UNITED STATES.

1. POWERS OF THE UNITED STATES OVER PUBLIC LANDS WITHIN A STATE.-Over the public lands within a state the United States has only the rights of a proprietor, and it has no power to authorize its grantees of such lands to invade the private rights of other proprietors. Woodruff v. North Bloomfield G. M. Co. (U. S. Cir. Ct. (Cal.), I, 183.

See APPEAL, 46; CANCELLATION, 1; CHINESE RESTRICTION ACT; CONSTITUTIONAL LAW, 6, 7, 9; ESTATES OF DECEASED PERSONS, 3, 5; ESTOPPEL, 6; LACHES, 3; WATER RIGHTS, 1-14.

UNITED STATES COURTS.

1. BILL TO PRESERVE PROPERTY PENDING ACTION IN STATE COURTS.-A bill in equity can not be maintained in the federal courts to preserve the property in controversy, pending an action at law in the state court, when the jurisdiction of the state court has already been invoked for the same end. Evans v. Smith (U. S. Cir. Ct., Col.), III, 213.

2. DECISIONS OF THE SUPREME COURT OF THE UNITED STATES ARE BINDING upon the territorial courts. Alexander v. Tennessee etc. Min. Co. (N. M.), III, 71.

See ABATEMENT, 2; INSTRUCTIONS, 48; JURISDICTION, 2; MANDAMUS, 3.

USE AND OCCUPATION.

1. ACTION ON AN IMPLIED CONTRACT FOR THE USE AND OCCUPATION of a saw-mill lies against a vendee who has been in possession under a written contract for the sale of the same, the conditions of which he has failed to perform. Jones v. Nathrop (Col.), I, 279.

2. TENANT IN POSSESSION-USE AND OCCUPATION-ATTACHMENT.—The liability of the tenant in possession to the purchaser under a foreclosure sale, for the use and occupation of the premises sold, from the day of sale to the expiration of the time for redemption, is a statutory liability merely, and exists without the assent of the person in possession. Such liability is not founded on a contract, express or implied, within the meaning of section 537 of the code of civil procedure, authorizing the issuance of an attachment. Walker v. McCusker (Cal.), III, 196.

See ADVERSE POSSESSION, 6; STATUTE OF LIMITATIONS, 21, 22.

USURPATION OF OFFICE.

1. THERE IS NO SUCH OFFICE AS POLICE JUSTICE OF THE CITY OF SAN JOSÉ, and consequently the same can not be usurped, intruded into, or unlawfully held or exercised. People v. Veuve (Cal.), II, 894.

2. JUSTICE OF THE PEACE-EXERCISE OF UNAUTHORIZED JURISDICTION.-The exercise by a justice of the peace of a jurisdiction unauthorized by the constitution is not the exercise of an office. The result of such attempted jurisdiction is to render the acts done in the exercise thereof void.

Id.

VALUE.

See EVIDENCE, 37; LARCENY, 12.

VARIANCE.

1. WHERE NO OBJECTION TO A VARIANCE BETWEEN THE COMPLAINT AND THE PROOF was made in the court below, which, under sections 77 and 78 of the code, might have been cured by an amendment, and where the appellant was not misled by such variance, an objection thereto is too late when made for the first time in the appellate court. Smith v. Roe (Col.), I, 502.

2. ASSIGNMENT OF ERROR ON THE GROUND OF VARIANCE between the facts alleged and those proved must specify the grounds of objection. Davidson v. Oregon & California R. R. Co. (Or.), I, 421.

3. EVERY MATTER WHICH WOULD HAVE BEEN ADMISSIBLE IN EVIDENCE BY WAY OF AMENDMENT to the complaint will be deemed to have been added, or its absence waived or cured, after verdict.

Id.

4. ALLEGATIONS AND PROOF-VARIANCE-DIFFERENCE IN AMOUNT.-A difference be tween the allegations and proof in mere matters of quantity or extent does not constitute a legal variance. Peasley v. Hart (Cal.), III, 623.

