4. DENVER TOWN SITE ACT NOT REPEALED.-The act of May, 1864, regarding the town site of Denver. was a local and special statute, and was not repealed by the repealing clause of the general town site act of July, 1864. Nor is there anything repugnant or inconsistent in the provisions of such acts. Id.

See CHINESE RESTRICTION ACT; EVIDENCE, 12.

STATUTE OF FRAUDS.

1. STATUTE OF FRAUDS-WRITTEN ADMISSIONS OF VERBAL CONTRACT.-Written admissions of a verbal contract of sale, signed by the party sought to be charged, are sufficient to take such contract out of the statute of frauds. Murphy v. Helmrich et al. Cal. 301.

2. STATUTE OF FRAUDS-PROMISE TO ANSWER FOR DEBT OF ANOTHER-POSTPONEMENT OF PRIOR MORTGAGE. -A promise, in writing, by a prior mortgagee to a subsequent mortgagee, that, in consideration of the latter's refraining from enforcing his mortgage, the former "will be responsible for whatever he (the mortgagor) owes you (the subsequent mortgagee); and will see that the same is paid," whether valid under the statute of frauds, as a promise to answer for the debt of another, or not, has the effect, in equity. of postponing the lien of the prior mortgage to that of the second. Held, also, that such promise, under the Colorado statute of frauds, was binding; that forbearance to enforce the mortgage was a good consideration; that the consideration need not be named in the promise, and that the description of the debt was sufficiently definite. Sanders v. Barlow et al. (U. S. Cir. Ct.) Col. 227.

3. STATUTE OF FRAUDS-PROMISE TO ANSWER FOR DEET OF ANOTHER. -An agreement between the treasurer of a mining company and a bank, whereby the former promised to remit to the latter the amount of all drafts drawn by the manager of the mining company on and paid by the bank, is not an agreement to answer for the debt of another and need not be in writing. De Walt v. Hartzell et al. Col. 572. 4. LIEN ON REAL ESTATE-AGREEMENT FOR MUST BE IN WRITING.-An agreement for the purpose of creating a lien upon real estate is void unless the same is in writing, subscribed by the party to be charged. In an action to enforce such lien it is not necessary to allege that the agreement was in writing. Marshall v. Livermore Spring Water Company et al. Cal. 631.

See EVIDENCE, 14: LEASE, 2.

STATUTE OF LIMITATIONS.

L STATUTE OF LIMITATIONS--ANTICIPATION OF DEFENSE OF STRIKING OUT ALLEGATIONS OF.-Averments of a complaint, in anticipation of a defense of the statute of limitations, will be stricken out on motion, if the complaint, without such averments, states a cause of action which is not barred by any existing statute. Brooks v. Bates et al. Col. 463.

2. STATUTE OF LIMITATIONS-TIME LIMITED FOR SUING ON DEATH OF PARTY. —A person in whose favor a cause of action has accrued, has the same length of time to bring suit thereon, notwithstanding the death of the party against whom such cause of action has accrued, as he would have had had such latter person lived. Section 23 of the act defining the time of commencing civil actions, does not limit the time in which an action can be brought, to one year from the death of such party, in all instances. The object of such an action is to prolong, not to curtail, the period for suing, given in other sections of the act. Rickards v. Hutchinson. Ner. 35. 3. STATUTE OF LIMITATIONS-ACTION UPON AN UNDERTAKING ON APPEAL.--The complaint alleged that on April 19th, 1867, one Littlefield recovered a judgment in the district court against Nichol and Weisse for the possession of a tract of land; that, on appeal to the supreme court, an undertaking was given by defendants, for the purpose of staying execution on said judgment, whereby defendants jointly and severally promised on the part of the then appellants Nichol and Weisse, that if said judgment was affirmed, the said appellants would pay the value of the use and occupation of the land recovered from the time of the appeal until the delivery of the possession thereof, not exceeding the sum of $3,000; that said judgment was affirmed, and the remittitur was filed in the district court on January 30th, 1872; that the said land was conveyed to the plaintiff on November 23rd, 1870, and that said undertaking and all rights of action thereon were also then assigned to the plaintiff; that on the same day when said judgment was affirmed, the said Nichol brought an action against said Littlefield and others, and obtained an injunction restraining the defendants therein, including this plaintiff, from enforcing

