grounds of objection are stated.-Territory v. Bry- 4. In an action for wrongful taking of property
son, (Mont.) 22 P. 147.
it appeared that the property was seized under an
46. Where the remarks of a prosecuting attor-execution against plaintiff's husband; that most
of it was covered by a mortgage given by plaintif;
ney in his closing argument with regard to the
failure of defendant to estify on her own behalf that one of the defendants was assignee under the
are objected to at the time, and such objection is mortgage; and that plaintiff directed the sheriff to
afterwards presented in a motion for a new trial, deliver such portion to him. The assignee was
the objection is available on appeal.-State v. Ten- present at the levy, as attorney for the creditor
of the husband, but the verdict was silent as to
nison, (Kan.) 22 P. 429.
him. The taking sued on was a single act, with
which all the defendants were charged. All an-
swered separately, and the case was tried on the
answer of the assignee, as well as of the others.
Held, that the other defendants were entitled to
have the value of the mortgaged property consid
ered in mitigation of damages.-Bowman v. Davis,
(Colo.) 22 P. 507.

47. Though an order on a trial for receiving
stolen property, that the jury be taken to view an
animal alleged to be one of the cattle stolen, is not
within Pen. Code Cal. § 1119, authorizing similar
orders whenever, in the opinion of the court, it is
proper that the jury should view the "place" in
which a material fact occurred, and though such
inspection was not conducted as a part of the reg-
ular trial, objections therefor cannot be raised for
the first time on appeal.-People v. Fitzpatrick,
(Cal.) 22 P. 215.

48. Under Pen. Code Cal. § 1175, which provides
that a bill of exceptions must contain so much of
the evidence only as is necessary to present the
questions of law upon which the exceptions were
taken, "and the judge is required to strike out all
other matters contained therein," the question
whether the venue was proved on the trial or not
cannot be raised on appeal when the transcript
fails to show that it contains all the evidence, and
the sufficiency of the proof of venue does not ap-
pear to have been questioned.-People v. Carroll,
(Cal.) 22 P. 129.

Excessive, see New Trial, 10.

Excessive damages.

5. Plaintiff, who was injured while a passenger
on defendants' coach, testified that he was 54 years
old at the time; that his ankle joint was dislocated;
that he was under medical attendance, which cost
him $500, for two months; that his foot was ampu-
tated, and the leg did not heal for over a year; that
he had an artificial foot, which caused him much
pain; that he had been unable at all times to walk
without crutches; that his leg was very painful un-
til healed, and sometimes afterwards; that he was
deprived almost entirely of attending to his busi
ness, which was the hardware business, and that it
would be more profitable if he could attend to it:
that he was at times obliged to employ other help,
that his general health was as good as before, but
that he was not as strong; and that he could not on
account of his injury take exercise. His physician
testified that the amputation was necessary; that
it was 101 days before he could get the ligature
away; and that small pieces of bone were taken
out several months after the amputation. There
was no evidence as to the value of plaintiff's bus-
iness, but his partner testified that he considered
him of no account since the accident: but before
that he was able-bodied, and did considerable work
about the store. Held, that a verdict of $20,750 was
excessive, and would be reversed unless plaintif
would remit all except $10,750, with interest.-Ken-
non v. Gilmer, (Mont.) 22 P. 448.
Pleading.

6. In a suit for damages for personal injuries,
where the complaint alleges the nature of the in

For breach of contract, see Vendor and Vendee, juries received and their permanent character, evi-

10, 11.

In trespass, see Trespass, 4-7.

Punitive damages.

dence of damages through inability to attend to
business, necessarily resulting from such injuries,
can be introduced without such damages being spe-
cially pleaded.-Treadwell v. Whittier, (Cal.) 22 P.

266.

Dangerous Premises.

1. Under Civil Code Cal. § 3294, authorizing the
recovery of punitive damages "in any action for
the breach of an obligation not arising from con-
tract, where the defendant has been guilty of op-
pression, fraud, or malice, actual or presumed, "it See Landlord and Tenant, 2; Negligence, 1–4
is error to charge that if the plaintiff was injured
by defendant's act, and "in doing such act defend-
ant was grossly careless, "punitive damages might
be awarded, as it cannot be said that an act of gross
carelessness is always an act done through oppres
sion, fraud, or malice.-Yerian v. Linkletter,
(Cal.) 22 P. 70.

