25. THE SAME-CONFIRMATION OF MEXICAN GRANT UNDER ACT OF JUNE 14, 1860.- made final, become public lands of the United States, and subject to any other dis- 26. STATUTORY GRANTS-PUBLIC RECORD-NOTICE.-All the world must take notice of statutory grants of land clearly defined on the face of the statute, and other public records, indicated by the statute. Id. 27. THE SAME--CASE IN JUDGMENT.-The defendant entered upon land within the exterior limits of a Mexican grant, with the intention of securing a pre-emption right, but subsequently abandoned his location under the mistaken supposition that such land was sub judice, and located elsewhere; four years afterward, and eighteen months subsequent to the filing of complainant's map, he returned to his original location. Held, that such return did not connect itself with his former residence, and continue or reinstate the right first initiated, and that the right of the complainant having attached, it was too late to acquire a new right of pre-emption; and a patent issued to him, based upon such subsequent location, was either void or held in trust for complainant, and the patentee could convey no title to a purchaser for value without actual notice, in fact, of complainant's title. Id. See DEED, 1-5; DENVER TOWN SITE, 2; EASEMENTS, 3; MEXICAN GRANTS; MINES AND MINING; NUISANCE, 4; OREGON DONATION ACT; TRESPASS, 2, 3; UNITED STATES, 1; WATER RIGHTS. PUBLIC OFFICERS. 1. COUNTY CLERK OF HUMBOLDT COUNTY, SALARY OF.-On February 28, 1876, the offices of county clerk, auditor, and recorder of Humboldt county were united in the same person. On that date the legislature passed an act fixing the annual salary of the person filling such offices at five thousand dollars. Subsequently Humboldt county was organized as a county of the second class, and the offices of auditor and recorder were separated from that of county clerk. The annual salary of the county clerk was thereupon fixed by the board of supervisors at two thousand seven hundred dollars. Held, that the act of February 28, 1876, was intended to regulate the salary of such offices only while they were united in the same person. That when the organization of the county government was changed, and the offices were separated, no one of the three officers was entitled to receive the salary intended for the three; and as the act did not provide for the separation of the three offices, it became inoperative when such separation occurred. Kinsey, County Clerk, etc., v. Kellogg, etc. (Cal.), II, 368. 2. THE SAME.-As there was no operative law fixing the compensation of the county clerk after Humboldt county became organized as a county of the second class, the board of supervisors had authority to fix the compensation of that officer. Id. 3. FEES OF RECORDER FOR SANTA BARBARA COUNTY-COUNTY CLERK.-The county clerk of Santa Barbara county is not the recorder thereof, and fees collected by him, purporting to act in such capacity, must be delivered to the recorder. The county clerk can not escape from liability for such fees by paying them into the county treasury, under the statute of 1878, as the fees of the recorder's office are not subject to such statute. Stoddard v. Williams (Cal.), III, 440. 4. SECRETARY OF STATE BECOMING GOVERNOR-SALARY AND DURATION OF TERM OF. See ASSIGNMENT, 3, 4; COUNTY CLERK; COUNTY GOVERNMENT ACT; IMMIGRATION PUBLICATION OF SUMMONS. See SUMMONS. PUBLIC POLICY. See COMMON CARRIERS, 6. PUBLIC USE. See EMINENT DOMAIN. QUANTUM MERUIT. See ASSUMPSIT. QUIETING TITLE. 1. ACTION TO QUIET TITLE-ALLEGATIONS OF COMPLAINT.-A complaint to quiet title is sufficient which alleges ownership in the plaintiff in the land in controversy, and that the defendant claims an estate or interest therein adverse to him, which claim is without right, and that defendant has no estate, right, title, or interest. Rough v. Simmons (Cal.), II, 831; Rough v. Booth (Cal.), II, 832. 2. ACTION TO DETERMINE ADVERSE CLAIM-COMPLAINT-POSSESSION.-The complaint in an action brought under section 500 of the code of civil procedure, for the purpose of determining an adverse claim, estate, or interest in land, must allege possession by the plaintiff, either by himself or by his tenants. Coolidge et al. v. Forward et al. (Or.), III, 702. 3. ACTION TO QUIET TITLE-EXECUTION-JUDGMENT INJUNCTION.