225

248

3---Municipal, is creature purely of sta. EQUITY.-Never enforces a penalty or
tute; power to "license and regu-

forfeiture ; relief in ; decree in. Kl.
late," effect of; nature of ordinances ler v. Lewis,
passed in pursuance thereof. Ex parte EQUITY OF RADEMPTION. --Approval of
Frank on Habeas Corpия,

Commisstoners' deed by Court cuts
4-What articles must set forth ; effect off. Odd Fellows Sav. and Com.

of articles. Monterey and Salinas Val Bauk v. Harrigan,
ley R. R. Co. v. Hildreth,

318 ESTOPPEL.--What constitutes, as
CREDITORS.--May attack fraudulent against one who wrongfully assumes to
deed. Ybarra v. Lorenzana,

395

act as attorney in fact for another.
CRIMINAL LAW.Jury must have no

Hagar v. Spect,
reasonable doubt of guilt. People v.

EVIDENCE.---(See School Trustees ;
Morine,

64 Criminal Law, 1, 2; New T'rial;
2-Defendant entitled to benefit of Rape.) Negligence, when question of

doubt in degree of offence ; jury may fact, to be left to jury ; evidence of
find guilty of any offence included in experts not admissible, nor opinions
indictment. People v. Jones,

131 of witnesses. Shafter v. Evans, 104
3- The locus delicti must be proved un.

EXECUTOR.- Powers of, suspended
der plea of "not guilty." People v.

until determination of petition alleging
Bevans,

waste. Estate of White.
4.-Accomplice of sheriff not guilty of

2-Cannot present unsettled account of
burglary. People v. Collins,

deceased executor. Wetzler v. Fitch, 46
5-Definition of poison intended by sec.

3-Is an officer of the court; holds
216, Penal Code. People v. Van

property of the estate in trust. Ex
Deleer,

parte Smith. (See Contempt.)

382
DAMAGES. ----Action by one corporam

FACTORS. Power of, to deal with
tion against another to be limited to
actual damages sustained. Stockton property. Green v. Campbell, 49
and Linden G. R. Co. v. Stocton and FINDINGS.--(See Practice, 2.) Gen-
Copperopolis R. R. Co.,

86 eral, in favor of one party or the
2-Diverting water from its natural other, not sufficient; must dispose of

channel ; owner of land entitled to; the issues. Johnson v. Squires, 111
erroneous instruction. Creighton v. 2-Affirmative defense must be dis-
Evans,

149 posed of by. Phipps v. Harlan,
3--Actions for negligence, rule of. Chi 3--Waiver of. Smith v. Lawrence,

dester v. Con. People's Ditch Co., 1524 -Express finding of ouster, what is.
4-Rule of, in action on attachment un | Heinlen v. Martin,

dertaking. Hurd v. Barnhardt, 168 5-Must support judgment. People of
DEED.-Description in, to be most

City, and County of San Francisco v.
strongly construed against grantor.

| Quackenbush,
Hagar v. Spect,

61 6-Must show possession of mining

ground and title acquired under act of
DEFAULT.-Not opened to let in tech.

Congress of May 10, 1872 Gelcick v.
nical defense. Ridley v. Scott et al., 95 Moriarty el al.,
DIVORCE.--Failure to prove grounds FRAUD.-Deed made in, good as to

of, cause of reversal. Christie v. grantor. Ybarra v. Lorenzana. (See
Christie,

109

Creditors.)
DRIFTED LUMBER.-Proofs to be

GOLD COIN.--(See Trespass, 2.)
made in action for ; defendant's claim
of damages imposes no duty on plain-

GUARDIAN. --Settlement of, with ward
tiff in selection of appraisers ; section to be approved by Probate Judge ; suit
2,390 Political Code. Flanders v.

against, not to be brought before. Al.
Locke,
84 len r. Tiffany et al.,

123
2-Owner of, on land of another not a HOMESTEAD.-Actual residence ne-
tresspasser. Ibid,

cessary at time of filing declaration.
EASEMENT.-What is a grant of. Dorn v. Howe,

