they can so do without the direction of the board of supervisors not decided. County of San Diego v. California Southern Pacific R. R. Co. (Cal.), III, 44.

71. FEES FOR COLLECTING TAXES are recoverable only when the other taxes are collected. Boggs v. Placer County (Cal.), III, 656.

72. SAME.-Fees for collecting taxes can not be recovered from one who did not prevent their collection. Id.

73. ASSESSMENT ROLL.-The fact that a parcel of land does not appear on the assessment roll of the county, in a given year, as the property of the defendant in an action for the recovery of the same, does not tend to contradict the testimony of such defendant to the effect that he paid the taxes thereon, as owner, in such year; nor is it competent evidence in such action, for or against either party thereto, of the ownership of such land. Zellin v. Rogers (U. S. Cir. Ct., Or.), III, 466.

74. 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 assessinent thereof invalid, nor furnish any defense to the suit. Lake County v. Sulphur Bank Quicksilver Mining Company (Cal.), IV, 186.

75. ASSESSMENT OF PERSONAL PROPERTY-MISTAKE IN NAME OF OWNER.-But a mis-
take 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.

76. THE SAME.-Tax proceedings must be in strict accordance with the statute. With-
out an assessment all subsequent proceedings are nullities. An assessment of per-
sonal property to a named person other than the owner is absolutely void. Id.
77. 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.

78. ASSESSMENT OF REAL PROPERTY-DESCRIPTION OF THE LAND.-Under sections
3650, 3658, of the political code, it would seem to be a sufficient assessment of a tract,
where such tract does not contain more than six hundred and forty acres, to describe
it by stating the congressional subdivisions contained in it where it has been section-
ized. The description, “a tract of land entered by Frazier in section 13, township
13, range 7," is fatally defective. Id.

*

骨

*

79. 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, 1880-1, $2.75." Held, that the omission of the words "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.

66

SO. 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.

81. IN AN ASSESSMENT FOR TAXES THE ABBREVIATION "DOLLS." is equivalent to dollars. Salisbury v. Shirley (Cal.), IV, 688.

82. 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 propert ̧· other than herein before 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.), IV, 157.

DIGEST I-IV. 14

1

14

83. 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 tax-payer 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.), IV, 206; Brown v. Denver (U. S. Cir. Ct., Col.), IV, 210.

84. 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 constitu tional 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.

See ADVERSE POSSESSION, 5, 7; APPEAL, 20, 77; BONDS, 3, 4; EASEMENTS, 3; INDIANS, 10; JUSTICES' COURTS, 3; LICENSE COLLECTOR; SURETIES, 16.

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.), IV, 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 can not 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 from 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.

TENANCY FROM YEAR TO YEAR.

See LANDLORD AND TENANT, 14.

TENANTS IN COMMON.

1. TENANTS IN COMMON WHO ARE JOINED AS PLAINTIFFS IN AN ACTION OF EJECTMENT are presumed to have consented to such joinder. Weise v. Barker (Col.), II, 108.

-

2. ONE TENANT IN COMMON MAY RECOVER POSSESSION OF THE WHOLE of common property, in an action of ejectment, as against an adverse possessor. Id. 3. AMENDMENT JOINDER OF CO-TENANTS. A complaint in an action of ejectment brought by a tenant in common to recover possession of his undivided share in certain mining claims, as against an adverse possessor holding under an entirely different source of title, may be amended by joining as plaintiffs the other tenants in common, and seeking the recovery of the entire property. Such an amendment does not change the nature of the original cause of action. Id.

4. THE POSSESSION OF ONE TENANT IN COMMON IS PRESUMED TO BE FOR THE BENEFIT of all. McNeil v. First Congregational Soc. (Cal.), IV, 421.

See DEEDS, 7; EJECTMENT 2-7; PARTITION, 7, PARTNERSHIP, 19; REDEMPTION, 1, 2;

REPLEVIN, 8.

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.), IV, 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 can not 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 (Cal.), IV, 291.

TIDE LANDS.

1. TIDE LANDS-GRADUAL SUBMERGING OR ACCRETION.-When land is submerged by the gradual advance of the sea, the sovereign acquires the title to the part thereby covered with water; conversely, the riparian owner is entitled to whatever is gained from the sea by alluvian dereliction. Wilson et al. v. Shiveley (Or.), III, 336.

