16. A judgment foreclosing the grantor's inter- est in the lands conveyed will not be set aside on motion, 16 years after its rendition.-People v. Blake, (Cal.) 22 P. 1142; Same v. Hemme, Id. 1143. 17. A complaint to have a judgment, and an or- der refusing a new trial, set aside, which alleges that, owing to the negligence, fraud, or mistake of plaintiffs' attorney in not having an appeal-bond uied in time, the appeal from the judgment and order was dismissed, and that the judgment and order were unjust, and contrary to law, but which charges no fraud against defendant, nor collusion between him and plaintiffs' attorney, does not state a cause of action, where there is no allegation that there was not a fair trial in the action, and plain- tiffs' motion for a new trial, exhibited in the com- plaint, shows no error in point of fact.-Davis v. Chalfant, (Cal.) 22 P. 972.
18. An order granting a motion to vacate a judgment for plaintiff because notice of motion to restore the cause to the calendar was not given, as required by a former order striking it off, is not an abuse of discretion, though it does not require the costs of trial paid out by plaintiff to be refunded, where no request to impose terms was made.-Rob inson v. Merrill, (Cal.) 22 P. 260.
Setting aside default.
19. The right to have a default judgment set aside is not affected by its previous assignment.- Haley v. Eureka County Bank, (Nev.) 22 P. 1098.
20. Code Mont. § 116, provides that the court may, on proper terms, set aside a judgment taken by default through the mistake, inadvertence, or excusable neglect of defendant. A sheriff was sued in his official capacity, and judgment was rendered by default for want of an answer. The affidavit to set the default aside, filed the day de- fault was entered, alleged a good defense, and that defendant, the day after service of summons, was injured while performing his official duties, and by reason thereof inadvertently neglected to employ counsel. Held, that the default should be set aside, and defendant allowed to answer.-Benedict v. Spenddiff, (Mont.) 22 P. 500.
Misconduct of, see New Trial, 4-6. Challenges.
1. Where the challenge of the territory to a juror is improperly sustained, but it appears that "a jury of good and lawful men was sworn to try the case," there is no ground for a new trial; as defendant's right to challenge is the right to reject, not the right to select, a juror.-Territory v. Rob erts, (Mont.) 22 P. 132.
2. An exception was taken to the overruling of a question propounded to two jurors on a voir dire whether they knew of the feuds existing be- tween two families, in which defendant had en- gaged, and whether they had taken sides therein. The record did not show that either of the jurors was sworn or served as juror, or that defendant had exhausted his peremptory challenges before the jury was finally impaneled. Held, that no er- ror prejudicial to defendant was shown.-Territory v. Campbell, (Mont.) 22 P. 121. Competency of jurors.
3. The fact that a Mexican elector is unable to understand the English language does not ren- der him incompetent to serve either on grand or Colo. 65.-In re Allison, (Colo.) 22 P. 820. petit juries. Following Trinidad v. Simpson, 5
4. Under Crim. Prac. Act Mont. § 287, par. 11, providing that having formed or expressed an opin- ion shall disqualify a juror, unless he has formed his opinion from the newspapers, and can state on oath that he feels able to decide the case impar- tially, where a juror states that he only knows of the case from the newspapers, that he may have formed an opinion, but that he is without bias, and can decide the case fairly, he is competent.-Ter- ritory v. Bryson, (Mont.) 22 P. 147.*
who is not a citizen of the United States, and who 5. It is proper to excuse from the jury a person has never declared his intention to become such.- Babcock v. People, (Colo.) 22 P. 817. Summoning and impaneling.
6. The court is the trier of the qualifications of jurors, and its decision on the ground of previous- ly formed or expressed opinions will not be dis- turbed, except in case of gross abuse of such power.
21. The superior court in California may, within six months after the entry of a decree of distribu- tion of an estate, set it aside on proper showing.--Babcock v. People, (Colo.) 22 P. 817. In re Pedrorena, (Cal.) 22 P. 71.
22. Where the notice of the motion to set the decree aside is defective, the order is not void on that account.-In re Pedrorena, (Cal.) 22 P. 71.
