MISNOMER.

See ADMINISTRATOR.

MINING PARTNERS.

1. John Nisbet, the plaintiff's grantor, and the defendant Nash, sold an undivided one-half of certain mining grounds to the defendants, Fletcher and Sexey. All began working and contributing to the development of said claim; but finding that it was unproductive, suspended work. The plaintiff again, and without the consent of the defendants, began work, and expended further money on said property. The court below held that the plaintiff and defendants were not mining partners. Held: error. Nisbet vs. Nash, 102.

MORTGAGE.

See FORECLOSURE.

NEGLIGENCE.

See DAMAGES; CONTRIBUTORY NEGLIGENCE.

NOTICE.

See STREET ASSESSMENT; ATTORNEYS.

OFFICERS DE JURE.

1. The undisturbed exercise of pubic offices raise a presumption that the persons so acting are officers de jure. the presumption is not overcome by opposing proof, the court should fini'that these persons are de jure officers. Delphi School District vs. Murray, 15.

2. An allegation that plaintiffs "are the duly elected, qualified and acting trustees," in and for the Delphi School District, is sufficiently proven by evidence that they were acting as trustees, there being no opposing evidence. lb.

OUSTER.

See TENANCY IN COMMON.

PAROL AGREEMENT.

See STATUTE OF FRAUDS.

PARTITION.

1. In an action under C. C. Pro., Sec. 752, for sale of property held in common, it is indispensable that the rights and interests of the respective parties be definitely ascertained in the interlocutory decree.

2. An interlocutory decree directing a sale, proceeds of which to await determination of rights in final decree, is error, for which a new trial will be awarded.

3. The findings and conclusions of the court, upon which is based the interlocutory decree, can not cure the defects of the latter. Lorenz vs. Jacobs, 174.

PARTIES.

See FORECLOSURE; PLEADINGS AND PRACTICE.

PERFORMANCE.

See CONTRACTS.

PLEDGE.

See WAREHOUSE RECEIPTS.

PLEADING AND PRACTICE.

1. Where the answer of a defendant contains several denials, and also an averment of new matter as a defense, it is erroneous to deprive the defendant of the benefit of the denials contained in their answer. The defendant has a right to set up negative as well as affirmative defenses to an action, and the affirmative matter, separately pleaded, does not operate as a waiver or withdrawal of the denials contained in other portions of the answer. Billings vs. Drew, 107. 2. The circumstance that an application to obtain title had been filed in the United States Land Office does not tend, even in the most remote degree, to show exercise of control over the premises, and to admit such evidence for such a purpose is error. Pulliam vs. Cherokee Flat Blue Gravel Co., 108.

3. A demurrer to a special defense was sustained, whereupon defendant offered to prove the matters set up in the special defense, under the general denial, which the court refused to allow. Held: respondent can not on appeal maintain that the sustaining of the demurrer worked no injury, because such defense might have been made under the general issue. Green vs. Campbell, 153.

4. Complaint against the husband alleging sale and delivery of goods to the wife is defective. The averment should charge sale and delivery to the defendant. Simon Jacobs & Co. vs. Scott, 168.

5. Where the answer discloses the fact that third persons have succeeded to defendant's interests, in whole or in part. Held: these persons must be made parties defendant as being necessary to a complete determination. Robinson vs. Gleason, 190.

6. Appellant having offered no evidence in his dense at the trial, took an appeal from the order denying a nonsuit, and an appeal, also, from the judgment. The plaintiff's evidence was held, on appeal, insufficient to support the judgment. Held: "The appeal from the order overruling the notion for a nonsuit is dismissed, the judgment is reversed, and the case remanded." Christie vs. Christie, 207.

7. Where the court below tried the cause upon the assumption that all the material allegations were denied, the insufficiency of a denial will not be heard in the Supreme Court. Cave vs. Crafts, 482.

8. Even if the same subject matter were involved in a former action, the judgment in that action must be pleaded as a former determination. Cave vs. Crafts, 482.

