PRECEDENT. See JURISDICTION, 4. PRE-EMPTION. See PUBLIC LANDS. PRELIMINARY EXAMINATION. PRESCRIPTION. 1. PRESCRIPTION, NATURE OF.-The statute of California merely fixes the time in which a right by prescription shall be acquired at five years; but it nowhere determines the circumstances which constitute prescription, and thus leaves them to be determined by the settled law as it stood prior to the code. Woodruff v. North Bloomfield G. M. Co. (U. S. Cir. Ct., Cal.), I, 183.. See NUISANCE, 8, 9, 16. PRESENTMENT FOR PAYMENT. See NEGOTIABLE INSTRUMENTS, 10, 12. PRESUMPTIONS. See BILL OF EXCEPTIONS, 9; CONTEMPT, 12; NEGLIGENCE, 33; POSSESSION; STATUTE OF LIMITATIONS, 19. PRINCIPAL AND AGENT. the 1. BUILDING CONTRACT-ACCEPTANCE BY AGENT-FRAUD-MISTAKE.-Where promisees under a building contract agree to pay for the work contracted to be done, upon its acceptance by an agent mutually agreed upon, the acceptance by such agent is conclusive, in the absence of any fraud or mistake on his part. Moore v. Kerr et al. (Cal.), III, 628. 2. AGENT, WHEN PERSONALLY LIABLE ON WRITTEN CONTRACT EXECUTED IN HIS OWN NAME. Where an agent, in executing a written instrument, does not attempt to bind his principal, and in terms imposes an obligation on himself, he incurs by such act a personal liability, even though he described himself as an agent. Murphy v. Helmrich (Cal.), IV, 301. 3. PRINCIPAL AND AGENT-SECRET INSTRUCTIONS-GENERAL AGENT.-The power of a general agent can not be restricted by secret instructions of his principal, so as to affect a party dealing with such agent without notice of the secret instructions. Saxonia Min. etc. Co. v. Cook (Col.), IV, 453. 4. AGENT ADVERSELY INTERESTED TO PRINCIPAL.-The law will not allow a person to act as agent when he has an interest adverse to his principal; and therefore an agent of an insurance company to receive and transmit applications for insurance, when making an application therefor on his own property, directly or indirectly for his own benefit, is acting for himself, and can not be considered the agent of the insurance company. Spare v. Home Mut. Ins. Co. (U. S. Cir. Ct., Or.), I, 542. 5. COURTS WILL TAKE JUDICIAL NOTICE OF THE AUTHORITY OF THE MANAGING OFFICER of railway corporations, such as a superintendent, and presume that such officer has power to conduct its ordinary business transactions. Sacalaris v. Eureka & Palisade R. R. Co. (Nev.), I, 398. 6. AN AGENT HAVING THE OVERSIGHT AND CHARGE, WITH THE POWER TO DIRECT, has a general and discretionary power within the scope of his agency. Id. See CORPORATIONS, 7, 9-16; EVIDENCE, 22-25; MASTER AND SERVANT; NEGLIGENCE, 1S VERIFICATION, 2-4. PRIOR APPROPRIATION OF WATER. See WATER RIGHTS. PRIORITY. See BONA FIDE PURCHASER, 7; MECHANICS' LIENS, 22; MORTGAGES, 41; SPECIFIC PERFORMANCE, 10. PRIVITY OF ESTATE. See LEASE, 4, 5. PROBABLE CAUSE. See MALICIOUS PROSECUTION. PROBATE COURT. 1. VERIFICATION OF PETITION IN PROBATE COURT JURISDICTION.-Proceedings in the probate court of Umatilla county, Oregon, are not void for want of jurisdiction because the petition on which such proceedings were founded was unverified. McCoy v. Ayers, Adm'r, etc. (Wash.), II, 564. 2. PRESUMPTION AS TO THE SITUS OF PERSONALTY.-The fact that a probate court has assumed jurisdiction over certain personal property is prima facie evidence that such property is within the jurisdiction of the court. Id. 3. THE PROBATE JURISDICTION OF THE SUPERIOR COURT IS SEPARATE AND DISTINCT from the jurisdiction of such court in ordinary civil actions. In re Allgier et al. (Cal.), II, 876. See CANCELLATION, 2; DIVORCE, 4; ESTATES OF DECEASED PERSONS; EXECUTORS AND ADMINISTRATORS; GUARDIAN AND WARD; HOMESTEAD, 1; JUDGMENT, 4; SALES, 6, 7. PROBATE SALES. See GUARDIAN AND WARD, 8-11. PROHIBITION. 1. WRIT OF PROHIBITION-FUNCTIONS OF JUDICIAL AND MINISTERIAL POWER.