PETIT LARCENY.

See LARCENY, 3, 4.

PLACE OF TRIAL.

See VENUE.

PLACER MINE.

See MINES AND MINING, 3, 4.

PLEADING AND PRACTICE.

COMMON LAW AND UNDER CODE, HOW PLEADED.-At common law every plea must go to the whole cause of action, and be an entire answer thereto on the record. The same rule prevails under the code, except that matter may be set up by way of answer which constitutes only a partial defense; but in such case it must be pleaded as a partial defense and not assume to answer the entire cause of action. Webb v. Nickerson. Or. 485.

2. DENIAL OF KNOWLEDGE OR INFORMATION.-A defendant is not bound to inform himself concerning the truth of an allegation, of which he never had any knowl edge, before answering the same; and a denial of any knowledge or information thereof is a sufficient denial, and will not be stricken out as sham, unless it plainly appears that the same is false. Oregonian Railway Company, Limited, v. Oregon Railway and Navigation Company. (U. S. Cir. Ct.) Or. 548.

3. FRIVOLOUS PLEADINGS.-A frivolous answer or defense is one which contains nothing that affects the plaintiff's case, and may be stricken out on motion; but a motion to strike out for frivolousness is not well taken if the matter included in it is material, if true. Id.

4. CAUSE OF ACTION-STATEMENT OF DAMAGES.-An action for damages must rest upon facts showing a right on the part of the plaintiff to require the performance on the part of the defendant of some legal duty, a failure to perform such duty, and that the damages sought resulted therefrom. The complaint in this action held not to state facts in compliance with this rule. Brandenburg v. Miles. Col. 336.

5 ERRONEOUS ORDER CONSOLIDATING ACTIONS, WHEN NOT GROUND FOR Reversal — An erroneous order consolidating certain actions is not ground for reversal, if it appears from the findings that the appellant is not entitled to a judgment. Bouge v. Dunn. Cal. 352.

6. EQUITY RULE 69-BURDEN OF PROOF.-Where the time of taking testimony has expired under equity rule 69, and the case is heard on the bill, plea and replication to the plea, without evidence to support the plea, the plea will be overruled for want of evidence. The burden of proof is on the party pleading the facts relied on to oust the jurisdiction. Sharon v. Hill (U. S. Cir. Ct.) Cal. 199.

7. AMENDED COMPLAINT SERVICE OF ON DEFENDANTS.-Where a plaintiff amends his complaint in matter of substance, he must serve his amended pleading upon all the defendants, including those in default. Miliken v. Houghton. Cal. 221.

8. RECORD HELD TO DISCLOSE NO MATERIAL ERROR. Board of Education v. Franklin et als. Cal. 608.

See AFFIDAVIT OF MEKITS; ASSIGNMENT, 5; BANKRUPTCY; BILL OF EXCEPTIONS; CERTI ORARI; CLAIM AND DELIVERY; CONTEMPT; CORPORATIONS, 6-8; COUNTY COURT; DEMURRER; EJECTMENT; FINDINGS; FRAUD, 3; GOODS SOLD AND Delivered; InDIANS, 6; INSTRUCTIONS; INSURANCE, 1, 3, 6; JUDGMENT, 1-3; JURY AND JURORS, 12; MARRIED WOMEN; MASTER AND SERVANT, 3; MORTGAGE, 5; PARTNERSHIP, 6; RELEASE, 2; STATUTE OF FRAUDS, 4; SWAMP LANDS, 8, 9, 16; VENUE.

PLEDGE.

1. PLEDGE OF CERTIFICATES OF STOCK BY DEPOSITARY-RIGHTS OF OWNER AND PLEDGEE.-The real owner of certificates of stock, who indorses and delivers the same to a third person for safe keeping, cannot recover such certificate from the pledgee of the depositary, until the demand for which they were given in pledge is satisfied. Ambrose v. Evans. Cal. 297.

2. THE SAME-SALE OF CERTIFICATES BY PLEDGEE, PENDING ACTION FOR POSSESSION.If, pending an action to recover possession of such certificates, the pledgee sells the same for more than enough to satisfy his demand, the owner is not entitled to a judgment for such excess, because it did not constitute any part of his cause of action. Id.

3. PLEDGOR AND PLEDGEE-ACTION TO RECOVER DEBT SECURED.-A pledgee may maintain an action to recover the debt secured, without first exhausting the subject of the pledge. Ehrlich v. Ewald. Cal. 380.

See GUARANTY; INSURANCE, 7.

POLICE COMMISSIONERS.

1. THE POLICE COMMISSIONERS OF THE CITY AND COUNTY OF SAN FRANCISCO are not elective officers. People ex rel. Hoy v. Alvord et al. Cal. 78.

POLICE JUDGE.

See CONSTITUTIONAL LAW.

POSSESSION

1. POSSESSION OF LAND-PRESUMPTIONS ARISING FROM-OCCUPANT.-One lawfully in possession of land may maintain an action for any interference with the possession

thereof. And the actual occupant will be presumed to be lawfully in possession unless the contrary appears on the trial. Simpson v. Williams. Nev. 580. See EJECTMENT, 1-3; EVIDENCE, 1; FRAUD, 1; LANDLORD AND TENANT: LEASE, 1; MECHANICS' LIENS, 1; MINES AND MINING, 3, 5; MORTGAGE, 1, 2; REPLEVIN ; TENANTS IN COMMON.

PRACTICE.

See PLEADING AND PRACTICE

PRELIMINARY EXAMINATION.

See LARCENY, 6.

PRE-EMPTION.

See PUBLIC LANDS, 1, 6.

PRESCRIPTIÓN.

See NUISANCE, 6.

PRESUMPTIONS.

See BILL OF EXCEPTIONS, 3; CONTEMPT, 1; NEGLIGENCE, 5; POSSESSION; STATUTE OF LIMITATIONS, 9.

PRINCIPAL AND AGENT.

1 AGENT WHEN PERSONALLY LIABLE ON WRITTEN CONTRACT EXECUTED IN HIS OWN NAME. Where an agent, in executing a written instrument, does not attempt to bind his principal, and in terms imposes an obligation on himself, he incurs by such act a personal liability, even though he described himself as an agent. Murphy v. Helmrich. Cal. 301.

2. PRINCIPAL AND AGENT-SECRET INSTRUCTIONS-GENERAL AGENT.-The power of a general agent cannot be restricted by secret instructions of his principal, so as to affect a party dealing with such agent without notice of the secret instructions. Saxonia Min., etc., Co. v. Cook. Col. 453.

See CORPORATIONS, 9, 10; MASTER AND SERVANT.

PRIORITY.

See MECHANICS' LIENS, 2.

PRIVITY OF ESTATE.

See LEASE, 4, 5.

PROBABLE CAUSE.

See MALICIOUS PROSECUTION, 1, 5.

PROBATE COURTS.

See ESTATES OF DECEASED PERSONS.

PROBATE SALES.

See GUARDIAN AND WARD, 1-4.

PROHIBITION.

1. WRIT OF PROHIBITION-FUNCTIONS OF JUDICIAL AND MINISTERIAL POWER.- Under the constitution the only office of the writ of prohibition is to prevent courts or other officers from going beyond their jurisdiction in the execution of judicial power. The legislature cannot enlarge or extend the office of such writ, so as to include ministerial functions. Hobart v. Tillson, Tax Collector, etc. Cal. 629.