Penalties and liquidated damages.

2. Where a contract specifies a certain sum to
be paid as damages on failure of either party to
perform "all and every one of the covenants and
agreements resting upon him," and does not pro-
vide for part performance, plaintiff's waiver of
complete, and his acceptance of part, performance,
changes the agreement for liquidated damages in-
to one for a penalty, and entitles him to recover
only for damages actually sustained by a partial
breach of the contract.-Wibaux v. Grinnell Live-
Stock Co., (Mont.) 22 P. 492.

DECEIT.

When action lies.

1. Plaintiff's claimed damages for fraudulent
representations, in that defendant induced them to
undertake the construction of a certain levee by
representing that the amount of earth necessary
to construct the same was 350,000 cubic yards, and
that the earth to be moved was light, sandy loam.
They alleged that, upon the faith of these represen
tations, they entered into a written contract to
build a levee on defendant's lands by a given date,
for which they were to be paid 12 cents per cabic
yard of excavation; that in the performance of the
work they had moved 400,000 cubic yards of earth,
more than half of which was much harder than
represented by defendant; and that by reason of
the character of such earth it was impossible to
complete the levee as they contracted to do. Held,
that such representations were expressions of opin-
3. In an action for an obstruction of a highway ion as to matters equally in the power of both par-
so as to interfere with the approach to plaintiff's ties to ascertain, and the omission of any refereres
lots defendant cannot complain of an instruction to them in the contract showed that plaintiffs did
making the difference in the rental value caused not regard the same as material; and plaintiffs'
by the obstruction the measure of damages.-Jack-continuance of the work after discovering that
son v. Kiel, (Colo.) 22 P. 504.

Measure for tort.

such representations were false was a waiver of

their right to contest the contract upon that ground.
-Nounnan v. Sutter County Land Co., (Cal.) 22 P.

515.

Evidence.

2. At the trial of an action for damages caused
by misrepresentation as to the location of a two-
acre tract of land, it is competent for the plaintiff
to show that, shortly after he traded a tract of
farming land to the defendant for the two-acre
tract, the defendant mortgaged the farming land
for a large sum of money, as it tends to show mo-
tive by subsequent conduct.-Minx v. Mitchell,
(Kan.) 22 P. 709.

3. Defendant, testifying on his own behalf,
was asked on cross-examination if he had not,
about the time he made this exchange with the
plaintiff, committed similar frauds against other
persons, and he promptly denied that he had, and
there was no other evidence introduced of similar
frauds. Held, whether this cross-examination was
proper or not, defendant was not prejudiced
Minx v. Mitchell, (Kan.) 22 P. 709.

Decree.

See Specific Performance, 12.
In partition, see Partition, 5.

DEDICATION.

What constitutes.

1. The platting of land, and the sale of lots
with reference thereto, by the owner, does not con-
stitute a dedication of land as a street as to the pub-
lic, where such land is never opened as a street,
and the owner keeps it inclosed, and uses it for
more than 20 years before an attempt to accept it
by the public.-People v. Reed, (Cal.) 22 P. 474.

2. A person owning a tract of land in a town
conveyed a portion of it, describing it as being
bounded by certain streets, "if extended." Some
four months afterwards he conveyed another por-
tion of the land, including that which would have
been occupied by the streets above mentioned.
Held, that these facts are insufficient to support a
finding that any of the land was dedicated to the
public for use as a street, as the latter conveyance
revoked the offer, if any there was, in the former,
there having been no formal acceptance of such
offer. Reversing 19 P. 485.-City of Eureka v.
Croghan, (Cal.) 22 P. 693.*

3. A deed given by defendant to a third person,
wherein the description recites that the boundary
lines of the property conveyed were to run "to and
along Twelfth street," which was then an open pub-
lic street to the east of, but not extended westerly
through, defendant's property, constitutes a dedi-
cation of, or an offer by defendant to dedicate,
land for the purpose of a street.-City of Eureka
v. Armstrong, (Cal.) 22 P. 928.*

