2. THE DEMURRER TOO BROAD.-When a complaint states a cause of action, some
part of which is barred and some not barred, a demurrer to the whole complaint on
the ground that it does not state facts sufficient to constitute a cause of action,
should be entirely overruled. Clark v. Smith. Cal. 91.

---

3. DEMURRER MISJOINDER OF DEFENDANTS - IMMATERIAL ERROR.-Where certain
persons are made defendants, in an action to foreclose a mortgage, on the ground
that they claim some right or interest in the land subsequent to the lien created by
the mortgage, and they demur because of their misjoínder, the action of court in
overruling such demurrer, although erroneous, will not warrant a reversal, if the
court finds that they had not acquired any rights in the mortgaged premises. Watt
v. Wright. Cal. 622.

4. DEMURRER TO COMPLAINT-MISJOINDER OF DEFENDANTS.-A demurrer to a com-
plaint on the ground of a misjoinder of parties defendant should be disregarded
unless it specifies in what the misjoinder consists, and which of the defendants are
misjoined. Irwin et al. v. Wood et al. Col. 212.

5. JOINDER OF DEFENDANTS SEVERALLY LIABLE-FORM OF JUDGMENT.-Under section
13 of the code of civil procedure several promisors under a written contract, who
promise to do certain aets, "each for himself and not for the others," may be
joined in an action for a breach of such contract. The judgment in such action
should be entered against the defendants severally, in proportion to their respective
liabilities.

Id.

6. JOINDER OF DEFENDANTS-Inconsistent DemURRERS.-A defendant having demurred
to a complaint on the ground that his codefendant was improperly joined, cannot,
after the complaint has been amended by omitting such party, demur thereto on
the ground that he should have been joined.-James v. Leport. Nev. 584.

7. OVERRULING DEMURRER-TIME TO ANSWER.-During the term the court may limit
the time in which the defendant may answer, after a demurrer to the complaint has
been overruled, to two days. DeWalt v. Hartzell. Col. 572.

8. DEMURRER TO THE COMPLAINT HELD PROPERLY OVERRULED. Samuels v. Younger
and Wife. Cal. 614.

9. DEMURRER HELD PROPERLY OVERRULED, and no error in refusing to set aside the
judgment. McCormick v. Fitzpatrick et al. Cal. 614.

See APPEAL, 10; Fraud, 3; Judgment, 1

DEPOSIT.

See PLEDGE, 1, 2.

DEPOSITIONS.

See CRIMINAL LAW AND PRACTICE, 6.

DESCRIPTION.

See BOUNDARIES; DEEDS; GUARDIAN AND WARD, 1.

DESERTION.

See MARRIED WOMEN.

DEVISE.

See WILLS, 4, 5.

DIRECTORS.

See CORPORATIONS, 1.

DISCRETION.

See BAIL, 1, 3; DIVORCE, 1; EVIDENCE, 10; INJUNCTION, 2; JURY AND JURORS, 5;

VENUE, 9, 12.

DISQUALIFICATION OF JUDGE

See VENUE, 9, 12.

DISTRICT COURT.

See BAIL, 1.

DIVORCE.

1. DIVORCE-DIVISION OF PROPERTY-DISCRETION OF COURT.-After a divorce has been
granted, the division of the property is left to the discretion of the trial court, and
the exercise of such discretion will not be interfered with by the appellate court un-
less the same has been abused. Lake v. Lake. Nev. 159.

See ABATEMENT, 1; MARRIED WOMEN, 2; NEW TRIAL,

DRUNKENNESS.

See CRIMINAL LAW AND PRACTICE, 7.

DUPLICITY.

1. DUPLICITY IN PLEA IN EQUITY.-Duplicity and multifariousness in a plea, in a suit in
equity, renders it bad.-Sharon v. Hill (U. S. Cir. Ct.) Cal. 199.

DYING DECLARATIONS.
See EVIDENCE, 3, 8.

EJECTMENT.

J. EJECTMENT.-The action of ejectment, as defined and regulated by the Oregon code of
civil procedure (chap. IV., tit. 1), is a possessory action, and although the estate or
interest of the parties in the premises may be ascertained by the verdict therein,
yet the plaintiff can only have judgment for the possession wrongfully withheld
from him with damages for such detention and costs; and the defendant can only
have judgment for costs. Goldsmith v. Smith et al. (U. S. Cir. Ct.) Or. 7.
IDEM BETWEEN TENANTS IN COMMON.-A cotenant cannot maintain the action
against his cotenant unless the possession is actually and wrongfully withheld from
him or his right thereto wholly denied. Id.