33
Cave et al. v. Crofts et al.,

359 JUDICIAL DECISIONS under Homestead
EJECTMENT.If no evidence of ad-

238

law. (See Mortgage, 2,)
verse possession, instructions will not INJUNCTION.- What is not breach of

be considered. Green v. Whipple, 244 contract entitling to. Bank of Califor-
2-Effect of adverse possession for five nia v. Fresno Canal and Irrigation Co., 396
years in. Unger v. Roper,

24712-10 action for malicious injunction,

108

White,

analice and want of probable cause must effect of subsequent action against

concnr. Anderson et al. v. Coleman, 397 firin. Barber v. Barnes,
INSTRUCTIONS. ---(See Damases, 2.) PARTIES.-Purchasers in possession of

Must not be contradictory. Chidester land to be made parties in action to
v. Con. People's Ditch Co.,

152 determine title. Robinson v. Gleeson, 88
2-Proof of Special agreement required
by. Hurd v. Barniardt,

PARTITION.--Any one of several co-

tenants of real property may institute
JURISDICTION.-Of Justice of the proceedings in ; where ordered, or a

Peace in trespass wliere answer in. sale directed, an interlocutory decree
volves questiou of title. Livingston v. is indispensable. Lorenz v. Jacobs, 90
Morgail,

110

PETITION FOR RE-HEARING.--.
LAND OFFICE. --Application at, to ob-

Omission to file in time. Baker v.
tain title does not tend to show con-

Carrillo,

230
trol over lanıls applied for. Pulliam
et al. v, Cherokee Flat Blue Gravel

| PLEADINGS.-Must be appropriate and
Company,

28! directed to particular issues before re-

lief can be given on that ground. Bih-
LETTERS TESTAMENTARY.--To a

1 ler v. Platt,
person not designated ir the Court or.

12--In action for goods furnished wife,
der, v.id. Estate of Frey. (See

complaint must aver thein sold to
Common Property.)

husband. Simon, Jacobs & Co. v.
2.When issued without bond one may

Scott,
subsequently be required. Estate of

3--If no counter claim, plaintiff may

dismiss action; what is not a counter
LIEX.-(See Mortgage, 3.)

claim; appealable order. James et al.
v. Center et al.,

92
MANDAMUS.---(See Sherif.)

4-Averment of ownership of fences in
MARRIAGE.-Proof of contract of. trespass ui necessary where plaintiff
Estate of McCausland,
132 has possession of lands. Livingston

110
MARRIED WOMEN.--Husband must

v. Mor an,

15--Under general denial special matters
join in power of attorney executed by

of defense not to be proved. McGuire
wife. Heiulen v. Martin

1 y. Quintana. (See Criminal Law, 3.) 246
MINES AND MINING.-Mining 6--Assumed sufficiency of denial in an-

ground must be so marked as to en s wer, effect of. Cave et al. v, Crafts
able to trace bouu laries. Holland et l et al. (See Undertaking, )

359
al. * Mount Auburu Gold Quartz M.

POISON.-Definition of. (See Criminal
Company. (Sec Findings, 6,)

385

Low, 5.)
MORTGAGE.--In suit to foreclose, per.

.POWER OF ATTORNEY.-(See Mar.
soos beneficially interested are proper
parties ; not so those claiming adverse-

ried Women.)
ly to mortgegor. Croghan v. Minor PRACTICE.-(See Replerin; New Trial,
and Spence,

2.) An estate in fee not necessary to
2-Mortgagee subsequent to homestead maintain an action for determination
declaration, no right to redeem from

of adverse claim to real estate. Pierce
sale under prior mortgage. Hershey

v. Felter,
v. Dennis,

03 2-Material issues made by pleadings to
3-Lieu of, for deficiency not depend. l be responded to in findings ; fiuilings

ent on action of sheriff or clerk ; their not to be amended after appeal taken.

duties ministerial. Frost v. Meetz, 135 Baggs v. Smith,
4 --Failure to pay interest on note se 13--Mistake in decree, how remedied.

cured by, effect of; may be foreclosed Kelly v. McKibben,
in part. Bank of San Louis Obispo v. 4-Errors of law to be excepted to.
Johnson,

165 Smith v. Lawrence,
NEW TRIAL.-Must be granted in case

15--Acceptance of notice of motion for

new trial, effect of.
of murier, when death not proved.