4. A map, which was not made by the owner of
land alleged to have been dedicated for the pur-
poses of a street, and not shown to have been made
with his consent or by his authority, and to which
no reference is made for description in the deed
containing the alleged offer to dedicate, is of no
effect on the question of dedication.-City of Eu-
reka v. Croghan, (Cal.) 22 P. 693.*

solido to defendant's grantors from 1862 to 1878.
No deed in the chain of title referred to U. street, and
it appeared that there were fences around the lots
in 1577, and that such fences had existed for more
than 20 years at the time of the grading. There
was testimony that there was no passage way on
The contractor testified that he obtained permis-
the line of U. street until the grading was done.
sion from defendant's grantor to take down the
fence across U. street. Held, that a finding that
there had been no dedication as claimed was sup-
(Cal.) 22 P. 47.
ported by the evidence.-Spaulding v. Bradley,

peared that the land had, at one time, been laid
7. In an action for specific performance, it ap
off into streets, lots, and blocks, but that the streets
had never been accepted by the public author-
ities; that, after the recording of a map show-
ing the streets, the land had been twice conveyed
in a body, without reference to the streets; that
several individuals had purchased lots before the
recording of the map, and all of them except two
had reconveyed to the original grantors; that one
of the two who had not reconveyed had expressly
waived any right to the streets on which his prop-
erty fronted, and the other did not purchase on the
faith of the map, nor did his property touch any
of the streets; and that the land had been fenced
and occupied by the vendor and his grantors for
more than five years before the making of the con-
tract. Held, that as no right to the alleged streets
had ever vested in the public, and as whatever
rights individual purchasers possessed had been
cut off by the statute of limitations, the vendor's
title was good.-Phillips v. Day, (Cal.) 22 P. 976.

8. L. and C. were joint occupants of a tract or
public land which had been settled upon under the
regulations of the provisional governinent, and up-
on which they had laid off a town, which became
the city of Portland. They made a plat thereof,
sold lots to each other, and to third persons, with
to such plat for a description of the lots sold. Sub-
covenants for further assurance, and had referred
sequently they made an agreement, under their
hands and seals in which they designated a part of
the tract which should belong to each, and cov-
enanted therein that each should fulfill and per-
form all contracts and agreements he had there-
them, or of other persons, respecting the said tract
tofore entered into with others, or with either of
L., more than 36 years ago, in causing the said plat
of land, or any part thereof. Held, that the act of
to be recorded, with a dedicatory writing, under
public square on the plat should be subject to the
his hand and seal, attached, to the effect that any
by-laws of the city for ornamental purposes, and
one-half of the public square shown upon said plat
not otherwise, must be considered binding as to the
to have been part of the tract agreed to be set apart
to C.-Church v. City of Portland, (Or.) 22 P. 528.
piece of land, and filed a plat thereof in the office
9. A town company laid out a town-site upon a
of the register of deeds, showing the land to have
been divided into lots, blocks, streets, and alleys.
All the blocks except two were numbered, and
were divided by an alley running through them,
and were subdivided into lots. Neither of the two
blocks above mentioned was divided or subdivided
or numbered, and one of them was marked "Public

Square," and the other, "Seminary Square." They
5. Where an owner lays off his land into blocks
were not designated in any other manner. The
and streets, makes a plat thereof, and sells lots inary Square" remained vacant and unoccupied un-
"Public Square" was used as a park, and "Sem-
indicated thereon by reference to such plat, the til after all the lots were sold. Held, that "Sem-
dedication of the streets thereupon becomes irre-inary Square" belonged to the public for seminary
Vocable.-Hicklin v. McClear, (Or.) 22 P. 1057.