On execution, see Execution, 3-6.
foreclosure, see Mortgages, 15, 16.
7. Counsel may request, in the presence of the presiding judge, or the judge himself may direct, that only good and lawful men be summoned as jurors. But to request the sheriff to discriminate in favor of or against any class of citizens eligible to jury duty would be a wrong which might con- stitute cause for reversal.-Babcock v. People, (Colo.) 22 P. 817.
8. A panel of jurors drawn less than the 80 days prescribed by statute before the term need not be discharged for that reason; but the dis- charge of such panel, and the summoning of an- other by open venire, it not appearing why the panel was discharged, is not error.-Babcock v. People, (Colo.) 22 P. 817.
Of decedent's lands, see Executors and Admin- Right to jury trial. istrators, 15-17.
The title of a purchaser in good faith, which rests upon a voidable decree in chancery, the chase being made after the entry thereof, and be- pur- fore a writ of error thereto is sued out, is not af- fected by a subsequent reversal of the decree. Cheever v. Minton, 21 P. 710, followed.-Stout v. Gully, (Colo.) 22 P. 954.
9. The denial of a jury on a trial for a misde- meanor does not affect the jurisdiction of the court, and is an error which cannot be reached by habeas corpus.-In re Miller, (Cal.) 22 P. 1113.
by a chattel mortgage, where a personal judgment 10. In an action on a promissory note secured against defendant is prayed for, and the execution of the note is denied under oath, defendant is en- titled to a jury.-State Journal Co. v. Common- wealth Co., (Kan.) 22 P. 982.
11. Crim. Prac, act Mont. § 287, par. 11, which pro- vides that having formed or expressed an opinion
See Courts; Equity; Justices of the Peace; Par shall disqualify a juror, unless he has formed his tition, 1.
Appellate, see Appeal, 1-14.
Criminal, see Criminal Law, 1.
opinion from the newspapers and can state on oath that he feels able to decide the case impartially, is not in conflict with Const. U. S. amend. 6, con-
Of quo warranto proceedings, see Quo Warranto, ferring the right of trial by an impartial jury.-
Territory v. Bryson, (Mont.) 22 P. 147.*
JUSTICES OF THE PEACE. Jurisdiction.
A penalty imposed by statute for transacting an insurance business without obtaining a certificate of authority to do so from the insurance commissioner is recoverable before a justice, under Code Civil Proc. Cal. § 112, giving justices jurisdiction of actions for penalties less than $300, given by statute or by municipal ordinance, where no issue is made as to the legality of a "municipal fine," tax, assessment, or toll, as such a penalty does not come within the exception mentioned; and the jurisdiction thus given is authorized by Const. art. 6, § 11, limiting powers of justices to cases not within the jurisdiction of courts of record. -In re Thomas, (Cal.) 22 P. 80.
Justifiable Homicide.
See Homicide, 6-10.
Killing Stock.
See Railroad Companies, 10-12.
Of complainant, see Specific Performance, 7, 8.
LANDLORD AND TENANT.
See, also, Forcible Entry and Detainer. Estoppel to deny landlord's title.
1. A surety on a note given by a tenant for the rental of land cannot dispute the authority of the lessor, when the tenant was given and held full and peaceable possession of the land for the entire term of the lease.--Oliver v. Gary, (Kan.) 22 P. 733. Dangerous premises.
2. Civil Code Cal. § 1941, which provides that the lessor of a building intended for the occupation of human beings must, in the absence of an agreement to the contrary, put it in a condition fit for Occupation, and repair all subsequent dilapidations which render it untenantable, does not render a landlord liable to an employe of his tenant of business property for injuries caused by a defective stairway on the premises; there being no covenant by the landlord to repair.-Wilson v. Treadwell, (Čal.) 22 P. 304.
Tenancies from year to year.
3. While a verbal lease of real property for a longer term than one year is void by the statute of frauds, so that neither party thereto can enforce its terms as against the other, yet if the lessee enter into possession of the property under the lease, remain longer than one year, and pay his rent to the lessor, who accepts the same, a tenancy from year to year is thereby created.-Rosenblat v. Perkins, (Or.) 22 P. 598.