155

Frost v. Meetz,
People v. Wong Shu Shut,

6-Denial of rehearing not to control ac.
2-Will be awarded. when judgment L tion of Court below. Keller v. Timsey, 24

for too much. Sepulveda v. Jolinson, 248 | PRESUMPTION.-(See School Trus-
PARTNERSHIP.--Decree of dissolu-

tres.)
tion when ; accounting when ; failure PUBLIC LAND.-Defective application
of firin dous not work dissolution ; I for, prior to June 12, 1808, cured by

129

420

12

statute of March 24, 1870. Wanzer County of San Francisco v. Quacken-
v. Somers,
103 bush,

· 246
2-In equitable claim to patented lande, 13_Notice inviting sealed proposals and

residence of pre-emption settler must not referring to diagram, invalid ;
be on proper Congressional subdi. property not bound. City of Stockton
vision to which land belonged. Fer v. Clark,

147
guson v. McLaughlin,

235 4 Resolution of City Council relative
RAPE.-What constitutes ; difference

to ; effect of. City of Stockton v.
between, and seduction; when evi.

Skinner,

148
dence of experts inadmissible. People TAXES.--May be levied by the Legis.
v. Royal,

183 lature either before or after value of
RE-ARGUMENT.-Order of Court on.

property is ascertained ; provision that
Noe v. Splivalo,

would exempt from taxation, if so
Talcott v. Board of State Harbor Com-

construed, void. People v. Latham,
missioners,

2--Deed for, when void on face; threat

to sell under illegal levy of, not du.
REPLEVIN.--Negative as well as affir ress. Wills v. Austin, Tax Collector,

mative defenses may be set up, and etc., (See Constitutional Law.)
the pleading of the affirmative matter
not a waiver of the other. Billings v.

TENANTS IN COMMON.-Nature of
Drew,

title not changed by transfers to dif.
2- Judgment in, based on indefinite

ferent grantees ; lands may be held in
findings erroneous. Kelly V. Mc-

common.and in severalty according to
Kibben,

the derivation of title. Bihler v. Platt, 10
3-Stipulation in, effect of ; substitution

2- What establishes the relation of.
of new parties in, effect of ; judgment

Heinlen v. Martin,
in such case. Temple v. Alexander, TENDER.-Necessity of, waived by
Sheriff,

163 denial of contract; averment in com-
4-Action of, to recover U. S. Patent. plaint, that plaintiff is ready and will.

(Chipley v. Farris, 45 Cal., 527, ap ing, sufficient. Dowd v. Clark,

plied.) Honghton y. Hardenburgh, 385 TRESPASS.--Cannot be committed by
SCHOOL LAND. --First applicant for, persons in the adverse possession of

after survey, entitled to certificate of land under claim of right. Snow v.
purchase ; land identified by survey. Kimmer. (See Drifted Lumber, 2.)
Dakley v. Stewart,

1422--In action of, judgment not to be in
SCHOOL TRUSTEES.- Persons acting I

gold coin. · Livingston v. Morgan. (See
as such presumed to be officers de jure.

Pleadinja, 4.)
Delphi School District v. Murray, 67/3—Cannot be divided into several causes

of action. Guerra v. Newhall et al., 419
SHERIFF.-( See Criminal Law, 4.)
Cannot be compelled by mandamus to

UNDERTAKING.-For condemnation
contradict his return ; deed of, if incon-

of land, in' action on, must be alleged
sistent with return, nevertheless valid :

to have been accepted ; also, that the
not to be compelled on mandamus to

property was taken for which compeu-
deliver deed. Hewell v. Lane,

441

sation is sought ; averment of damages

necessary. Villac v. Stockton and
STATE LANDS.-Decision of Land De Ione R. R. Co.,

partment upon questions of purchase
of, conclusive. Wilkinson v. Merrill, 249

WAREHOUSE RECEIPT.--I8 negotia.
2- Application to purchase lieu land.