6. In an action to enforce an assessment for
grading U. street, done in 1878, it appeared that
the grading in question was done on land included
in two lots numbered 15 and 25, granted by the al-
calde of San Francisco, and which defendant ac-
quired through mesne conveyances. Plaintiff
claimed that the land occupied by U. street had
been dedicated to the city. One of the mediate
grantors of defendant had brought ejectment in
1860 for lot 15, and the property sued for was de-
scribed in the complaint and notice of lis pendens
as "commencing near the north-east corner of U.
and P. streets." But the lots were assessed in

edged.-Board Com'rs v. Wilgus, (Kan.) 22 P. 615.
purposes, although the plat was never acknowl-
Acceptance.

10. An order of the common council that "all
streets *
which have been dedicated by
the owners thereof * * * are hereby accepted
and declared to be public streets, " is sufficient ac-
ceptance of streets which have been dedicated by
duly-recorded deeds, without specifying them by
name.-City of Eureka v. Armstrong, (Cal.) 22 P.
928.*

11. Where there is no formal acceptance, by a
city, of an offer to dedicate land for a street, to con-

stitute an acceptance by the public their use must
be shown to have been under a claim of right, and

Demand.

not by a temporary license of the owner.-City of When required, see Replevin.
Eureka v. Croghan, (Cal.) 22 P. 693.*

12. An ordinance by the city council declaring
that certain land, alleged to have been dedicated

Demurrer.

by the owner for a street, "be, and the same is See Picading, 8-13.
hereby, dedicated and set apart to public use as a
public street," without referring to the owner or
his alleged dedication, is not an acceptance there-
of.-People v. Reed, (Cal.) 22 P. 474.

Effect.

Improper use-Remedies.

DEPOSITION.

Admissibility.

1. Code Civil Proc. Cal. § 2034, provides that
13. The mere fact that an official map, adopted where a deposition has been once taken in an ac-
after the dedication of a street, has a line drawn tion it may be read by either party in any other ac-
across the mouth of the extension of such street,tion between the same parties upon the same sub-
does not deprive the public of their right thereto.ject. Section 1910 provides that the parties are to
-City of Eureka v. Armstrong, (Cal.) 22 P. 923.
be deemed the same, where those between whom
the evidence is offered were on opposite sides in
the former case, and a judgment could in that case
have been made between them alone, though other
parties were joined with both or either. Held, in
accordance with section 4, declaring that "the pro-
visions of this Code shall be construed liberally,
that the term "parties, " in said sections, includes
successors in interest; and a deposition taken in a
former action is admissible in an action touching
the same subject, and upon the same issues, where-
in the plaintiffs are the former defendants, and the
defendants are the grantees of the land in contro-
versy from the former plaintiff.-Briggs v. Briggs,
(Cal.) 22 P. 334.

14. Where town proprietors dedicated land for
the purpose of public squares, to be used "for orna-
mental purposes and not otherwise, "the building of
city hall upon such public squares, to be used for
the transaction of city business, with a jail in the
basement thereof, would be a use of them foreign
to the purpose for which they were dedicated; and
the owners of a lot which had been purchased
from the town proprietors, or either of them, and
which would be affected by such appropriation,
had a remedy in equity to inhibit such use.-Church
. City of Portland, (Or.) 22 P. 528.

DEED.

Of party to action.

2. Under Hill's Code Or. § 710, which permits
parties to an action to be witnesses therein, and

Bee, also, Covenants; Escrow; Fraudulent Con- section 814, subd. 1, which provides that the testi-
veyances; Vendor and Vendee.

Acknowledgment.

1. Evidence that a party to a deed is a married
woman, and that her acknowledgment was taken
by a notary through a telephone when she was
three miles distant, is not admissible to dispute
the official certificate of the notary in due form, in
the absence of any allegations of fraud, duress, or
mistake.-Banning v. Banning, (Cal.) 22 P. 210.
Consideration.

2. The signing of a note as surety is a consider-
ation for the transfer of property.- Grigsby v.
Schwarz, (Cal.) 22 P. 1041.

Construction and effect.

mony of a witness may be taken by deposition at
any time after service of summons, "when the wit-
ness is a party to the action or proceeding by the
adverse party, a party to an action may have his
deposition taken in his own behalf.-Roberts v.
Parrish, (Or.) 22 P. 136.

