11. A DENIAL IN AN ANSWER OF ANY KNOWLEDGE OR INFORMATION SUFFICIENT to form a belief as to an allegation in the complaint is a sufficient denial under section 713 of the civil code. Wilson v. Allen (Or.), I, 687.

12. IN ACTIONS UPON CONTRACTS WHICH DO NOT IMPORT A CONSIDERATION, and where the consideration must, therefore, be averred in the complaint, a denial in the answer of such averment forms a complete issue, and needs no reply; and where the consideration is implied, as in an action on a promissory note, the implication stands in the place of the alleged consideration, and an answer averring want of consideration is, in effect, but a denial of such implication, and needs no reply. Alden v. Carpenter (Col.), I, 598.

13. PLEA OF SET-OFF MAY BE INTERPOSED by the DefENDANT IN AN ACTION ON A PROMISSORY NOTE, given in final settlement of account, arising from a failure of the plaintiff to deliver some of the goods for which such note was given. Such set-off may be averred as though it arose on an account for goods sold and delivered by the defendant to the plaintiff. Staab v. Ortiz (N. M.), I, 516.

14. PLEA OF SET-OFF, WITH A BILL OF PARTICULARS OF THE SAME, MUST SET FORTH THE NATURE of the defendant's claim with sufficient particularity to enable the plaintiff to meet it at the trial. It should state the items of the demand, and when and how it arose, but it need not be in any particular form. Id.

15. AN ITEM OF A PLEA OF SET-OFF, the plaintiff's liability for which is shown to depend upon a condition precedent, can not be considered by the jury without evidence of the performance of such condition. Id.

16. THE DEFENSE OF A PRIOR RECOVERY IS NEW MATTER which the defendant must plead and prove. Gilson v. Price (Nev.), I, 373.

17. PLEAS IN THE ACTION OF ASSUMPSIT. -The plea of non est factum is only proper in actions on written instruments under seal, and can not properly be interposed as a defense to an action of assumpsit on any simple contract in writing, such as a promissory note or bill of exchange. Luna v. Mohr (N. M.), I, 673.

18. PLEAS OF NON EST FACTUM AND NON ASSUMPSIT, in an action on a promissory note, are not so repugnant or inconsistent as to be inadmissible. Staab v. Jaramillo (N. M.), I, 57.

19. WHETHER AFTER ISSUE JOINED THE PLAINTIFF CAN WITHDRAW CERTAIN COUNTS in the declaration, without leave of the court or consent of the defendant, so as to deprive the latter of a portion of his defense to the plaintiff's case as originally stated, quære. Id.

20. DEMURRER-AVERMENT OF LEGAL CONCLUSIONS.-A complaint need allege only facts sufficient to constitute a prima facie cause of action. If superfluous matters are alleged as legal conclusions, an objection thereto can not be raised by demurrer. The allegations of the complaint, omitting those objected to by the defendant, held to state a good cause of action, and to be free from ambiguity or uncertainty. Campbell et al. v. Taylor (Utah), II, 541.

21. DEMAND, WHEN MUST BE MADE AND AVERRED.-Where a demand is necessary to fix the liability of sureties on an undertaking, it is parcel of the contract, and must be made before the commencement of an action for the breach of the undertaking, and in the action itself it must be averred and proved. It can not be made after the commencement of the action, except as the basis of a new action. Morgan v. Menzies et al. (Cal.), II, 882.

22. A DEMAND FOR PAYMENT IS NOT NECESSARY TO THE STATEMENT of a cause of action by an attorney to recover the reasonable worth of his services. Gibbs v. Davis (Or.), II, 825.

23. CAUSES OF ACTION, STATEMENT OF.-In an action on several bills of exchange, all bearing the same date, payable to the same party, due at the same time, the Letter practice is for the complaint to contain a separate statement on each bill. If, however, the complaint contains but a single statement, an order overruling a demurrer thereto will not be disturbed. Dawson v. Lail (Ariz.), II, 396.

24. CROSS-COMPLAINT JOINDER OF CAUSES OF ACTION-DEMURRER.—An objection to a cross-complaint on the ground that several causes of action are unlawfully joined must be taken by demurrer, which specifically states the objection. If such demurrer is overruled, and an exception saved, the right to be heard thereon upon appeal is waived by afterward pleading over. Green, Administratrix, etc., v. Taney (Col.), II, 531.

