ated in section 3 of article VI of the constitution, or hear or determine the matters arising thereon. In re Garvey.

Col. 247.

See APPEAL, 7, 8.

SURVEY.

See PUBLIC LANDS, 3, 6.

SWAMP LANDS.

1. RECLAMATION STATUTES NOT IN CONFLICT WITH UNITED STATES CONSTITUTION.-The statutes of this state, regulating the formation of reclamation districts, the levying of assessments, and the mode of collecting the same, are not in conflict with the fourteenth amendment of the United States constitution; nor are the same in violation of section 10, article I of said constitution, forbidding the passage of any law impairing the obligation of contracts, on the ground that the state, in accepting the grant ander the "Arkansas Act," assumed the lurden of reclaiming the land, and cannot impose this burden upon its grantees. Reclamation District No. 108 v. Hagar. Cal. 283, 285, 289. Reclamation District v. Martin. Cal. 289.

2. APPORTIONMENT OF ASSESSMENT-EQUALITY OF BURDEN OR BENEFIT.-Whether or not the mode of assessment is in accordance with proper apportionment, or equality of burden or benefit, is for the consideration of the legislature, in the absence of a palpable violation of private rights. In the present case, the court cannot say that the burdens to be borne are not equal in proportion to the benefits. Id.

3. SUCH ASSESSMENT MAY BE MADE PAYABLE IN GOLD COIN. Id.

4. BY-LAW OF ASSESSMENT DISTRICT-SUBSEQUENT ASSESSMENT. A by-law of an assessment district, prohibiting an indebtedness to accrue, in excess of the amount of assessment levied, cannot invalidate an assessment levied in-accordance with section 34 of the act of 1868. Id.

5. POWER OF Trustees of RECLAMATION DISTRICTS TO EMPLOY COUNSEL. The trustees of reclamation districts are authorized to employ special counsel, other than the district attorney of their respective counties, in the prosecution of actions for the enforcement of assessments, and to provide for the payment of their services out of subsequent assessments. Id.

6. CONSTITUTIONALITY OF ASSESSMENT. --An assessment for the reclamation of swamp lands, although not made by a municipal corporation, is not unconstitutional. Id. 7. RECLAMATION DISTRICT-LANDS WITHIN OTHER COUNTY-POWER OF SUPERVISORS OVER. The legislature may confer on the board of supervisors of one county the power to include within a reclamation district any lands within another county. Id. 8. ACTION TO ENFORCE ASSESSMENT-REAL PARTY IN INTEREST-RECLAMATION DISTRICT AS PLAINTIFF.--In an action to enforce an assessment for the reclamation of swamp lands, brought under the act of March 28th, 1868, the reclamation district is the real party in interest, and a judgment therein, rendered in favor of the plaintiff., if otherwise valid, will not be reversed, because such action was not brought in the name of the people. Id.

9. RECLAMATION LANDS-FORECLOSURE OF LIEN OF ASSESSMENT-PLAINTIFF-RES ADJUDICATA. In an action to foreclose the lien of an assessment on reclamation lands, when the supreme court had reversed a judgment entered in favor of the defendant, after his demurrer had been sustained on the ground that the facts stated in the complaint did not constitute a cause of action, on a subsequent appeal in the same action it will not hold that the action was brought in the name of the wrong plaintiff, as, for example, in the name of the reclamation district, instead of in the name of the people. Reclamation District No. 3 v. Goldman. Cal. 97. 10. RECLAMATION DISTRICT-FORMATION OF-NOTICE OF MEETING. --The meeting for the reorganization of a reclamation district, under the act of March 28th, 1868, may be called by the swamp land clerk of the board of supervisors, as by the proviso to the forty-sixth section of such act the board is authorized to employ a clerk to attend to matters pertaining to swamp lands. Id.

11. THE SAME-DUE PROCESS OF LAW -NOTICE ASSESSMENT. An assessment for the reclamation of swamp lands, which, according to the law of this state, can only be enforced by suit against the tax-payer, and in which notice must be given to, and an opportunity afforded, him to question the validity of the assessment, is not an infringement upon the provision of the United States constitution, which declares that no state shall deprive any person of property without due process of law. Id.

12. THE SAME-FINDINGS-EVIDENCE-STATEMENT.-The finding that no statement, as required by the amended section 34 of the act of 1868, was ever presented by the board of trustees of the district to the board of supervisors, reviewed, and held not sustained by the evidence. Id.

13. THE SAME ASSESSMENT OF LANDS NOT BENEFITED.-Lands lying within a reclamation district, which would not be benefited by a proposed assessment, need not be assessed. Id.