3. Where plaintiff has testified fully in his own
behalf, and is still present in court, it is in the dis-
cretion of the court to refuse to allow his counsel
to read his deposition, taken by defendants before
the trial.-Grigsby v. Schwarz, (Cal.) 22 P. 1041.

DESCENT AND DISTRIBUTION.
See, also, Executors and Administrators; Wills.
Illegitimate children.

1. A statement of counsel, in the course of
argument, to the effect that he has no doubt the
court will hold, from the rulings already made and
the evidence adduced, that the fact of paternity is

3. A quitclaim deed conveys the title in ree-
simple, if the grantor has such title, and does not
imply any precedent interest or easement in the
releasee.-Spaulding v. Bradley, (Cal.) 22 P. 47.
4. Recitals in a decd, that the persons execut-established, does not amount to an admission, in
ing the deed are the heirs of a person who pre-
viously owned the land, are not sufficient evidence,
as against a stranger to these instruments, of the
death of the supposed ancestor, or that the persons
represented to be his heirs are in fact his heirs.
Kelley v. McBlain, (Kan.) 22 P. 994.

DEFACING PUBLIC NOTICE.
Prosecution--Evidence.

Comp. St. Mont. div. 5, § 1809, provides that a
petition for laying out, altering, or vacating a coun-
ty road shall be accompanied by proof by affidavit
that notice has been given by posting in four public
places in the vicinity of the proposed road 30 days
previous to presentation of the petition. Section
173 of division 4 prohibits defacing or obliterating
any notification set up by authority of law until the
time which it is to remain set up expires. Held that,
on a trial for defacing a notice of presentation of a
petition for laying out a road, it was not necessary
for the prosecution to show that the petition had
been presented, accompanied by proofs of the post-
ing of the notice, as required by section 1809.-Ter-
ritory v. Lannon, (Mont.) 22 P. 495.

Delivery.

Of goods sold, see Sale, 1, 2.

the cause, of the fact of paternity, binding upon
the parties.-In re Jessup's Estate, (Cal.) 22 P. 742.

2. Letters from the mother of an illegitimate
child to its nurse may be admitted in evidence for
the purpose of showing her assent to the disposi
tion that is being made of the child, and the man-
ner in which it is being provided for, but are in-
competent for the purpose of proving paternity.-
In re Jessup's Estate, (Cal.) 22 P. 742.

3. Pictures of the putative father and of the
illegitimate child, taken by photography, are not
inadmissible in evidence for the purpose of show-
ng resemblance between the two.-In re Jessup's
Estate, (Cal.) 22 P. 742.

Rights of distributee.

4. Under a decree of distribution of the estate
of a decedent adjudging that the petitioner has
succeeded to all the right, title, and interest of the
widow, and is entitled to the share of said estate
described in his petition, and further decreeing
that said estate is hereby finally distributed and
set apart to said petitioner, the petition alleging
that petitioner has succeeded by deed from the
widow to a certain part of the real estate left by
said decedent, and to all the interest of the widow,
the petitioner takes only the widow's interest in
common with the children, though all the real es
tate left by decedent was described.—In re Grider's
Estate, (Cal.) 22 P. 905.

4. In an action to annul a marriage, a judg-
ment for defendant, on his cross-complaint for di-
vorce, obtained in absence of plaintiff's attorney,
should be set aside on plaintiff's motion, made
within six months, as a liberal rule should prevail
in such cases.-Wadsworth v. Wadsworth, (Cal.)

5. Defendant conveyed his interest in his fa- | Practice.
ther's estate to his mother, and afterwards a de-
cree was entered in the probate court distributing
the land belonging to the estate among the heirs at
law, including defendant. Held, that the decree
of distribtion did not invalidate defendant's deed,
under Code Civil Proc. Cal. § 1666, which provides
that a decree of distribution is conclusive as to the
rights of the heirs, legatees, or devisees.-Chever
. Ching Hong Poy, (Cal.) 22 P. 1081.

Pleading.