said judgment, and said iujunction continued in force until February 24th, 1876, when it was dissolved; (the court does not consider the effect of this injunction in its decision); the complaint then alleges the value of the use and occupation of said land, and the damage sustained by him therefor, and prays judgment for such amount. The action was commenced on September 7th, 1876. The defendants demurred to this complaint on the ground that the cause of action was barred by section 337 of C. C. P., and that it did not accrue within four years before the commencement of the action, the period of limitation mentioned in section 337 being four years. Held, that the order of the court below overruling this demurrer was Clark v. Smith et al. Cal. 90.

not error.

4. THE SAME-WHEN THE CAUSE OF ACTION FOR USE AND OCCUPATION ACCRUES.-While the plaintiff might have commenced an action on such undertaking as soon as the judgment appealed from was affirmed, the cause of action for use and occupation is not complete at that time. The right of action only fully accrues when the use and occupation has been had. As against the defendants in the ejectment, each day's wrongful detention is a new cause of action, and the action for it is only barred when four years have elapsed after the right of action has become complete. If they continued in wrongful occupation they would be liable for the use and occupation during the period of four years before the action was commenced, but there could be no recovery for their use and occupation prior to that four years period. Id. 5. THE SAME SURETIES ON THE UNDERTAKING.-As the position of the sureties on the undertaking in suit is analogous to that of guarantors, the same rule determines when the cause of action on the undertaking for the use and occupation accrues against them, and when the right of action against them is barred. Id. 6. LIMITATIONS.-A suit in equity may be maintained to enforce a security for a debt, although an action against the debtor directly upon the indebtedness is barred by lapse of time; and for such purpose the debt exists, notwithstanding the lapse of time. Hickox v. Elliott et al. (U. S. Cir. Ct.) Or. 397.

7. SUIT TO SET ASIDE A CONVEYANCE. A suit in equity to set aside an assignment or conveyance of property made to hinder or delay creditors, should ordinarily be brought within the same time after the right accrues, as an action at law to recover possession of the same property. Id.

8. FORECLOSURE OF MORTGAGE STATUTE OF LIMITATIONS-ABSENCE OF MORTGAGOR FROM STATE. The absence of a mortgagor from the state does not suspend the running of the statute of limitations upon the mortgage as to creditors of the mortgagor, who have obtained attachment liens on the premises subsequent to the mortgage. Watt v. Wright. Cal. 622.

9. LOAN-TIME OF REPAYMENT-PRESUMPTION-STATUTE OF LIMITATIONS.-A loan of money is presumed to be repayable on demand, when no time for repayment is specified; and the statute of limitations commences to run against such loan from the date thereof. Dorland v. Dorland. Cal. 611.

10. PARTITION-STATUTE OF LIMITATIONS EVIDENCE IN REBUTTAL.-The plaintiffs, in an action for partition, after proving that B. and S. were the owners of the premises in 1853, and that S. executed a deed to C., plaintiff's intestate ancestor, rested. The defendants then proved entry in 1867, by their grantor, under a deed from H., and subsequent continuous, open, notorious, exclusive and adverse possession. Plaintiffs then offered, in rebuttal, a judgment against B., and an execution, sale and sheriff's deed of B.'s interest to H., defendants' grantor. This evidence was objected to on the sole ground that it was not evidence in rebuttal, and should have been offered as part of plaintiff's case in chief. The court sustained the objection. Held, error, as such evidence was competent to show that H. acquired no title from B., who had been a joint owner with plaintiff's predecessor in interest, to the end that it might be determined whether the acts of defendants and their grantors had been sufficient to bar the plaintiff's right of recovery. Hardy et al. v. Sexton et al. Cal.

702.

See BANKRUPTCY, 1: ESTATES OF DECEASED PERSONS: GUARDIAN AND WARD, 2.

STOCK AND STOCKHOLDERS.

1. PURCHASE OF STOLEN STOCK CERTIFICATES-RIGHTS OF BONA FIDE PURCHASER. Judgment and order reversed on authority of Barstow v. Savage Mining Company, 1 West Coast Rep., 116. Swim v. Bernhard. Cal. 525.

