DISORDERLY HOUSE.

Information.

1. Under 1 Hill's Code, 2894, providing
that "all houses
* * used as a place of
resort where women are employed to draw cus-
tom, dance, or for purposes of prostitution
are nuisances," an information which
charges that defendant kept a house which
"was then used as a place of resort where
women are employed to draw custom and to
dance" is insufficient, in that it does not allege
that women were employed to draw custom and
to dance at the time defendant was said to
have kept the house.-State v. Brown, (Wash.)
34 P. 132.

2. The information is also defective in not
showing that the character of the women em-
ployed or their conversation and deportment
were such as tended to draw crowds of disor-
derly persons, or to corrupt the morals of per-
sons resorting to the place.-State v. Brown,
(Wash.) 34 P. 132.

Dissolution.

Of injunction, see "Injunction," 9.
Of partnership, see "Partnership," 2.

District and Prosecuting At-

torneys.

swore that her husband told her said g
would be brought for desertion. Held that.
view of the harshness of the judgment, de
court should have set it aside, whether defens
ant had colluded with, or had been deceived by
her husband; her application and affidar
showing sufficiently the grounds of her proposed
answer.-Mulkey v. Mulkey, (Cal.) 34 P. 621
Alimony.

6. In a divorce case, wherein plaintif d
leged that she was defendant's lawful wife by
a marriage in Russia, defendant denied the
validity of the marriage, but admitted l
continued cohabitation, and the birth of fr
children. Defendant also charged plaintif w
adultery, and alleged that he had obtained i
Mosaic divorce from her. Held, that there wa
sufficient prima facie proof of marriage to e
title plaintiff to alimony pendente lite.-Finks
stein v. Finkelstein, (Mont.) 34 P. 1090.
ducting a large tailoring business, though in 23
7. Where it appears that defendant is e-
other's name, an allowance of $30 per month
as temporary alimony and $50 as counsel fees
not unreasonable.-Finkelstein v. Finkelstein
(Mont.) 34 P. 1090.

Division of property.

8. Where husband and wife live apart, 15d
appear to be in equal wrong, and the court re
fuses to grant a divorce, it may direct an eq
division of the property when the wife has
title to more than her share. Code, § 643-

Discretion of district attorney, see "Manda- Van Brunt v. Van Brunt, (Kan.) 34 P. 1117.
mus," 6.

Venue.

DIVORCE.

9. Where the husband's property did not
exceed $400 in value, and the wife's property
was worth at least $14,000, the court propert
adjudged that she pay him $1,000.-Van Brunt
v. Van Brunt, (Kan.) 34 P. 1117.

Documents.

1. Civil Code, § 128, as amended by Act
March 10, 1891, providing that a divorce must
not be granted unless plaintiff has been a resi-
dent of the county "in which the action is
brought three months next preceding the com- See "Evidence,” 22–24.
mencement of the action," does not prevent a
change of the place of trial of an action for
divorce to the county in which defendant re-
sides, since Code Civil Proc. § 395, provides
that "in all other cases (excepting actions re-
lating to real property, for the recovery of pen-
alties, and those against municipal corpora-
tions and public officers, etc.) the action must Defective drains, see "Municipal Corporations"

be tried in the county in which the defendants,
or some of them, reside at the commencement
of the action." De Haven, J., dissenting.—
Warner v. Warner, (Cal.) 34 P. 523.

Pleading and proof.

2. A divorce should not be granted for acts
of cruelty entirely different from those alleged
in the petition. -- Winterburg v. Winterburg,
(Kan.) 34 P. 971.

Annulling decree-Collusion.

3. Where, after a summons and complaint
for a divorce has been served on defendant,
she, understanding the nature of the action,
fails to defend, under a collusive agreement
with plaintiff, for a money consideration to be
paid her, a decree for plaintiff will not be set
aside on her petition, it appearing that she
feels no remorse for her fraud on the court,
but is actuated solely by a desire to obtain the.
money.-Hubbard v. Hubbard, (Colo. Sup.) 34

P. 170.

4. Nor will the decree be set aside in such
case on the ground of public morals.-Hubbard
v. Hubbard, (Colo. Sup.) 34 P. 170.

5. Code Civil Proc. § 473, provides that
the court may, after notice to the adverse par-
ty, on such terms as may be just, relieve a
party from a judgment taken against him
through his mistake, inadvertence, surprise, or
excusable neglect. 'Defendant suffered a de-
fault in a suit for divorce for adultery, brought
by her husband, who was awarded the custody
of the children and the entire community prop-
erty. She applied to vacate the judgment un-
der said section, and, by affidavit annexed,

See "Gifts."

26.

Donatio.

Drainage.

Police power, see "Constitutional Law," 22

Drunkenness.