4. To terminate an estate from year to year by notice, requires the giving of such a notice as is prescribed in Code Or. § 2987, for the termination of estates at will.-Rosenblat v. Perkins, (Or.) 22
Recovery of possession.
5. In the California statutory action of unlawful detainer, evidence of title is inadmissible, though it is offered as having some weight on the question of the existence of a lease. 21 P. 533, affirmed.-Felton v. Millard, (Cal.) 22 P. 750.
6. A writ of possession, obtained by plaintiff after judgment, for the possession of land and for treble rents for its detention, is not fully executed at the time of the making of an order staying execution of the writ and the giving of a bond by defendant, where it appears from the sheriff's return that he had only taken out of the building on the premises in question so much of the personal property levied on by him as was necessary to satisfy plaintiff's money judgment, and that he had been unable to remove the balance, as, while so engaged, the order staying execution had been served upon him, and where other evidence shows that
the property remained in the possession and under the control of an employe of the sheriff, though the employe states in his affidavit that he holds by license of the plaintiff.-Lee Chuck v. Quan Wo Chong Co., (Cal.) 22 P. 594.
7. A notice to quit, purporting to be signed by the landlord by attorney, is good, where the attor ney had authority to sign it; no written authority being necessary, under Civil Code Cal. § 2309. The tenant in such case questions the attorney's authority at his own risk. 21 P. 533, affirmed.-Felton v. Millard, (Cal.) 22 P. 750.
8. Notice is not necessary to terminate a tenancy, where defendant in his answer denies plaintiff's title, and alleges ownership in himself.-Von Glahn v. Brennan, (Cal.) 22 P. 596.
3. Under Pen. Code Cal. § 959, providing that the indictment or information is sufficient if it can be understood therefrom that the act or omission charged is clearly and distinctly set forth in such a manner as to enable a person of common understanding to know what is intended, an indictment charging the felonious stealing of "fifty sheep, the property of Townsend & Carey," is not fatally de fective as not designating any owner of the prop erty alleged to have been stolen, especially where defendant pleads guilty.-People v. Goggins, (Cal.)
4. Under Crim. Laws Mont. § 72, (Rev. St. 366,) declaring it to be grand larceny to steal certain upon an indictment for stealing a steer it is unnec domestic animals, whatever may be their value, essary to allege or prove any particular value for the stolen animal, and that it had some value may be inferred from the facts and circumstances in the thereto.-Territory v. Pendry, (Mont.) P. 760. case, though there be no direct testimony in regard
5. The information charged that P. Johnson was the owner of the property taken, while it was shown that his full name was Peter Johnson, and the only Johnson mentioned upon the trial. Held, that an objection that the full name of the owner was not given in the information, not made until after the trial and verdict, when a motion in arrest of judgment was filed, came too late.-State v. Rook, (Kan.) 22 P. 626.
6. Prosecutor testified that while on a bed with money about his person defendant said he would put the money under his (prosecutor's) head, and raised the pillow as if doing so, and when he awoke in the afternoon the money was gone. Defendant testified that he told prosecutor that he would take care of the money, and prosecutor said "All right;" that he took the money and deposited it with a friend, and drove to a village some miles distant, where he had previously intended to go on that day, with a horse and buggy which he had engaged several days before. He told his friends that be
LIBEL AND SLANDER.
Privileged communications.
would return that night or next morning. On re- ceipt of a dispatch that he was accused of larceny, he immediately started to return, and on the way back met the constable and told him that he had deposited the money with a friend, went there with him, and paid it over. Held, that the evi- dence was not sufficient to prove a felonious tak- ing of the money beyond a reasonable doubt.-Peo-carich, (Cal.) 22 P. 673. pie v. Stewart, (Cal.) 22 P. 124.
7. The fact that defendant was on terms of criminal intimacy with the wife of the alleged own- er of the stolen goods, which were community property, is relevant to show that he knew the tak- ing to be without the owner's consent, and that defendant intended to permanently deprive the owner of the property.—People v. Swalm, (Cal.) 22 P. 67.