See CORPORATIONS 2-5: EVIDENCE, 11: PLEDGE, 1-2.

STREETS AND HIGHWAYS.

1. COUNTY ROAD-PROCEEDINGS TO OPEN-TERM OF COUNTY COURT.-The proper time for the county court to consider the report of the viewers, in proceedings to open a county road, is during the regular term of the court next ensuing after the plat and survey of said road have been delivered to the county clerk, and not during a special term. A claim for damages filed during such regular term is in time. Tompkins v. Clackamas Co. Or. 598.

2. GRADING STREET IN SAN FRANCISCO-ORDER FOR-NOTICE OF INTENTION.-The board of supervisors of San Francisco, upon the recommendation of the superintendent of streets, were authorized, under the statute of 1872, to give notice of their intention to order that Broadway, from the west line of Buchanan street to the west line of Webster street, be graded, without any petition therefor, when two blocks upon each side of the said portion of Broadway had been graded. Dyer v. Heydenfeldt. Cal. 585.

3. THE SAME-RECOMMENDATION THAT WORK BE DONE-FINDINGS.-In an action to enforce the lien of an assessment for such work, a finding that the same was ordered without the recommendation of the superintendent of streets is erroneous, when no such issue is raised by the pleadings, and neither party introduced any evidence thereon. Id.

4. DISMISSAL OF ACTION AS TO CERTAIN DEFENDANTS-PRACTICE.-The dismissal of such actions as to defendants not having any interest in the land assessed, is not error prejudicial to the other defendants. Id.

5. ACTION TO ENFORCE STREET ASSESSMENT-PARTIES DEFENDANT-HEIRS NEED NOT BE JOINED. An action for the enforcement of the lien of a street assessment under section 17 of the act of April 1st, 1872, may be brought against an executrix, without joining the heirs, of a deceased person, although the latter are in fact the owners of the land assessed. Such heirs, if originally joined in the action, may be dismissed, and judgment rendered against the executrix. Parker v. Bernal et al. Cal. 428. 6. STREET ASSESSMENT-DENIAL OF OWNERSHIP-NONSuit-DemurrER.-In an action to enforce a street assessment, if the answer denies the allegations of the complaint as to the defendants' ownership of the property assessed, and the plaintiff introduces no evidence in support thereof, a nonsuit should be granted. A denial of such allegation, on information and belief, if not sufficiently certain, should be objected to by demurrer. Harney v. McLeran et al. 7. STREET ASSESSMENT JUDGMENT AFFIRMED.-Dorland v. Bernal et al. Cal. 381. See NUISANCE, 3.

Cal. 218.

SUMMONS.

1. SERVICE OF SUMMONS BY PLAINTIFF-DEFAULT-JUDGMENT.-The service of a sum. mons by plaintiff in an action, although specially deputized by the sheriff to make the same, is void, and a judgment by default entered upon such service is a nullity. Tolnniges v. Drake et al. Col. 253.

2. PROOF OF SERVICE OF SUMMONS-DEFAULT JUDGMENT, WHEN VOID.-Proof of service of summons in a case, by a person other than the sheriff, is a condition precedent to a judgment by default. If such proof is not made, as required by law, the court acquires no jurisdiction of the person of the defendant, and has no authority to render judgment against him. Such judgment would be null and void. Lyons v. Cunninghom et al. Cal. 294.

.

3. THE SAME AFFIDAVIT MUST SHOW AGE OF PERSON SERVING.-The affidavit of service of summons, by a person other than a sheriff, must expressly state that, at the time of service, the person making the same was over the age of eighteen. It is not enough to state that such person is a "white male citizen of the United States," as that expression does not imply that he is an elector, and, consequently, over the age of twenty-one. Id.

4. AFFIDAVIT OF SERVICE OF SUMMONS-RESIDENCE OF DEFENDANT.-Where the affidavit of service of summons states that the defendant was served in a certain county, it will be presumed that he was a resident of such county. Pellier v. Gillespie et al. Cal. 500.

See INFANTS, 2.

SUPREME COURT.

1. SUPREME COURT JUDGES-POWER OF TO ISSUE WRITS IN VACATION.-The judges of the supreme court cannot, acting singly or in vacation, issue any of the writs enumer

ated in section 3 of article VI of the constitution, or hear or determine the matters arising thereon. In re Garvey.