As defense to crime, see "Homicide," 2.
Due Process of Law.
See "Constitutional Law," 17-21.

EJECTMENT.

See, also, "Adverse Possession;" "Quieting T
tle."
Between cotenants, see "Tenancy in Com-
mon," 1.

Ouster and possession by defendant.

1. In an action in the nature of ejectment,
where the evidence tends to prove that defend
ants were in possession of the premises when
the action was commenced, an answer denying
plaintiff's title and right of possession is su
cient evidence of ouster.-Moore v. Moore, (Cal)
34 P. 90.

2. In ejectment by a widow against her
husband's administrator for premises which
had been set apart as a homestead to plaintiff
and her minor children, it appeared that, from
the time of defendant's appointment as admin-
istrator till the homestead was set apart, de
fendant collected the rents of the premises.
and paid taxes; that two months thereafter
plaintiff demanded possession of him, which
he refused to give; that in his verified

atement to the tax collector he included this | Maxwell Land-Grant Co. v. Dawson, (N. M.)
mestead property; and that he leased part 34 P. 191.

ereof to another. Held. that the evidence Judgment.

stified a verdict that defendant was in pos-
sion when the action was commenced.-Moore
Moore, (Cal.) 34 P. 90.
efenses.

entered in September, 1891, described a cer-
10. A judgment for the recovery of land
tain tract, but excepted from its effect such
parts "as were sown to grain by the defendant
3. Where one erects a building on vacant during the fall of 1890 and the winter of 1891."
ad, and then rents the property, he cannot, Held, that the term "winter of 1891" referred
an action to recover possession and mesne to the winter of 1890-91, and the description
ofits, defend on the ground that he asserted is prima facie sufficient to identify the land
› right to the land, but that his acts and con- excepted.-Rosenthal v. Mathews, (Cal.) 34 P.
ol were limited to the improvements.-Ghost 624.
Shuman, (Colo. App.) 34 P. 733.

4. The fact that the equitable owner of
nd permitted a number of years to elapse
ithout taking action, which he might have
ken, to obtain the legal title, does not pre-
ent him, when sued for the land, from setting
p such equity as a defense.-Dutertre v. Shal-
nberger, (Nev.) 34 P. 449.

5. After foreclosure sale, but before exe-
tion of sheriff's deed, the mortgagor's interest
a the land was attached. Judgment was not
endered till nine years later, and the land was
old a year after that. Four months after at-
achment, the judgment debtor, being still in
ossession, deeded the land to defendant, who
hereupon took and kept possession, and paid
axes regularly thereafter. Held, that defend-
nt could plead adverse possession running
rom the time he took possession, against plain-
ff claiming under the sale in the attachment
uit. This defense was not in effect a plea of
utstanding title under the foreclosure sale,
within the rule that in ejectment for lands pur-
-hased on execution against a debtor in pos-
ession when the lien attached defendant and
is vendees cannot show that he had no title,
r that the true title is outstanding.-Robinson
. Thornton, (Cal.) 34 P. 120.

6. Plaintiff could not introduce a deed from
he assignee of the purchaser on the foreclosure
ale, executed after this suit was begun, on the
ground that defendant had put the foreclosure
n evidence as an outstanding title. There was
no issue of outstanding title, and the fore-
losure was only introduced to show that the
ien on which plaintiff's title was based had
een extinguished. Robinson v. Thornton,
Cal.) 34 P. 120.

Release of occupying
Abatement of action.

Damages.

11. In ejectment, the verdict of the jury is
conclusive as to damages, and the court can-
not allow a different sum on finding made by
the court.-Mills v. Fletcher, (Cal.) 34 P. 637.

Election of Remedies.

Release of surety, see "Principal and Surety," 3.

1. The word "elections," in Const. art. 7,
§ 1, providing that every male citizen over 21
years of age "shall be entitled to vote at all
elections," refers merely to public elections for
the choice of public officers, and a statute re-
quiring the question of the annexation of a
town or city to be submitted to the determina-
tion of such qualified electors of the municipal-
ity as have in the year next preceding paid a
property tax therein is not unconstitutional.-
Town of Valverde v. Shattuck, (Colo. Sup.) 34
P. 947.
Notice of election.

2. The posting on October 4th of notices
for holding an election on November 8th to de-
termine the question as to the formation of a
sanitary district, which notices remain posted
for four successive weeks, is a sufficient com-
pliance with St. 1891, p. 223, § 3, which re-
quires notices "to be posted for four successive
codefendant weeks prior to the election," and not that the
posting shall be during the four weeks next
preceding the election.-Woodward v. Fruitvale
Sanitary Dist., (Cal.) 34 P. 239.
Nominations.