-Under the constitution the only office of the writ of prohibition is to prevent courts or other officers from going beyond their jurisdiction in the execution of judicial power. The legislature can not enlarge or extend the office of such writ so as to include ministerial functions. Hobart v. Tillson, Tax Collector, etc. (Cal.), IV, 629. A tax col 2. THE SAME-TAX COLLECTOR-PROHIBITION DOES NOT LIE AGAINST. lector is a ministerial officer, and as such he can not be restrained by prohibition from executing the functions of his office. Id. 3. PETITION FOR WRIT OF PROHIBITION DENIED, for the reason that the relief asked 'had already been granted on appeal. People ex rel. Barnes et al. v. District Court, etc., et al. (Col.), IV, 276. PROMISE. 1. IMPLIED PROMISE, NOTWITHSTANDING THE DEBTOR'S OBJECTION-CONDUCT AMOUNTING TO CONSENT.-Whenever in any transaction, or under any form, one person receives a sum of money which he is bound, ex æquo et bono, to refund to another, the law implies a promise by him to make such repayment. Such promise is implied under the same circumstances, even though the debtor party objected to receiving the money, provided he nevertheless does actually receive it, and use it for his own purposes, or so deal as to retain and enjoy its benefits. Such conduct waives the objection, and amounts in contemplation of law to a previous consent. De Celis v. Porter (Cal.), I, 575. See MORTGAGE; 13; STATUTE OF LIMITATIONS, 3-8. PROMISSORY NOTE. See NEGOTIABLE INSTRUMENTS. PROSTITUTION. 1. TAKING FEMALE MINOR FOR PURPOSES OF PROSTITUTION.-Evidence held insufficient to sustain the judgment. People v. Murray (Cal.), III, 525. PROTEST. See COSTS, 7. PUBLIC LANDS. 1. ONE NOT AN ACTUAL SETTLER, WHO FILES HIS APPLICATION TO PURCHASE LANDS suitable for cultivation from the state, prior to the adoption of the present constitution, but who makes no payment thereon, acquires no right to purchase such land after the adoption of such constitution. Urton v. Wilson (Cal.), I, 775. 2. A SETTLER ON PUBLIC LANDS WHICH HAD BEEN WITHDRAWN FROM SALE, and consequently were not open for pre-emption, acquires no title thereto, as against a subsequent grantee of the government, by virtue of his settlement. Southern Pacific R. R. Co. v. Garcia (Cal.), I, 586. 3. IMPROVEMENTS UPON THE PUBLIC LANDS ARE LAWFUL SUBJECTS OF SALE, and are sufficient consideration to support promissory notes and other contracts. Caldwell v. Ruddy (Idaho), I, 295. 4. THE AFFIDAVIT OF AN APPLICANT FOR THE PURCHASE OF STATE LANDS must set out the facts required by the statute to be stated therein. An affidavit which fails to state whether there are or are not settlers on the land which is sought to be purchased is insufficient. McCoy v. Byrd et als. (Cal.), II, 139. 5. MATTERS WHICH THE STATUTE REQUIRES TO BE STATED IN SUCH AFFIDAVIT can not be held immaterial. Id. 6. PURCHASE OF STATE LANDS BY CHINESE.-A citizen and subject of the Chinese empire, who is a bona fide resident of the state of Nevada, is entitled, under the laws of the United States and of such state, to locate or purchase any of the public lands belonging to such state. State ex rel. Fook Ling v. Preble (Nev.) II, 43. 7. SALE OF PRE-EMPTOR'S POSSESSORY RIGHT BY ADMINISTRATOR.-An administrator is entitled to the possession of a tract of land entered under the pre-emption laws by his intestate, and may sell, under direction of the probate court, any right of possession of the land that may have fallen to him by virtue of his administration. Nothing contained in sections 2263 and 2269 of the United States revised statutes prohibits such sale. Burch, Administrator, etc., v. McDaniel et al. (Wash.), II, 546. 8. SALE OF "SOLDIERS' ADDITIONAL HOMESTEAD SCRIP."-In the absence of a further equitable showing, money paid for the purchase of "Soldiers' Additional Homestead Scrip" can not be recovered back on the ground of a total failure of consideration. Under sections 2306 et seq. of the United States revised statutes, the right to locate and make entries under such scrip belongs to the soldiers alone, and a contract for a sale thereof is against the policy of the law. Mackintosh v. Renton, Holmes & Co. (Wash.). II, 777. 