8. On a trial of an indictment for larceny, de- fined generally in Pen. Code Cal. § 484, a charge in the language of section 485, that one who finds lost property under circumstances which give him knowledge of or means of inquiry as to the true owner, and who appropriates such property to his own use, without first making reasonable and just efforts to restore the property, is guilty of larceny, is proper where there is some evidence of the facts stated, as the two sections do not define distinct offenses.-People v. Buelna, (Cal.) 22 P. 396.
9. Where there is evidence that the property alleged to have been stolen was the property of M., and was bought by him from certain persons, and also that M's. interest was merely that of an agister, and that the property was found by defendant as lost property, and appropriated by him in bad faith, a charge that, if there was a reasonable doubt whether M. had bought the property of those persons, defendant should be acquitted, is properly refused.-People v. Buelna, (Cal.) 22 P. 396.
10. In view of such evidence, a charge that "if A. takes cattle from B. to pasture, and any cattle are stolen from the possession of A., it is larceny, and the property may be alleged to be the property of A.," is correct and not misleading.-People v. Buelna, (Cal.) 22 P. 396.
11. Instructions that, if the property belonged to a partnership composed of M. and certain others, or if it belonged to others, and M. had an interest in the increase, defendant must be acquited, are properly refused where there is no evidence of partnership between M. and the others, and no evidence that there was any increase of the prop- erty.-People v. Buelna, (Cal.) 22 P. 396.
12. An instruction that, if defendant gave "an honest account of how he came by " the stolen prop- erty, it is incumbent on the people, unless such ac- count was unreasonable or improbable on its face, to show that it was false, is properly refused, as an "honest account" is necessarily a true account.- People v. Buelna, (Cal.) 22 P. 396.
13. On trial for cattle-stealing, the court used the following language in instructing the jury: "If he [defendant] drove the steer in off the range, when it was the property of corporation charged in the indictment," etc. Held, that this was not error, as it did not assume ownership, but was clearly hypothetical, and was preceded by the in- struction that the proof must show, beyond a rea- sonable doubt, "that the steer belonged to the com- pany as alleged. "-Territory v. Jaggers, (Mont.) 22 P. 121.
14. The court having informed the jury in the general charge that the law presumes ornaments In a wife's possession to be her separate property until the contrary is shown, it is not error to re- fuse an instruction reiterating that principle.- People v. Swalm, (Cal.) 22 P. 67.
Mining leases, see Mines and Mining, 12.
Legislative Power.
Bee Constitutional Law, 1–5.
1. The reckless repetition of a mere rumor con- cerning the character of a candidate for public of fice, without any attempt to investigate its truth or probability, is not privileged.-Burke v. Mas-
Action for-Instructions.
2. In an action for slander, where defendant admits the making of the charge complained of, but neither alleges its truth in his answer nor at- tempts to prove it at the trial, it is error to instruct that the law allows the defendant to plead the truth of the matter alleged to be defamatory, and that this does not remove the burden from the plaintiff to prove it false, even though defendant does not set up the truth of the alleged slanderous matter.-Burke v. Mascarich, (Cal.) 22 P. 673.
See, also, Mechanics' Liens. For taxes paid, see Taxation, 13. Of agister, see Agistment.
attorney, see Attorney and Client, 3. brokers, see Factors and Brokers, 2. judgments, see Judgment, 10. Priorities, see Mortgages, 4. For irrigation.
Plaintiff entered into a written contract with R. to furnish him water on his land by means of an irrigating ditch, at a stated price, for 40 years. The contract declared that "this agreement, and the covenants therein contained on the part of the par- ty of the second part, run with and bind the land." Held, that the contract created a lien on the land for its enforcement, and, when recorded, was no- tice to all subsequent purchasers.-Fresno Canal & Irrigation Co. v. Dunbar, 22 P. 275, 80 Cal. 530. Life Insurance.
LIMITATION OF ACTIONS. Running of statute, see Principal and Surety, 7. When statute is applicable.