3. COTENANTS-ADVERSE CLAIM BY ONE AGAINST THE OTHER.-Where a cotenant is in
possession and another cotenant claims an estate or interest in the premises held in
common, adverse to him, his remedy is by a suit in equity for the purpose of
determining such adverse claim as provided in sec. 500 of the Oregon code of civil
procedure. Id.

ELECTION.

1. ELECTION OF OFFICERS-CONSTRUCTION OF CONSTITUTION.-Under the constitution all
necessary state, county and township officers must be elected by the people of the
locality immediately concerned. State ex rel. Ferry v. Commissioners of Eureka
County. Nev. 121.

2. THE SAME-ELECTION OF COUNTY ASSESSORS-EXTENSION OF TERM.--County assessors
are necessary officers within the meaning of the constitution, and must be elected
by the people. The legislature has no power to extend the terms of such officers
beyond the time for which they were elected, except in cases of emergency. Id.

See JUSTICES' COURTS, 2.

EQUITY.

1. STALE DEMANDS-EQUITY MAY REFUSE TO ENTERTAIN.-A court of equity may refuse
to entertain a suit, brought after unreasonable delay, although the defendant has
not in his answer alleged that the claim is stale. A delay of more than twenty
years in bringing this action held unreasonable. Harris et al v. Hillegass, adminis-
tratrix, etc. et al. Cal. 355.

See CONSIDERATION, 1; DUPLICITY; TENDER, 2.

ESCAPE FROM STATE PRISON.

1. OVERT ATTEMPT TO ESCAPE FROM STATE PRISON EVIDENCE OF PUNISHMENT AFTER
CAPTURE-INDICTMENT-An indictment for an overt attempt to escape from the

state prison is sufficient, if it alleges that the defendant, while lawfully confined in state prison under a judgment of a competent court, for the crime of burglary, did make an overt attempt to escape therefrom; that he did unlawfully, forcibly and feloniously break out of the cell in said prison, in which he was confined, and out of the building in which said cell was and is. It is unnecessary to aver that a certified copy of the judgment against the defendant, for burglary, has been delivered to the warden of the state prison. At the trial of such indictment evidence of the punishment received by the defendant at the hands of the prison authorities after his recapture, is immaterial. State v. Angelo. Nev. 482.

ESTATES OF DECEASED PERSONS.

1. ESTATE OF DECEDENTS-DISTRIBUTION UNDER MEXICAN LAW-SALE OF LAND UNDER ORDER OF PROBATE COURT-ACT OF APRIL 22nd, 1850, CONSTRUED-STATUTE OF LIMITATIONS.-The estate of a person dying intestate, after the organization of the state government and before there was any legislation by the state regulating the administration, descent and distribution of estates, descended and was subject to the operation of the Mexican law in existence at the time of the cession of California to the United States. Under such law, on the death of an intestate his heirs succeeded immediately to the estate and became personally responsible for the debts of the deceased. No administration of such estate, in the common-law sense, was needed or could be had. It was not subject to the administration of the alcaldes' courts or court of first instance, nor to the operation of the probate law subsequently passed. An order of the probate court, made after the passage of the act of April 22nd, 1850, authorizing the persons appointed by the alcalde as administrators of such estate to sell the real estate of such intestate would be void for want of jurisdiction. That act had no application to the estates of persons who died before its passage. Section 1573 of the code of civil procedure, limiting the time within which an heir or his grantee can maintain an action for the recovery of real estate sold by an executor or administrator to three years, has no application to such void sale. McNeil et al. v. First Congregational Society. Cal. 421.

2. ESTATE OF DECEASED PERSON-CLAIM BARRED BY STATUTE OF LIMITATIONS-ALLOWANCE OF.-An administrator has no authority to allow a claim against the estate based on a loan which has become barred by the statute of limitations. Doland. Cal. 611.

Doland v.

ESTOPPEL.

See ASSIGNMENT, 4; CONTRACT, 2; CORPORATIONS, 7, 8; NEGLIGENCE, 6; RELEASE, 2;

WATER RIGHTS, 5.

EVIDENCE.