Col. 247.

See APPEAL, 7, 8.

SURVEY.

See PUBLIC LANDS, 3, 6.

SWAMP LANDS.

1. RECLAMATION STATUTES NOT IN CONFLICT WITH UNITED STATES CONSTITUTION.-The statutes of this state, regulating the formation of reclamation districts, the levying of assessments, and the mode of collecting the same, are not in conflict with the fourteenth amendment of the United States constitution; nor are the same in violation of section 10, article I of said constitution, forbidding the passage of any law impairing the obligation of contracts, on the ground that the state, in accepting the grant ander the "Arkansas Act," assumed the lurden of reclaiming the land, and cannot impose this burden upon its grantees. Reclamation District No. 108 v. Hagar. Cal. 283, 288, 289. Reclamation District v. Martin. Cal. 289.

2. APPORTIONMENT OF ASSESSMENT EQUALITY OF BURDEN OR BENEFIT.-Whether or not the mode of assessment is in accordance with proper apportionment, or equality of burden or benefit, is for the consideration of the legislature, in the absence of a palpable violation of private rights. In the present case, the court cannot say that the burdens to be borne are not equal in proportion to the benefits. Id.

3. SUCH ASSESSMENT MAY BE MADE PAYABLE IN GOLD COIN. Id.

4. BY-LAW OF ASSESSMENT DISTRICT-SUBSEQUENT ASSESSMENT. A by-law of an assessment district, prohibiting an indebtedness to accrue, in excess of the amount of assessment levied, cannot invalidate an assessment levied in-accordance with section 34 of the act of 1868. Id.

5. POWER OF TRUSTEES OF RECLAMATION DISTRICTS TO EMPLOY COUNSEL. The trustees of reclamation districts are authorized to employ special counsel, other than the district attorney of their respective counties, in the prosecution of actions for the enforcement of assessments, and to provide for the payment of their services out of subsequent assessments. Id.

6. CONSTITUTIONALITY OF ASSESSMENT.--An assessment for the reclamation of swamp lands, although not made by a municipal corporation, is not unconstitutional. Id. 7. RECLAMATION DISTRICT-LANDS WITHIN OTHER COUNTY-POWER OF SUPERVISORS OVER. The legislature may confer on the board of supervisors of one county the power to include within a reclamation district any lands within another county. Id. 8. ACTION TO ENFORCE ASSESSMENT-REAL PARTY IN INTEREST-RECLAMATION DISTRICT AS PLAINTIFF.-In an action to enforce an assessment for the reclamation of swamp lands, brought under the act of March 28th, 1868, the reclamation district is the real party in interest, and a judgment therein, rendered in favor of the plaintiff, if otherwise valid, will not be reversed, because such action was not brought in the name of the people. Id.

9. RECLAMATION LANDS-FORECLOSURE OF LIEN OF ASSESSMENT-PLAINTIFF-RES ADJUDICATA. In an action to foreclose the lien of an assessment on reclamation lands, when the supreme court had reversed a judgment entered in favor of the defendant, after his demurrer had been sustained on the ground that the facts stated in the complaint did not constitute a cause of action, on a subsequent appeal in the same action it will not hold that the action was brought in the name of the wrong plaintiff, as, for example, in the name of the reclamation district, instead of in the name of the people. Reclamation District No. 3 v. Goldman. Cal. 97. 10. RECLAMATION DISTRICT-FORMATION OF-NOTICE OF MEETING. --The meeting for the reorganization of a reclamation district, under the act of March 28th, 1868, may be called by the swamp land clerk of the board of supervisors, as by the proviso to the forty-sixth section of such act the board is authorized to employ a clerk to attend to matters pertaining to swamp lands. Id.

11. THE SAME DUE PROCESS OF LAW-NOTICE-ASSESSMENT.-An assessment for the reclamation of swamp lands, which, according to the law of this state, can only be enforced by suit against the tax-payer, and in which notice must be given to, and an opportunity afforded, him to question the validity of the assessment, is not an infringement upon the provision of the United States constitution, which declares that no state shall deprive any person of property without due process of law. Id.