1. The Colorado statute of limitations, provid- ing that all actions of debt founded upon any con- tract or liability in action, and all actions of as- sumpsit, or on the case, founded on any contract, express or implied, shall be commenced within six years after the cause of action accrues, applies to actions upon specialties.-Toothaker v. City of Boulder, (Colo.) 22 P. 463.
2. Under Civil Code Cal. § 2903, providing that "every person having an interest in property sub- ject to lien has a right to redeem it from the lien at any time after the claim is due and before his right of redemption is foreclosed," the right to redeem is unaffected by the running of the statute of limit- ations against the principal debt.—Hall v. Arnott, (Cal.) 22 P. 200.
3. Civil Code Kan. § 472, provides that when a sheriff is amerced the order or judgment must be entered against him for the debt, damages, and costs, with 10 per cent. thereon. Held, that a proceeding to amerce a sheriff under such section is governed by section 18, subd. 4, prescribing the time within which actions upon a statute for a pen- alty or forfeiture must be begun.-Fuller v. Wells, Fargo & Co., (Kan.) 22 P. 561.
4. The limitation of two years prescribed by Comp. Laws Kan. 1885, c. 66, § 14, providing that actions for damages caused by the erection of a dam must be brought within two years after its erection, applies to damages occasioned by the erection of mill-dams, although not constructed under the terms or provisions of said chapter 66; and where a petition shows that a mill-dam was erected on October 10, 1883, to such a height as to
interrupt the natural flow of the stream, and raise the level of the water, and cause it to flow back, to the detriment of plaintiff, and the petition also shows the mill-dam to be a permanent obstruction, a right of action in favor of plaintiff accrued on that date.-Hardesty v. Ball, (Kan.) 22 P. 1095.
5. Code Kan. § 21, providing that the statute of limitations shall not run during the absence of a party from the state, applies to actions concerning real property as well as to personal actions.-Chi- cago, K. & N. Ry. Co. v. Cook, (Kan.) 22 P. 988.
6. The statute of limitations begins to run against one who claims public lands as grantee of the United States in favor of one in possession, claiming to have acquired the title thus ac- quired by the grantee, from the date of the gran- tee's certificate of final proof and payment.- Steele v. Boley, (Utah,) 22 P. 311.
7. Where plaintiffs and defendants are tenants in common in the fund of which an accounting is sought, and in the equitable ownership of the prop- erty in which the fund is invested, of which de- fendants are in possession, the statute of limita tions will not commence to run until their rights are disputed or disturbed by defendants.—McClure v. Colvear, (Cal.) 22 P, 175.*
as in like actions upon simple contracts.-Tooth- aker v. City of Boulder, (Colo.) 22 P. 468. Pleading.
14. Under Code Civil Proc. Cal. § 338, providing mistake must be commenced within three years that an action for relief on the ground of fraud or after the cause of action accrued, such cause of action not to be deemed to have accrued until the discovery of the mistake by the aggrieved party, a complaint for relief on the ground of a mistake which occurred 30 years previous, and which is si- lent as to the time when such mistake was first discovered, is bad on demurrer.—Smith v. Irving, (Cal.) 22 P. 170.
In an action for the recovery of money, in which an attachment is issued, and levied upon an equitable interest of the debtor in real estate, the legal title to which is in a person who is not a par- ty to the action, there is no lis pendens against a knowledge, from the holder of the legal title. subsequent purchaser for value, and without Travis v. Topeka Supply Co., (Kan.) 22 P. 991.
8. Where plaintiffs, whose cause of action on a treasurer's bond depends on a warrant, payment of which could not be enforced until the conflicting claims between plaintiffs and others were finally determined, commence their action within seven months after such determination, though more than four years after the legal payment by the treasurer, Accidental killing, see Railroad Companies, 10- their right of action is not barred by Code Civil Proc. Cal. § 337, which provides that actions upon any contract, obligation, or liability founded upon an instrument in writing shall be commenced with-
in four years. Priet v. De la Montanya, (Cal.) 22 See Justices of the Peace.
