See EVIDENCE, 3, 8; MURDER and Manslaughter, 2, 3.
See COMMON CARRIERS, 10, 14: CORPORATION, 1, 4.
EXTRADITION.
See EMBEZZLEment, 1.
EXTREME CRUELTY.
See DIVORCE, 4.
1. FACTOR WHEN HAS OSTENSIBLE AUTHORITY TO PLEDGE.-A factor, having posses-
sion and control of personal property of his principal, has ostensible authority, under
section 2,369 of the civil code, to pledge the same as security for a loan to himself,
made by the pledgee, in the ordinary course of his business, in good faith, and without
notice that the property belonged to the principal. The rights of the pledgee, under
such pledge, are superior to those of the principal. Wesp et al.,v. Lazard et al.
Cal., 590.
FALSE PRETENSES.
See LARCENY, 1.
FINDINGS.
1. EQUITY CASE-Procedure-FINDINGS OF JURY NOT BINDING ON JUDGE.-In a suit
in equity to quiet title the decree emanates from the judge sitting as a chancellor.
In such action he may try the case without a jury, or he may submit special issues
to the jury; but their findings of fact are not binding upon him; he may adopt or
disregard the same, or make findings of his own and render his decree thereon.
This rule has not been changed by the act of congress of April, 1874, which pro-
vides that it shall not be necessary in the courts of the several territories to exercise
separately the common law and chancery jurisdiction vested in said courts. Mantle
et al. v. Noyes. Mont., 611.
2. VERDICT IS ADVISORY IN EQUITABLE ACTIONS-FINDINGS.-In an equitable action
the verdict of the jury is advisory only, and there is no decision upon which to base
a motion for a new trial, until the findings have been made by the court. Spottis-
wood v. Weir. Cal., 888.
3. FINDINGS OF JURY IN EQUITY CASES ARE ADVISORY MERELY.-In the trial of equity
cases the court may, on its own motion, invoke the aid of a jury to determine specific
questions of fact. The findings of the jury thereon are advisory merely; they may
be accepted and form the basis of the decree, or they may be entirely disregarded.
This was the rule under the old chancery practice, and the same has been adopted
by the code of civil procedure. Hall v. Lynn. Col., 394.
4. THE EVIDENCE HELD TO SUSTAIN THE FINDINGS of the jury. Id.
5. FINDINGS IN EQUITY CASE-CONFLICT OF EVIDENCE.-Findings of fact in equity, as
in other cases, will not be disturbed in the supreme court, where the evidence is
substantially conflicting. Donohoe v. Mariposa L. & M Co. Cal., 167.
6. FINDINGS, WHEN SUFFICIENTLY DEFINITE-DESIGNATION OF DEEDS.-In an action
to determine the title to land, where the pleadings and evidence make mention of
but two deeds, one of which is much longer than the other, findings which refer to
such deeds as the "short deed" and the “long deed" respectively, are sufficiently
definite. Boyd v. Slayback et al. Cal., 30.
7. FINDINGS, WHEN NOT REVIEWED.-On appeal, a finding of fact will not be reviewed
unless the evidence upon the trial in reference thereto is fully and clearly reported
in the record. Relorado v. Quang Pang Min. Co. Idaho, 835.
8. THE SAME-IRRELEVANT FINDINGS.-If the findings of fact sustain the conclusions
of law, the judgment below will not be disturbed on appeal simply for the reason
that some of the findings of fact and conclusions of law are irrelevant. Id.
9. AMENDMENT OF FINDINGS AFTER JUDGMENT-NEW TRIAL.-After trial had, find
ings of fact, conclusions of law and decree made and entered in favor of the plaint
iffs, the court cannot, upon a motion to amend the findings and decree, make and
enter new findings and a decree in favor of the defendant. If the original findings
of fact were erroneous in any respect, the appropriate proceeding to get them set
aside was a motion for a new trial. Pico et al. v. Sepulveda et al. Cal., 208.
10. REPORT OF REFEREE-FINDINGS-JUDGMENT.-Where a referee correctly finds upon
all the issues of fact, but his conclusions of law and judgment reported thereon are
erroneous, the court should disregard the erroneous conclusions, and direct a proper
judgment to be entered. Sortor v. Strassheim. Col., 799.