12. THE SAME-FINDINGS-EVIDENCE-STATEMENT.-The finding that no statement, as required by the amended section 34 of the act of 1868, was ever presented by the board of trustees of the district to the board of supervisors, reviewed, and held not sustained by the evidence.

Id.

13. THE SAME ASSESSMENT OF LANDS NOT BENEFITED.-Lands lying within a reclamation district, which would not be benefited by a proposed assessment, need not be assessed.

Id.

14. THE TRUSTEES OF A RECLAMATION DISTRICT HAVE DISCRETION to make trifling deviations from the approved plans, or deviations which would result in benefit. Id. 15. APPROVAL OF FORMATION OF DISTRICT-ADDITIONAL ASSESSMENT.-The formation of reclamation districts previously existing, and reorganized under the act of 1868, need not be approved by the board of supervisors of the county in which the district is situated. As to such district, the board of supervisors have power, whenever the tax levied is insufficient to pay for the reclamation, or for necessary repairs, to make additional levies of assessments, upon revised estimates furnished by the trustees. Id. 16. RECLAMATION OF SWAMP LANDS-ACTION TO ENFORCE ASSESSMENT EVIDENCE THAT LANDS WERE NOT BENEFITED NOT ADMISSIBLE.-The board of supervisors, in hearing the petition for the formation of a reclamation district, and in making the order, has jurisdiction to determine what lands would be benefited by the proposed system of reclamation, and to include such lands within the district, and their determination cannot be inquired into; the trustees have authority to cause surveys, plans, location and estimates of the cost of the work to be made, and the commissioners have authority to assess upon each and every acre within the district, to be reclaimed or benefited, a tax proportionate to the whole expense, and to the benefits which would result from the works. Such jurisdiction and authority being given by the statute, it is not competent for the court below, in an action to enforce an assessment, to determine that certain lands assessed were not benefited, or that such benefit was not of the value of the assessment. People v. Hagar. Cal. 287.

TAXATION.

1. CONSTITUTION LAW-DOUBLE TAXATION.-The constitution of California does not authorize, but forbids, double taxation. San Francisco v. J. W. Mackey (U. S.

Cir. Ct.) Cal. 407. 2. STOCK AND PROPERTY OF CORPORATION. --Taxing all the property of corporations to the corporation, and at the same time taxing the stock, which represents the property, to the holder, would be double taxation. Id.

3. STOCK OF DOMESTIC CORPORATION-TANGIBLE PROPERTY IN ANOTHER STATE.Shares of stock, owned by a citizen and resident of the state of Nevada, in a California corporation, having its principal place of business in California, but whose tangible property is all situate and taxed in Nevada, are not taxable to the owner under the constitution and laws of California, in the state of California. The situs of the stock, in such cases, for the purposes of taxation, is the residence of the owner. Id.

4. SITUS OF MONEY CREDITS AND OTHER SOLVENT CREDITS-TAXATION.-There being no statutory provision to the contrary, the situs of money credits, and other solvent credits, for the purposes of taxation, is the residence of the owner or creditor. Id. 5. TAXATION OF RESIDENT OF NEVADA ON SOLVENT CREDITS.-A citizen and resident of Nevada is not taxable in California, under its constitution and laws, upon money credits and other solvent credits, not secured by mortgage, trust deeds, etc., due from citizens and residents of California. Id.

6. ASSESSMENT OF REAL PROPERTY MISTAKE IN NAME OF OWNER.-In a suit against the owner of real property to recover the tax levied on it, a mistake in the name of the owner, in the assessment of the land upon which the tax is based, does not render the assessment thereof invalid, nor furnish any defense to the suit. Lake County v. Sulphur Bank Quicksilver Mining Company. Cal. 186.

7. ASSESSMENT OF PERSONAL PROPERTY-MISTAKE IN NAME of Owner-But a mistake in the name of the owner in the assessment of personal property upon which a tax is based, unless the mistaken name is legally equivalent to the true name, does invalidate the assessment, and constitute a defense to a suit brought against the owner to recover such tax. Id.

8. THE SAME.-Tax proceedings must be in strict accordance with the statute. Without an assessment all subsequent proceedings are nullities. An assessment of personal property to a named person, other than the owner, is absolutely void. Id.