-The legal owner in the actual possession of real property can maintain an action to quiet his title under section 500 of the code of civil procedure as against one asserting an adverse claim thereto under an execution issued on a judgment against a third person. In such action the court may perpetually enjoin the sale of the real property under the execution, but can not declare the judgment a nullity. Murphy et al. v. Sears et al. (Or.), III, 558. See EQUITY, 3. QUITCLAIM DEED. See DEED, 21; EJECTMENT, 6; PUBLIC LANDS, 20. QUORUM. See CORPORATIONS, 23, 24. RAILROADS. 1. EXPULSION OF PASSENGER FROM CAR-CONFLICT OF EVIDENCE-VERDICT.-As to the fact whether the plaintiff was rightfully expelled from the train of the defendant without unnecessary force and at a proper time, held, that the evidence was conflicting, and that a verdict founded thereon should not be disturbed. Bland v. Southern Pacific Railroad Company (Cal.), IV, 78. 2. RAILROAD-TICKET LIMITED AS TO TIME-RIGHTS OF PASSENGER.-A railroad ticket entitling the purchaser to a continued passage between two given points, if used within a certain time, is good for such continued passage if the same be commenced within the time limited. Lundy v. Central Pacific Railroad Company (Cal.) IV, 613. See BONDS, 1; COMMON CARRIERS; CORPORATIONS, 2; EMINENT DOMAIN, 1, 14, 15; MORTGAGE, 36; NEGLIGENCE; OBSTRUCTING THE MAIL; REMOVAL OF CAUSES, 2, 3; STREETS, 1-3; TAXATION, 46-49. RATIFICATION. RECEIPT. See COMMON CARRIERS, 9; NEGOTIABLE INSTRUMENTS, 24. RECEIVERS. 1. No APPEAL LIES FROM AN ORDER OF THE LOWER COURT APPOINTING A RECEIVER in an action for partition, notwithstanding the fact that such order may operate as an injunction in restraining the rights of the parties to the action to hold and manage their lands. Emeric v. Alvarado (Cal.), I, 708. 2. ORDER SETTLING A RECEIVER'S ACCOUNT WILL BE AFFIRMED when no error appears. Montgomery v. Merrill (Col.), II, 140. 3. OBJECTIONS AND EXCEPTIONS TO THE ALLOWANCE OF A VERIFIED ACCOUNT of a receiver appointed in an action for the foreclosure of a mortgage need not be verified. Id. See APPEAL, 15, 16. RECLAMATION OF SWAMP LANDS. RECORD. See JURISDICTION, 5; REMOVAL OF CAUSES, 6. RECORDING. See MINES AND MINING, 26; MORTGAGE, 41, 45. REDEMPTION. 1. REDEMPTION BY TENANT IN COMMON-RIGHTS AFD LIABILITIES OF CO-TENANTS.A tenant in common of land, or his successor in interest, who redeems the whole of the common property from a sale under a judgment against all the co-tenants, acquires thereby an equitable lien upon the interests of his co-tenants for their just proportion of the money paid by him in effecting the redemption, and he may maintain an action to recover such proportion, and a decree to the effect that, in default of such payment, the interests of the co-tenant in the land be foreclosed. Calkins v. Steinbach (Cal.), IV, 433. 2. THE SAME EFFECT OF REDEMPTION BY JUDGMENT DEBTOR.-The effect attending a redemption of property sold subject to redemption depends upon the character of the person making the redemption. If made by a "redemptioner," as that term is defined in subdivision 2 of section 701 of the code of civil procedure, and there be no further redemption within the statutory period, the redemptioner is entitled to a deed from the sheriff, conveying to him the interest of the judgment debtor therein. But if made by the judgment debtor or his successor in interest, the effect of the sale is terminated, which fact is made to appear of record by a certificate of redemption and a note thereof on the margin of the certificate of sale. Id. See MORTGAGES. REFERENCE. 1. IN AN EQUITABLE ACTION THE COURT HAS POWER TO REFER THE SAME to a referee to take the testimony, and to decide the action upon the testimony so taken. In reviewing such evidence, the appellate court may weigh the same with a view to a just determination, uninfluenced by the proposition that the court below had superior facilities to judge of the credibility of witnesses. Sieber v. Frink (Col.), II, 98, REFORMATION. RELATION. See DEED, 15-19; SHERIFF's Sale, 2. RELEASE. 1. EXECUTION AND DELIVERY OF WRITTEN INSTRUMENT-CONSTRUCTION OF CODE.The execution of a written instrument within the meaning of section 448 of the code of civil procedure includes its delivery. Clark v. Childs (Cal.), IV, 376. 2. RELEASE DELIVERY-ESTOPPEL-ADMISSION OF DUE EXECUTION OF INSTRUMENT SET FORTH IN ANSWER.