waiting a reasonable length of time for him to come into court if he had been so disposed, receive the verdict, poll the jury, and discharge it. People v. Bennett (Cal.), II, 905.

38. PRIVATE COUNSEL MAY BE PERMITTED TO ASSIST the district attorney in the trial of a criminal prosecution. People v. Turcott (Cal.), II, 490. 39. PUBLIC TRIAL-EXCLUSION FROM COURT-ROOM.-An order in a criminal prosecution excluding all persons from the court-room, except those connected with the trial, in the absence of a showing to the contrary, will be presumed to have been assented to by the defendant. The phrase "public trial," in the constitutional provision guaranteeing to every one accused of crime the right to a public trial, is used in opposition to a secret trial. It does not mean that every person who sees fit shall in all cases be permitted to attend criminal trials. People v. Swafford (Cal.), II, 927. 40. MISCONDUCT OF DISTRICT ATTORNEY DURING ARGUMENT.-It is not misconduct sufficient to warrant a reversal for the district attorney to address the defendant personally during his argument, advance towards and point his finger at him, saying, "You sought this trouble with him [referring to the prosecuting witness], and made a cowardly attack upon him." People v. Wheeler (Cal.), II, 70. 41. INSTRUCTIONS-TESTIMONY OF DEFENDANT.-However incredible the testimony of a defendant in a criminal prosecution may be, he is entitled to an instruction based upon the hypothesis that his testimony is true. People v. Keefer (Cal.), II, 878. 42. AN INSTRUCTION IN REGARD TO THE FLIGHT of a person accused of crime is justified, when it appears that the defendant was absent from his home soon after the commission of the crime, and that some three weeks afterwards he was arrested in another county. People v. Forsythe (Cal.), II, 288.

4. JUDGMENT AND SENTence.

43. BATTERY-JUDGMENT IMPOSING FINE, WITH SUBSTITUTIONAL IMPRISONMENT.-A judgment of a justice of the peace imposing a fine upon a defendant convicted of battery, and ordering a substitutional imprisonment antil such fine be paid, as provided in section 1446 of the penal code, can not direct that the defendant, while so imprisoned, perform labor on the streets, or other public works of the city of Los Angeles. Such judgment is not authorized by the act of February 20, 1872, amending the charter of said city. Ex parte Kelly (Cal.), II, 719. 44. THE SAME-DISCHARGE ON HABEAS CORPUS.-Such judgment is a unit, and if one portion of it is without the jurisdiction of the justice, the judgment is void, and on an application for a writ of habeas corpus, the defendant should be discharged. such proceeding the supreme court can not exscind the void portion from the judgment, and order what remains to be carried into execution. Id.

On

45. TIME FOR SENTENCE-NO EXCEPTION IS ALLOWED BY STATUTE to the order of the court fixing the time for sentence, after a defendant has been convicted of a felony. No such exception being allowed, an order fixing the time for sentence on the twenty-seventh, when the verdict convicting the defendant was rendered on the twenty-fifth of the same month, is not reviewable in the supreme court. People v. Mess (Cal.), II, 758.

5. APPEALS AND WRITS OF ERROR.

46. No APPEAL LIES TO THE SUPREME COURT IN CRIMINAL CASES, unless the same be prosecuted by indictment or information. Tyler v. Connolly (Cal.), I, 779. 47. A WRIT OF ERROR TO REVIEW THE JUDGMENT of the district court in criminal cases will be allowed only when the appellate court is satisfied, from an inspection of the transcript of the record, that error has been committed. Donovan v. Terri tory (Wy.), II, 66.

48. APPEAL FROM ORDER SUSTAINING A DEMURRER TO AN INDICTMENT.-An appeal lies on the part of the prosecution from an order sustaining a demurrer to an indictment when it is further ordered that the defendant be held in custody to await the action of the next grand jury. People v. Hill (Utah), II, 476.