25. TRIAL BY JURY, CONSENT OF PARTIES TO.-A trial of issues of fact by a jury, which should have been tried by the court, is error. Such error is waived by the parties consenting to a trial by a jury. Id.

26. A DEFENDANT WHO CONSENTS TO TRY A CASE WITHOUT A JURY THEREBY WAIVES his right to afterwards object that the plaintiff's remedy was in law rather than in equity. Walla Walla v. Moore et al. (Wash.), II, 214.

27. PLEADING CONTRACT FOR CONVEYANCE OF LAND.-In pleading a defense arising out of a contract for the conveyance of land, it is not necessary to allege that such contract was in writing. The statute of frauds has changed the rule of evidence, not the rule of pleading. Tucker, Executrix, etc., v. Edwards (Col.), II, 400.

28. INCONSISTENT PLEAS-WHEN ALLOWABLE.-Under the practice prior to 1877, the several parts of each plea could not be repugnant to each other; but separate special pleas in the same answer might be inconsistent without rendering the pleading obnoxious to demurrer. Id.

29. ACCORD AND SATISFACTION-ELECTION-PLEADING.-In pleading his readiness to perform an accord agreement, where the promisee is given the privilege of electing between two alternative promises on the part of the promisor, it is sufficient for the latter to aver his constant readiness and willingness to perform either, at least until the promisee has indicated his choice. An actual tender of performance need not be averred. Id.

30. OVERRULING DEMURRER, WAIVER OF EXCEPTION TO.-In an action on a judgment where the defendant pleads nul tiel record and an accord and satisfaction, an exception to the sustaining of a demurrer to each latter plea is not waived by proceeding to trial on the issue raised by the former. Tucker v. Edwards (Col.), II, 400. 31. PLEADING FACTS CONSTITUTING FRAUD.-In an action to annul a conveyance on the ground of fraud, when the facts constituting the fraud are not clearly known by the plaintiff, the same may be alleged in the alternative. Rasmussen et al. v. McKnight et al. (Utah), II, 205.

32. IN SUCH ACTION, WHEN THE FRAUD CONSISTS IN TAKING A DEED in the name of a married woman, and in giving a mortgage to the grantor in the name of her husband, he being the person who committed the fraud, the wife is a necessary and proper party whether she was a particeps criminis to the fraud or not. Id.

33. VENUE, WHEN MUST BE ALLEGED.-In an action to recover the possession of specifie personal property, the jurisdiction of the court must be shown by an allegation in the complaint of the place of detention. A failure to make such allegation can not be taken advantage of after verdict when the sheriff's return shows that the property was taken in the county over which the court had jurisdiction. Stiles v. James (Wash.), II, 212.

34. EQUITABLE DEFENSES MAY BE INTERPOSED to an action at law. Salisbury v. Ellison (Col.), II, 102, 612.

35. DEFENSE NOT PLEADED, WHEN MAY BE TAKEN ADVANTAGE OF.-If a defense, legal or equitable, of which the defendant is entitled to the benefit, be not averred in the answer, but is fully established by the plaintiff in attempting to make out his case in the first instance, the plaintiff will be deemed to have waived the absence of averment, and can not recover if objection be taken by the defendant. Id. 33. PLEA SHOULD PRESENT A SINGLE ISSUE.-The object of a plea is to present and try a single issue, which may decide the suit, without putting the parties to the expense of trying all the issues in the case. But one issue can be presented by plea, without leave of the court, and in a suit upon a patent the court will not ordinarily permit a party to present and try upon pleas all the issues that can be raised, except the single issue as to infringement. Giant Powder Co. v. Safety Nitro Powder Co. (U. S. Cir. Ct., Cal.), II, 79.

37. PLEADINGS UNDER CODE-CONSTRUCTION OF.-The allegations of pleadings under the code must be liberally construed, with a view to substantial justice between the parties. It is sufficient if the complaint contain, in ordinary and concise language, and with reasonable certainty, allegations of such constitutive facts as will entitle the plaintiff to prove and maintain his case, and give the defendant an opportunity to meet and controvert the same. Farnsworth et al. v. Holderman et al. (Utah), III, 342.

complaint which

38. PLEADING-CONTRACT-PERFORMANCE-ACCEPTANCE-WAIVER.-A sets forth an executory contract for the sale and delivery of "about nineteen hundred head of cattle, more or less, as plaintiffs were able to deliver," coupled with an allegation setting up an acceptance by the defendants of "about seventeen hundred and forty-four," in full for the number to be delivered under the contract, and the promise to pay for the same a certain sum of money, and a failure so to do, is sustained by evidence of a contract, by the terms of which the greater number of cattle were to be delivered and paid for at a certain price per head as classified, with evi

dence of the defendants' acceptance of the smaller number, and promise to pay therefor. Id.