9. DISTRICT COURT HAS NO JURISDICTION OF A CONTROVERSY TO DETERMINE the conflicting rights of claimants to a portion of the public domain, when such controversy is already undetermined before the department of the interior. Hays v. Parker (Wash.), II, 801. 10. DECISION OF THE TIDE LAND COMMISSIONERS.-The commissioners under the acts of 1872 and 1874, to dispose of the state tide lands, were authorized to decide who was entitled, in certain cases, to be preferred as a purchaser thereof, and their determination of the matter can not be questioned elsewhere, except for an error of law or a fraud extrinsic and collateral to the contest, by which a full and fair hearing of the matter was prevented. Shively v. Welch et al. (U. S. Cir. Ct., Or.), II, 713. 11. SETTLER UNDER THE DONATION ACT.-It does not appear that James Welch was ever a "settler" under the laws of the provisional government or the donation act upon the donation patented to John M. Shively and wife; and if he was, upon his abandonment of all such claims thereto in 1860, and before he was entitled to the grant, his wife had no interest in it or the consideration received therefor. Id. 12. CONVEYANCE TO ONE PERSON UPON A CONSIDERATION MOVING FROM ANOTHER. -In 1860 John M. Shively, in consideration that James Welch abandoned his claim to be a "settler" upon the former's donation claim, conveyed a certain portion thereof to said Welch, and a like portion, including 5 and 13 in "Shively's Astoria," to his wife Nancy. Held, that Nancy did not hold said blocks under her husband, but the grantor Shively, and therefore she was entitled, under the acts of 1872 and 1874 (Ses. L. 129, 76), to purchase the tide land in front of said blocks, although her husband had quitclaiined the same to Shively in 1850. Id. 13. TOWN SITE OF RED BLUFF StatuteS AFFECTING-CERTIFICATES OF TITLE-TRUST ESTATE CONVEYANCE BY TRUSTEE.-On May 1, 1865, Ann Wasson, then a widow with a child by a former husband, the plaintiff here, entered upon and took possession of certain lots forming part of the town site of Red Bluff. She resided there with her child until her marriage, in 1866, to Wasson; thereafter she, her husband, and the plaintiff continued to live and occupy said premises as her property until her death in 1867, when she died intestate, leaving surviving her as her heirs at law her husband and the plaintiff. Said town site had been entered at the office of the register of the land-office of the United States, by the county judge of Tehama county, in trust for the several use and benefit of the occupants thereof, under acts of congress providing for the reservation of town sites upon the public lands of the United States. Thereafter said trustee purchased the lands under the provisions of an act of congress applicable to his trust, and on September 29, 1866, a United States patent was issued to the county judge and his successors in office. On March 6, 1868, the legislature passed an act authorizing the trustee to distribute the town lots held by him in trust, and to issue certificates of title to the inhabitants of said town in accordance with their respective interests. On July 9, 1868, Wasson, claiming as heir at law of his wife, obtained from the trustee the certificate of title to the premises in dispute in his own name, which were afterwards conveyed by mesne conveyances to the defendant. Held, that the widow, under the aforesaid acts of congress, as the original and bona fide occupant of said lots, became vested with an equitable title to the same, as her separate property, which she would have had a right to perfect had she lived, by obtaining from the trustee, when he came to execute his trust under the regulations prescribed by the statute, a certificate of legal title; upon her death before such regulations had been prescribed, her interest vested in her husband and the plaintiff as tenants in common, each entitled to an undivided half of the premises; that the legal title obtained by the husband, and his entry thereunder, inured to the benefit of the plaintiff, and was held by him in trust for her; and that the defendant, who took such land with notice of the equitable rights of the plaintiff, as shown by the county records, could acquire no greater rights therein than his grantor had. Eversdon v. Mayhew (Cal.), II, 726. 