has already been observed, it does not appear here that any of the legacies were resorted to for the payment of debts.

Cause remanded with directions to the court below to modify the judgment in accordance with the views herein expressed.

SHARPSTEIN, J., MORRISON, C. J., and MCKINSTRY, J., concurred. THORNTON, J., CONCURRING. I concur in the judgment on the ground first discussed in the foregoing opinion. The conclusion reached as to that ground, to wit, that the law of the state of Nevada controls, disposes of the case. I think that the second ground considered and passed on in the opinion is not in the case, and, therefore, it is unnecessary to say anything concerning it.

MCKEE, J., CONCURRING. It is the place of the actual domicile of a person, at the time of his death, which determines the distribution of his personal estate; and as the court below found as a fact, that the domicile of the deceased was at the time of his death in the state of Nevada, the court should have decreed distribution of the personal assets of the estate of the decedent, according to the law of that state; therefore, I concur in the judgment.

No. 8,734.

ADELSDORFER v. EHRMAN ET AL.

Department One. Filed February 16, 1885.

FINDINGS HEld Supported BY THE EVIDENCE.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the plaintiff, and from an order denying the defendants a new trial. The complaint was on a contract by which the defendants were to import teas and labels for the plaintiff, the latter to pay original cost and shipping expenses, and a commission to the former. False representations as to the original cost were alleged, and the action was to recover over-payments made in consequence thereof.

Naphtaly, Freidenrich & Ackerman, for the appellants.
Rosenbaum & Scheeline, for the respondent.

THE COURT. The contract found by the court is, in legal effect, the contract alleged in the complaint, and there was evidence to sustain the finding as to misrepresentations.

Judgment and order affirmed.

No. 8,748.

CUMMINGS V. MARSH.

Department One. Filed February 16, 1885.

WHEN THERE IS A CONFLICT OF EVIDENCE on the material issues the judgment will not be disturbed.

APPEAL from a judgment of the superior court of the city and county of San Francisco, entered in favor of the defendant and from an order denying the plaintiff a new trial, in an action to recover for the loss of a horse pastured with the defendant. The complaint alleged that the defendant agreed to notify the plaintiff in case the horse became sick or disabled while in his possession, within twenty-four hours thereafter, and his failure so to do.

Langhorne & Miller, for the appellant.

W. L. Dudley and Pillsbury & Titus, for the respondent.

THE COURT. There was a substantial conflict in the evidence with respect to the issue whether defendant agreed that he would notify plaintiff, within twenty-four hours, after the horse became ill, and as to the other issues made by the pleadings. Judgment and order affirmed.

No. 8,629.

WILLIAMS V. MILLER ET AL.

Department One. Filed February 16, 1885.

CONTRACT FOR PASTURAGE-CONSTRUCTION OF.-A plaintiff who agrees to, and does give, the use of his land for the pasturage of defendant's cattle, under a contract by which the defendants agreed "to pasture on said land, at their own risk and cost, all cattle it shall be capable of grazing and in no case less than three thousand head," is entitled to the compensation stipulated to be paid for such number, although the land is only capable of sustaining seven hundred head.

APPEAL from a judgment of the superior court, of the city and county of San Francisco, entered in favor of the defendants, and from an order denying the plaintiff a new trial. The opinion states

the facts.

G. W. Gordon, for the appellant.

Robinson, Olney & Byrne, for the respondent.

THE COURT. It was held, by the court below, that the agreement sued on was, on the part of plaintiff, a contract to agist upon his lands three thousand head, or more, of cattle. An agister is one who takes in horses, or other animals, to pasture at certain rates: Bouvier, Agister; Story, Bailm., 443. The agister proper takes charge and control of the animals: Howard v. Throckmorton, 59 Cal., 88. If he neglects his trust he is liable in damages. He is bound to take reasonable care of the animals, and is responsible for injury resulting from any ordinary casualty, if it could have been averted by the exercise of such reasonable care. 1 Addison Con..

to

608. Of course he is bound to furnish them with proper "eatage." But here, by the terms of the contract, the defendants agreed pasture on said land, at their own risk and cost for herding, etc., all the cattle it shall be capable of grazing, over and above the sheep hereinafter mentioned, and in no case less than three thousand head." The constract was made with reference to a particular tract of "swamp and overflowed land." Did the plaintiff stipulate that the land would furnish proper pasturage for three thousand head of cattle? We think not. He agreed to give, and did give, the use of the land. The tract of land was known to both parties to the contract. When plaintiff permitted defendants to enter upon the lands with cattle, he discharged the obligation imposed upon him. There is no pretense that he interfered with the consumption by defendant's cattle of any portion of the herbage, or that he permitted others to interfere with it. The defendants agreed to put not less than three thousand head upon the tract of land described, and to pay a dollar a head for such pasturage as the cattle should get there. As the tract of land was left open to them, and they were furnished with the exclusive use of it for the purpose of pasturage, they were liable for three thousand dollars, whether they placed upon the land any stock or not. As it turned out (the court found), the land was not fit for the herding or pasturing of more than about seven hundred cattle. But this the defendants knew, or could have known, before they entered into the contract. It was a bad bargain on their part, but they took the risk that they would get ample consideration for their money. There is no averment in the answer of fraudulent misrepresentations with respect to the character of the land or pasturage. There was no failure of consideration, but a mistake or misapprehension on the part of the defendants with respect to the value of the consideration. Judgment and order reversed, and cause remanded for a new trial.