6. A complaint showing that intestate, having
a separate estate of $1,800 in money, and other per-
sonalty, died in 1860, leaving him surviving a wid-
ow and two children, the plaintiffs, aged ten and
eight years; that there were no claims against the
estate, which was not administered upon; that the
widow took possession of the money and personal-
ty for the benefit of herself and plaintiff's, and sold
the personalty for $100, retaining the $2,200 until
she married in 1861, when she invested it in real
estate in her husband's name; that both knew of
plaintiffs' interest in the money, and acknowledged
their rights until within 60 days before suit
brought; and praying for an accounting and a lien
on the realty for the amount found due,-is suffi-
cient to put defendants to answer.-McClure v.
Colyear, (Cal.) 22 P. 175.

Discharge.

In insolvency, see Insolvency, 4–15.

Dismissal.

Of action, see Practice in Civil Cases.

DISORDERLY CONDUCT.

Complaint.

A complaint under a city ordinance, against
disorderly conduct, "in any street, house, or place
within the city," is bad, unless it shows that the
act was committed in a street, house, or other defi-
nite locality within the city.-Barton v. City of La
Grande, (Or.) 22 P. 111.

Dissolution.

Of attachment, see Attachment, 8-10.

Pleading.

DIVORCE.

22 P. 648.

5. A motion for a new trial, made after an or-
der for judgment and decree of divorce, but before
a referee appointed to ascertain the amount of
community property has made a report, is not
premature, nor is the trial court without jurisdic
tion to hear the motion.-Sharon v. Sharon, (Cal.)
22 P. 131.

6. A decree for divorce awarded the home-
stead, as to which the wife had prior thereto exe-
cuted and recorded a declaration of homestead, to
her absolutely, gave her the custody of the chil-
dren, and ordered that the homestead be held by
her "in trust for her support and that of her chil-
dren." Held, that the latter clause did not create
a trust in the property nor qualify her absolute es-
tate, especially in view of Civil Code Cal. § 146,
subd. 3, which only authorizes the court in case of
a divorce, where the homestead has been selected
from the community property, to assign it to the
innocent party, either absolutely or for a limited
time, subject in the latter case to the future dispo-
sition of the court.-Simpson v. Simpson, (Cal.) 22
P. 167
Alimony.

7. Under Civil Code Cal. § 136, providing that,
"though judgment of divorce is denied, the court
may, in an action for divorce, provide for the main-
tenance of the wife and her children, or any of
them, by the husband," a divorce a mensa et thoro
with alimony cannot be granted, where there is no
statutory ground for an absolute divorce, or for
the absence of the wife from her husband's home.
Hagle v. Hagle, 16 P. 518, followed.-Reade v.
Reade, (Cal.) 22 P. 284.

8. Civil Code Cal. § 137, empowering the
court, in its discretion, to require the payment of
alimony by a husband to a wife, pending an action
for a divorce, when necessary to the support of
herself or children, or the prosecution or defense
of the action, invests the court with nothing but a
legal discretion, reviewable on appeal, and an or-
der granting such alimony will be reversed when
it appears that the wife occupies the homestead,
which yields a good income; that she is in no imme
diate need of money; that the property enjoyed by
her is more valuable and productive than that held
by the husband; and that he is maintaining the
greater number of their children.-Turner v. Tur-
ner, (Cal.) 22 P. 72.

Documents.

1. Under Civil Code Cal. § 106, providing that
habitual intemperance as a ground for divorce shall
be such intemperance as "would reasonably inflict
a course of great mental anguish upon an innocent
party," a complaint in divorce alleging intemper- As evidence, see Evidence, 8-14.
ance as a ground, in the language of the statute, is
sufficient without alleging the different acts of in-
toxication, and how the anguish was caused.-
Forney v. Forney, (Cal.) 22 P. 294.

Cross-bill.

2. An action for divorce is within Code Civil

DRUGGISTS.

Sale of liquors-Refusal to sell.

liquors on proper application, such sale is discre-
tionary with the druggist; and, in refusing to
make such a sale, he is not required to give a rea-
son for his refusal.-Treahey v. Holliday, (Kan.)
22 P. 1004.