14. RIGHT IN PUBLIC LANDS NOT INITIATED BY TRESPASS.-No right to locate and purchase a portion of "mineral land," as a part of the public domain, can be initiated by an intrusion, against the will of the occupant, upon lands inclosed by a fence, and in the actual possession, occupation, and use of another claiming title under a patent of the United States covering the land, issued under the acts of congress of July 1, 1862 (12 Stat. 489), and July 2, 1864 (13 Id. 356), granting lands to the Central Pacific Railroad Company to aid in the construction of its road. Cowell v. Lammers et al. (U. S. Cir. Ct., Cal.), III, 504. 15. U. S. PATENT CONCLUSIVE ON COLLATERAL ÅTTACK.-A patent issued to the Central Pacific Railroad Company under said acts, regular in form, by the proper officers, to "alternate sections of land designated by odd numbers," within the limits of the congressional grant, can not be collaterally attacked by an intruder upon the actual possession of the grantee of the patentee, occupying and claiming title under the patent. Id. 16. TRESPASSER UPON ACTUAL POSSESSION OF LAND.-An intruder upon the actual possession of another, of lands held and claimed by the occupant under a patent from the United States, regular upon its face, issued under the said acts of congress granting lands to the Central Pacific Railroad Company, does not occupy a position that entitles him, collaterally, to call in question the validity or effect of the patent, in a suit by the party in possession holding title under the patent, to restrain the commission of trespasses in the nature of waste. Id. 17. EXCEPTION OF MINERAL LANDS IN PATENT.-The fact that the patent issued under said acts of congress contains a clause not required by the acts to be inserted in the patent, "excluding and excepting all 'mineral lands,' should any be found to exist in the tracts described in the foregoing," does not change or affect the rule that an intruder on the actual possession of the grantee in a patent, claiming title under the patent, can not assail the patent collaterally, in a suit between such grantee and intruder. Id. 18. PATENT CONCLUSIVE OF PATENTABILITY ON COLLATERAL ATTACK.-A patent in all respects regular upon its face, issued by the proper officers under said acts of congress, even though containing a clause excluding and excepting such lands as shall be found to be mineral, is conclusive evidence, upon a collateral attack, that the lands are not mineral, and that they are properly included in the patent. Id. DIGEST I-IV. 12 19. CASE IN JUDGMENT.-On June 27, 1867, a patent, in all respects regular on its face was issued by the proper officers, covering the north-east quarter of section 17, township 9, range 9 east, Mount Diablo base and meridian, to the Central Pacific Railroad Company, under said acts of congress of 1862 and 1864, granting lands to aid in the construction of the road of said company, the said lands being within the limits of the grant. There was nothing in the records of the land-office, or in the patent, to indicate that any portion of said lands described in the patent was "mineral land." The patent contained a clause "excluding and excepting from the transfer by these presents 'all mineral lands,' should any be found to exist in the tracts described in the foregoing." In March, 1873, the patentee sold and conveyed said lands, with other lands, to M., who entered into the actual possession and occupation of said lands so conveyed, including the land in question-fenced, built upon, otherwise improved and used it, making lime for sale upon