39. PLEADING WRITTEN INSTRUMENT-CONSIDERATION.-A complaint in an action to enforce a written instrument, not under seal and not negotiable, must allege a consideration. Felt v. Judd (Utah), III, 276.

40. ACTION AGAINST COUNTY-PRESENTATION OF CLAIM-PLEADING. --In an action against a county the complaint must allege the presentation of the plaintiff's claim, demand, or right of action to the county court for allowance, and the rejection thereof. Fenton v. Salt Lake County et al. (Utah), III, 263.

41. PLEADING SUFFICIENCY OF ANSWER.-An answer which clearly puts in issue the material allegations of the complaint is sufficient. It need not controvert immaterial matter. Bay State Silver Mining Co. v. Brown (U. S. Cir. Ct., Nev.), III, 520. 42. THE AVERMENTS OF AN ANSWER MUST BE TAKEN AS TRUE, for the purposes of a judgment on the pleadings. Fleming v. Wells (Cal.), III, 159.

43. DENIALS-SUFFICIENCY OF ON APPEAL.-A denial of an allegation as a verified pleading, although informal, will be held sufficient on appeal, if the parties treated it as sufficient on the trial. Hiatt v. Board of Trustees of Meridian School District (Cal.), III, 460.

I, 332.

44. RULING OF THE CIRCUIT JUSTICE OR JUDGE.-A ruling of the circuit justice or judge, on the circuit, ought to be followed by the other judges thereon until the question is determined by the supreme court. United States v. Morris (U. S. Cir. Ct., Or.), 45. UNITED STATES V. LOFTIS, 8 SAW. 194.-The ruling in this case being opposed to the decision of the circuit judge in an unreported case in the district of California, not then known to the district judge of Oregon, the latter is now followed, and the former disregarded, without reference to the personal opinion of said district judge; but in the light of further examination of and information on the subject the case is not regarded as sound, and is overruled. Id.

46. NO ORDER OF TRANSFER WAS NECESSARY BY THE COUNTY COURT of the city and county of San Francisco to give the municipal court of appeals jurisdiction over actions pending in the former court. Canavan v. Municipal Court of Appeals (Cal.), I, 876.

47. PENDING THE CONSIDERATION OF A MOTION, WHICH THE COURT HAS TAKEN UNDER ADVISEMENT until a subsequent day, it is not an irregularity, assignable for error fatal to the judgment, for the court to try another case, unless a party has been prejudiced thereby or deprived of some right affecting the fairness and verity of the judgment. Alden v. Carpenter (Col.), I, 598.

48. THE COURT WILL NOT HESITATE TO REVERSE A PRIOR RULING made in the same case, on a mere matter of practice, when satisfied that such ruling is erroneous. Kent v. Upton (Wy.), I, 700. ́

49. AN ORDER OF A TRIAL COURT SETTING ASIDE A VERDICT IS REVIEWABLE upon a statement on appeal, in the same manner as an order made on motion for a new trial. Such order is within the legal discretion of the court making it, and an appellate court will not interfere with it, unless the circumstances of the case and the principles of law applicable to them show an abuse of discretion. Hynes v. Nelson (Cal.), I, 473. 50. AN OPINION OF A COURT IS NOT DECISIVE OF A QUESTION NOT MENTIONED therein, although the same might, and perhaps should, have been passed upon. Denver v. Bayer (Col.), I, 505.

51. DELAY IN ASKING LEAVE TO FILE SEVERAL PLEAS will not be encouraged. Id. 52. THE COURT MAY GRANT LEAVE TO FILE AN ANSWER after the time for answering has expired, where no default has been entered. Sieber v. Frink (Col.), II, 98. 53. A DEFENDANT IS BOUND BY AN ADMISSION IN HIS ANSWER as to the amount due from him to the plaintiff, and it is error for the court to order judgment to be entered upon a verdict for a less amount. Coffman v. Brown (Col.), II, 98.