1. Under Prohibitory Law Kan. 1887, § 2, pro-
Proc. Cal. § 442, providing that "whenever the de-viding that druggists "may" sell intoxicating
fendant seeks affirmative relief against any party,
relating to or depending upon the contract or trans-
action upon which the action is brought, or affect-
ing the property to which the action relates, he
may, in addition to his answer, file
cross-complaint. "-Mott v. Mott, (Cal.) 22 P. 1140;

toxicating liquors under the prohibitory law, who
2. A druggist who is duly authorized to sell in-
is not liable in an action for damages for such re-
refuses to make a sale upon a proper application,
fusal.-Treahey v. Holliday, (Kan.) 22 P. 1004.

3. Under Code Civil Proc. Cal. § 442, providing
that "whenever the defendant seeks affirmative
relief against any party relating to or depending
upon the contract
upon which the action
is brought, he may, in addition to his
answer, file at the same time
complaint," the defendant in an action to procure See Constitutional Law, 17, 13.

*

a cross-

the annulment of a marriage may have a cross
complaint for divorce, as such proceedings arise
out of contract, within the meaning of this provis-

Due Process of Law.

Duress.

ion.-Wadsworth v. Wadsworth, (Cal.) 22 P. 648. What constitutes, see Payment, 2

Dying Declarations.

See Homicide, 27.

EJECTMENT.

Title to support.

1. A certificate of purchase from the state of
state lands is not void, though the application and
affidavit are defective, and such certificate is suf-
ficient to maintain ejectment.-Cucamonga Fruit
& Land Co. v. Moir, (Cal.) 22 P. 55.

2. Whatever may be the exact nature of the
interest which a partner takes under a deed of land
to the firm, he takes a sufficient interest to enable
him to maintain ejectment against a mere intruder.
--Smith v. Smith, (Cal.) 21 P. 4, Id. 22 P. 156.

3. Where the evidence shows that the deed,
absolute on its face, under which plaintiff claims,
was in fact merely a mortgage, he has failed to
show either title or right of possession.-Smith v.
Smith, 21 P. 4; 22 P. 156, 80 Cal. 323.

4. Under Code Civil Proc. Cal. § 384, providing
that "all persons holding as tenants in common,
or any number less than all, may jointly
or severally commence or defend any civil action
or proceeding for the enforcement or protection of
the rights of such party," one of several co-distrib-
utees of the estate of a decedent may maintain
ejectment against another person in possession of
the entire premises distributed.-Moulton v. Mc-
Dermott, (Ĉal.) 22 P. 296.

land patented, in the absence of an objection that
the evidence is secondary, or on motion for non-
suit.-Wright v. Roseberry, (Cal.) 22 P. 236.

Improvements.

11. In ejectment, it appeared that the question
of the ownership of the land, the value of the rents,
the amount of damages done the land, and the value
of the improvements made thereon by defendants,
were all submitted to the jury, and passed upon
by them, testimony upon all these points having
been introduced. Held that, after judgment for
plaintiff, it was not error to refuse to cause an en-
try to be made that defendants claimed the bea
efit of the occupying claimant's act.-Douglas v.
Boyle, (Kan.) 22 P. 316.
Verdict.

12. A verdict finding that plaintiff is entitled to
recover the land in controversy is sufficient, and
the words "in accordance with the United States
survey," appended at the end, will be presumed to
be consistent with the former part, in the absence
of a showing to the contrary, and may be rejected
as surplusage.-Muir v. Meredith, (Cal.) 22 P. 1063.
Judgment.

13. A complaint and judgment sufficiently de-
scribe the land in controversy by calling for a well-
ascertained beginning point, from whence the line
is to be run to a designated monument, a "station
fence post," and then giving the course of every
other call in the description.—Muir v. Meredith,
(Cal.) 22 P. 1080.

ELECTIONS AND VOTERS.
County elections, see Counties, 13-15.

Election contests, see Municipal Corporations, 1.
seat elections, see Counties, 5-12.
Of school officers, see Schools and School-Dis-
Power of territorial legislature, see Statutes, 4.
tricts, 2.
Registration of voters.