1. DECLARATIONS OF PARTY IN POSSESSION, WHEN ADMISSIBLE.- Declarations of the party in possession of personal property explanatory of his possession, or of the title he is claiming, may be given in evidence by himself, or those holding under him, where either of these matters is properly in issue. But they are proof only that such was the character of the possession, or such was the title claimed; they are no evidence of the title actually held; and where the issue is, not what was the nature of the possession, or what was the title claimed, but which party, plaintiff or defendant, was the actual owner, such declarations are not admissible. Stone v. O'Brien. Col. 243.

2. EFFECT OF INJURY - EVIDENCE OF BY NON-MEDICAL EXPERT.-A person, not a medical expert, who has been injured through the negligence of a railroad, may testify as to the consequences of the injuries received, as for example that he had lost a leg, with reference to the construction of an artificial leg used by him, and as to the effect upon the stump of a blow or jar. He may also state the consequences immediately following the injury upon other organs of his body. Staud v. S. P. R. R. Co. Cal. 78.

3. DYING DECLARATION-BELIEF IN IMPENDING DEATH-RES GESTE.--In a prosecution for murder, the statements of the deceased, made in the presence of the defendant shortly after the infliction of the mortal wound, and after he had expressed a belief that he was about to die, and had given directions for the settlement of his affairs, to the effect that the defendant was "the man who cut him with a knife, and that he had no cause for it whatever," are admissible in evidence as dying declarations, and also as part of the res gesta. People v. Abbott. Cal. 132.

4. VOLUNTARY CONFESSION TO OFFICER.-In such case the voluntary confession of the defendant made to the arresting officer is admissible in evidence. Id.

5. CONDUCT, ACTS AND EXPRESSIONS OF PRISONER EVIDENCE.-The conduct, acts and expressions of a person accused of crime, at the time of his arrest, are always admissible in evidence against him. Id.

6. FORMER CONVICTION OF A FELONY MAY BE SHOWN BY THE EXAMINATION of the witness or by the record of the judgment. Id.

7. UNLAWFUL KILLING-MALICE-BURDEN OF PROOF.-When an unlawful killing is proved, malice will be presumed, and the burden of proof is on the defendant to show the absence or want of malice.

Id.

8. THE CREDIBILITY TO BE ATTACHED TO DYING DECLARATIONS is a matter for the jury. Id.

9. CODEFENDANT IN CRIMINAL PROSECUTION-EVIDENCE OF.--A defendant in a criminal case, both at the common law and under section 166, title 1, chapter 16, of the criminal code, is incompetent to testify for and on behalf of one jointly indicted with him, although the defendant offered as a witness is not on trial at the time. State v. Drake. Or. 574.

10. NEW TRIAL EVIDENCE OF ACQUITTED CODEFENDANT-DISCRETION.-Whether a new trial will be granted on behalf of a defendant convicted in a criminal case because a codefendant tried at the same time and acquitted, or, upon severance, subsequently tried and acquitted, is a material witness for him, quære. Conceding, however that it would be a matter addressed to the sound judicial discretion of the court below, and in a proper case ought to be allowed, the record here does not show an abuse of such discretion. Id.

11. MARKET VALUE OF STOCK, HOW SHOWN-Reports of SALES BY EXCHANGE BOARD.— The market value of shares of stock cannot be shown by evidence of the "report of sales" made by a stock exchange, board, in the absence of evidence showing how such "reports of sales" were made up, where the information they contained was obtained, and whether the quotations of prices made were derived from actual sales or otherwise. Vogt v. Cope et al. Cal. 222.

12. EXISTENCE OF FOREIGN COURT, HOW PROVED-EVIDENCE OF FOREIGN STATUTE.-The law establishing a court in another state and conferring general jurisdiction thereon, may be proved by a book purporting to contain the laws of such state, under section 387 of the civil code. Bruckman v. Taussig. Col. 670.

13. WITNESS SWEARING FALSELY-EFFECT OF TESTIMONY-INSTRUCTION.-The court may instruct the jury that "if any witness has, in their opinion, sworn falsely in any material respect, he is to be distrusted in all others, and his testimony is not to be accepted and acted on without great caution.” People v. Righetti. Cal. 606. 14. PAROL EVIDENCE-STATUTE OF FRAUDS-OBJECTION IN SUPREME COURT.-An objection to parol evidence of an agreement required to be in writing by the statute of frauds, cannot be made in the supreme court for the first time. Sweetland v. Shat tuck. Cal. 223.

15. OBJECTION TO EVIDENCE-CANNOT BE MADE IN SUPREME COURT FOR FIRST TIME.An objection to evidence cannot be made in the supreme court for the first time, which might have been removed by the party offering it had the objection been made in the lower court. McKay v. Riley. Cal. 47.

