SIDEWALK.
See NEGLIGENCE, 11.
1. SLANDER-CALLING ANOTHER A THIEF.-To call another a thief, is actionable per se,
without proof of special damages, although the words were meant but to impute
petit larceny. Quigley v. McGee. Or., 198.
SPECIAL LEGISLATION.
See CONSTITUTIONAL LAW, 1-8, 13.
SPECIAL PROCEEDINGS.
See JURISDICTION, 1.
SPECIFIC PERFORMANCE.
See CONTRACT, 4.
STAGE COMPANIES.
See COMMON CARRIERS, 1-7.
See APPEAL, 6; BILL OF EXCEPTIONS, 5; CRIMINAL LAW and PRACTICE, 10.
1. SALE OF REAL ESTATE BY BROKER--AUTHORIZATION MUST BE IN WRITING.-Under
section 1,624 of the civil code, a broker cannot maintain an action to recover his
commissions for procuring a sale of real estate, unless his authority to make such
sale is contained in an instrument in writing. Schuller v. Farquarson et al. Cal.,
583.
2. PAROL CONTRACT FOR PURCHASE OF LAND TO BE HELD IN TRUST.-An oral contract
for the purchase of real estate by the promis sor, with his own moneys, to be held in
trust for another, is invalid under the statute of 1858, p. 266, section 6. Donohoe v.
Mariposa L. & M. Co. Cal., 168.
1. STATUTE OF LIMITATIONS-NOTE WHEN Not Barred by FOREIGN STATUTE.-A note
made in California by a resident thereof, may be enforced against the maker in
Washington territory, after he has become a resident thereof, if, at the time he
left California, the note was not barred by the statute of limitations of that state,
nor barred by the statute of limitations of Washington territory at the time suit
was commenced. Adams v. Kelly et al. Wash., 348.
2. STATUTE OF LIMITATIONS-PLEA OF-JURY TRIAL-A plea of the statute of limitations
does not entitle the defendant to a jury trial in an action to determine conflicting
claims to real estate. Such plea does not change such action from equitable to legal.
Hancock v. Plummer. Cal., 209.
3. STATUTE OF LIMITATIONS-An agreement or promise made without a consideration,
to postpone or extend the time of payment of a debt or demand, is void, and does
not, therefore, prevent the running of the statute against the right of the creditor
to maintain an action thereon. Green v. Coos Bay Wagon Road Company. (U.S.
Cir. Ct.) Or., 769.
4. THE SAME-ACKNOWLEDGMENT.-From an acknowledgment of the existence of a debt
under circumstances that indicate a willingness or liability to pay the same, the law
will imply a promise to pay, upon which an action may be maintained during the
statutory period of limitation thereafter. Id.
5. NEW PROMISE-HOW PLEADED.-In pleading a new promise or an acknowledgment
or agreement from which such promise will be implied, it need not be alleged that
the same was made in writing, but that fact will be presumed until the contrary is
shown. Id.
6. STATUTE OF LIMITATIONS-TAX-COLLECTOR-SURETIES-The statute of limitations
does not commence to run in favor of the sureties on an official bond of a tax-collec-
tor, until the liability of their principal had become fixed. Lawrence v. Doolan.
Cal., 156.
7. STATUTE OF LIMITATIONS-HOW PLEADED-NEGATIVE PREGNANT-A plea of the stat-
ute of limitations, by alleging "that each and every of the causes of action, as
alleged in plaintiff's complaint, did not accrue within six years before the com-
mencement of this action," contains a negative pregnant, and is insufficient. Gan-
non v. Dyke. Wash., 683.
8. THE AMENDMENT TO THE STATUTE OF LIMITATIONS, approved October 22, 1870 (civil
code, section 278), commented upon and explained. Baker v. Woodward. Or., 136.
See ADVERSE POSSESSION, 3; ESTATES OF DECEASED PERSONS, 11; PARTNERSHIP, 3;
STAY OF PROCEEDINGS.
See APPEAL, 18.
STIPULATIONS.
See BILL OF EXCEPTIONS, 2, 5.
STREETS AND HIGHWAYS.
See DEDICATION, 1.
STREET ASSESSMENT
1. STREET ASSESSMENT-EFFECT OF UNVERIFIED ANSWER.-The answer in an action to
enforce a street assessment, under the statute of 1871-2, section 21, must be verified.