49. DISCHARGE OF PRISONER-KESUBMISSION TO GRAND JURY-APPEAL.-Neither an order refusing to discharge a prisoner, after an order sustaining his demurrer to the indictment, nor an order resubmitting his case to the grand jury, are appealable.

Id.

50. APPEALS IN CRIMINAL CASES-ENLARGEMENT OF TIME TO FILE TRANSCRIPT.-The provisions of section 531 of the civil code do not affect appeals in criminal cases. State v. Bovee (Or.), III, 553.

51. THE SAME.-Appeals in such cases, taken under chapter 22 of the criminal code, during a term of the supreme court, may, in its discretion, be heard and determined at the same time.

Id.

52. THE SAME.-Any order enlarging the time within which the clerk of the circuit court must prepare and transmit the transcript on appeal, in a criminal case, to the supreme court, must be made by the court or judge thereof where the notice of appeal is filed. Id.

53. STAY OF EXECUTION PENDING APPEAL-CERTIFICATE OF PROBABLE CAUSE.— Where, after a conviction for battery by a justice of the peace, the defendant appeals to the superior court, although no certificate of probable cause is filed, the same effect will be given to a dismissal of the appeal, when the justice, sheriff, and defendant treated the appeal as staying execution, as would be given to it had there been a certificate of probable cause. Ex parte Whitty (Cal.), II, 732.

54. APPEAL FROM JUDGMENT-REVIEW OF EVIDENCE.-On an appeal from a judgment alone the appellate court will not examine the evidence as to its sufficiency to support the verdict. Territory v. Young (Mont.), IV, 468.

55. THE QUESTION WHETHER AN INDICTMENT DOES OR DOES NOT SUPPORT THE JUDGMENT can be raised in the appellate court for the first time. Territory v. Young (Mont.), IV, 468.

See APPEAL; ARREST AND BAIL; ARSON; ASSAULT WITH DEADLY WEAPON; BURGLARY; CONTEMPT; EMBEZZLEMENT; FALSE PRETENSES; FORGERY; FORNICATION; FUGITIVES FROM JUSTICE; GAMING; HABEAS CORPUS; INDIANS; JURY AND JURORS; JUSTICES' COURTS; KIDNAPING; LARCENY; MURDER AND MANSLAUGHTER; PERJURY; PROSTITUTION; RIOT; ROBBERY.

CROSS-ACTIONS.

See JUDGMENT, 60.

CROSS-COMPLAINT.

See PLEADING AND PRACTICE.

CROSS-EXAMINATION.

See MURDER AND MANSLAUghter, 82.

CUSTOM-HOUSE CERTIFICATE.
See CHINESE RESTRICTION ACT.

CUSTOM.

See NUISANCE, 10, 15.

DAM.

See WATER RIGHTS, 50.

DAMAGES.

1. COMPENSATORY DAMAGES, THE ELEMENTS OF, STATED.—A person receiving a willful injury from another is entitled to recover compensatory damages therefor, irrespective of the motive of the wrong-doer, or his own calling or condition in life. Boyle v. Case (U. S. Cir. Ct., Or.), I, 327.

2. PUNITIVE DAMAGES, WHEN ALLOWED in addition to compensatory damages, and

what for. Id.

3. VIGILANCE COMMITTEE.-No plea of the public good or safety can justify a voluntary assemblage of people in inflicting a personal injury upon any individual, but in an action to recover damages therefor, the jury, in considering whether the plaintiff is entitled to punitive damages or not, may and ought to take into account the causes or motives which led the defendants to do the wrong complained of. Id.

4. DAMAGES WHICH ARE NOT THE USUAL AND NATURAL CONSEQUENCES of the wrongful act complained of can not be recovered unless specially pleaded. Tucker v. Parks (Col.), I, 264.

5. NEITHER PROBABLE PROFITS NOR PROSPECTIVE OR SPECULATIVE DAMAGES CAN BE RECOVERED in an action for the breach of a contract for the sale of milling machinery. Jones v. Nathrop (Col.), I, 279.