11. THE JUDGMENT WILL BE REVERSED WHERE THE COURT FAILS TO FIND on all the
material issues of the complaint. Conklin v. Stone. Cal., 878.
12. WHERE THE EVIDENCE IS CONFLICTING AS TO A MATERIAL FACT the finding of the
jury thereon will not be disturbed. Hughes v. Parsons. Cal., 880.
13. THE FINDINGS OF THE JURY, ON QUESTIONS OF FACT, ARE CONCLUSIVE when the
evidence is conflicting. Bennett v. Northern Pacific Express Company. Or., 856.
14. FINDING THAT THE NOTE SUED ON HAD NEVER BEEN PAID or discharged; held,
supported by the evidence. Lang v. Specht. Cal., 227.
15. FINDINGS HELD SUSTAINED BY THE EVIDENCE. Hancock v. Plummer. Cal., 209;
Adelsdorfer v. Ehrman, Cal., 525; Donohoe v. Mariposa L. & M. Co., Cal., 168.
FIRE INSURANCE.
See INSURANCE, 1.
FORFEITURE.
See WATER RIGHTS, 3.
1. UTTERING FORGED INSTRUMENT INTENT.-The crime of uttering a forged instru-
ment, under section 470 of the penal code, includes the case of one who utters a
writing-such as can be the subject of forgery-not genuine, but purporting to be
genuine, even though there was no intent to defraud when the writing was fabri-
cated. Ex Parte Finley. Cal., 65.
2. THE SAMI-FORGERY OF DIVORCE DECREE-INFORMATION.-A certified copy of a
decree of divorce, with the court seal attached, is a thing capable of being forged;
and an information for uttering such forged instrument need not allege that the par-
ties recited to have been divorced ever were married. Id.
See MUNICIPAL CORPORATIONS, 1-2.
1. CONTRACT, WHEN FRAUD ON COURT-PUBLIC POLICY.-A contract between a mort-
gagor and mortgagee, for the purpose of bringing a fictitious suit to foreclose the
mortgage, so as to cut off the right of an apparent senior mortgagee, by which it is
agreed that the mortgagee shall secure a judgment and purchase the mortgaged
property at exccution sale, and hold the same in trust for the mortgagor, is a fraud
on the court, and conscquently contrary to public policy and void. If the mortga
gee procures the property in pursuance of such fraudulent agreement, and after-
wards refuses to execute the trust, a court of equity will not compel him so to do.
Connolly v. Cunningham et al. Wash., 343-347.
2. FINDINGS THAT CERTAIN DEEDS WERE NOT MADE TO HINDER, delay or defraud
the grantor's creditors; held, supported by the evidence. Briswalter v. Palomares.
Cal., 38.
See ACCOUNT, 2, 3, 6; CANCELLATION, 1: ESTATES OF DECEASED PERSONS, 1-2.
GAME LAWS.
See CONSTITUTIONAL LAW, 13.
See CRIMINAL LAW and PRACTICE, 6.
See CONTEMPT, 1-3; JURY and JURORS.
GRANTOR AND GRANTEE.
See PARTIES, 6.
GROWING CROPS.
1. GROWING CROPS-RENTING ON SHARES-PURCHASE OF LESSOR'S INTEREST.-Where
land is rented at a yearly rental of one-fourth of what was grown thereon, a pur-
chaser of the landlord's interest in the growing crops becomes interested therein as
a tenant in common of the lessee. After notice of such purchase, the lessee can-
not, by delivering to his lessor such one-fourth, relieve himself from liability there-
for to the purchaser. Schell v. Simon et al. Cal., 65.
1. GUARANTY OF NOTE TO BE PAID OUT OF PARTICULAR FUND-COMPLAINT.-In an
action on a guaranty to pay a note "out of the Park avenue assessment money
after being collected," the complaint is sufficient, on demurrer, although it is not
averred that all of such assessment had been collected. Muller v. Ohm. Čal., 690.
1. GUARDIAN AND WARD-REMOVAL OF GUARDIAN OF ESTATE-PETITION FOR.-A
guardian of the estate of a minor cannot be removed from his trust, except upon
petition, showing that he has either become incapable of discharging his trust con-
cerning the estate of his wards, or has wasted or mismanaged the same, or has failed
to render an account or make a return as required by the statute. A petition
alleging mere inattention to the persons of his wards is not enough. Estate of Rose,
Minors. Cal., 27.
