5. INDICTMENT-VENUE, HOW LAID-JUDICIAL NOTICE.--An allegation in an indict-
ment that the crime charged was committed in the city of Seattle, is a sufficient
statement of the venue, as the court will take judicial notice of the county in which
such city is situated. Schilling v. Territory. Wash., 684.
6. AN INDICTMENT FOR KEEPING A GAMBLING HOUSE NEED NOT STATE what kind of
gambling was conducted therein. Id.
7. ASSISTANT COUNSEL IN CRIMINAL CAUSES.--Counsel may be employed to assist the
aistrict attorney in the trial of criminal causes, and the statute recognizes his right
to appear and take part in the conduct of the case. People, etc., v. Biles. Idaho,
829.
8. CRIMINAL LAW-TRIAL JUROR HAVING BEEN MEMBER OF GRAND JURY-NEW
TRIAL-CHALLENGE.-The fact that one of the trial jurors had been a member of the
grand jury that found the indictment against the defendant, while a ground for chal-
lenge for implied bias, under section 242 of the criminal procedure act of 1878, will
not warrant a new trial after conviction, when no challenge was made, and the only
examination of the jurors as to their opinions of the guilt or innocence of the accused
was a few general questions addressed to them as a body, to which no answers were
returned. People v. Lewis. Utah, 259.
9. CRIMINAL LAW-SEPARATION OF JURY NOT ERROR.-The separation of the jury
in a criminal case, by leave of the court, and after they were admonished to permit
no one to address them on the subject of the trial, is not error. Territory v. Cheno-
with. N. M., 326.
10. SETTLEMENT OF STATEMENT IN 'CRIMINAL CASE-SUPREME COURT HAS NO POWER
OVER. In the absence of statute, the supreme court has no power to settle a state-
ment on motion for a new trial in a criminal case, when the lower court refuses to
settle such statement according to the facts claimed by the moving party. State v.
Warren. Nev., 102.
11. CRIMINAL LAW-CHILD COMMITTING A FELONY UNDER COERCION NOT AN ACCOM-
PLICE.-A boy, thirteen years of age, who acts in the commission of a felony, under
the threats and coercion of the defendant, is not an accomplice; and his uncorrob-
orated evidence is sufficient to sustain a conviction. People v. Miller. Cal., 598.
12. WHERE THERE IS EVIDENCE TO SUSTAIN A VERDICT, it will not be disturbed. People
v. Wilson. Cal., 234.
13. ACTS DONE IN PRESENCE OF DEFENDANT
EVIDENCE OF.-In a prosecution for lar-
ceny evidence as to the acts of a person, committed in the presence of the defend-
ant, are admissible. Id.
14. CRIMINAL LAW-VERDICT, WHEN WILL BE SUSTAINED ON APPEAL.-In a criminal
case, a new trial will be granted if the testimony preponderates against a verdict of
conviction. But, upon a mere question of fact, it requires a strong, clear case to
to authorize the appellate court to set aside such verdict for the reason that the
same is not warranted by the evidence. Territory v. Reuss. Mont., 718.
15. THE EVIDENCE REVIEWED AND HELD SUFFICIENT to sustain conviction of an at-
tempt to murder. Id.
16. MISDEMEANOR NEED NOT BE PROSECUTed by IndictmENT.-A misdemeanor is not
a capital or other infamous crime, within the meaning of the fifth amendment of
the United States' constitution, and need not be prosecuted by presentment or in-
dictment by a grand jury. Territory v. Farnsworth. Mont., 625, 635.
See ASSAULT; EMBEZZLEMENT; FORGERY; JURY AND JURORS, 1, 6; LARCENY; MUR-
DER AND MANSLAUGHTER; ROBBERY.
1. BREACH OF CONDITION IN BOND-PENALTY-LIQUIDATED DAMAGES.-The sum stip-
ulated to be paid upon a breach of the condition of a bond for the conveyance of
land, will be considered as a penalty and not as liquidated damages, unless other
language used in the instrument, or accompanying circumstances, show that the
latter was the intention of the parties. Turck v. Marshall Silver Mining Company.
Col., 552.
2. THE ERRONEOUS ADMISSION OF EVIDENCE THAT RESULTED IN NOMIVAL DAMAGES
only against the appellant, will not warrant a reversal. Hughes v. Parsons. Cal.,
3. DAMAGES FOR LOSS OF FOOT, WHEN EXCESSIVE.-Damages in the sum of twenty
thousand dollars, awarded a passenger for an injury resulting in the loss of his foot,
are excessive, and will be reduced one-half, when it appears that the passenger's
life is not liable to be shortened, or his capacity for work impaired, in consequence
of the injury, and that the same was not willful or caused by the gross negligence
of the carrier. Kennon v. Gilmer. Mont., 601.