.

No. 8,757.

COLE ET AL. v. FISHER.

Department Two. Filed February 17, 1885.

JUSTICE'S COURT-PLACE OF TRIAL-SERVICE OF SUMMONS.-An action in the justice's court to recover for breach of a contract may be brought in the township or city in which the obligation was to be performed, under section 832 of the code of civil procedure. In such case the summons may be served on the defendant in the county in which he resides, under section 848 of the same code.

APPEAL from a judgment of the superior court of the city and county of San Francisco. The opinion states the facts.

George W. Tyler, for the appellants.

Brunson & Wells, for the respondent.

SHARPSTEIN, J. To the general rule that a summons cannot be served out of the county of the justice before whom the action is

brought, there are certain exceptions, one of which is, "when an action is brought against a party who has contracted to perform an obligation at a particular place, and resides in a different county, in which case the summons may be served in the county where he resides:" C. C. P., 848.

By subdivision 7 of section 832, Id., it is provided: "When a person has contracted to perform an obligation at a particular place, and resides in another county, township, or city, in the township or city in which such obligation is to be performed, or in which he resides, and the township or city in which the obligation is incurred, shall be deemed to be the township or city in which it is to be performed, unless there is a special contract to the contrary."

The plaintiff, in the action which the appellant seeks to have the justice prohibited from proceeding in, alleged that the obligation which constituted the basis of the action was to be performed in Los Angeles. That such was the contract. Such being the fact, it was optional with the plaintiff, in the action, to bring it in the township or city where the obligation was to be performed, or in which defendant resided.

It is claimed that the action was not brought upon a contract, but to recover damages for the breach of a contract. Still, the contract constituted the basis of the action, and the right of action is one arising out of it.

We discover no repugnancy between the provisions above cited and those contained in section 106, Id. Repeals by implication are not favored, and in our opinion there is nothing here to support such an implication.

Judgment affirmed.

THORNTON, J., and MYRICK, J., concurred.

No. 8,809.

OLIVER, ADMINISTRATOR, ET AL. v. BLAIR ET AL.

Filed February 18, 1885.

DISMISSAL OF APPEAL-WAIVER OF RIGHT OF APPEAL.-An appeal will be dismissed where the appellants have waived their right of appeal, and satisfaction of the judgment against them has been entered.

MOTION to dismiss an appeal from the superior court of the city and county of San Francisco.

W. S. Goodfellow, for the appellants.

William M. Pierson, A. Compte, Louis Shearer and Joseph Naphtaly, for the respondents.

THE COURT. In this case, the defendants, D. B. Blair and Macfarlane, Blair & Co., by stipulation in the court below waived their appeal to this court; and thereafter, and thereupon, satisfaction of the judgments against them was entered. A motion is made to dismiss the appeal of the defendants above named, which is granted. Appeal dismissed.

EQUITY JURISDICTION OF THE NATIONAL COURTS STATE LAWS.-The equity jurisdiction of the national courts, and the mode of procedure therein, exist independently of state laws, and cannot be limited or restrained by them.

RIGHT GIVEN BY STATE LAW.-A right given by a state law, that is properly the subject of a suit in equity, may be thereby enforced or protected in the national courts.

CERTAINTY IN THE DESCRIPTION OF PREMISES IN A BILL.-One-eighth of an undivided tract of land is not distinguishable from another, and in a suit to determine an adverse claim to three such eighths, there cannot, in the nature of things, be any more certain or definite description of them than that.

SUIT TO DETERMINE AN ADVERSE CLAIM TO REAL PROPERTY.-In a suit to remove a certain cloud on the title to real property, it must appear from the bill that there is such a cloud, and in what it consists; but in a suit brought under § 500 of the Oregon Code of Civil Procedure, to determine an adverse claim to such property, whether it casts a cloud thereon or not, it is not necessary to state the nature or circumstances of the defendant's claim; but it is sufficient to allege that the defendant wrongfully makes such claim; and call upon him to set it forth in his answer, and submit its validity to the judgment of the court.

PERSON IN POSSESSION MERELY.-A person in the mere possession of real property cannot maintain a suit to determine an adverse claim thereto, but it must also appear that he is in possession under some claim of right or title.

STATEMENT OF PLAINTIFF'S CASE.--Generally, it is sufficient for the plaintiff in such suit to allege his possession and the nature of his estate or interest in the premises, together with the source of his right or title; but when, as in many cases, there is reason to believe that the rightfulness of the defendant's claim depends on the validity or effect of some link in the plaintiff's chain of title, it is convenient and may be necessary to state the circumstances thereabout fully and in detail so as to prevent the necessity of future amendments and to promote the progress and dispatch of the case.

SUIT to determine an adverse claim to real property. The opinion states the facts.

James F. Watson, for the complainant.

James K. Kelly, and George H. Durham, for the defendants.

DEADY, J. This suit is brought by the plaintiff, a citizen of New York, to have his title to an undivided interest in certain real property, situate in Multnomah county, Oregon, quieted, as against a claim of the defendants, who are citizens of Oregon, that they have an estate or interest therein adverse to him.

It appears from the bill that the property in question, is the undidivided five-eighths of the east half of the Danford Balch donation, numbered fifty-eight, and containing one hundred and seventy-two and ninety-six one hundredths acres, the same being parts of sec