16. EVIDENCE HELD SUFFICIENT TO JUSTIFY THE VERDICT.-And no error found in the instructions or in the question asked the defendant. People v. Carlton. Cal. 108. 17. AN ERROR IN THE ADMISSION OR REJECTION OF TESTIMONY, IF WITHOUT PREJUDICE to the defeated party, is not ground for reversal. Stepy v. Stark. Col. 663. 18. WHEN THE EVIDENCE IS CONFLICTING THE VERDICT WILL. NOT be disturbed. Id. 19. WHEN THE EVIDENCE IS CONFLICTING A VERDICT will not be disturbed. Barth v. Jones. Col. 214.

See BILL OF EXCEPTIONS, 2, 3; Boundaries, 1; CHINESE RESTRICTION ACT; CONSIDERATION, 2; CORPORATIONS, 4, 5; CRIMINAL LAW AND PRACTICE 5, 6, 8; DEEDS, 3; ESCAPE FROM STATE PRISON; INSANE PERSONS; Judgment, 5; JURY AND JURORS, 9; LARCENY, 5, 6; MALICIOUS PROSECUTION, 5; MINES AND MINING, 8, 9; MURDER AND MANSLAUGHTER, 7, 9; NEW TRIAL, 3, 4, 6; STATUTE of LIMITATIONS, 10; SWAMP LANDS, 16; VENDOR AND VENDEE; WILLS, 5.

EXCEPTIONS.

See BILL OF EXCEPTIONS.

EXECUTION.

See APPEAL, 15.

EXECUTORS AND ADMINISTRATORS.

1. ADMINISTRATOR USING ASSETS OF ESTATE MUST PAY INTEREST.--An administrator who uses the assets of the estate in his own business and for his own profit, may be charged interest thereon at the rate of seven per cent. per annum, with annual rests. Estate of Merrifield. Cal. 526.

2. EXECUTORS AND ADMINISTRATORS-APPEAL FROM DECREE OF DISTRIBUTION.-A decree of distribution of an estate will not be reviewed on an appeal by an executor or administrator, where he, as such, has no interest in the matter sought to be reviewed. Id.

See ESTATES OF DECEASED PERSONS.

EXPERTS.

See EVIDENCE, 2; INSANE PERSONS.

FALSE REPRESENTATIONS.

1. OBTAINING MONEY UNDER FALSE PRETENSES INDICTMENT.-An indictment for obtaining money under false pretenses, charged that at a certain time and place the defendant J., with intent to defraud one K. of his property, did unlawfully, know. ingly and designedly, falsely pretend and represent to him that certain bonds of a railroad were of the market value of $650, that any bank in San Francisco would lend that amount on them; that the road of said company, issuing said bonds, was in running order, and was paying expenses; and that K., believing said false pretense3 and representations, was induced, by reason of the same, to loan and deliver to the said J., on the pledge of said bonds, the sum of $1,365. It further charged that said money was obtained by the defendant unlawfully, knowingly and designedly to defraud said K. The indictment then denied the truth of the false and fraudulent representations, charging that said bonds had not any market value; that no bank in San Francisco would loan any money thereon, and that the company issuing the bonds had no road that was in running order, or that was paying expenses, all of which facts the defendant knew. Held, that the indictment was sufficient, and a demurrer thereto should have been overruled. People v. Jordan. Cal. 138.

See FRAUD, 4, 5.

FEES.

See JURY AND JURORS, 12.

FINDINGS

1. JUDGMENT AFFIRMED AND FINDINGS HELD TO HAVE BEEN WAIVED by consent in open court. Schwegerle & Co. v. Mundell. Cal. 525.

2. FINDINGS HELD SUFFICIENT TO SUSTAIN THE JUDGMENT. Stout, Executor, etc., v. Hastings. Cal. 588.

3. FINDINGS HELD TOO INDEFINITE AND UNCERTAIN to sustain the judgment. Paige v. Rocky Ford Canal and Irrigation Co. Cal. 522.

4. CLERICAL ERROR IN CONCLUSIONS OF LAW-IMMATERIAL ERROR-The use of the word "defendant" instead of "defendants," in the conclusions of law found by the court, is a mere clerical error and entitled to no regard. Doolan et al. v. Cunningham, administrator, etc. Cal. 613.

See BILL of EXCEPTIONS, 3; JUDGMENT, 4.

FINE,

See LARCENY, 4.

FIRE INSURANCE.

See INSURANCE, 1-6