See FORECLOSURE, 1; TENANCY IN COMMON, 1; TRESPASS, 1; Adverse TITLE, 1; CONTRACTS, 1; SPECIFIC PERFORMANCE; Waugh vs. Wingfield.

POWERS OF LEGISLATURE.

1. Section 11, Article I, and Section 13, Article XI, are not violated by the Act of March 28, 1874. The Legislature may levy a tax either before or after the value of property is ascertained; and the provision in the Act that the amounts that had been previously paid in pursuance of an invalid levy should be credited as a payment pro tanto is not an exemption of such property from taxation. The People vs. Latham, 93.

POWER OF ATTORNEY.

1. A power of attorney executed by a married woman in 1864, without her husband uniting in its execution, is void. Heinlen vs. Martin, 305.

See ESTOPPEL, 1.

PREVENTION.

See CONTRACTS.

PROBATE COURT.

See JURISDICTION; WITNESSES.

RAPE.

See CRIMINAL LAW.

REDEMPTION.

See SHERIFF'S DEED; FOReclosure.

REASONABLE DOUBT.

See CRIMINAL LAW.

RESIDENCE.

See HOMESTEAD.

RESPONDEAT SUPERIOR.

See MASTER AND SERVANT.

RIPARIAN OWNERS.

1. Where a party diverts water flowing in a natural channel, and devotes a portion to his own use, without averring that he is a riparian owner, it is proper to instruct the jury to find against him for nominal damages, even though no actual damage had been suffered. Without such an averment, and no other right appearing from the record, he would not be entitled to divert the water for any purpose; and an instruction to the effect that he was entitled to water for domestic use, in such quantity as not to damage riparian owner, is erroneous. Creighton vs. Evans, 271.

2. When waters have been appropriated for agricultural purposes from a natural stream through artificial conduits over the public lands, prior to a purchase from the Government of public lands, such rights, initiated and maintained by appropriation, were confirmed by the Act of Congress granting the right of way to ditch and canal owners over the public lands. Cave vs. Crafts, 482.

ROBBERY.

See CRIMINAL LAW.

SEALED PROPOSALS.
See STREET ASSESSMENTS.

SEDUCTION.

See CRIMINAL LAW.

SETTLEMENTS.

See GUARDIAN AND WARD SURETIES.

SHERIFF'S DEED.

1. Where a redemptioner makes a proper tender, the Sheriff has no power to execute a deed to purchaser. Hershey vs. Dennis, 188.

SHERIFF.

1. Where a Sheriff, by virtue of an attachment, takes possession of property, and a suit in replevin is begun, and he afterward turns over said property to a third party, to be held by said party until a final judgment, in pursuance of a stipulation to that effect signed by all the parties to both actions, a judgment in form might be recovered against the Sheriff in the replevin suit; but there

should be added a direction that the enforcement of the judgment against the property of the Sheriff be perpetually stayed.

2. Nor is the responsibility of the Sheriff changed by the appearance of new parties (who are the real owners) after the signing of said stipulation, when it appears from the original complaint that the suit was brought for their benefit, and by one claiming to be their representative.

This appearance is by way of substitution, and not intervention. Temple vs. Alexander, 267.

SIXTEENTH AND THIRTY-SIXTH SECTIONS.

1. Applications to purchase sixteenth and thirty-sixth sections may be filed immediately after the actual survey-the survey in the field-approved by the Surveyor-General.

2. As a question of priority, the first applicant after an approved survey in the field is entitled to the certificate of purchase when the land is accepted and the Register notifies the State office thereof. Oakley vs. Stuart, 228.

SPECIFICATIONS.

See STREET ASSESSMENTS.

SPECIFIC PERFORMANCE.

1. When by the terms of a lease the lessee may elect to purchase at any time during the term, upon the payment of a certain sum, and does give notice to the lessor that he has so elected, the lessor waives the necessity of a tender before suit is brought when he ignores the right of the lessee to purchase.

2. It is sufficient when the plaintiff avers that he is ready and willing, and offers to comply with all the terms and conditions of the agreement, and to pay any sums that may be due the defendant under the contract. Dowd vs. Clark, 92.