54. PERMITTING COUNSEL IN HIS ARGUMENT TO READ TO THE JURY A PORTION OF AN OPINION OF THE SUPREME COURT is not error sufficient to warrant a reversal. Such practice, however, is not to be commended. People v. Forsythe (Cal.), II, 288. 55. A PLAINTIFF CAN NOT DISMISS AN ACTION ON HIS OWN MOTION after the defendant has answered and averred matters upon which affirmative relief is asked, growing out of the transactions set forth in the complaint. Clarke et al. v. Hundley, Judge, etc. (Cal.), II, 215.

56. SERVICE OF PAPERS-SECTION 6S5 OF THE CODE OF CIVIL PROCEDURE OF IDAHO, WHICH PROVIDES that service of papers may be made by leaving the same in the office of an attorney in a conspicuous place, etc., is in derogation of the common law, and must be strictly construed. Warner v. Teachenor et al. (Idaho), II, 21.

57. AN AFFIDAVIT IN PROOF OF SUCH SERVICE must state that all the conditions of the statute authorizing such service have been substantially complied with, or it will be disregarded. Id.

58. DISMISSAL OF PARTY JUDGMENT.-The entry of an order dismissing an action as to a certain defendant ousts the court of jurisdiction of such person, and a judgment subsequently entered against him, without vacating such order, is void. Sere v. McGovern et al. (Cal.), II, 892.

59. A PAPER IS FILED WHEN IT Is Delivered to THE PROPER OFFICER, and by him received for filing, whether the same is indorsed as filed or not. Wescoat v. Eccles (Utah), II, 446.

60. EXCEPTIONS TO STATEMENTS OF COUNSEL.-Mere objections or "exceptions" made by defendants on the trial to statements by the counsel for the prosecution in his argument before the court and jury, can not be considered by the appellate court, where no action by the trial court in the matter was demanded, and no exception was taken to any ruling or action of the court. People v. Shem Ah Fook (Cal.), I,

112.

61. JUDGMENT WILL BE AFFIRMED WHERE NO POINTS AND AUTHORITIES ARE FILED within the required time. People v. Lee Hung (Cal.), I, 485.

62. JUDGMENT WILL NOT BE REVERSED FOR FAILING TO SERVE AMENDED COMPLAINTS on a defendant against whom a default has been entered for not answering the original complaint, where it does not appear from the record that such amended complaints were not served. Heinlen v. Erlanger (Cal.), I, 561.

--

63. SHAM AND IRRELEVANT ANSWERS-NOTICE OF MOTION TO STRIKE OUT. Only sham or irrelevant answers may be stricken out on motion. But where a rule of court requires notice of every motion not ex parte, it is error to allow such an answer to be stricken out without notice. Arata v. Tellurium etc. Mining Co. (Cal.), III, 151. 64. CAUSES OF ACTION TO SET ASIDE A FRAUDULENT CONVEYANCE, and to recover possession of the land affected thereby, may be joined when all the matters complained of relate to the same property, are parts of one transaction and one design to defraud all the parties who defend the action. Pfister v. Dascey (Cal.), III, 303. 65. MISJOINDER OF DEFENDANTS-DISCLAIMER-DEMURRER. - Misjoinder of certain parties as defendants can not be taken advantage of by the defendants properly joined, when the defendants improperly joined disclaim all interest in the subjectmatter of the litigation, and their disclaimer is acted upon by the court and accepted by the plaintiffs. Id.

66. CAUSES OF ACTION WHICH DO NOT AFFECT THE SAME PARTIES can not be united. Johnson v. Kirby (Cal.), III, 482.

67. ERRONEOUS ORDER CONSOLIDATING ACTIONS, WHEN NO GROUND FOR REVERSAL.An erroneous order consolidating certain actions is not ground for reversal, if it appears from the findings that the appellant is not entitled to a judgment. Bouge v. Dunn (Cal.), IV, 352.

68. EQUITY RULE 69-BURDEN OF PROOF.-Where the time of taking testimony has expired under equity rule 69, and the case is heard on the bill, plea, and replication to the plea, without evidence to support the plea, the plea will be overruled for want of evidence. The burden of proof is on the party pleading the facts relied on to oust the jurisdiction. Sharon v. Hill (U. S. Cir. Čt., Cal.), IV, 199. 69. AMENDED COMPLAINT-SERVICE OF, ON DEFENDANTS.- -Where a plaintiff amends his complaint in matter of substance, he must serve his amended pleading upon the defendants, including those in default. Miliken v. Houghton (Cal.), IV, 221. 70. RECORD HELD TO DISCLOSE NO MATERIAL ERROR. Board of Education v. Franklin et al. (Cal.), 1V, 608.