See BURGLARY, 8; GOODS SOLD AND DELIVERED; LIBEL; NEGLIGENCE, 22; NEW TRIAL, 36.

VENDOR AND VENDEE.

1. STATEMENTS OF A VENDOR OF PERSONAL PROPERTY, MADE AFTER A SALE thereof, are not part of the res gesta, and are inadmissible in an action against a vendee. Garlick v. Bowers (Cal.), IV, 501.

2. DECLARATIONS OF A VENDOR MADE AFTER A SALE BY HIM, and after he has parted with the possession to his vendee, can not be received in evidence against the vendee for the purpose of affecting or impeaching the bona fides of such sale, or of defeating the vendee's title, on the ground that the sale was in fraud of the vendor's creditors. Nor are such declarations admissible as being part of the res gestæ. Hirschfeld v. Williamson (Nev.), I, 150.

3. CREDITOR OF A VENDOR IN ATTACKING THE VALIDITY OF A SALE by him, on the alleged ground of fraud, can not question the authority of the vendor's agent by whom such sale was made. Id.

4. CONTRACT FOR SALE OF LAND-FORFEITURE-VENDOR AND VENDEE.-The right of a vendor to enforce a stipulation in a contract for the sale of land, providing for a forfeiture of the contract upon the non-payment of the purchase price, is not waived nor lost by mere delay, nor by the death of the vendee. Kerns v. McKean (Cal.), III, 359; Kerns v. Dean (Cal.), III, 363.

5. JUDGMENT REVERSED on account of contradiction in the findings. Id.

6. ACTION FOR VENDOR'S LIEN-PARTIES.-In an action to enforce a vendor's lien upon an equitable interest of the vendee, parties who claim an interest in the property, adverse to that of both the vendor and purchaser, need not be joined. Wells v. Francis et al. (Col.), III, 217.

7. VENDOR AND VENDEE-STIPULATION AVOIDING CONTRACT. The vendor under a contract for the sale of land may maintain an action for the recovery of the unpaid purchase price, although snch contract contains a stipulation to the effect that in the event of the failure of the vendee to comply with all the terms and conditions of the contract, the vendor should be released from his obligation to convey, and the contract should be void. Wilcoxson v. Stitt (Cal.), III, 771.

See CONSIDERATION, 1; EJECTMENT, 9; EVIDENCE, 19, 20; FRAUD, 20; LACHES, 5; SALES; SPECIFIC PERFORMANCE; USE AND OCCUPATION, 1; WATER RIGHTS, 49.

VENDOR'S LIEN.
See LIENS, 1.

VENUE.

1. PLACE OF TRIAL.-All actions for the causes mentioned in section 48, laws of Washington territory (1877), must be commenced in the county or district in which the subject of the action lies. The court of no other county or district has jurisdiction thereof. Wood v. Mastick (Wash.), II, 549.

2. FOREIGN CORPORATION-PLACE OF RESIDENCE OF-VENUE.-A foreign corporation, doing business in this state, exists in and by virtue of the law of a foreign country, and no statute of this state has ever given a local county residence to such a corporation, where alone it can be sued. Its liability to be sued in the courts of this. state no more confers a county residence upon it than does the comity which permits it to apply to our courts for the enforcement of a contract or the redress of a wrong. Thomas v. Placerville G. Q. Min. Co. (Cal.), III, 777.

3. ACTIONS AGAINST CORPORATIONS- -VENUE--CONSTITUTIONAL LAW.-Section 16 of article 12 of the constitution, providing that "a corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs, or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases," is applicable to actions arising from torts as well as from contracts. Such provision is not in conflict with the fourteenth amendment to the constitution of the United States. Lewis et al. v. S. P. C. R. R. Co. (Cal.), IV, 615.