6. MEASURE OF DAMAGES IN AN ACTION FOR CUTTING TIMBER on the public lands, in case the trespass is inadvertent and not willful, is the value of the timber in the tree; but where the trespass is willful, the value of the labor put upon it by the trespasser must be added to the value in the tree, with interest thereon in either case. United States v. Williams (U. S. Cir. Ct., Or.), I, 100.

7. TRESPASS BY MISTAKE.-The defendant claimed to have taken up a homestead on the north-west quarter of section 22 of township 19, and while intending to cut saw-logs thereon with intent to dispose of the same, did by mistake cut said logs on the north-east quarter of said section: Held, that if the defendant had cut the logs on the north-west quarter, as he intended, it would have been a willful trespass, and therefore his mistake was immaterial, and he was liable to the United States for the value of said logs as a willful trespasser. Id.

7. DAMAGES-EVIDENCE-ADMISSIONS-PLEADINGS.-Evidence

of the damages suffered

by plaintiff, in an action for personal injuries, is admissible, notwithstanding the defendant's counsel states in open court that the allegations of the complaint in respect to damages are admitted by the answer, if such statement were not true. Payne v. Kripp (Cal.), III, 424.

8. BREACH OF CONTRACT-VALUE OF WORK-EVIDENCE.-In an action for breach of contract in refusing to allow the plaintiff to do the work contracted for, evidence of the expense of doing such work in a manner materially different from the mode provided by the contract, as a test of value, is immaterial. Biggerstaf v. Briggs (Cal.), III, 353.

9. AMOUNT OF DAMAGES TO BE AWARDED TO AN ACTION FOR A PERSONAL INJURY is in the sound discretion of the jury, whose verdict will not be disturbed, unless it appears that they were influenced by prejudice, misapprehension, or by some corrupt or improper consideration. City of Denver v. Dunsmore (Col.), II, 841. See ADMIRALTY, 6; CONSPIRACY, 11; CONTEMPT, 6; CORPORATIONS, 36; EMINENT DoMAIN, 15, 18; JUDGMENT, 7; PATENTS, 13-17; REPLEVIN, 4, 5; STREETS AND HIGHWAYS, 5.

DEADLY WEAPON.

See ASSAULT WITH DEADLY WEAPON.

DEBRIS, MINING.

See ADVERSE POSSESSION, 9; NUISANCE.

DEBTOR AND CREDITOR.

See FRAUD, 18; MORTGAGE, 44; PAYMENT; REDEMPTION.

DECEASED PERSONS.

See ESTATES OF DECEASED PERSONS; EXECUTORS AND ADMINISTRATORS.

DECEIT.

1. Deceit—Statute of LIMITATIONS-PROMISSORY NOTE.-The maker of a promissory note, who falsely and fraudulently induces the holder thereof to surrender its possession, for the purpose of preventing an action thereon, is liable for such deceit, although the statute of limitations has run against the note at the time when sech action is brought. Cockrill v. Hall (Cal.), III, 106.

DECISION.
See JUDGMENT, 62.

DECLARATIONS.

See EVIDENCE, 18-32.

DECREE.

See JUDGMENT.

DEDICATION.

1. THE MERE OFFER OF THE STATE TO DEDICATE A PORTION OF THE HARBOR OF THE CITY AND COUNTY OF SAN FRANCISCO to such city if the latter would deepen and improve it in a manner prescribed by the legislature, did not constitute a dedication In order to complete the dedication, it was necessary for the city to accept such offer, and make the improvements. Until such acts were done, the state had the right to recall its offer in whole or in part, and to deal with the subject of it in the exercise of its sovereign powers. People v. Williams (Cal.), I, 572.

per se.

