work was not ordered on the recommendation of said superintendent. In the absence of any such averment in the answer, the fact was not in issue. Neither party introduced any evidence which tended to prove or disprove that the superintendent had recommended that the work should be ordered. On this ground, we think the motion for a new trial ought to have been granted.

It does not appear that any objection was made to the dismissal of the action as to all the defendants except the respondent. In Clark v. Porter, 53 Cal., 409, there was an objection to the dismissal of the action as to any of the defendants. It is found that none of the defendants, as to whom the action was dismissed, had any interest in the land assessed. That being so, the dismissal could not prejudice those as to whom the action was not dismissed. Judgment and order reversed.

No. 8,515.

JESSEN v. SWEIGERT.

Department Two. Filed November 29, 1884.

OWNER OF BUILDING NEGLIGENCE INJURY FROM AWNING. -An owner of a building who erects an awning thereon over a public street, or who allows an awning erected by a prior owner to remain, under a license so to do from the city authorities, on condition that the same be securely fastened, is liable to any one who, without fault, is injured through the owner's neglect to keep the awning in repair. Such liability exists although at the time of the injury the building was occupied by a tenant.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the plaintiff and from an order denying the defendant a new trial. The opinion states the facts.

Loughborough & Newhall, for the appellant.

A. P. Needles, for the respondent.

SHARPSTEIN, J. If the defendant had both owned and occupied the building to which the awning, that fell on the plaintiff, was attached, the evidence, indubitably, would be sufficient to justify the verdict. Bnt the defendant, while owning the building, did not occupy it. It was occupied by a tenant, under a lease, in which the defendant did not covenant to keep the premises in repair; and it is urged by defendant's counsel that section 1,941, civil code, did not impose on the lessor of this building any greater or other obligations in that respect than the common law did. Conceding that to be so, is not the evidence sufficient to justify the verdict? The fact of the awning having been suspended over the sidewalk by a prior owner of the building is not controverted. And there is evidence tending to prove that prior to the accident the defendant was told that the awning was in an unsafe condition, and that on being so informed she expressed an intention to have it repaired. This she denied, when

testifying in her own behalf. There being a material conflict in the evidence on this question, the jury alone could determine it.

In addition to the evidence above referred to, the plaintiff introduced an ordinance which prohibits any person owning or occupying any building, fronting upon any public street, from constructing or maintaining any awning before such building, unless such awning be securely placed. Conceding that this constituted a license by virtue of which the owner of the building was authorized to erect or suspend an awning over a public street in front of his premises, it was a license to do so on condition that such awning should be securely placed. And so long as it continued to be so, it might be maintained. As between himself and the public the owner by erecting the awning became obligated to make and keep it secure. If the owner had covenanted with her tenant to keep the premises in repair, any one injured by reason of her failure to do so might have maintained an action against her or the tenant. Instead of entering into such an agreement with the tenant, in respect of this awning, the owner did so with the public. In Whalen v. Gloucester, 4 Hun., 24, the defendant had under license similar to that above referred to, made a hole in a sidewalk and neglected to keep the cover of it in a proper condition. The premises were occupied by a tenant under a lease which contained a covenant that the lessor should repair, etc. Commenting on this, the court said: "It seems to be clear, therefore, that the defendant is liable, on both theories herein presented, namely, upon her obligation to the public in her use of the street for her private purposes, and upon her failure to keep the premises in repair, as between her tenant and herself, even if such relation of landlord and tenant and the consequent possession of the latter might otherwise excuse her."

Where one has secured a privilege from the public on a condition, he cannot, after availing himself of the privilege, avoid his obligation to perform the condition by leasing the premises. Here the awning was erected by a former owner of the building, and has been maintained by the present owner, doubtless for her own profit. The portion of the building under the awning was used for a purpose which may have made an awning very convenient, and the fact of its being there may have enchanced the rent. Under these circumstances we do not doubt the liability of the defendant to any one who, without fault, was injured through her neglect to keep the awning securely in place.