4. PLACE OF TRIAL OF REAL ACTIONS-CONSTRUCTION OF CONSTITUTION.-Section 5, article 6, of the constitution of 1879, requiring "that all actions for the recovery of the possession of, quieting the title to, or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof affected by such action or actions, is situated," is not retrospective in its operation. Consequently, the superior court of the city and county of San Francisco, as the successor of the district court, has jurisdiction to hear and determine an action for the foreclosure of a mortgage, pending in such latter court at the adop tion of the present constitution, although the land affected thereby is situated in another county. Watt et al. v. Wright et al. (Cal.), IV, 622.

5. ACTION TO SET ASIDE FRAUDULENT CONVEYANCE-PLACE OF TRIAL OF.-An action by an execution creditor to set aside a deed made by his execution debtor, upon the ground that the same was fraudulently executed, is not an action to enforce a lien upon real property, and need not be commenced in the county where the land is situated. Beach v. Hodgdon et al. (Cal.), IV, 610.

6. ACTION TO ENFORCE TRUST ON REAL AND PERSONAL ESTATE-PLACE OF TRIAL.— An action to enforce a trust on both real and personal estate is not based on a lien, nor is it a suit to enforce a lien. Such action may be brought and prosecuted in the county in which the trustee resides, although the real estate subject to the trust is situated in another county. Le Breton, Adm'r, etc., v. Superior Court (Cal. ), IV, 142.

7. AN ACTION FOR THE DIVERSION OF WATER FROM THE PLAINTIFF'S DгTCH may be brought in either of the counties in which such ditch is situated, although the defendant's place of business is in the other county, where the act complained of is committed. People's Ditch Co. v. King's River and Fresno Canal Co. (Čal.), I, 473. 8. A DEFENDANT HAS A STATUTORY RIGHT TO HAVE THE PLACE OF TRIAL CHANGED to the county of his residence, where the county designated in the complaint is not the proper county for the trial of the action. Bailey v. Sloan (Cal.), I, 472.

9. A MOTION FOR A CHANGE OF VENUE IS ADDRESSED TO THE SOUND DISCRETION of the trial court, and the action of such court thereon will not be reversed unless it appears that such discretion has been grossly abused. Territory of New Mexico v. Kinney (N. M.), I, 801.

10. CHANGE OF VENUE-CONVENIENCE OF WITNESSES-DISCRETION OF COURT.-The ruling of the trial court on a motion for a change of venue on account of the convenience of witnesses, when the motion is contested on the same ground, will not be interfered with unless there has been an abuse of discretion. Bean v. Gregg (Col.), IV, 241.

11. CHANGE OF VENUE- -TIME FOR FILING AFFIDAVIT OF MERITS AND DEMAND--In an application for a change of venue the affidavit of merits and demand that the trial be had in the proper manner, filed by the defendant before he answers or demurs, are of no avail. Such affidavit and demand must be filed when the defendant appears and answers or demurs. Nicoll v. Nicoll (Cal.), IV, 219.

12. THE SAME--AFFIDAVITS OF MERITS MADE BY ATTORNEY.-Such affidavit may be made by the attorney for the defendant if it states a sufficient reason for the defendant's not making it. Id.

13. CHANGE OF VENUE WHEN DEfendants ResIDE IN DIFFERENT COUNTIES.-A change of the place of trial of an action, to the county in which most of the defendants reside, may be had, when all of the defendants who were served or have appeared unite in demand for a change. Rathgeb v. Tiscornia et al. (Cal.), IV, 375. 14. THE SAME -DISQUALIFICATION OF JUDGE AS AFFECTING RIGHT TO CHANGE. -The disqualification of the judge of the county to which such change is demanded, to try the case, does not affect the right of the defendants to have it transferred to such county for trial. Id.

15. DEMAND FOR CHANGE OF VENUE-AUTHORITY OF ATTORNEY TO MAKE.-An attorney has authority, at the time he appears for the defendants, to sign a demand for a change of the place of trial. People ex rel. etc. v. Larue et al. (Cal.), IV, 697.

16. CHANGE OF VENUE-AFFIDAVIT OF MERITS, WHAT MUST STATE.-An affidavit of merits, for use on a motion for a change of the place of trial, must aver that the affiant has fully stated the case to his counsel. An averment that he had fully stated his case and the facts constituting his defense in the action is not sufficient. Id.