it, cultivating a part, and cutting hay on and pasturing the remainder. The actual occupation and use continued till November 24, 1877, when he sold and conveyed it to complainant, who immediately took possession, and continued in the actual possession, occupation, and use, for similar purposes, till the commission of the acts complained of. In 1881, defendant, claiming a right under the laws relating to mineral lands, assuming the portion intruded upon to be a part of the public mineral lands, entered upon it against the will of complainant, took up a mining claim, and performed the acts stated in the bill. Held, that defendant is not in a position which entitles him to attack the patent, collaterally, in this suit, both upon the grounds that he could not initiate a right to a mining claim by an unlawful intrusion upon the actual possession of another claiming title under a patent, as was decided by the supreme court in Atherton v. Fowler, 96 U. S. 513, and on the ground that the patent is conclusive when collaterally called in question, as decided in Steel v. The Smelting Co., 104 U. S. 647, 650-654. Id. 20. OCCUPANCY OF PUBLIC LAND-QUITCLAIM DEED-TRUST-GIFT.-A person in the occupancy of public land, having no right or title thereto, who conveys the same by a quitclaim deed as a gift to his wife, does not hold the title subsequently acquired by him in his own name and with his own money, under the United States homestead laws, and by purchase from the state, in trust for his wife. Brannock et al. v. Monroe (Cal.), III, 481. 21. OCCUPANT OF PUBLIC LANDS-SALE OF INTEREST OF, UNDER EXECUTION.-The interest of any person in the actual occupation of public lands of the United States, on which he has made one hundred dollars' worth of improvements, may be transferred and sold under execution. Wells v. Francis (Col.), III, 217. 22. PRE-EMPTION OF PUBLIC LAND-PRIORITY OF LOCATION-RELATION OF TITLE.—The right of a pre-emptor of public land relates back to the date of the first proceeding taken by him for its acquisition under the pre-emption laws, and takes priority over a title acquired through a subsequent location under the soldiers' additional homestead act. Cothrin v. Taber et al. (Cal.), IV, 295. # * every alter when 23. ACT OF CONGRESS GRANTING LAND TO THE SOUTHERN PACIFIC R. R.-CONSTRUCTION OF.-The act of congress of March 3, 1871, in effect provided that "there be and hereby is granted to the Southern Pacific Railroad Company of California, for the purpose of aiding in the construction of said railroad, nate section of public land, not mineral, designated by odd numbers, ever on the line thereof, the United States having full title, not reserved, sold, granted, or otherwise appropriated, and free from pre-emption or other claims or rights, at the time the line of said road is designated by a plat thereof, filed in the office of the commissioner of the general land-office." Held, that such act constituted a present grant, that could only be defeated by failure to perform the conditions subsequent therein, and upon proper proceedings to take advantage of such failure; that the general right to the land, subject to the exceptions found in the act, vested at the date of the passage of the act on March 3, 1871, and attached to the specific land at the moment of the filing of the plat in the office of the commissioner of the general land office. Thenceforth it was not in the power of any officers of the govern ment, by any action of theirs, to divest, or in any way limit or modify, the rights of the company so vested. Southern Pacific Railroad Co. v. Dull et al. (U. S. Cir. Ct., Cal.), IV, 639. 24. THE SAME WHEN GRANT ATTACHED-MEXICAN GRANT.-Such congressional grant attached to lands lying within the exterior limits of a Mexican grant, but outside of the limits thereof as finally surveyed, if prior to the date of filing such plat in the office of the commissioner of the general land-office, the Mexican grant had been finally located. Id. |