It follows, therefore, that the instructions given by the court were as favorable to the defendant as the facts warranted; and that the court did not err in refusing to give those which it refused to give. The exceptions taken at the trial are, in our opinion, without merit.

Judgment and order affirmed.

THORNTON, J., and MYRICK, J., concurred.

No. 8,499.

STOUT, EXECUTOR &c. v. HASTINGS.

Department One. Filed December 2, 1884.

FINDINGS HELD SUFFICIENT TO SUSTAIN THE JUDGMENT.

APPEAL from a judgment of the superior court for the city and county of San Francisco.

Calhoun Benham and Bishop & Watt, for the appellant.

Jas. S. Reynolds, for the respondent.

THE COURT. The findings cover all the material issues raised by the pleadings, and are sufficient to sustain the judgment. Judgment affirmed.

No. 7,909.

GRAY v. NOON ET AL.

Department Two. Filed December 2, 1884.

FINDINGS PRIOR JUDGMENT-DECISION OF COURT.-Where a prior judgment is pleaded in bar of an action, a finding that on a certain day a court rendered "its decision" in favor of the defendants, is not a finding that a judgment was rendered.

APPEAL from a judgment of the superior court for the city and county of San Francisco, entered in favor of the defendants, and from an order denying the plaintiff a new trial. The opinion states the facts. F. William Reade, for the appellant.

J. T. Noon, for the respondents.

THE COURT. In this cause, which is an action on an undertaking given on procuring an injunction, a judgment of the justice's court of the city and county of San Francisco, between the same parties for the same cause of action, was pleaded in bar.

The court, as to this defense, found the facts as follows:

"That an action was brought upon said bond in the justice's court, city and county of San Francisco, May (sic) 25, 1879, for the sum of two hundred and ninety-nine dollars and ninety-eight cents damages, and that said court upon the eighth of April, 1879, rendered its decision in favor of the defendants and against the plaintiff." This does not find any judgment in favor of defendants and against the plaintiff. It is a finding that the court rendered its decision in favor of defendants and against the plaintiff. Whether any judgment was pronounced or entered on this decision does not appear anywhere in the findings. The decision may have been one in the nature of a non-suit, and if a judgment had been entered in accordance with such a decision, it would not have been a bar. The findings thus fail to cover a material issue, and are, therefore, defective.

Under the circumstances, we think it best to reverse the judgment and order denying a new trial, and remand the cause for a new trial, and it is so ordered.

WEST COAST REPORTER.

WHOLE No. 51.

DECEMBER 18, 1884.

VOL. IV. No. 12.

CIRCUIT COURT, DISTRICT OF CALIFORNIA.

HAMBLETON v. DUHAM ET AL.

December 8, 1884.

REMOVAL FACTS MUST BE STATED IN PETITION.-A petition for removal of a suit from a state, to a national court, on the ground that it arises under the laws of the United States, must state the facts, and point out the contested construction or question arising thereon, which are claimed to give the national court jurisdiction, so that the court can determine, for itself, from the facts stated, the question of jurisdiction."

MUST BE A CONTROVERSY AS TO CONSTRUCTION.-A suit cannot be removed under the second section of the act of 1875, simply because, in its progress, a construction of a law of the United States may be necessary, unless it in part, at least, arises out of a controversy in regard to the effect or operation of some provision in the law upon the facts involved, and the court should be able to determine from the facts stated, that such controversy will arise upon the facts: 96 U. S., 199.

INFORMATION and Belief.-Whether facts stated on information and belief sufficient, at least, doubtful.

R. Clark, Esq., for motion.

J. H. Craddock, J. Lambert and W. C. Belcher, Esqs., contra.

SAWYER, CIRCUIT JUDGE. The jurisdictional facts, attempted to be alleged, are stated in the form, held to be insufficient, in Wolff v. Archibald, 14 F. R., 369: "as defendants are informed and believe." The court there held, that jurisdictional facts must be positively alleged. On this point, the sufficiency of petition is, at least, doubtful.

