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.

Probate decree.

JURY.

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.

Judicial Notice.

Bee Evidence, 1.

JUDICIAL SALES.

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.

Title by.

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.

Jurisdiction.

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.

Constitutional law.

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.-

1, 2.

. v.22P.-76

Territory v. Bryson, (Mont.) 22 P. 147.*

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.

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.

LIS PENDENS.

What constitutes.

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.

Live-Stock.

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-

12.

Magistrate.

in four years. Priet v. De la Montanya, (Cal.) 22 See Justices of the Peace.

P 171.

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.

MALPRACTICE.

Liability for.

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

P 1064.

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

P. 1064.

MANDAMUS.

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.

Manslaughter.

MARINE INSURANCE.

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.

Action on policy.

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.

MARRIAGE.

What constitutes.

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-