See ABATEMENT; ARBITRATION AND AWARD; ATTACHMENT, 4; CLAIM AND DElivery,
1; COMMON CARRIERS, 6; CONTRACT, 1, 3; CONVERSION, 1, 2; EXECUTION, 2; In-
JUNCTION, 5; NEGLIGENCE, 10.
See CANCELLATION, 1; ESTATES OF DECEASED PERSONS, 11.
DECLARATIONS.
See EVIDENCE, 6, 14, 15.
1. PUBLIC STREET-DEDICATION-INTENTION.-Upon a review of the evidence, held,
that no intention was manifested by the prior owner of the land in controversy to
dedicate the same as a public street. Robinson v. Coffin. Wash., 686.
1. DEEDS OF BARGAIN AND SALE-COVENANTS NOT IMPLIED.-Under the statute of
New Mexico the use of the words, "bargained and sold" in deeds of conveyance, do
not imply a covenant on the part of the grantor that he is possessed of a valid fee
simple title to the premises conveyed. The statute which purports to give such
effect to the use of such words, held to be so defective as to be practically meaning-
less. Armijo v. N. M. Town Co. N. M., 482.
2. DESCRIPTION IN DEED-SUFFICIENCY OF-EXCEPTION.-The following description of
a particular tract of land, excepted from a conveyance of a larger tract, is suffi-
ciently definite for location, namely, two hundred acres in a square form, bounded
by the bay of San Francisco on the west side and the Embarcadero creek on the
north side, said bay and creek being at right angles to each other. Hall v. Shotwell
et al. Cal., 280.
3. THE SAME DESIGNATED ACRES HOW LOCATED.-Where there is not a sufficient cer-
tainty and demonstration of the land granted, expressed in the other terms of its
description, the number of acres is an essential part of the description. And, if a
deed conveys a given quantity of land, and describes it as bounded on a stream, on
one side, starting at a given point and running along the stream, without specifying
the length of the lines, the required quantity of land is to be located by following
the meanderings of the stream from the point named until, reduced to a straight
line, the straight line will be of sufficient length to form a square which would con-
tain the required quantity; and then, from the ends of this straight line, projecting
lines at right angles with the same to such distance as a line drawn from one to the
other parallel with the straight line, will include the required quantity between it
and the stream. Id.
4. DESCRIPTION IN DEED-CONSTRUCTION OF.-A description in a deed as "one stock-
ade cabin and adobe front; said cabin is known as the Egan cabin, and situated,
etc.," will pass the land on which such buildings stood. Langworthy v. Coleman.
Nev., 7.
5. DEED DESCRIPTION WHEN SUFFICIENT EVIDENCE TO IDENTIFY PREMISES.-A deed
which describes the land intended to be conveyed as "a tract of land situated and
being in the county of Bernalillo, territory of New Mexico, known as the place
where Jesus Maria Martin resided, being one hundred and thirty-seven yards from
north to south wide, containing about - acres; bounded on the south by the lands
of Chritiana Armijo, and on the north by the lands of M. Lopez," is not void for
uncertainty, and parol evidence is admissible to identify the premises intended to
be conveyed and to connect them with the land in controversy. Armijo v. New
Mexico Town Company. N. M., 482.
6. DEFECTIVE ACKNOWLEDGMENTS-CURATIVE ACT.-The act of 1874, Prince's Comp.
Laws, 239, was only intended to cure defective acknowledgments to deeds; it did not
supply the want, nor obviate the necessity of an acknowledgment. Id.
7. DEED TO MINING CLAIM-ACKNOWLEDGMENT BEFORE JUSTICE OF PEACE.-A deed
to a mining claim, acknowledged before a justice of the peace in a county other than
that in which the claim is situated, is not admissible in evidence, in the absence of
other proof of its due execution, unless a certificate to the official character of the
officer taking the acknowledgment, or to the genuineness of his signature, is attached.
McGinniss v. Egbert. Col., 315.
8. IDENTIFICATION OF PARTY TO DEED WHEN NAMES ARE DIFFERENT.-Title by a
conveyance from Mary J. Forbes is not shown by a deed from Jennie Forbes, in the
absence of evidence that these names described the same person. Id.
9. TRUST DEED-SALE UNDER-Deed-EFFECT OF RECITALS IN.-
-The plaintiff claims
to deraign title through a deed of trust and a conveyance executed by the trustees.