7. Civil Code, c. 23, § 266, provides that,
if the premises for which an action to recover
possession is brought are continually occupied,
the occupant shall be made defendant with any
one claiming an interest adversely to plaintiff.
Section 267 provides that damages for ouster or
detention shall be recovered in the same action.
Section 269 provides that the verdict may be
against either defendant. Held, that where, aft-
er action brought against one in possession and
one from whom he rented, the former recog-
nized plaintiff's title, and took a lease from him,
a release of him by plaintiff would not abate
the action as to the other, the latter being the
only one claimed to be liable for mesne profits.
-Ghost v. Shuman, (Colo. App.) 34 P. 733.
Parties.

8. Where a defendant in ejectment is in
possession of any part of the premises as ten-
ant of another, it is proper to join the latter as
party defendant.-Moore v. Moore, (Cal.) 34 P.

90.

Burden of proof.

9. Where plaintiff in ejectment claims un-
der deeds which cover a tract of which the
land in dispute is a part, but which except and
reserve from the grant a certain number of
acres, not described, which had been conveyed
by a former owner to other persons, the bur-
den is on plaintiff to show that the land in dis-
pute is not a part of the land so excepted.-

3. A certificate of nomination, required to
be filed by the Montana ballot laws, (section 4,)
which is regular upon its face, and filed with
the proper officer, is prima facie evidence of
the nomination of the person so certified.-
State v. Benton, (Mont.) 34 P. 301.

4. The secretary of the committee to which
was delegated the power to make a nomina-
tion by a political convention, who certified
such nomination to the proper officer, testified
that he was present at a committee meeting
ings were held at several places, and that sev-
where the nomination was made; that meet-
eral committee men were present; that such
nomination was decided on at several meet-
ings, but he could not name the particular
meeting at which the nomination was made,
no minutes having been kept. Held, that such
testimony did not overthrow the prima facie
case made by the certificate of nomination.
Harwood, J., dissenting. - State v. Benton,
(Mont.) 34 P. 301.

5. A political convention delegated to a
committee power "to fill all vacancies that now
exist, or that may hereafter occur.' The con-
vention failed to make a certain nomination,
and the committee, after the adjournment of
the convention, made such nomination. Held.
that the Montana ballot law does not forbid a
nomination to be so made, and that it was

properly made. Harwood. J., dissenting.-State | a public road established.-Long v. Biling
v. Benton, (Mont.) 34 P. 301.
(Wash.) 34 P. 936.

3. Tide lands belonging to the state
not "state lands," within Code Proc. § 649, prz
viding for service of notice in condemnation
proceedings if the property sought to be appre
priated is state, school, or county lands,
cannot be condemned, there being no auth
therefor. Seattle & M. Ry. Co. v. State
(Wash.) 34 P. 551.

-

6. Where papers in apparent conformity to Property subject to-Tide lands.
the provisions of the Australian ballot law,
Laws 1893, c. 78, nominating a candidate for.
judge of a judicial district, have been filed
with the secretary of state more than 30 days
before the day of election, and such nomination
papers have not been held insufficient by the
secretary of state, auditor of state, and attorney
general, or a majority of them, it is the duty of
the secretary to certify to the county clerk of
each county within the judicial district the
name and residence of the candidate named in
such nomination papers, not less than 15 days
before the election, notwithstanding the fact
that objections thereto have been filed, and re-
main undetermined. - Simpson
Osborn,
(Kan.) 34 P. 747.

Ballots.

V.

7. The fact that the person named in nomi-
nation papers as the candidate of the pe-
titioners is also the candidate of another politi-
cal party does not affect the right of petitioners
to have his name printed on the official ballot,
in a separate column, under the heading of their
party name, as their candidate.-Simpson v.
Osborn, (Kan.) 34 P. 747.

Contest.

Taking interest in public lands-Right
of pre-emptor.

4. A pre-emptor who has filed his declare
tory statement, but has not paid for the land
has a "possessory claim," within the meaning
of Act Cong. March 3, 1875, § 3, which pre
vided for the condemnation of such holding
in the public lands by railroads taking adva
tage of the act, and is entitled to compensating
for a right of way taken through his land
Enoch v. Railway Co., (Wash.) 33 P. 906, fal-
lowed.-Reidt v. Spokane Falls & N. Ry. Co
(Wash.) 34 P. 150; Flutsch v. Same, Id.
Condemnation proceedings.

5. Under Hill's Code, § 3263, providing that
defendant in an action to condemn land may
set forth any legal defense to the appropriation
of such land, and also allege the value of the
land and the damage from the appropriation, an
owner may deny plaintiff's right to appropriate
the land, and also set up a claim for damages
Brida! Veil Lumbering Co. v. Johnson, (Ú:)
34 P. 1026.