2. TIDE LANDS BELONG TO THE STATE, as sovereign, and it has the absolute right to dispose of them. Id.

3. TIDE LANDS-ABUTTING OWNER-RIGHT TO PURCHASE.-Under the act of 1872, and the acts amendatory thereof, the abutting owner on tide lands, or his grantee, has the right to purchase such tide lands. Id.

See PUBLIC LANDS, 10.

TIMBER AND MINERAL LANDS.

See MINES AND MINING, 48.

TIME CHECK.

1. TIME CHECKS, ACTION ON BY ASSIGNEE.-A written acknowledgment of indebtedness in the form of a time check, as follows:

COLORADO SPRINGS, COL., July 17, 1880.

[Time check. Not negotiable. Payable on regular pay day.] Paymaster Rio Grande Extension Company:

Due Thomas Flinn, for labor in month of July, 188-, as laborer, twelve days

at $1.25 per day.

Deduct for board..

$15 00

3 05

$11 95

T. S. BLACKBURN,

Foreman.

Is an assignable chose in action, on which an action may be maintained by the assignee, against the company, without an acceptance thereof by it, after proof of the agency of the maker. Rio Grande Extension Co. v. Coby (Col.), II, 613.

TOLL ROADS.

1. APPEAL-TOLL ROAD-USURPATION OF FRANCHISE.-An appeal lies from a judgment adjudging the defendants guilty of usurping a franchise, when the case involves the right of the defendants to possess certain lands claimed to constitute a toll road, as against all who shall not pay toll for passing over them. People ex rel. Williams v. Horsely et al. (Cal.), III, 351.

2. THE SAME AMADOR AND NEVADA TOLL ROAD-GRANT OF FRANCHISE.-The act of April 1, 1878, authorizing the board of supervisors of Amador county to declare the portion of the Amador and Nevada wagon road which lies in Amador county a toll road, does not authorize such board to grant any franchise to collect tolls over such road to other persons. Id.

974

TORTS.

See ARREST AND BAIL, 1, 3; ATTACHMENT, 24; CORPORATIONS, 12-16; ESTRAY, 4.

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 or name, in this state, can not be acquired, unless it be filed for record with the secreWhittier et al. v. Dietz (Cal.), IV, 356. tary of state.

TRANSCRIPT ON APPEAL.

See APPEAL, 78, 94, 95; NEW TRIAL, 16.

TREATY.

See CHINESE RESTRICTION ACT.

TRESPASS.

1. AN ACTION, THE MAIN PURPOSE OF WHICH IS TO OBTAIN A DECREE RESTRAINING the commission of continuing trespasses, of a character to produce irreparable injury, is an equitable action, and issues of fact raised therein should be tried by the court, unless it saw fit to order any or all of them to be submitted to a jury. MeLaughlin v. Del Re (Cal.), I, 486.

2. CUTTING TIMBER ON THE PUBLIC LANDS.-Section 4 of the act of June 3, 1878 (20 Stat. 89), prohibits the cutting of any timber on the public lands with intent to dispose of the same; but the proviso thereto permits a settler under the pre-emption and homestead acts to clear his claim as fast as the same is put under cultivation, and the timber cut in the course of such clearing may be disposed of by the settler to the best advantage. United States v. Williams (U. S. Dist. Ct., Or.), I, 100. 3. IDEM.-But if such settler cuts timber on his claim with the intent to dispose of the same, and not merely as a means of preparing the land for tillage, he is a willful trespasser and is liable accordingly. Id. 4. DAMAGE BY TRESPASSING SHEEP.-A complaint in an action brought under the act of March 7, 1878, which alleges that the plaintiff was at stated times the owner and in possession of a certain piece of land; that at such time the defendant was the owner, in the possession, and chargeable with the care of certain sheep, which then entered and trespassed upon such land and injured the grain, grass, and hay thereon, to the plaintiff's damage, is sufficient; and if such averments are true, the defendant is liable. Faber v. Cathrin (Cal.), I, 871.

5. ALLOWING THE PLAINTIFF IN SUCH ACTION TO TESTIFY THAT BY REASON OF THE DAMAGE done by such sheep she was compelled to feed her own stock with hay, is not error, when such fact was first drawn out by the defendant on cross-examination. Id.