ble ; effect of transfer ; possession of,
Boggs i. Mullen,

251

endorsed in blank; pledge of to secure
3-Title to lieu lands dates from their

antecedent debt; notice to warehouse-
listing over by the United States.

man. Davis v. Russell,
Churchill v. Anderson, et al., 419 | WATER RIGHTS.-Carried in pur-
STATUTE OF FRAUDS. --Cannot be

chase of land; adverse use of, for more
pleaded in defense where an advantage

than five years, effect of ; grant of by
is obtained under a verbal contract.

act of Congress of July 26, 1866. ('ato
McCarthy v. Pope,

et al. v. Crafts et al. (See Injunction.) 359
STREET ASSESSMENT.--Act of 4th

| WILL.--- Construction of ; contingent
April, 1870, not applicable to previous

life estate in. Hilliard v. Pacheco et

406
contracts. Dyer v. Barstow,
2--Must contain description of property | WITNESS.-Cannot be contradicted on

to be charged. People of City and collateral point, nor cross-examined for

440

INDEX TO DECISIONS OF CALIFORNIA.

455

Jones,

purpose of contradiction on. People Reynolds v. Groneville,

385
v. McKeller,

Pacific Mu. Life Ins. Co. v. Brady,
2-Belief based on personal knowledge, 12–Acknowledgment of deed. Dempsey
as distinguished from general reputa v. Baxter,
tion, not admissible to impeach wit 3—Mining claim ; damages. Wiggins v.
ness. People v. Methvin,

McFarlane et al.,
3–Failure of defendant to testify not a 14–New trial; error. Kearns v. Deans, 366

circumstance showing guilt. People v. 5—Nonsuit. Judson v. Seligman et al., 422
Brown,

16—“Van Ness Ordinance." McLeran
4-Cannot go with jury from presence of v. Benton,

383
prisoner to view premises. People v.

EQUITY.---To quiet title.
Green,

127

Hudson,
5–Answer of, conclusive on collateral

Ad'mn., v. Irwin et al.,
matter. People v. Bell,

320 | EVIDENCE._"Casement tract.” Stro-

ther v. Diefendorff,
EXCAVATION.-Of adjoining lot ;. un-

derpinning walls. Zeile' y. Hood
Unwritten Decisions. FOREIGN JUDGMENT.—Glidden v.

Robinson,
APPEAL BOND.-Action for money
paid on. Hook v. Henderson, 205

FRANCHISE.- Forfeiture ; demurrer.

San Francisco v. City Gas Company,
ARSON.-Improper testimony; instruc-
tion refused ; rehearing. People v.

GUARANTEE. Verbal. Harris v.

Walker,
ASSAULT.-With bodily injury ; dam-

2_Written. Ambrose v. Roper et al., 386
ages. Bourk v. Reid,

HOMESTEAD. — Actual Residence.
ASSESSMENT.-Oakland main sewer.

Gottschalk v. Kester,

13

2-Claim; injunction. Plummer v. Alex-
ASSIGNEE.-Action by Colman v.

ander et al.,
Hennessey,

234
3-Estate of Í. E. P. Weeks,

323
COLLECTIONS.-Liability of Banks.

INJUNCTION.-Moulton v. Parks et al.,
Benj. Lynch v. Los Angeles Co. Bank, 399

2-Defamatory publication. Clay v.
CONTRACT.-Breach of. St. John v. · Marriott,

Meyerstein & Co.,
2-Breach of Damages. Burkhart v.

JUDGMENT.--- Default. Commercial
Meyerstein,

Bank v. Baldwin,
3-Breach of warranty. Ellis v. Knee LAND.--Contingent share of. Brooks
land,

v. Carpenter,

387
4--For sidewalks in S. F. ; sewerage.
Raisch v. City and County of S. F., 408

LARCENY.-Grand. People v. Herera, 338
CORRECTION OF ERRORS.-Farmers

LEASE.--Infraction of. Sampson v.
Storage and Commission Company v.