17. CHANGE OF VENUE-PREJUDICE OF JUDGE AFFIDAVIT OF.-An affidavit for a change of venue on the ground of prejudice of the judge and of the inhabitants of

A mere averment of pre

the county must state the facts showing such prejudice. judice is not enough. De Walt v. Hartzell (Coi.), IV, 572. 18. CHANGE OF VENUE-THE HEARING OF A MOTION FOR A CHANGE OF VENUE to the county of defendant's residence, made at the time of defendant's appearance and demurring, can not be postponed by the court until the defendant's answer is filed, and leave granted to the plaintiff to make a cross-motion to retain the case on the ground of convenience of witnesses. Heald v. Hendy (Cal.), III, 102.

19. CHANGE OF VENUE-ORDER REFUSING.-An order overruling an application for a change of the place of trial to the district in which the cause of action arose will not be reversed when the complaint fails to state a cause of action. Felt v. Judd (Utah), III, 276.

20. CHANGE OF VENCE-CONVENIENCE OF WITNESSES-ANSWER.-Neither a plaintiff nor a defendant can move for a change of the place of trial because of the convenience of witnesses until after answer. Thomas v. Placerville G. Q. Min. Co. (Cal.), III, 777.

21. MOTION FOR CHANGE OF VENUE COUNTER-AFFIDAVITS.-On an application by a defendant in a criminal prosecution for a change of the place of trial, the prosecntion may file counter-affidavits contesting the grounds for which the removal is asked. People v. Majors (Cal.), II, 580.

22. ORDERS OF THE LOWER COURT OVERRULING A MOTION FOR A CHANGE OF VENUE, and for a continuance, will not be reversed unless the record discloses an abuse of discretion. Territory of New Mexico v. Lopez (N. M.), I, 821.

See EMINENT DOMAIN, 16, 17; PARTITION, 8; PLEADING AND PRACTICE, 33.

VERDICT.

1. VERDICT, GENERAL AND SPECIAL-INSUFFICIENCY OF EVIDENCE.-An appellate court will not set aside a general or a special verdict for insufficiency of evidence when they were both rendered upon substantially conflicting testimony as to the nature of the transaction, and the conduct of the parties which were in issue. Conclusions rendered as to the weight of the testimony of each witness, and inferences drawn by the jury from the facts proved by their testimony, are not reviewable on appeal. Heath and Boody v. Scott (Cal.), III, 644.

2. INSTRUCTIONS-VERDICT-SPECIAL FINDINGS.-By section 625 of the code of civil procedure, the court is authorized to instruct the jury, if they render a general verdict, to find upon particular questions of fact. Learned v. Castle (Cal.), III, 154. See ACCOUNTING, 4; APPEAL, 54; ASSAULT WITH DEADLY WEAPON, 2, 4, 6; CRIMINAL LAW AND PRACTICE, 29; EMINENT DOMAIN, 12; MURDER AND MANSLAUGHTER, 50, 51; NEW TRIAL, 38; STATUTE OF LIMITATIONS, 25.

VERIFICATION.

1. VERIFICATION OF BILL IN EQUITY.-A bill in equity, even for an injunction, need not be verified unless it is intended to be used as evidence on an application for a provisional injunction. Hughes v. Northern Pacific Railway Co. (U. S. Cir. Ct., Or.), I, 21.

2. VERIFICATION OF ANSWER BY FOREIGN INSURANCE COMPANY.-A foreign insurance company that has appointed an agent here upon whom process may be served for it, as provided in sections 7 and 8 of the foreign corporation act (Or. Laws, 617), is not absent from the state, so that any agent or attorney thereof may verify its answer to a complaint, but such answer must be verified by the agent appointed under the statute to stand for the corporation, or by some other agent or attorney who has personal knowledge of the facts involved in the allegations therein. West v. Home Insurance Co. (U. S. Cir. Ct., Or.), I, 243.