6. OWNER'S LIABILITY FOR DAMAGE FROM TRESPASSING SHEEP.-When a flock of sheep is in the charge of herders upon a range, ordinary care should be exercised in When the crop is of such preventing a trespass thereby upon the crop of another.

a nature as to be readily recognized, or is surrounded by a fence of any kind, so
that the herder may know when he reaches its vicinity, he should use ordinary care
to prevent the sheep from going upon the same and doing injury thereto. If such
ordinary care be not exercised and a trespass and injury result, the owner of the
Willard v. Mathesus (Col.), I, 355.
sheep is liable for such damage.

7. DISTINCTION BETWEEN THE LIABILITY OF AN OWNER FOR DAMAGES RESULTING,
FROM TRESPASSING CATTLE and those resulting from trespassing sheep, stated, and
shown to depend upon the difference in the customary manner of herding such ani-
mals. Id.

8. TRESPASS BY CATTLE.-Under the act of March 20, 1878, one who willfully enters
with cattle and horses upon land belonging to and in the possession of another, and
depastures them thereon, is liable for the damage suffered by the latter. Martin v.
Jacobs (Cal.), II, 135.

See CORPORATIONS, 14-16, DAMAGES, 6, 7; EJECTMENT, 13; EXECUTIONS, 4; INJUNG
TIONS, 17, 18; PUBLIC LANDS, 14; WATER RIGHTS, 37, 50.

TRIAL.

See CONTINUANCE.

TRUST DEED.

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

534.

TRUSTS.

1. PROPERTY PURCHASED FROM A PRIVATE CORPORATION, in good faith and for an adequate consideration, is not subject to a trust in the hands of a purchaser for the satisfaction of unpaid debts of the corporation, although the purchaser had notice of such debts at the time of the purchase. And the rule is the same whether the purchase includes all the property of the corporation or only a part of it. Branson v. Oregonian F'y Co. (Or.), I, 624.

2. A DEED BY A TRUSTEE, PURPORTING TO CONVEY TO THE GRANTEES THE LEGAL
TITLE to their shares in the land, may be admitted in evidence, notwithstanding an
objection thereto which goes merely to the effect of such conveyance. The opera-
tion of such conveyance was a matter for the consideration of the court when it
rendered judgment. Emeric v. Alvarado (Cal.), I, 708.

3. ACTION TO ENFORCE A TRUST, NECESSARY PARTIES TO.-Where the owners of sev-
eral mining claims enter into an agreement for the consolidation of their respective
claims and the formation of a corporation to which such claims are to be deeded,
the stock of which is to be divided among them in certain proportions, in an action
by one owner to enforce the delivery of the stock to which he is entitled, or for an
accounting of the same, the corporation formed in pursuance of such agreement is
properly joined as a defendant. Reich v. Rebellion S. Mining Co. (Utah), II, 451.
4. RESULTING TRUST-MASTER AND SERVANT-PATENT-RECONVEYANCE BY TRUSTEE.
Where the servants and employees of one in the actual occupation of public land
fraudulently conspire together, and with others who have notice of their fiduciary
relation, and obtain a patent to the land in their own names, the title so obtained
is held in trust by them for the benefit of their employer, or his successor in in-
terest. But where it appears that the main object of such employees in so obtain-
ing a patent in their own names was to secure themselves for wages due them for
their work on the patented premises, a court of equity will require such employer,
or his successor in interest, to pay such wages and the expenses attending the ob-
tainment of the patent, as a condition to a reconveyance. Wells v. Francis (Col.),
III, 217.

5. TRUSTS-FINDINGS-JUDGMENT.-From the facts found, held, that the defendant
was a trustee for the plaintiff as to an undivided half of the property in contro-
versy; that the findings sustain the judgment, and are suflicient under the issue
made by the pleadings. Roberts v. Haley (Cal.) III, 310.

6. 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.), IV, 397.

See CONSIDERATION, 1; CORPORATIONS, 10; EQUITY, 1; ESTOPPEL, 8; EXECUTORS AND ADMINISTRATORS, 2; FRAUD, 9; JUDGMENT, 39; PARTIES, 12; PUBLIC LAnds, 13, 20; VENUE, 6; WILLS, 10, 11.

ULTRA VIRES.

See CORPORATIONS, 11, 15, 43.

UNDERTAKING ON APPEAL.

See APPEAL. 24, 47, 48, 77, 92; MORTGAGE, 21; Statute of LIMITATIONS, 21

UNDERTAKING ON ATTACHMENT.

See ATTACHMENT, 4-6.

1