5. A part of a tract of land was conveyed to a
corporation, and afterwards the grantor conveyed
the entire tract to O., from whom, by mesne convey-
ances, plaintiff derived title. Defendants claimed
that O. took the deed for their benefit; but it ap-
peared that one of the defendants, who was a grantee
from O., and a director and superintendent of the
corporation, had conspired with the other defend-
ants to defeat the title of the corporation by this
deed to O. Held, that the equitable claim of defend-
ants, being founded on fraud, could not stop the flow
to plaintiff of the legal title to that part of the land
which had not been conveyed to the corporation.-registration of voters in cities of the first class,
1. Act Kan. March 2, 1889. providing for the
Pekin Mining & Milling Co. v. Kennedy, (Cal.) 22
P. 679.
Defenses.

6. Defendant set up in his answer that the
deed under which plaintiff claimed was only a
mortgage, and that the debt had been fully paid;
but he did not ask for any affirmative relief from
the mortgage. Held, that the answer was in ef-
fect only a denial of plaintiff's title; that whether
the debt had been paid or not was immaterial;
and that plaintiff was not entitled to proceed first
with the trial of the question as to whether the
deed was a mortgage, on the ground of an equita-
ble defense.-Smith v. Smith, (Cal.) 22 P. 186.
Evidence.

7. The surrender of certificates of purchase of
lands for the purpose of obtaining a patent there-
for, as required by law, (Pol. Code Cal. § 3519,) does
not destroy their value as evidence of ownership,
in ejectment.-Wright v. Roseberry, (Cal.) 22 P.

336.

3. Nor does the issue of a patent for a portion
of the land only, on the surrender of such certifi-
cates, destroy their effect as evidence of ownership
of the remainder, in the absence of evidence as to
why the patent was not issued for the whole.
Wright v. Roseberry, (Cal.) 22 P. 336.

9. Where, in ejectment, certificates of purchase
of lands were produced by the surveyor general,
who was examined and cross-examined in regard
to them and the indorsements, and were left by
him in the custody of the court, under its order,
they will be considered as in evidence.-Wright
v. Roseberry, (Cal.) 22 P. 336.

10. Certificates of purchase of lands, and in-
dorsements thereon, showing that patents have is-
sued for part of the land described therein, to-
gether with the testimony of the surveyor gen-
eral that patents have issued as noted in such in-
dorsements, is sufficient proof of the patents to
establish a prima facie case of ownership of the

where the metropolitan police law is or may be
in force, and where more than 6,000 votes were
cast at the general election in November, 1838, or
shall be so cast at the general election," applies
only to cities of the first class, where more than
tion.-State v. Shepherd, (Kan.) 22 P. 428.
6.000 votes have been cast at some general elec-
Contest.

2. Const. Cal. art. 11, § 18, specially providing
for an election to determine the policy of creating
bonds without consent of a certain number of vot-
a bonded indebtedness, prohibiting the issuance of
ers, and providing no method of enforcing such
provision, by implication confers upon the court of
chancery jurisdiction to determine the validity of
such election.-Gibson v. Board of Supervisors,
(Cal.) 22 P. 225.

3. A tax-payer is a sufficiently interested party
to maintain an action to contest the official declara
tion of the result of an election to determine the
issuance of bonds.-Gibson v. Board of Supervis
ors, (Cal.) 22 P. 225.

4. In an action by an elector, under Laws Kan.
1871, c. 79, to contest an election held for the pur-
pose of voting the bonds of a county to aid in the
construction of a railroad, and to be issued in par-
ment for the stock of the railroad company, plain-
tiff must conform to the statute, and cannot bring
the railroad company in as a defendant, or proceed
against any person other than the officers named
in the statute, nor can he inquire into and cancel
a contract between the county and the company in
such special proceeding.-Watts v. Board of Cour-
ty Com'rs, (Kan.) 22 P. 313.

5. In an action to contest an election the ballots
are not only competent and material evidence, but
evidence of a very high order.-Gibson v. Board of
Supervisors, (Cal.) 23 P. 225.

6. The word "town" as used in Sess. Laws
Colo. 1885, p. 199. § 22, which provides that ca
tested election of town and precinct officers shall