But, whether that ruling be correct or not, the allegations are insufficient, because they do not state facts, showing that any particular, disputed question of construction of the statute will arise, or how it will arise, so that the court can determine, for itself, from the facts, that the decision will turn upon a disputed construction of the statute. On this point, only, the conclusion of the petitioner is stated.

For all that appears, from the facts stated, the case may be determined entirely upon a disputed question of fact, as, whether the land is, in fact, swamp land, or upland, or some other question of fact. The petition is insufficient, in this particular, under the decision in Trafton v. Nougues, 4 Saw., 179; Dowell v. Griswold, 5 Saw., 39; Gold Washing Co. v. Keyes, 96 U. S., 199. Cause remanded to the state court with costs.

CIRCUIT COURT, DISTRICT OF OREGON.

UNITED STATES v. BARNHART ET AT.

December 8, 1884.

INDIAN COUNTRY-UMATILLA RESERVATION.--The Umatilla Indian reservation is a place within the geographical limits and general jurisdiction of the state of Oregon; but it is also a tract of country to which the Indian title is not extinguished, and which has been permanently set apart by treaty as a reservation for the sole and exclusive use of the Indians thereon, and is therefore "Indian country," within the meaning of that phrase, as used in the revised statutes.

INTERCOURSE WITH INDIAN TRIBES.-The United States has jurisdiction over the intercourse with tribal Indians, and congress may prohibit and provide for the punishment of acts relating to or affecting such intercourse anywhere in the United States.

JURISDICTION OF UNITED STATES COURTS OVER CRIMES COMMITTED ON THE RESERVATION. -The United States courts of the district of Oregon have jurisdiction over all crimes committed on the Umatilla reservation by a white man on the property or person of an Indian, and vice versa, so far as the same have been defined by an act of congress.

PLEA OF AUTREFOIS ACQUIT.-B. and A. were indicted in the United States court for the crime of manslaughter committed in killing Indian William, on the Umatilla reservation, and pleaded to the indictment a former acquittal, from which plea it appeared they had been indicted and tried in the state court for the murder of said Indian, and acquitted, to which plea there was a demurrer: Held, That the crime of which the defendants were acquitted in the state court was not the same as that charged in the indictment in the United States court, and therefore the plea was bad.

INDICTMENT for manslaughter. The opinion states the facts.
James F. Watson, for the United States.

W. Lair Hill, for the defendant.

DEADY, J. On November 21, 1884, the grand jury of the United States district court for this district, by an indictment then duly found, accused the defendants of the crime of manslaughter, committed as follows: On May 13, 1884, the defendants, being white men, did "feloniously and willfully" shoot, with a revolving pistol, one William, an Indian, then and there being on the Umatilla Indian reservation, in this district, and belonging thereto, whereof he then and there died.

Afterwards the indictment was remitted to this court for trial.

On November 24 the defendants demurred to the indictment, on the ground that the court had no jurisdiction of the offense: and on November 26 they withdrew their demurrers, and on being arraigned pleaded autrefois acquit or a former acquittal of the same charge in the circuit court of the state for the county of Umatilla. From the pleas it appears that on June 16, 1884, the defendants were jointly indicted in said court for the crime of murder, committed in killing the said William on May 13, 1884, in said county of Umatilla, which includes said Indian reservation; and thereafter, to wit: on July 2, 1884, were duly tried therein on said charge, on the plea thereto of not guilty, and acquitted.

To these pleas, the district attorney demurs, for that, the facts stated therein "do not constitute a former acquittal of the offense set forth in the indictment, and do not constitute a bar to the prosecution by the United States for said offense." In U. S. v. Bridleman, 7 Saw., 243, Saw., 473, it was held that the United

and in U. S. v. Martin, 8 States courts of this district