14. THE TRUSTEES OF A RECLAMATION DISTRICT HAVE DISCRETION to make trifling deviations from the approved plans, or deviations which would result in benefit. Id. 15. APPROVAL OF FORMATION OF DISTRICT-ADDITIONAL ASSESSMENT.-The formation of reclamation districts previously existing, and reorganized under the act of 1868, need not be approved by the board of supervisors of the county in which the district is situated. As to such district, the board of supervisors have power, whenever the tax levied is insufficient to pay for the reclamation, or for necessary repairs, to make additional levies of assessments, upon revised estimates furnished by the trustees. Id. 16. RECLAMATION OF SWAMP LANDS-ACTION TO ENFORCE ASSESSMENT EVIDENCE THAT LANDS WERE NOT BENEFITED NOT ADMISSIBLE.-The board of supervisors, in hearing the petition for the formation of a reclamation district, and in making the order, has jurisdiction to determine what lands would be benefited by the proposed system of reclamation, and to include such lands within the district, and their determination cannot be inquired into; the trustees have authority to cause surveys, plans, location and estimates of the cost of the work to be made, and the commissioners have authority to assess upon each and every acre within the district, to be reclaimed or benefited, a tax proportionate to the whole expense, and to the benefits which would result from the works. Such jurisdiction and authority being given by the statute, it is not competent for the court below, in an action to enforce an assessment, to determine that certain lands assessed were not benefited, or that such benefit was not of the value of the assessment. People v. Hagar. Cal. 287.

TAXATION.

1. CONSTITUTION LAW-DOUBLE TAXATION.-The constitution of California does not authorize, but forbids, double taxation. San Francisco v. J. W. Mackey (U. S. Cir. Ct.) Cal. 407.

2. STOCK AND PROPERTY OF CORPORATION.-Taxing all the property of corporations to the corporation, and at the same time taxing the stock, which represents the property, to the holder, would be double taxation. Id.

3. STOCK OF DOMESTIC CORPORATION-TANGIBLE PROPERTY IN ANOTHER STATE.— Shares of stock, owned by a citizen and resident of the state of Nevada, in a California corporation, having its principal place of business in California, but whose tangible property is all situate and taxed in Nevada, are not taxable to the owner under the constitution and laws of California, in the state of California. situs of the stock, in such cases, for the purposes of taxation, is the residence of the owner. Id.

The

4. SITUS OF MONEY CREDITS AND OTHER SOLVENT CREDITS-TAXATION.-There being no statutory provision to the contrary, the situs of money credits, and other solvent credits, for the purposes of taxation, is the residence of the owner or creditor. Id. 5. TAXATION OF RESIDENT OF NEVADA ON SOLVENT CREDITS.-A citizen and resident of Nevada is not taxable in California, under its constitution and laws, upon money credits and other solvent credits, not secured by mortgage, trust deeds, etc., due from citizens and residents of California. Id.

6. ASSESSMENT OF REAL PROPERTY MISTAKE IN NAME OF OWNER.-In a suit against the owner of real property to recover the tax levied on it, a mistake in the name of the owner, in the assessment of the land upon which the tax is based, does not render the assessment thereof invalid, nor furnish any defense to the suit. Lake County v. Sulphur Bank Quicksilver Mining Company. Cal. 186.

7. ASSESSMENT OF PERSONAL PROPERTY-MISTAKE IN NAME OF OWNER.--But a mistake in the name of the owner in the assessment of personal property upon which a tax is based, unless the mistaken name is legally equivalent to the true name, does invalidate the assessment, and constitute a defense to a suit brought against the owner to recover such tax. Id.

8. THE SAME.-Tax proceedings must be in strict accordance with the statute. Without an assessment all subsequent proceedings are nullities. An assessment of personal property to a named person, other than the owner, is absolutely void. Id.

9. THE SAME.-An assessment of personal property was made to "Sulphur Bank Q. M. Co.. F. Fiedler, agent." Held, that this was not equivalent to or the same thing as 'Sulphur Bank Quicksilver Mining Company," the true name of the owner, and the assessment and tax based thereon were void. Id.

10. ASSESSMENT OF REAL PROPERTY-DESCRIPTION OF THE LAND.-Under secs. 36503658 of the political code, it would seem to be a sufficient assessment of a tract, where such tract does not contain more than 640 acres, to describe it by stating the congressional subdivisions contained in it where it has been sectionized. The description, a tract of land entered by Frazier in section 13, township 13, range 7," is fatally defective. Id.