Stickney & Combes,

339
De Lappe,

' 5012--Recovery of rent on. Head v.' Bell, 233

3-Lease of Water Lots.
DAMAGES. - Wilson y. Player et al.,

Young v. City
255
of San Francisco,

383
2-Liability of landlord. Cassner v.
Goldtree,

260 LICENSE.-Of national banks. City
DEED OF TRUST.-Foreclosed. Union

of Stockton v. National Gold Bank of
D. 0. Mills & Co.,

230
Savings Bank v. Nolan,
DEFAULT OF NOTICE.-Clark v. Te.

LIEN.-Delinquent Reclamation Assess.
copah S. M. Co.,

114 ment. Swamp Land Dist., No. 150,
v. Feran,

278
• DIVORCE.- Alimony. Austin v. Aus-
tin,

* 258 MAL-PRACTICE. ---Professional medi-
2-Damages.

cal services. Wooster v. Paige, 188
Rothenbush v. Rothen-
bush,

256 MANDAMUS.--Contract. Seale v. B'd
3-Divorced women's estate. Estate ofl of Supervisors, S. F.,
Christina Feyhl,

173 MORTGAGE.- Foreclosure of. Rosen-
EJUSTMENT.-Unger v. Roper, 51 | feld v. Reay,

231
Fiatt v. Rohrle,

1582-Foreclosure. Bank of San Louis
Baker v. Avise,
203) Obispo v. Johnson,

232

3_-Foreclosure-demurrer. Rogers et al. STATE LANDS.---Application to pur.
v. Watson,

174 chase. Silver v. Mullan et al. 334
4-And conveyance; action to set aside. 2-Purchase. Prentice v. Odd Fellow's
Sanchez v. Temple,
322 Sav. and Com. Bank,

325
MURDER. -- People v. Fong Ah Tuck, 336

3—State title. Bugbey v. Natoma W.
2- Accessory; evidence of accom-

& M. Co.,
plice, People v. Carrick,

400 STORAGE.---Loss by fire ; change of
3-Plea of insanity. People v. Butts, 401 venue. Horace Wilson v. S. Pacific
OUSTER.--New trial. Wallacev.

Railroad Co.,

230
Miller,

38 STREET ASSESSMENT.-City of
PATENT. - United States Land Patent

Stockton v. Holden,

296
Beaudry v. Los Angeles,

115
reviewed. Powers v. Leith,

Dyer v. Brandenstein,

113
2-Reargument. Read v. Mahoney,

Parker v. Altschul,

423
PROBATE.-Jurisdiction. Estate of 2-Bill of exceptions. Toblcmann v. Reay, 431
Keenan,

1133_Want of jurisdiction; ivsufficient pe-
2-Of will; insufficient attestation. Es tition. Dyer v. Treadwell,

432
tate of Sullivan,

399 SWAMP LAND.-Purchase. Botsford
PROMISSORY NOTE. --Against ad. v. Howell,

159
ministrator." Winters "v. Browner,

TAX TITLE.—Validity of. Miller v.
administrator,
2-Corporate powers. C. J. Zeinwaldt

Henderson,
v. Sacramento City Railway Co., 53 TENANTS IN COMMON. --Burton v.
3- Legal Tender. Wood v. Jackson, 408 Robinson,
PUEBLO LANDS.---Compensation for TOLLS. -Collection of, by State Harbor

public use, under order No. 800, of Commissioners. People v. Hooper &
Board of Supervisors. Rousset v. Hooper. (See Wharfage.)
Austin,

421

U, S. LAND APPLICATION.-Bascom
QUIET TITLE.--Probate proceedings. y. Davis,

298
Hendley v. Petch et al. (See Equity), 257

VAN NESS ORDINANCE.---Funded
RECEIVER. -Coburn v. Ames, 14 debt. Friedman v. Nelson,
REPLEVIN.--Agreement for rental and WATER RIGHT.-Injunction. Jack-
purchase. Comper v. Rowe,

son v. Stone,

386
SATISFACTION OF JUDGMENT. - WHARFAGE.-(see T'olls.) People of
Rondebush v. Gladding,

431 State of California v. S. P. Railroad,
SCHOOL LAND CERTIFICATE.-- WILL_Contest of; intemperance.
Burns v. Miller,
175) Charky v. Werner,

383, 399

14