-A release which has never been delivered is not binding. And a defendant who sets up such release in his answer as a bar to the plaintiff's demand, and himself introduces evidence showing that the release was not in fact delivered, is estopped from claiming the benefit of the admission arising out of the plaintiff's failure to deny by affidavit the genuineness and due execution of the instrument. Id. See NEGLIGENCE, 34; SURETIES, 4, 13, 14. REMANDING CAUSE See NEW TRIAL, 37. REMITTITUR 1. REMITTITUR, WHEN TO ISSUE-JUDGMENT BY DEFAULT.-Where one of the departments of the supreme court, on the eighth of February, 1883, reversed a judgment by default, and on the twenty-third of February modified such judgment and remanded the cause, with leave to the appellant to file an answer within twenty days after the filing of the remittitur in the court below, such remittitur should not be issued until thirty days after the last date. If issued before such time has elapsed, a judgment by default for failure to answer within twenty days after its filing in the court below will be set aside. And the same effect will be given to a judgment by default for not answering within the time required after the remittitur has rightfully issued, where such default was occasioned by the inadvertence of a deputy clerk of the supreme court, in failing to enter of record the date on which such remittitur was issued, and in repeatedly informing the attorney for the party in default that no remittitur had issued. Hog's Back Con. Min. Co. v. New Basil Con. G. Min. Co. (Cal.), I, 770. REMOVAL OF CAUSES. 1. PETITION FOR REMOVAL.-When it appears upon a petition for removal of a cause that the same is removable upon the application of the petitioners, under the second clause of section 2 of the act of 1875, it will not limit or restrain the effect or operation of such petition if the petitioners only ask the court therein to proceed no further "as to them." Northern Pacific Terminal Company v. Lowenberg (C. S. Cir. Ct., Or.), I, 97. 2. PROCEEDING TO APPROPRIATE PROPERTY.-A judicial proceeding to appropriate private property to the use of a railway corporation is subject to the usual incidents of a civil action or suit, including the liability to removal into the circuit court. Id. 3. SEPARABLE CONTROVERSY.-In an action against two or more persons to appropriate property held by them as tenants in common to the use of a railway corporation, there is a separable controversy between such corporation and each of said tenants, which can be fully determined as between them; and if either of such tenants is a citizen of a different state from such corporation, he may remove the whole case into the circuit court, under the second clause of section 2 of the act of 1875. Id. 4. IRREGULARITIES IN REMOVAL.-Although there are irregularities in the removal of a cause, still, if it appears from the record that it involves a controversy cognizable by the circuit court, a motion to remand to the state court will not be allowed. Id. 5. AMENDMENT.-Quare: Can the petition for removal be amended in the circuit court? 6. RECORD, WHAT CONSTITUTES UNDER THE ACT OF 1875.-The term "record," as used in sections 3 and 7 of the act of 1875 (18 Stat. 470), held to include the testimony taken and on file in a cause at the time of filing a petition and bond for its removal from a state court. Miller v. Tobin (U. S. Cir. Čt., Or.), I, 236. Id. 7. JURISDICTION OF STATE COURT, WHEN IT CEASES.-Upon the filing of a petition and bond in due form and effect for the removal of a cause from a state court, whether in vacation or term-time, in a case removable under the act of 1875, the jurisdiction of the state court ceases at once, and depositions taken thereafter before a referee theretofore appointed to take the testimony in the case are no part of the record or proceedings therein. Id. 8. RIGHT OF REMOVAL BY DEFENDANT NOT LOST BY INSUFFICIENT DENIALS IN ANSWER.—When it appears from the case made by the complaint that it arises under an act of congress, the right of removal by the defendant is not lost by reason of insufficient denials in the answer. Id. 9. TIME FOR FILING PETITION FOR REMOVAL.