2. VOLUNTARY CONVEYANCE OF LAND TO A COUNTY BY DEED OF BARGAIN AND SALE which recites that such conveyance is made for the purpose of erecting thereon county buildings, to which the same is hereby dedicated for the use and benefit of the party of the second part, its successors and assigns forever," vests as complete a title in the county, if the land is used for such purpose, as if it had obtained the same by purchase, without such words of dedication. State v. Glenn (Nev.), I, 50. 3. DEDICATION OF STREET-FINDINGS.-In an action to obtain a decree adjudging certain premises to be a public street, a finding that on a certain day such premises were dedicated by the owners as a public street is sufficient, without finding who such owners were, when it appears that neither the defendants nor their grantors have or had any interest in the premises, or any title thereto. People ex rel. Harris v. Blake et al. (Cal.), II, 140.

4. A FINDING THAT THE DEFENDANTS have and had no right or title to the land in controversy reviewed, and held supported by the evidence. Id.

5. DEDICATION OF STREETS-RIGHTS OF DITCH OWNERS.-Where a right of way for a water ditch had been acquired over a certain tract of land, the owners of which subsequently laid it out in lots, and dedicated the streets thus formed to the city of Denver, subject to the pre-existing right of way of the ditch, such city will be held to have accepted such dedication subject to such existing right of way, and must render passable such streets, and keep them in repair, without interfering with the rightful and accustomed use of said ditch. Denver v. Mullin (Col.), II, 582.

6. THE SAME.-In 1864 a company was incorporated for the construction of a water ditch through the city of Denver. Such ditch was completed during the following year. Long prior to the incorporation of such company, and the construction of such ditch, certain streets intersected by it were laid out on the map of said city, which map was recorded in the proper office of the county records. At this time the title to the lands included in the city of Denver, as so mapped, was in the United States, and part of the public domain. In pursuance of the act of congress of May 28, 1864, such lands were entered by the probate judge as a town site, and a certificate of entry thereof was issued to him on May 6, 1865, and a patent for the same was issued on June 8, 1868. The city of Denver was incorporated in 1861, and authorized to exercise general control over the streets, alleys, and highways within the city. Held, that the title of the city of Denver to the lands acquired by the entry of May 8, 1865, did not relate back to the date of the act of May 28, 1864, authorizing such entry, as such last-mentioned act was not in the nature of a grant, but simply a provision to enable the city to acquire title to land for a town site if it should elect to avail itself of the provisions of the act; that the authority conferred by the act of 1861 incorporating the city of Denver, in respect to controlling the streets of the city, can not be extended to invalidate the acquisition thereafter by the ditch company of a right of way through the public domain, to which the city had not as yet acquired title, although streets had been previously laid out thereon. Id.

7. PUBLIC STREET-ADVERSE POSSESSION-DEDICATION.-Title to lands can not be acquired by adverse possession after the same have been dedicated as a publict street. City of Visalia v. Jacob (Cal.), III, 408.

See CORPORATIONS, 17; EMINENT DOMAIN, 3.,

DEED.

1. CONGRESSIONAL GRANT.-A grant of public land may be made so as to vest an inde feasible and irrevocable title by an act of congress, as well as by a patent issued in pursuance of such act. Northern Pacific R. R. Co. v. Majors (Mont.), II, 23.

2. ACT OF CONGRESS GRANTING LANDS TO THE NORTHERN PACIFIC RAILROAD Co.CONSTRUCTION OF.-Section 3 of the act of congress granting lands to aid in the construction of the Northern Pacific Railroad, approved July 2, 1864, operated as a

conditional grant in præsenti of certain sections to be afterwards located. Such locations depended upon the route of the road, and until such route was designated in the manner prescribed by the act, the title of the company did not attach to any specific tracts. After such route was settled the location became certain, and the title of the company attached to the particular sections granted as of the date of the approval of the act, as fully as if such particular sections had been designated in such act. Id.