2. GUARDIAN AND WARD-RIGHT OF GUARDIAN TO CONTEST ACCOUNT-ATTORNEY FOR
MINORS.-A guardian of the estate of minors has a right to appear in an estate, in
which his wards are interested, and file his exceptions, in writing, to an account
therein, and contest the same. The court, by appointing an attorney to represent
such minors, cannot take from the guardian his right to be heard. Estate of Rose,
Deceased. Cal., 28.
3. REVERSAL OF DECREE SETTLING ACCOUNTS OF ADMINISTRATOR-EFFECT OF.-The re-
versal, by the supreme court, of a decree settling the accounts of an administrator,
has the effect to set aside such settlement. Thereafter, any person interested may
appear in the lower court, and file his exceptions to the account. Id.
4. GUARDIAN AND WARD-FOREIGN GUARDIAN-POWER OF, OVER LAND IN THIS STATE.
-A foreign guardian has no authority as such, to bind the real estate of his ward
situate in this state; nor can he, by consenting to a sale of such land by the pro-
bate court, confer jurisdiction on the court to order the sale thereof. Wilson v.
Hastings. Cal., 31.
5. GUARDIAN AD LITEM OF INSANE PERSON-APPOINTMENT OF.-The superior court has
no jurisdiction to appoint a guardian ad litem of an insane person in an action in
which he is not a party. Boyd v. Dodson, Guardian of Silas A. Boyd, an Insane.
Person. Cal., 228.
6. DEMURRER TO THE COMPLAINT HELD PROPERLY SUSTAINED. Id.
GUARDIAN AD LITEM.
See GUADIAN AND WARD, 5.
1. DECLARATION OF HOMESTEAD-STATEMENT THAT DECLARANT IS HEAD OF FAMILY
How MADE.-Under section 1,263 of the civil code, as amended in 1874, a declara-
tion of homestead need not contain a statement of the facts showing the declarant
to be the head of a family. The mere statement that the declarant is "the head of
a family" is sufficient. Jones et al. v. Waddy et al. Cal., 588.
2. SETTING APART HOMESTEAD-CANNOT BE HAD IN EJECTMENT.-In an action of eject-
ment brought by an administrator, the superior court has no power to set aside the
land sought to be recovered, as a homestead for the minor children of the intestate.
The superior court, sitting in such action, cannot assume the functions of the superior
court, sitting in the matter of the intestate's estate, although both may be in the
same county, with the same judge presiding. Richards, Administrator &c. v. Wet-
more et al.,Cal., 232.
1. HUSBAND AND WIFE-COMMUNITY PROPERTY-WIFE MAY BE WITNESS.-A husband
is the proper party plaintiff in an action concerning the community property, and
his wife is a competent witness therein. Moseley v. Heney. Cal., 694.
See DIVORCE; DOWER; PARTIES, 1.
IMPORTS.
See LICENSE, 10.
IMPROVEMENTS.
See EJECTMENT, 1.
INFANTS.
1. CONTRACT FOR BENEFIT OF MINORS-MONEY HAD AND RECEIVED.-The defendants
contracted with the father of certain minor children to erect a building on their
land, to be paid for out of the rents accruing therefrom. They did so, and received
the rents and applied them to the cost of the building. It did not appear that the
building was worth more than the amount received for it. Held, that the minor
children could not maintain an action for money had and received to recover the
rents so paid. McKee et al v. Preston et al., Cal., 879.
See EQUITY, 2.
INJUNCTION.
1. INJUNCTION AGAINST EXECUTION SALE-JUDGMENT AGAINST THIRD PERSON.-The
owner of real estate may enjoin the sale thereof under a judgment against a third
party who has been privy to the title, when such judgment is not a lien or charge
thereon, and such owner is in no way liable to the payment thereof. Wilhelm v.
Woodcock. Or., 54.
2. APPLICATION FOR PRELIMINARY INJUNCTION-CONFLICT OF EVIDENCE-DELAY.—
In an application for a preliminary injunction the court must decide and act accord-
ing to the weight of evidence, when the evidence is conflicting. Such application
should not be refused on the ground of delay, when such delay has not prejudiced
the defendant. Wells, Fargo & Co. v. N. P. R. R. Co. (U. S. Cir. Ct.) Or., 89.