-A hearing on a demurrer to a complaint, and an order overruling the same and allowing the defendant to answer to the merits of the case, is not a "trial" within the meaning of that term as used in section 3 of the act of 1875, supra; but such "trial," whether it be an issue of fact or law, is one upon which a final disposition of the case is made. Id. 10. "TRIAL AND "HEARING.""Trial" is a common-law term to denote that step in the case by which the facts are ascertained, and is always final, unless the matter is set aside for cause. "Hearing" is an equity term, and may denote the argument and consideration of a case at more than one stage of its progress; but when it results in an absolute disposition of the case, it is called "final;" but the term "trial," as used in the act of 1875, supra, comprehends that step or proceeding in a cause at law or in equity which results in a final judgment or decree, whether the "trial" be of an issue or question of law or fact. Id. 11. REMOVAL OF CAUSES-CITIZENSHIP OF PARTIES.-The petition for the removal of an action on the ground that the parties are citizens of different states must show that such ground of removal existed both at the time of the commencement of the action and at the time of the application for removal. A petition which only alleges that the defendant is, and always has been, a citizen of California, and that the plaintiff is a citizen of Missouri, is insufficient. McNaughton v. South Pacific Coast R. R. Co. (U. S. Cir. Ct., Cal.), II, 662. 12. THE SAME AMENDMENT OF PETITION.-The citizenship of the parties, under such circumstances, is a jurisdictional fact, and must be alleged in the petition. If such allegations are not made, whether the petition may be amended in the circuit court so as to show them, quære. If the power to allow such amendments be conceded, it is not a matter which the party removing can demand as a legal right, but only a matter for the exercise of a sound discretion by the court. Such an amendment should not be allowed where, after an amendment of the petition in the circuit court, the record in each court would show upon its face jurisdiction which would authorize it to proceed to final judgment. Id. * * * 13. THE SAME-APPLICATION, WHEN SHOULD BE MADE.-This action was commenced in the fourth district court of the state of California, on August 1, 1879; defendant demurred August 22, 1879. The demurrer was overruled. It answered September 12, 1879. Plaintiff demurred to that part of the answer, setting up new matter as a defense, October 2, 1879. The new constitution of California of 1879 having in the mean time taken effect, the case was transferred into the superior court as the successor of the district court, and on January 23, 1880, was assigned to department No. 7 of the superior court. On March 22, 1880, the demurrer to the answer was sustained. An amended answer was filed April 1, 1880, which put the case at issue. The constitution of 1879, and the statutes passed in pursuance thereof, provide that "the superior courts shall always be open (legal holidays and non-judicial days excepted) and they shall hold regular sessions commencing on the first Mondays of January, April, July, and October, and special sessions at such other times as may be prescribed by the judge or judges thereof.' On January 21, 1884, the defendant filed a petition to remove the case to the United States circuit court, on the ground that the parties were citizens of different states. Held, that under the act of congress of 1875, providing that the application for removal must be made "before or at the term at which said cause could be first tried," the application in this case came too late; that the four general sessions of the superior court required to be held are "terms" within the meaning of the act.. Id. 14. TRANSFER OF CAUSE TO FEDERAL COURT.-An order of the lower court refusing a. motion to transfer the cause to the federal court can not be reviewed on an appeal from the judgment alone. Rough v. Booth; Rough v. Simonds (Cal.), II, 72. 15. THE BOND REQUIRED ON SUCH TRANSFER MUST BE SIGNED by the principal. Id.. 16. CONSOLIDATION OF ACTIONS TRIAL IN ONE ACTION REMOVAL OF CAUSESWAIVER.-When two actions are brought in the state court on the same cause of action, and between the same parties, or their successors in interest, the court may require the parties to elect in which they will proceed, or may consolidate them. If the same are not consolidated, any steps taken in one of them will bind the parties in the other. Consequently, if after the right of removal to the federal courts had been established in both suits, the parties proceed to trial in the state courts in |