If an unverified answer is filed to a complaint that states facts sufficient to consti-
tute a cause of action, the plaintiff is entitled to judgment, although he may have
introduced some evidence, but not enough to prove all the material allegations of
the complaint. Stockton v. Dahl et al. Cal., 274.
2. STREET ASSESSMENT ASSIGNMENT OF ESTOPPEL.-A party who has assigned a con-
tract and assessment for street work, for a valuable consideration, is estopped to
deny the validity of such contract and assessment. Callendar v. Patterson et al.
Cal., 228.
3. STREET IMPROVEMENT-ROCK GUTTER-WAYS-POWER OF SUPERVISORS.-The board
of supervisors of the city and county of San Francisco, under section 3 of the act
of April 1, 1872, had power, when a street was ordered to be macadamized, to order
the construction of rock gutter-ways. Burk v. Altschul et al. Cal., 891.
1. SUMMONS IN EJECTMENT-FORM OF NOTICE TO THE DEFENDANT.-The summons in an
action of ejectment and for mesne profits must notify the defendant, as required by
section 26 of the practice act, that if he fails to answer the complaint, "the plaint-
iff will apply to the court for the relief demanded therein." A notification that the
plaintiff "will take judgment," etc., is insufficient. Sweeney v. Schultes et al. Ner.,
662.
2. THE SAME-ERROR IN REFUSING TO SET ASIDE SUMMONS Cured by DemURRER.-The
refusal of the court to set aside the summons, for such insufficiency, although erro-
neous, will not warrant a reversal, if the defendant afterwards demurs to the com-
plaint. Id.
3. SERVICE OF SUMMONS ON FOREIGN CORPORATION-AGENT DESIGNATED TO RECEIVE
SERVICE.-Service of summons on a person designated by a foreign corporation as
one upon whom process might be served, under the act of April 1, 1872, is a suffi-
cient service on the corporation, so long as such designation remained unrevoked,
although at the time of service, which took place after the adoption of the code of
civil procedure, such person was not the agent, cashier, secretary or other officer of
the corporation. Eureka L. etc. Co. v. Superior Court. Cal., 179, 181.
1. PRINCIPAL AND SURETIES-DEATH OF PRINCIPAL-DISCONTINUANCE OF ACTION.-An
action against the principal and sureties on a bond, may, upon the death of the
principal before service of summons on him, be discontinued as to him, upon mo-
tion of the surviving defendants and consent of the plaintiff. Nunan v. Berry et
al. Cal., 158.
2. SURETIES ON NOTE-WHEN LIABLE TO CONTRIBUTION.-Joint sureties on a note for
the payment of money, become liable, each to the other, to pay his share of the
amount due, in the event of the failure or insolvency of the principal. Winkle v.
Johnson. Or., 677.
3. THE SAME LIABILITY TO CONTRIBUTION FOR COSTS.-Such surety is not obliged to
delay payment until suit is brought. His liability accrues upon the maturity and
non-payment of the note. If it be not paid, and a judgment is recovered against the
principal and his sureties, or against the sureties alone, and one of them pays it, he
can recover one-half of the costs of the suit from his co-surety. The liability of a
co-surety for one-half of such costs is not discharged by the fact that he had ex-
pressed a willingness to pay his share of the note, before suit brought, if he did not
pay or offer to pay it. Id.
4. SURETIES ON AN ATTACHMENT UNDERTAKING-CANNOT IMPEACH JUDGMENT.-Sure-
ties on an undertaking given for the release of attached property cannot go be-
hind the judgment to set up any matter of defense to their liability, which might
have been pleaded in the original action. Guthrie et al. v. Fisher et al. Idaho, 828.
5. SURETIES ON BOND OF COUNTY TREASURER-ACTION AGAINST-PERFORMANCE OF
CONDITIONS BY COMMISSIONERS, How ALLEGED.—In an action against the sureties
upon the official band of a county treasurer, the performance of the duties enjoined
upon the county commissioners by the act of February 20, 1881, may be alleged in
the manner provided for in section 60 of the civil practice act for pleading the per-
formance of conditions precedent in a contract. An allegation, that the county
commissioners complied with all the requirements and conditions imposed upon
them by the terms of the bond and the requirements of all acts of the legislature
pertaining to the duty of county commissioners relating to county officers and to
their official bonds," is sufficient. County of White Pine v. Herrick et al. Nev., 185.