all

See AFFIDAVIT OF MERITS; AMENDMENTS; APPEAL; Assignment; ASSUMPSIT; ATTACHMENT; BANKRUPTCY; BILL OF EXCEPTIONS; BILL OF PARTICULARS; CERTIORAKI; CLAIM AND DELIVERY; CONTEMPT; CONTINUANCE; COUNTER-CLAIM; DEFAULT; DEMURKER; DEPOSITIONS; DISMISSAL OF ACTION; EJECTMENT; EMINENT DOMAIN; FINDINGS; FORCIBLE ENTRY AND DETAINER; GOODS SOLD AND DELIVERED; INSOLVENCY; INJUNCTIONS; INSTRUCTIONS; INTERPLEADER; JUSTICES' COURTS; NEW TRIAL; PARTIES; QUIETING TITLE; REMOVAL OF CAUSES; REPLEVIN; SUMMONS; TRESPASS: VARIANCE; VENUE; VERIFICATION.

PLEDGE.

1. PLEDGEE-BONA FIDE HOLDER-NEGOTIABLE NOTE.-A pledgee of negotiable paper as collateral security is entitled to be protected as a bona fide holder to the same

extent as one who becomes the absolute owner, and may maintain suit thereon in his own name, as the real party in interest. The only difference between the rights of such parties, as against the maker, is that the absolute owner may recover in full, while the pledgee, if there be equities, is restricted to the extent of his advances. Haydon v. Nicoletti et al. (Nev.), II, 632.

2. EXECUTION ON PLEDGOR'S INTEREST IN PROPERTY PLEDGED.-The interest of a pledgor in property pledged, with a limited power of sale for the protection of the pledgee, may be levied upon and sold under an execution against the pledgor. The pledgor holds the legal title to the property pledged, and not merely an equitable interest. Williams v. Gallick (Or.), II, 537.

3. PLEDGE OF CERTIFICATES OF STOCK BY DEPOSITARY-RIGHTS OF OWNER AND PLEDGEE. The real owner of certificates of stock, who indorses and delivers the same to a third person for safe keeping, can not recover such certificate from the pledgee of the depositary, until the demand for which they were given in pledge is satisfied. Ambrose v. Evans (Cal.), IV, 297.

4. THE SAME-SALE OF CERTIFICATES BY Pledgee, pendiNG ACTION FOR POSSESSION.If, pending an action to recover possession of such certificates, the pledgee sells the same for more than enough to satisfy his demand, the owner is not entitled to a judgment for such excess, because it did not constitute any part of his cause of action. Id.

5. PLEDGOR AND PLEDGEE-ACTION TO RECOVER DEBT SECURED.-A pledgee may maintain an action to recover the debt secured, without first exhausting the subject of the pledge. Ehrlich v. Ewald (Cal.), IV, 380.

See ASSIGNMENT FOR BENEFIT OF CREDITORS, 2; GUARANTY; INSURANCE, 9, 10.

1. THE POLICE COMMISSIONERS OF THE CITY AND COUNTY OF SAN FRANCISCO are not elective officers. People ex rel. Hoy v. Alvord et al. (Cal.), IV, 78.

See SAN FRANCISCO, 2, 3.

POLICE JUDGE.

See CONSTITUTIONAL LAW.

POLL TAX.

See TAXATION, 59.

POLYGAMIST.

See JURY AND Jurors, 6.

POSSESSION.

1. POSSESSION OF LAND-PRESUMPTIONS ARISING FROM-OCCUPANT.-One lawfully in possession of land may maintain an action for any interference with the possession thereof. And the actual occupant will be presumed to be lawfully in possession unless the contrary appears on the trial. Simpson v. Williams (Nev.), IV, 580. See ADVERSE POSSESSION; EJECTMENT, 1-3; EVIDENCE, 18; FRAUD, 17; LANDLORD AND TENANT; LEASE, 1; MECHANICS' LIENS, 21; MINES AND MINING, 5, 38, 39; MORTGAGE, 38, 39, 43, 44; NUISANCE, 23; PUBLIC LANDS, 14-19; QUIETING TITLE, 2; REPLEVIN; SPECIFIC PERFORMANCE, 9; STATUTE OF LIMITATIONS, 26; TENANTS IN COMMON.

PRACTICE.

See PLEADING AND PRACTICE.