3. THE PROVISIONS OF SECTIONS 5, 6, 8, 9, AND 20 OF SUCH ACT, imposing certain conditions on the company, do not affect the creation or vesting of the estate granted by the act. They are simply conditions subsequent, which render the estate liable to be defeated for default on a breach in the performance of such conditions. Upon the breach of such conditions, congress alone has power to declare or take advantage

of a forfeiture. Id.

+

** then

4. SECTION 4 OF SUCH ACT, PROVIDING THAT WHEN "SUCH COMPANY shall have twenty-five consecutive miles of any portion of said railroad completed, patents of deeds shall be issued to said company, confirming to said company the right and title to said lands," and "from time to time, whenever twenty-five additional consecutive miles shall have been constructed and completed, patents shall be issued to said company, conveying the additional sections of land," does not limit or restrict the estate granted by section 3 of such act. The effect of the patent issued in pursuance of such section is simply to confirm the title of the company as fast as certain portions of the road are completed, and render it absolute and unconditional. Id.

5. A GRANT OF PUBLIC LAND BY ACT OF CONGRESS IS THE HIGHEST EVIDENCE OF TITLE. It imports livery of seisin and possession, and is sufficient to sustain ejectment. Id.

6. CONVEYANCE-CONSIDERATION FOR.-A conveyance under seal is prima facie evidence of a sufficient consideration, and a mere stranger to the land can not question it. West Portland Homestead Association v. Lownsdale (U. S. Dist. Ct., Or.), II, 163. 7. CASE IN JUDGMENT.-G. and C. were tenants in common of a tract of land which was surveyed and platted as Carter's addition to Portland, and then partitioned between tenants in common by mutual conveyances; the one to C. containing a small park for the purpose of equalizing the partition, described therein as block 67; and afterwards changed by said survey so as to materially diminish said park; and at the same time G. surveyed a tract of land adjoining the tract held in common into lots and blocks, and together with his co-tenants platted the two tracts as one Carte:'s addition, and duly acknowledged and recorded the same, with a block numbered 37 in the G. tract, and the small park aforesaid, not numbered. Held, that the conveyance to C. of the park as block 67 did not affect the block 67 afterwards laid off in the G. tract, and that the assignee in bankruptcy of C. had no right, interest, or equity therein, and should be enjoined, at the suit of G.'s grantee, from selling the same as the property of C., and thereby casting a cloud on such grantee's title thereto. Id.

8. A RECITAL IN A DEED THAT THE CONSIDERATION THEREFOR WAS PAID by the grantee is presumptively true. Such presumption may be overcome by parol evidence, but to have that result, the evidence must be full, clear, and satisfactory. The evidence in this case, in support of a finding that the consideration for the conveyance of the property in question was not made by the grantee named in the deed, reviewed, and held not to comply with these requirements. Anthony, Adm'x etc., v. Chapman et al. (Cal.), II, 68.

9. A FICTITIOUS GRANTEE RENDERS INOPERATIVE and void a conveyance purporting to be made to him. Downing v. Bartels (Col.), II, 506.

10. GRANTEE IS AS NECESSARY TO A CONVEYANCE AS A GRANTOR, and it follows that a United States land patent to a fictitious grantee is absolutely null and void. U. S. v. Southern Col, etc. Co. (U. S. Cir. Ct., Čol.), I, 11.

11. NOTICE OF THE GRANTOR'S INTENTION TO RESCIND THE CONVEYANCE and demand a return of the property conveyed, on account of fraud in obtaining such conveyance, is not necessary where the grantee is a fictitious person. Id. 12. DEFD-DELIVERY INTENT.-A conveyance does not take effect as a deed until delivery with the intent that it shall so operate. Such intent is a question of fact, to be determined from the circumstances of the transaction, and can not always be determined as a matter of law. Hibberd el al. v. Smith et al. (Cal.), III, 446.

13. THE SAME.-Delivery of a deed is not complete until the grantor has so dealt with the instrument delivered as to lose all control over it. Whether he has so dealt