3. COURTS OF EQUITY HAVE POWER TO ISSUE A PRELIMINARY MANDATORY INJUNC-
TION to compel a railroad company to furnish facillties over its road to an express
company. Id.
4. SERVICE OF PRELIMINARY INJUNCTION, HOW MADE.-A preliminary injunction against
a corporation may be served by leaving with its agent a copy of the writ and
showing the original and explaining its contents, and delivering to him a copy of the
complaint and verification. Eureka L. &c. Co. v. Superior Court. Cal., 179, 181.
5. INJUNCTION-DAMAGES FOR CANNOT BE AWARDED IN ORIGINAL ACTION.-Where a preliminary injunction has been granted, and the usual bond given conditioned to pay the defendant his damages, sustained by reason of such injunction, if it should finally be decided that the injunction was improperly issued, the court has no power, upon the final hearing, in giving judgment for the defendant, to include therein his damages so sustained. The defendant must enforce his right to recover such damages by an independent action on the bond. Sorter v. Strassheim. Col., 799. 6. RIPARIAN PROPRIETOR INJUNCTION AGAINST DIVERSION OF WATER.-A riparian proprietor is not entitled to an injunction against one wrongfully diverting water water from his stream, unless the flow to his land has been appreciably, or at least perceptibly diminished. Moore v. Clear Lake W. W. Cal., 177.
7. HYDRAULIC MINING INJUNCTION AGAINST WITHOUT NOTICE TO CORPORATION.A corporation whose general, ordinary and only business is that of mining by the hydraulic process and of selling water to others to be used for a like purpose, may be injoined upon an ex parte application, without notice to it, from depositing in or discharging "mining debris" into certain streams, or from selling water to others to to be used for the purpose of washing by hydraulic process any mineral lands into the channels of said streams, or their tributaries. Eureka Lake and Yuba Canal Company v. Superior Court of Yuba County. Cal., 179, 181.
8. ORDER AFFIRMED on the authority of People v. Gold Run Ditch and Mining Co., 4 West Coast Rep., 511. Marysville v. N. B. G. M. Co. et al. Cal., 210.
See CONTEMPT, 4; REFERENCE, 1; TAXATION, 9.
1. INNKEEPER AND GUEST-EXISTENCE OF RELATION A QUESTION OF LAW.-The question whether, on a given state of facts, the relation of innkeeper and guest exists between the keeper of a hotel and a person stopping at the hotel, is one of law to be decided by the court. Horner v. Harvey. N. M., 187.
2. THE SAME-CONDUCTOR ON TRAIN WHEN NOT A GUEST.-A conductor on a railroad train, who rents a room in a hotel at the terminus of his route, at a specified rate per month, which he used for sleeping and other purposes when there, is not a guest of the hotel.
See GUARDIAN AND WARD, 5; MURDER AND MANSLAUGHTER, 2, 3, 18.
1. STATE INSOLVENT LAWS-DISCHARGE UNDER.-A discharge under a state insolvent law is no bar to an action by a citizen of another state who did not appear or take part in the insolvency proceedings. Newton et al. v. Hagerman. (U. S. Cir. Ct.) Nev., 1.
2. INSOLVENT ESTATE-RECEIVER-PRECEDENCE AMONG CREDITORS.-Creditors of an insolvent estate in the hands of a receiver are entitled to payment in the order and precedence established by the merits of their claims, and not by legal remedies for which they may have contracted or which may be given them by law. Frank v. D. & R. G. R. R. Co. (U. S. Cir. Ct.) Col., 459.
1. JURY TRIAL-INSTRUCTION Tto find for ParTICULAR PARTY when Error.—A court cannot instruct the jury that the defendant has failed to sustain his plea of set off, and direct them to find for the plaintiff, when there is any evidence which might have justified the jury in finding that such set off, or some part of it, was true. Chaves v. Chaves. N. M., 237.
2. OMISSION OF THE COURT TO CHARGE.-If either party desires the court to give other or further instructions, he must prepare the same and present them to the court for approval or rejection. People v. Biles. Idaho, 829.
3. INSTRUCTIONS AS TO QUESTIONS IN REGARD TO WHICH NO EVIDENCE has been given, if calculated to mislead the jury, are erroneous. Amann v. Lowell, Cal., 166.
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