6. SURETIES ON the Bond of A TAX-COLLECTOR ARE LIABLE FOR MONEY received by him
as such, which it was his duty to turn over to the treasurer, but which he neglected
to turn over.
Lawrence v. Doolan. Cal., 156.
See APPEAL, 25; STATUTE OF LIMITATIONS, 6.
SURPRISE.
See NEW TRIAL, 10, 11.
SWAMP LAND.
See MORTGAGE, 12.
1. WHEN TAXES CANNOT BE LEVIED.-Taxes cannot be levied, except in the manner
and for the purposes designated by law. Shoup v. Willis, Tax-Collector of Custer
County. Idaho, 833.
2. CONSTRUCTION OF STATUTES.-Statutes authorizing the levy of special taxes should
not be so construed as to extend their meaning beyond the clear import of the words
used. Id.
3. WHEN ILLEGAL TAXES CAN BE RECOVERED.-Taxes illegally assessed and paid may
always be recovered, if the collector understands from the payer that the taxes are
regarded as illegal, and that suit will be instituted to recover them. Id.
4. THE COMPLAINT HEREIN held sufficient to support the judgment. Id.
5. TAXATION-COMMON COUNCIL OF EAST PORTLAND-RAISING ASSESSMENT.-The
common council of East Portland, while it has power to equalize the assessment for
municipal purposes, has no power to list and value the taxable property of the city
for the purpose of making an assessment, nor to add real or personal property to the
assessment already made, which may have been omitted, nor to raise the aggregate
assessed value of each and every assessment a given per cent above the value as
assessed and certified to them. Dalton et al. v. East Portland. Or., 24.
6. TAXATION-CONSTITUTIONAL LIMITATION-EQUALITY OF TAXATION.-Under a con-
stitutional limitation that "the rate of assessment and taxation shall be equal and
uniform," the legislature has power to select for taxation mortgages, situated entirely
in one county, and either to exempt mortgages situated in two counties, from taxs-
tion, or to tax them at a different rate. Crawford v. Linn County. Or., 492.
7. THE SAME-EXEMPTION FROM TAXATION-MORTGAGE TAX.-Under the second
clause of section IX of the constitution, the legislature has no power to exempt a
certain class of property, such as mortgages situated in more than one county, or
the debt secured thereby, from taxation. Such attempted exemption would be void.
Id.
8. THE SAME-MORTGAGE TAX ACT NOT A SPECIAL LAW.-The act of October 26,
1882, generally known as the mortgage tax law, is not unconstitutional as being a
special law. Id.
9. TAXPAYER MAY MAINTAIN ACTION TO RESTRAIN ILLEGAL TAXATION.-A taxpayer
in this territory may maintain a suit in chancery in his own name to restrain a
threatened illegal disposition of public funds, in which he has a taxpayer's interest,
or a threatened illegal taxation, by which his property might be imperiled. Laugh-
lin v. County Commissioners of Santa Fe County et al. N. M., 562.
10. COUNTY BONDING ACT OF 1872 NOT REPEALED.-The county bonding act of 1872,
providing for the levying and collection of a special tax, under its provisions, to aid
in the construction of railroads, was not repealed by the general revenue law of
1882. Id.
11. REVENUE-MEANING OF TERM.-The term "revenue," when used with reference
to funds derived from taxation, in the absence of qualifying words or circumstances
implying a different signification, is confined to the usual public income from taxa-
tion. Id.
12. TAXATION-POWER OF COUNTY-LIMITATIONS ON.-In the absence of restrictions,
express or implied, the power of a county to contract and to incur public indebted-
ness, implies the power to raise by taxation the funds needed for the execution of
the former power. But an express limitation on the rate of taxation is not generally
operative to prevent taxation for extraordinary purposes. Id.
TENANT IN COMMON.
See GROWING CROPS, 1.
See PLEADING and PRACTICE, 4, 5.
See BONA FIDE PURCHASER, 3; COMMON CARRIERS, 17; SALES, 4; TRESPASS, 3, 4.
See ESTATES OF DECEASED PERSONS, 9; PARENT AND CHILD, 1.