9. In an action commenced against a husband on a tax deed for the recovery of land, where, after the statute of limitations has run on the deed, the wife on her own motion is made a party to the action in order to resist the claim of the plaintiff for a tax lien, she can plead the statute in her be- half, although the action was brought against her husband within the statutory time.-Richards v. Tarr, (Kan.) 22 P. 557.
10. Decedent entered into a written contract with defendant by which she agreed, without spec ifying the time for doing so, to convey certain land to him, and defendant agreed, "in consideration of the premises, " to pay decedent $12,000,"within fif- teen months after final judgment" in a certain case. Held, that payment by defendant did not depend upon decedent's performance of her con- tract, and cause of action against defendant arose, and the statute of limitations began to run, at the time specified for the payment of the money, though decedent had not executed the conveyance.-Dono- van v. Judson, (Cal.) 22 P. 682.
11. A promissory note payable "on demand, after date," is due at once, without an actual de- mand, and the statute of limitations begins to run against it immediately.-O'Neil v. Magner, (Cal.) 22 P. 876.
12. Under Civil Code Cal. § 3130, providing that "it is not necessary to make a demand of payment upon the principal debtor in a negotiable instru- ment in order to charge him," suit may be brought against the maker, on a note payable on demand, with interest, at any time, without previous actual demand, and the statute of limitations runs against the maker from the execution and delivery of the note; and this rule is not changed by section 3131 et seq., concerning presentment of negotiable in- struments for payment, and providing for the ap- parent maturity of demand paper, as these sec- tions relate to the indorser only, and not to the maker.-Jones v. Nicholl, (Cal.) 22 P. 878.
2. An instruction that a malicious intent need not be proved by direct testimony, and that, if the jury found that the natural and probable results of an act would be to injure or destroy the prop- erty of another, no motive appearing from the evi- dence, malice may be implied, if the circumstances show a wicked, depraved, and wanton spirit, is not misleading, especially when followed by others. treating the subject fully and liberally.—People v. Keeley, (Cal.) 22 P. 593.
3. On a trial for maliciously maiming a pig, in makes it a misdemeanor for any person to mali- violation of Comp. Laws Utah 1888, § 4708, which ciously kill or maim an animal, the property of an- other, the fact that defendant did not knowthe owner of the pig does not call for a charge to ac- quit on the ground that no malice is proved, and it is proper to instruct that malice may be inferred from the circumstances, and the testimony in the case.-Territory v. Olsen, (Utah,) 22 P. 163.
together, one of them shot a pig, but which one 4. While defendant and another were riding was uncertain. One of them then shouted "Ske- daddle," whereupon they rapidly drove away. De- fendant never disclaimed complicity in the shoot- ing, and did not testify on the trial. He requested a charge that, where it is certain that one of two individuals committed the offense charged, but it is uncertain which one, neither can be convicted. Held, that it was proper to modify such charge by adding that if both were present, co-operating and participating in the maiming, then both were equally guilty.-Territory v. Olsen, (Utah,) 22 P. 163.
1. In the trial of an action against a physician for alleged unskillfulness and negligence in the treatment of a tumor of the uterus, a liability can- not be established against him in consequence of his failure to learn the pregnancy of the patient, unless the evidence clearly shows that he does not possess such a reasonable degree of learning and skill as is requisite for the practice of his profes- sion, or that he did not exercise his best judgment, and ordinary care, to discover whether such con- dition existed or not.-Langford v. Jones, (Or.) 22
2. And where, in such a case, it appeared that there was good reason for believing that such con- dition did not exist, and that the physician applied all the tests known to medical science which could be employed, under the circumstances of the case, to ascertain such fact, and was unable to detect it, a cause of action against him on account of such failure was not made out, and a nonsuit should have been granted.-Langford v. Jones, (Or.) 22
To secretary of territory, see Territories, 2, 8. When lies, see States and State Officers, 6. To courts.
1. Mandamus will not lie to compel the issue of an execution, on the ground that an appeal has not been properly perfected, where the appeal from the judgment has been allowed, and the ap- peal-bond approved by order of the trial court, as the jurisdiction of the supreme court has thereby attached, and a defect in the appeal can be reached by a motion to strike from the docket and files. People v. Adams, (Colo.) 22 P. 826.
board on appeal from its rejection by him, though the rejection may have been justified on its first presentation.-Falk v. Strother, (Cal.) 22 P. 676. Procedure.