STATE LANDS.

See LIEU LANDS; SIXTEENTH AND THIRTY-SIXTH SECTIONS; Silver vs. Mullen.

STATUTE OF LIMITATIONS.

1. In an action of trespass, an amended complaint was filed for the purpose of including a portion of a tract inadvertently omitted from the description contained in the original complaint. Held: the Statute of Limitations continued to run, as to the omitted land, during the interval of time between the original and the amended complaints. Atkinson vs. Amador and Sac. Canal Co., 226.

See FINDINGS, 4.

STATUTE OF FRAUDS.

1. When a party, by parol, agrees to purchase certain real estate, and then, by parol, gives the benefit of the purchase to a third party for a consideration, the transaction is not within the Statute of Frauds; and if the owner of the lands makes the deed to the said third party, and a benefit and advantage is thereby gained by said third party, an action will lie against the said third party on his contract to pay for the benefit of purchase. McCarthy vs. Pope, 90.

STOCKHOLDERS.

See CORPORATIONS, 4, 5.

STREET ASSESSMENT.

1. Where contract was made before and assessment after, the Act of 1870, p. 890Held: the contractor could maintain the action. Dyer vs. Pixley, 44 Cal. 158. affirmed. Dyer vs. Barstow, 187.

2. All proceedings under a notice inviting sealed proposals which did not refer to a diagram and specifications of the proposed work as required by the 27th Section of the Act of March 27, 1872, to re-incorporate the city of Stockton, are invalid, and property is not liable to an assessment under them. City of Stockton vs. Clark, 264.

3. Where a survey, diagram, and specifications have been made by the City Surveyor of work on a certain street, though made without order or authority of the City Council, and filed with the Clerk, a subsequent resolution authorizing and directing the Clerk to re-advertise for sealed proposals for work on the said street to be completed in accordance with the "plans and specifications therefor now on file in the office of the City Clerk," is equivalent in law to an adoption of said survey, diagrams, and specifications, and is tantamount to a prior direction to the City Surveyor to make said survey, diagram, and specifications. City of Stockton vs. Skinner, 265.

See Dyer vs. Scalmanini.

SUBSCRIPTIONS.

See CONTRACTS; CORPORATIONS.

SUBSTITUTION.

See SHERIFF.

SURVEY.

See STREET ASSESSMENTS; SIXTEENTH AND THIRTY-SIXTH SECTIONS.

SURETIES.

1. The sureties upon a guardian's bond are not liable until the accounts have been passed upon, and a settlement had, in the Probate Court. Allan vs. Tiffany, 237.

TENANCY IN COMMON.

1. The plaintiff brought this suit to quiet title, and derived title from Meyer & Bennitz; and defendant from Hendy & Glein. Prior to the deeds to plaintiff and defendant the title to the land in controversy had been confirmed and patented to Meyer, Bennitz, Hendy, Glein and Duncan. Plaintiff also claimed, through one Rufus, who had a Mexican grant, and alleged in his complaint that he was the owner in fee simple, absolute, and had been in actual possession for more than fifteen years. Held: that he was only a tenant in common with the defendant, and that if any equities existed in his favor growing out of the deed of Rufus, they must be determined in some action with appropriate pleadings and all necessary parties. (Duncan was not a party to this action.) Bihler vs. Platt, 65.

2. The relation of tenants in common having been established, a finding that the defendants took possession of the land, "and have ever since retained possession of the same, and excluded the plaintiff from the same and every part thereof," is an express finding of an ouster; and not being attacked on motion for new trial, is conclusive, and renders the defendants liable for rents and profits or use and occupation. Heinlen vs. Martin, 305.

TENDER.

See SPECIFIC PERFORMANCE; CLAIM AND DELIVERY.

TRESPASS.

1. When the defendant is in adverse possession of lands, claiming the right of possession, and was still in possession at the time the action was brought, the plaintiff can not maintain an action of trespass, or a bill to prevent the commission of supposed acts of trespass on said premises. Snow vs. Kimmer, 94.