*

*

11. LEVY OF TAXES BY BOARD OF SUPERVISORS.-When a board of supervisors duly adopted an order "that they have this day fixed the rate of county and district tax to be levied and collected upon each one hundred dollars of the assessed valuation of the county, etc., as follows, to wit: state fund, 0.64; general county fund, 0.40; county school fund, 0.37, etc. Total state, county and district tax, 1880-81, $2.75." Held, that the omission of the word "cents" from the various items of the levy did not invalidate the order levying the tax nor render the levy ineffectual. Taking all the order together these various items plainly mean so many "cents" upon each one hundred dollars. Id.

12. ORIGINAL ASSESSMENT ROLL-EVIDENCE.—Where a board of supervisors have dispensed with a duplicate assessment roll, the original assessment roll is prima facie evidence in the same manner that the duplicate would have been. Id.

13. IN AN ASSESSMENT FOR TAXES THE ABBREVIATION “DOLLS " is equivalent to dollars. Salisbury v. Shirley. Cal. 688.

14. CONSTITUTIONALITY OF A STATUTE IMPOSING A TAX.-The following amendment of chapter 88, of the general laws of Colorado, was enacted by the legislature in 1879: "The board of county commissioners of the respective counties of the state may levy a property tax for road purposes, which shall not exceed one dollar on each one hundred dollars, to be levied and collected in the same manner and at the same time as other property taxes are levied and collected in each year; but all property included within the limits of incorporated towns or cities shall not be subject to the tax. Held, that the last clause of this statute, purporting to exempt property within incorporated towns and cities, is unconstitutional and void, being in conflict with provisions of the state constitution, which declares that "all taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax," and that all laws exempting from taxation property other than hereinbefore mentioned, shall be void." And such statute must be construed and enforced as though such final clause had never been enacted. Board of County Commissioners v. Owen et al. Col. 157.

15. TAXATION-ASSESSMENT FOR SEWER-NOTICE OF APPORTIONMENT-DUE PROCESS OF LAW. The legislature, under the constitution of Colorado, has power to provide for an assessment of a tax for a sewer upon the property within a given district according to the area, and not according to the value of the property. In such case the apportionment of the tax is a mere mathematical calculation, and a failure to give the taxpayer notice thereof, when an opportunity to be heard concerning all other steps in the tax proceeding is given, is not a denial of due process of law. Gillette et al. v. City of Denver (U. S. Cir. Ct.) Col. 206. Brown v. Denver (U. S. Cir. Ct.) Col. 210.

16. ENFORCEMENT OF TAX, WHEN ENJOINED-IRREGULARITIES IN TAX.--Equity will not enjoin the enforcement of a tax, for mere irregularities in the exercise of a constitional taxing power, or for excess in the amount of the tax, unless it be alleged and shown that all the taxes conceded to be due, or which the court can see ought to be paid, or which can be shown to be due by affidavits, have been paid or tendered, without demanding a receipt in full. Id.

17. STATE BOARD OF EQUALIZATION-ASSESSMENT OF MORTGAGES EQUALIZATION OF. Under section 9, article XIII, of the constitution, the state board of equalization, in raising the assessment roll of a county, has power to increase the valuation of mortgages as already assessed. Schroeder v. Grady, Tax Collector, etc. Cal. 627.

See LEASE, 5.

TAX COLLECTOR.

See PROHIBITION, 2.

TELEGRAPH COMPANIES.

1. TELEGRAPH COMPANIES-MEASURE OF DAMAGES AGAINST.-A telegraph company is liable for whatever loss naturally and in the usual course of things follows from its failure to transmit a message promptly and correctly, although such message was written in cipher or was otherwise unintelligible to the company. Hart v. Western Union Telegraph Co. Cal. 37.

2. THE SAME STIPULATION LIMITING LIABILITY-NEGLIGENCE.-A stipulation printed on a blank upon which a telegraph message is sent, purporting to exempt the telegraph company from all liability for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, whether happening by the negligence of its servants or otherwise, beyond the amount received for sending the same, is void for want of consideration. Such company cannot stipulate against or limit its liability for mistakes happening in consequence of its own fault, such as want of proper skill or ordinary care on the part of its operators, or the use of defective instruments. Such company is exempt only for errors arising from causes beyond its control, and the burden of showing such exemption rests upon it, in an action to recover for an alleged loss. Id.

3. THE SAME EXEMPTION FROM LIABILITY-ATMOSPHERIC INFLUENCES.-A telegraph company is not liable for a loss arising from a mistake in the transmission of a message when such mistake was occasioned by a break in the electric current, produced by atmospheric influences beyond the company's control. Id..

TENANT.

See LANDLORD AND TENANT.