The deed of trust provides that, in case of default, etc., the parties of the second
part (the trustees) shall, on application of the party of the third part-plaintiff, the
creditor-sell the premises, to them conveyed, at public auction, to the highest bid-
der, for cash, and authorizes the trustees to establish "as condition of sale" that
the creditor (plaintiff herein) may bid and purchase thereat. The deed from the
trustees to plaintiff recites that the sale was at public auction, to the highest bidder
for cash, and that the trustees did, "as a condition of sale," permit the plaintiff to
bid and purchase. The deed of trust is silent as to the effect of such recitals in the
deed from the trustees to the purchaser at the auction sale. Held, that evidence
dehors the deed, of the facts of a sale to the highest bidder for cash, and of the es-
tablishment of a condition authorizing the plaintiff to bid, was not necessary, in an
action of ejectment, to show title and the right of possession in the plaintiff. Sav-
ings and Loan Society v. Deering et al. Cal., 119.
10. DEED ABSOLUTE IN FORM WHEN MAY BE SHOWN TO HAVE BEEN IN TRUST.-Pa-
rol evidence is admissible to show that a deed of land absolute in form was intended
as a mere conveyance in trust, when, as a part of the original contract in pursuance
of which such deed was made, the grantee therein agreed to execute a declaration
of trust and preserve the same for the grantor's use, but fraudulently failed and re-
fused so to do. Hall v. Linn Col., 394.
11. Findings THAT THE DEEDS IN CONTROVERSY WERE DELIVERED held supported by
the evidence. Farnsworth v. Wixom. Cal., 219.
See BONA FIDE PURCHASER, 2, 4; MORTGAGE, 4, 5.
See APPEAL, 3; DEMURRER, 5.
See COMMON CARRIERS, 9; CONTINUANCE, 1.
See CLAIM AND DELIVERY; COMMON CARRIERS, 10; DEED, 11; SALES, 1.
See EMBEZZLEMENT, 5; PRINCIPAL AND AGENT, 1.
1. DEMURRER-MISJOINDER OF CAUSES OF ACTION-WAIVER BY PLEADING OVER.—A
demurrer to a complaint on the ground that two causes of action are improperly in-
serted therein, is waived if the defendant afterwards pleads over. Schoelekopf v.
Leonard. Col., 786.
2. WAIVER OF DEMURRER-BILL OF EXCEPTIONS.-Where a general demurrer is inter-
posed in the trial court questioning the sufficiency of the complaint and the demur-
rer is overruled and the ruling is not saved by a bill of exceptions, such question is
deemed adjudicated and the same objection to the complaint cannot be renewed in
the supreme court. Guthrie v. Fisher. Idaho, 828.
3. AN EXCEPTION TO THE OVERRULING OF A DEMURRER NEED NOT BE RESERVED. Hall
v. Linn.
4. OBJECTION THAT COMPLAINT DOES NOT STATE FACTS SUFFICIENT, WHEN MAY BE
TAKEN.-.
—An objection to a complaint that it does not state facts sufficient to consti-
tute a cause of action is not waived by answering; it may be made at any time. Id.
5. APPEARANCE BY FILING DEmurrer-DEFAULT JUDGMENT.-Filing a demurrer with
the clerk is an appearance by the defendant, and thereafter the court cannot enter
a default judgment in favor of the plaintiff without action upon the demurrer or
notice to the defendant. Walla Walla Print &c. Co. v. Budd. Wash., 351.
1. DEPOSITION-ORDER SHORTENING TIME OF NOTICE-SERVICE OF "FORTHWITH."—An
order shortening the time for taking the deposition of a witness, after service of
notice upon the adverse party, must prescribe the time of notice. But an order
providing for the taking of the deposition between certain hours of the day on which
the same is made, and directing a service of the notice "forthwith" is not sufficient.
Howell v. Howell. Cal., 286.
See DEED, 2-5; Estates of Deceased Persons, 4-6.
DEVIATION.
See INSURANCE, 2, 3.
See AMENDMENTS, 1; DIVORCE, 6, 7; WITNESSES, 1.
1. DISMISSAL OF ACTION BY PLAINTIFF-WHEN MAY BE HAD.-After a cross-complaint
has been stricken from the files, leaving an answer which contains matters of de-
fense only, the plaintiff may dismiss his action at any time before trial, upon judg
ment of costs. Thompson et al v. Spray. Cal., 220.
1. LEGISLATIVE DIVORCE-TERRITORY MAY GRANT.-The territorial legislature of
Oregon had power, under the act of congress giving the territories authority to
legislate upon all rightful subjects not inconsistent with the constitution and laws
of the United States, to grant special divorces. The exercise of such power by the
legislature does not impair any rights of contract created by the marriage relation.
Maynard et al. v. Hill et at. Wash., 572.