3. VERIFICATION BY AN AGENT HAVING KNOWLEDGE OF THE FACTS.-Where an agent verifies an answer on the ground that the allegations thereof are within his personal knowledge, for the purpose of this verification the allegations in the answer are to be taken as part of his statement, and it must appear therefrom that the truth or falsity of such allegations is within his personal knowledge. Id.

4. WHERE AN ANSWER CONTROVERTS SUNDRY ALLEGATIONS IN THE COMPLAINT by simply denying any knowledge or information thereof sufficient to form a belief, and such answer is verified by an agent of the defendant, who states in the verification that the facts contained in the answer are within his knowledge, it does not appear that such agent was authorized to verify the same because of his personal knowledge of the material allegations therein, but the contrary. Id.

980

5. PERSONAL KNOWLEDGE OF AN ALLEGATION IN AN ANSWER, within the purview of section 79, is a personal knowledge of its truth or falsity; and if the allegation is a negative one, this necessarily includes a knowledge of the truth or falsity of the allegation denied. Id.

6. VERIFICATION OF A COMPLAINT IN WHICH NOTHING IS STATED ON INFORMATION OF belief need not contain the statutory words, "except as to the matters which are therein stated on information or belief, and as to those matters he believes it to be true." Kel'y v. Kelly (Nev.), I, 143.

7. THE VERIFICATION OF AN ANSWER BY THE DEFENDANT IS SUFFICIENT when the affidavit states "that the matters set forth in the foregoing answer are true, except as to those matters therein stated on information or belief, and as to those matters that he believes them to be true." Fleming v. Wells (Cal.), III, 159.

See CONTEMPT, 12; MECHANICS' LIENS, 18; PATENT, 1; PROBATE COURTS, 1; RECEIVER, 3.

VESSELS.

1. AN INCHOATE HULL IS NOT A VESSEL within the meaning of section 733 of the Oregon code, so as to require the sale or transfer thereof to be in writing. Yarnberg v. Watson (Or.), III, ‍340.

VIGILANCE COMMITTEE
See DAMAGES, 3.

WAIVER.

See INSURANCE, 6; TENDER, 1.

WARD.

See GUARDIAN AND WARD.

WAREHOUSEMAN.

1. WAREHOUSEMAN'S RECEIPT, TRANSFER OF.-In the absence of statutory enactment, a warehouseman's receipt is not a negotiable instrument, and an assignment thereof operates merely as a transfer of the property deposited, and passes no better title to the purchaser than the vendor had. Solomon v. Bushnell (Ôr.), II, 818.

See TAXATION, 50.

WARRANTS.

1. BONA FIDE PURCHASER OF WARRANT.-Where a warrant is issued by the auditor of the city and county of San Francisco, in pursuance of the mandate of the court, payable to the plaintiff in the proceeding for mandamus or his attorney, a bona fide purchaser thereof from such attorney acquires a good title as against such plaintiff. Such warrant is not a negotiable instrument. Sweeney v. Sutro (Cal.), I, 557. All holders take them sub2. COUNTY WARRANTS-WHO MAY SUE.-County warrants payable to bearer are not negotiable as bills of exchange and promissory notes.

ject to any defense that may be made against the original payee. Nevertheless, the property therein passes by delivery when they are payable to the holder. Hence, when the holder is a citizen of another state he may maintain action thereon in the federal court, even when the payee can not maintain such action. Jerome v. Comm'rs Rio Grande Co. (U. S. Cir. Ct., Col.), I, 540.

3. SAME DUE AS UPON DIRECT PROMISE.-Such instruments are not assignable within the meaning of the act of congress of 1875, regulating the jurisdiction of federal courts (18 Stat. 470). They are taken to be due on an original and direct promise from the maker to the bearer, and not by assignment from the first holder. Id.

4. SAME REMEDY.-In such case the remedy (in the United States courts) of the holder in the first instance is by action at law prosecuted to judgment, as a foundation for mandamus to compel the levy and collection of a tax for their payment. 5. UPON WARRANTS issued for interest on a judgment, an action will not lie. Id.

Id.