TENANTS IN COMMON.

1. THE POSSESSION OF ONE TENANT IN COMMON IS PRESUMED TO BE FOR THE BENEFIT of all. McNeil v. First Congregational Soc. Cal. 421.

See EJECTMENT, 2, 3; REDEMPTION, 1, 2.

TENDER.

1. TENDER-OBJECTIONS TO SUFFICIENCY OF-WAIVER.-Objections to the sufficiency of the amount tendered must be made at the time of tender, or the same are waived. Oakland Bank of Savings v. Applegarth. Cal. 605.

2. ACTION FOR PART RESCISSION OF CONTRACT-OFFER TO REFUND AMOUNT DECREED, WHEN DISPENSES WITH TENDER.-Where a plaintiff comes into a court of equity asking for a rescission, in whole or in part, of a contract, or to be relieved of a portion of a contract, and the taking of an account is necessary for the ascertainment of the sum to be repaid, or the sum is to be liquidated by an adjudication, based on evidence of facts independent of the terms of the contract, an offer to refund such sum as shall be decreed, is a sufficient offer to do equity. In such case, the plaintiff cannot determine in advance of the suit the amount by him to be repaid, and is not required to make an actual tender of such amount before commencing his action. Sutter Street R. R. v. Baum. Čal. 291.

TORTS.

See CORPORATIONS, 1.

TRADE MARKS.

1. TRADE MARK-EXCLUSIVE USE OF RECORDING WITH SECRETARY OF STATE.-Subsequent to the adoption

of the code, a right to the exclusive use of a trade mark cannot be acquired, unless it be filed for record with the Whittier et al. v. Dietz. Cal. 356.

or name, in this state, 'secretary of state.

TRANSCRIPT ON APPEAL.

See APPEAL; 14, 18-20; NEW TRIAL. 7.

TRUST DEED.

1. JUDGMENT AND ORDER AFFIRMED upon authority of Savings and Loan Bateman, 10 Pac. C. L. J., 795. Savings and Loan Soc. v. Durkin et al.

Society v.
Cal. 534.

TRUSTS.

1. PARTIES TO A SUIT.-Where a trustee sues to recover possession of the trust property for the benefit of the cestui que trust, merely or simply to enforce his right thereto against third persons, such cestui que trust is not a necessary party thereto; and in a suit to set aside an assignment or conveyance made to hinder or delay creditors, the grantor or assignor therein, if he has parted with all his right in the property, is not a necessary party either. Hickox v. Elliott (U. S. Cir. Ct.) Or. 397.

See CONSIDERATION, 1; VENUE, 4; WILLS, 1, 2.

ULTRA VIRES.

See CORPORATIONS, 3.

UNDERTAKING ON APPEAL.

See APPEAL, 15, 16; STATUTE OF LIMITATIONS, 3.

UNITED STATES COURTS.

See ABATEMENT, 2.

USE AND OCCUPATION.

See STATUTE OF LIMITATIONS, 3, 4.

VALUE.

See EVIDENCE, 11; LARCENY, 2.

VARIANCE.

See GOODS SOLD and Delivered; Negligence, 12.

VENDOR AND VENDEE.

1. STATEMENTS OF A VENDOR OF PERSONAL PROPERTY MADE AFTER A SALE thereof, are not part of the res gestæ, and are inadmissible in an action against a vendee. v. Bowers. Cal. 501.

See CONSIDERATION, 1; FRAUD, 4.

VENUE.

Garlick

ACTIONS AGAINST CORPORATIONS-VENUE-CONSTITUTIONAL LAW.-Section 16 of article XII of the constitution, providing that a corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs, or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases," is applicable to actions arising from torts as well as from contracts. Such provision is not in conflict with the fourteenth amendment to the constitution of the United States. Lewis et al. v. S. P. C. R. R. Co. Cal. 615.

2. PLACE OF TRIAL OF REAL ACTIONS--CONSTRUCTION OF CONSTITUTION.-Section 5, article VI, of the constitution of 1879, requiring "that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated," is not retrospective in its operation. Consequently, the superior court of the city and county of San Francisco, as the successor of the district court, has jurisdiction to hear and determine an action for the foreclosure of a mortgage, pending in such latter court at the adop tion of the present constitution, although the land affected thereby is situated in another county. Watt et al. v. Wright et al. Cal. 622.

3. ACTION TO SET ASIDE FRAUDULENT CONVEYANCE-PLACE OF TRIAL OF.-An action by an execution creditor to set aside a deed made by his execution debtor, upon the ground that the same was fraudulently executed, is not an action to enforce a lien