2. THE SAME EFFECT OF DIVORCE ON WIFE'S DONATION RIGHTS.-The contingent
right of a wife in land claimed under the Oregon donation act, may be defeated by
an act of the legislature dissolving her marriage. Id.
3. LEGISLATIVE DIVORCE-TERRITORY HAS NO POWER TO GRANT.-The power to grant
divorces is judicial and not legislative Consequently congress, in delegating to a ter-
torial legislature the power to enact laws on all rightful subjects of legislation, has
not conferred upon it authority to grant divorces in special cases, without notice
and an opportunity to be heard to the party affected. Estate of Higbee, deceased.
Utah, 505.
4. DIVORCE EXTREME CRUELTY-WHIPPING WIFE JUSTIFICATION.-One beating or
whipping of a wife by her husband is sufficient to warrant a divoree, on the ground
of extreme cruelty and the husband cannot justify such conduct by any words of
the wife provoking him to the assault. Albert v. Albert. Mont., 708.
5. DIVORCE-ACTION FOR WHEN MAY BE MAINTAINED-CAUSE OCCURRING IN ANOTHER
STATE. An action for a divorce may be maintained for the cause mentioned in sub-
division 6 of section 491 of the civil code, after the plaintiff has been an inhabitant
of the state for one year, although the cause of action may have occurred in another
state or territory more than one year prior to the commencement of the action.
Jacobsen v. Jacobsen. Or., 489.
6. ACTION FOR DIVORCE-SUBMISSION OF SPECIAL ISSUES TO JURY-DISCRETION.-It is
optional with the trial judge, in an action for divorce, to submit special issues to
the jury or not, and his refusal to submit them cannot be reviewed on appeal.
Cleghorn v. Cleghorn. Cal., 216.
7. ALIMONY-DISCRETION OF COURT, WHEN REVIEWED.-The order of the trial court,
requiring a husband to pay his wife money to enable her to prosecute or defend an
action for divorce, will not be interfered with on appeal, unless there has been a
clear abuse of discretion. Id.
1. DOWER-ABOLISHMENT BY LEGISLATURE-VESTED RIGHT.-A wife during the life
time of her husband has no vested right of dower; she has only a capacity to
acquire a right which may be abolished by the legislature. This the legislature did
by the act of November 29, 1871. Hamilton v. Hirsch et al. Wash., 202.
DYING DECLARATIONS.
See MURDER AND MANSLAUGHTER, 13.
EASEMENT.
See QUIETING TITLE, 1.
1. IMPROVEMENTS-WHEN COMPENSATION FOR TO BE GIVEN.-Improvements made upon
real estate by one wrongfully in the possession thereof, without color of title,
become the property of the owner of the land. If such improvements were erected
prior to the act of 1878 (Prince's Stat., 486), the person erecting the same is not
entitled to be compensated therefor by the owner of the land. Such act only pro-
vides for a compensation for improvements erected subsequent to its passage. Any
other construction would render the act unconstitutional. Newton v. Thornton et al.,
Receivers, etc. N. M., 133.
2. LOCATION OF LAND IN CONTROVERSY MUST BE PROVED.-In an action of ejectment
where the evidence is too vague and uncertain to identify the land of the plaintiff
with that in the possession of the defendant, the verdict should be for the latter.
Pinkerton v. Ledoux. N. M., 566.
3. THE SAME-INSTRUCTION AS TO FACT ADMITTED NOT NECESSARY.-In such action,
the refusal to give an instruction as to a fact which is admitted by the adverse
party is not error. Id.
4. DECLARATION MUST AVER RIGHT TO POSSESSION.-A declaration in ejectment, under
the act of December 1, 1847, must aver that the plaintiff is entitled to the posses-
sion of the land sought to be recovered, and that the defendant unlawfully with-
holds the same, otherwise it is fatally defective, and will not support a judgment
for the possession. An averment that on a certain day the plaintiff was possessed
of the premises, and claimed the same in fee, and that, being so possessed, the de-
fendant entered and ejected the plaintiff therefrom, and unjustly withholds the
same, is not enough. Osborne v. United States. N. M., 243.
5. RECORD EVIDENCE OF TITLE WHEN ADMISSIBLE.-In an action to recover possession
of land, the records of the deeds under which the plaintiff claims title, except of
the deed from his immediate grantor, are primary evidence, as such deeds are not
presumed to be in his possession. Probst v. Trustees, etc., Presbyterian Church.
N. M., 442.
6. THE SAME PRIOR POSSESSION MUST PREVAIL AGAINST TRESPASSER.-In such action,
proof of prior possession in the plaintiff is sufficient proof of title, as against a
mere trespasser, and any act, such as a registry of title, tending to show the char-
acter and extent of such possession, is admissible in evidence. Id.
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