1. TRESPASS-WRONGFUL ENTRY ON LAND-STATUTE OF LIMITATIONS.-Every wrong.
ful entry upon lands in the occupation or possession of the owner constitutes a
trespass, for which the owner may maintain an action for damages; and if the entry
be made by cattle belonging to the wrong-doer, he is responsible for their trespass.
Such action is not barred by the statute of limitations until the expiration of three
years after the cause of action accrued, under section 328 of the code of civil pro-
cedure. Trescony v. Brandenstein et al. Cal., 881.
2. THE SAME TRESPASSING CATTLE-REMEDIES OF OW NER OF LAND.-The right of
the owner of such land to maintain an ordinary actio n for trespass for the damages
done by such cattle, is not taken away by the statute. of Februs
1, giving a
remedy by process in rem against the cattle themselves. I
3. TRESPASS JURISDICTION OF JUSTICE TO TRY TITLE-DEFENSE OF TITLE, HOW
MADE AVAILABLE.-A justice's court has jurisdiction to try an action in the nature
of a trespass to real property, where the plaintiff, at the time the injury was com-
mitted, was in the actual possession thereof, or in any case where the plaintiff can
establish his right without being obliged to prove his title. If the defendant con-
troverts the plaintiff's title, the justice must disregard such defense, as he has no
jurisdiction to try the question of title. The remedy of the defendant, when his
defense involves a question of title, is to enjoin the justice from proceeding in the
action. Dweek v. Galbreath. Or., 502.
land is called
Dweek v. Gal-
4. TRESPASS TO LAND-JUSTICE COURT QUESTION OF TITLE. In an action for tres-
pass to real property, begun in the justice's court, if the title to the
in question by answer or plea, the jurisdiction of the justice is lost.
breath. Or., 739.
See ADVERSE POSSESSION, 3; EJECTMENT, 6; MORTGAGE, 6.
1. QUIT-CLAIM DEED-RIGHTS OF GRANTEE UNDER-TRUSTS.-The grantee under a
quit-claim deed, of property charged with a trust, takes the same subject thereto,
and a subsequent purchaser from him, either voluntary or under an execution sale,
takes the property subject to the same conditions. Baker v. Woodward. Or., 136.
See CORPORATIONS, 9, 10; DEED, 9, 10; Statute of Frauds, 2.
ULTRA VIRES.
See CORPORATIONS, 6.
UNIVERSITY OF CALIFORNIA.
1. REGENTS OF UNIVERSITY-FUNDS OF IN POSSESSION OF STATE TREASURER-HOw
DRAWN.-Under the statute of 1883, page 51, the treasurer of the state must de-
liver to the treasurer of the regents of the University of California any and all
moneys belonging to them and deposited with him, upon the presentation to him of a
resolution of the regents, indorsed by the governor of the state, demanding the
same. The treasurer of the state cannot require, in addition thereto, a warrant of
the controller, or the deposit of an equivalent security, nor question the use which
the regents propose to make of the money. Regents of University of California v.
January, Treasurer, etc. Cal., 874.
2. FUNDS OF STATE UNIVERSITY-HOW DRAWN FROM TREASURY.-The funds and
securities deposited by the regents of the university in the state treasury, for safe
keeping, may be drawn therefrom in the manner provided by the statute of 1883,
page 54, without the warrant of the controller. Regents of the University of Cali-
fornia v. Dunn, Controller, etc. Cal., 874.
UNDERTAKINGS.
See APPEAL, 19, 21-23; EJECTMENT, 7.
See ASSIGNMENT, 3, 4; CITIZENSHIP; CONSULS, 1; EQUITY, 3, 4; LICENSE. 5.
1. UNLAWFUL DETAINER--TENANT HOLDING OVER-TENANT AT WILL.-A tenant who
entered and continued in possession of the demised premises during the term, under
a written lease, and paid the rent reserved by the lease, until the term ended, when
he refused to surrender the possession, and held over against the consent of the
lessor, is not a tenant at will; and the lessor may maintain an action of unlawful
detainer against him, upon giving the notice provided for in sections 1, 161 and 1,162
of the code of civil procedure. Perine v. Teague et al. Cal., 578.
2. THE SAME-PAROL EVIDENCE OF RENEWAL OF LEASE WHEN INADMISSIBLE.--In
such action parol evidence showing a renewal of the written lease is inadmissible,
when no such issue is raised by the pleadings. Id.
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