7. Under Code Civil Proc. Cal. § 1090, providing that if, in an application for a writ of mandate, a question of fact essential to the determination of the motion be raised, and affecting the substantial rights of the parties, the court may order the question to be tried before a jury, the question whether a board of education had a semblance of cause for rejecting plaintiff's claim under a con- tract with the board is properly left to the de- termination of a jury, though St. Cal. 1871-72, p. 846, § 1, subd. 12, gives the board power to reject any demand against it "for good cause, of which said board shall be sole judge. "-Raisch v. Board of Education, (Cal.) 22 P. 890.
8. When it is sought to enforce, by mandamus, the performance of a public duty by an officer of the general fund of the county, or of money out a county, that is coupled with the expenditure of of any specific fund, the alternative writ ought to allege that there was sufficient money belonging to the general or particular fund that could legally be appropriated to the purpose.-Miller v. State, (Kan.) 22 P. 326.
9. An answer in the return of a board of county commissioners to an alternative writ of mandamus, commanding them to appoint commis- sioners for the improvement of a county road, un- der the provisions of Sess. Laws Kan. 1887, c. 214, alleging, among other defenses, "that there was fund of the county, to pay the current expenses of not a sufficient amount of money in the general the county and make such improvements on said road, and that the levy to meet the current ex- penses of the county was so large that if they made addition to the levy to meet current expenses, it a levy to make the improvements petitioned for, in would exceed the limit allowed by law, or, if the amount of the levy to meet current expenses was reduced in order to allow the levy for such improve- ments, there would not be sufficient funds to meet current expenses," is a good return, and it is error to sustain a demurrer thereto.-Miller v. State, (Kan.) 22 P. 326.
3. Under Code Civil Proc. Cal. § 1085, provid- ing that the writ of mandamus may issue "to See Homicide, 5. compel the admission of a party to the use and en- joyment of a right of office to which he was enti- tled, and from which he is fully precluded, " such writ will lie against a board of education, to re- store a teacher who has been "elected" to a posi- tion from which she has been removed without cause, her right to retain the position being given by express provision of law. -Kennedy v. Board of Education, (Cal.) 22 P. 1042.
4. The position of teacher not being an office, the right to have a writ of mandamus to restore her to her position is not affected by the fact that another person has been placed in her position.- Kennedy v Board of Education, (Cal.) 22 P. 1042. 5. St. Cal. 1871-72, p. 846, § 7, provides that payments from the school fund of San Francisco shall be made by the city and county treasurer only on drafts drawn on him by the board of edu- cation. Held, that a writ of mandate would issue in favor of one who had fully performed all the conditions of a contract he had with the board, but for the payment for which it refused to draw any drafts, as the only ordinary action he could main- tain would be against the members of the board for neglect of official duty in not drawing the draft, which would not be as convenient, beneficial, and effective as the writ.-Raisch v. Board of Educa- tion, (Cal.) 22 P. 890.
H., when he applied for policy of insurance or non-arrival of the barge on which it was due. on a cargo of wheat, said nothing about the arrival Contrary to the practice, he insisted on paying the premium when the risk was passed. On the same day, after it was learned that the barge had been lost, he told the manager of the company that he knew when he made the application that a barge had been lost, but that he did not know that it was this special barge. In an action on the policy the consignee of the barge and his clerk testified to conversations held on that day with H., in which they informed him of the loss of a barge, and told him that if his barge was not insured he "had better get insured pretty quick." H. had been expecting the barge for one or two days. Held, that the evi- dence was sufficient to support a verdict for the company, on the ground that H., when he procured the policy, knew and failed to communicate the ma- terial facts and information concerning the prob able loss of the overdue barge.-Hart v. British & F. M. Ins. Co., (Cal.) 22 P. 302.
1. Civil Code Cal. § 55, provides that "marriage is a personal relation arising out of a civil contract to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, or by a mutual assumption of marital rights, du-
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