8. Code Civil Proc. § 1111, providing that
any elector of a county, or political subdivision
thereof, may contest the right of any person
"declared elected" to an office to be exercised
therein, for causes enumerated, only authorizes
an examination of the right of a person "de
clared elected" at an election, the canvass of
which is questioned, and does not authorize a
recanvass of votes where the election has been
declared to have resulted in the election of no
one, in which case a new election must be held.
-Austin v. Dick, (Cal.) 34 P. 655; Id. 822.
Offenses against election laws-Indict-352.

ment.

9. Rev. St. U. S. § 5515, makes it an of-
fense for an election officer to neglect or re-
fuse to make and return the certificate of elec-
tion as required by law, or to refuse to per-
form any other duty imposed by law. Held,
that an indictment under such section need
only allege the duty, its undertaking, and the
intentional refusal to perform it.-United States
v. Vigil, (N. M.) 34 P. 530.

10. Allegations in such indictment that the
acts were done willfully and maliciously are
surplusage, and need not be proved.-United
States v. Vigil, (N. M.) 34 P. 530.

Embezzlement.

6. Where the award of commissioners gives
a person in possession of the land a part d
which is appropriated, and having a life inter
est therein, a gross sum for compensation, such
person may appeal from the award without
joining with him the owner of the legal title.-
Chicago, K. & N. Ry. Co. v. Ellis, (Kan.) 34 P.

Compensation.

7. In condemnation proceedings, a ques-
tion: "For what purpose could that property
be used properly?"-is properly disallowed-
City of Santa Ana v. Harlin, (Cal.) 34 P. 224
8. In condemnation proceedings the owner
is entitled to show the adaptability of the land
to the different practical purposes to which it
is naturally adapted, but the proof should be
limited to showing the present condition of the
property, and the uses to which it is adapted,
and not extended to speculative inquiries as to
possible future uses under altered circu
stances.-City of Santa Ana v. Harlin, (Cal)
34 P. 224.

9. In proceedings to condemn land, the
present market value is the measure of dan

By creditor, action by assignee, see "Insolven- ages, and not its value in use to the owner or
cy," 3, 4.

EMINENT DOMAIN.

Taking land for private way of necessity, see
"Constitutional Law," 2.

Transfer of proceedings from one judge to an-
other, see "Practice in Civil Cases," 4.

Necessity for taking.

1. As Acts 1889, p. 70, giving the city
council power to open streets, imposes on it
the duty of determining the necessity, and
makes the official order opening the street con-
clusive evidence of the necessity, the question
of necessity is purely for the council, and will
not be passed upon by the courts.-City of San-
ta Ana v. Harlin, (Čal.) 34 P. 224.
Condemnation for private way.

2. At common law, where a purchaser of
land was cut off from access to a highway by
lands not the property of his grantor, he could
not have such lands condemned for a private
way of necessity. His only remedy was to have

to those seeking to condemn.-City of Santa
Ana v. Harlin, (Cal.) 34 P. 224.

10. The term "present market value" of
land means the price he could obtain after
such a reasonable and ample time to sell as
would ordinarily be taken by an owner.-City
of Santa Ana v. Harlin, (Cal.) 34 P. 224.

Evidence.

11. In condemnation proceedings the ow
er cannot show offers received for the proper
ty. Muller v. Railway Co., 23 P. 265, 83 Cal
240, distinguished.-City of Santa Ana v. Har
lin, (Cal.) 34 P. 224.

12. Even if the owner could testify as to
offers received for property sought to be con
demned, a question whether he received offer
was properly excluded, where no time was
specified, and he had just testified that he had
owned the property for 16 years.-City of Santa
Ana v. Harliù, (Cal.) 34 P. 224.

18. To show the market value of land con
demned, the report of commissioners appointed
to assess neighboring land, reciting the price
to be paid for neighboring land, and the con
sideration which determined such report,

property involved must be brought before the | In pais.
court.-Constant v. Lehman, (Kan.) 34 P. 745.

ESCHEAT.

Res judicata, see "Judgment," 19.
Property of Mormon church.

In an action by the United States against
certain real estate belonging to the Church of
Jesus Christ of Latter-Day Saints, known as
the "Tithing Yard and Offices," to forfeit and
escheat the property, it appeared that the land
was first laid out in 1848, and taken possession
of by the representatives of the church of the
same name as such corporation, then and until
1855 a voluntary sect; that in the latter year
the church was incorporated, and such corpora-
tion thereafter possessed the property up to
July 1, 1862, and that valuable improvements
were put on it by the church. In November,
1871, the land was entered under the town-site
act by the mayor of Salt Lake City, who con-
veyed it to the church's president, as trustee,
by whose successor, as trustee, title was held
March 3, 1887. Held, that such property was
within the proviso of Act Cong. July 1, 1862,
§ 3, which declares that all real estate acquired
or held, in any territory of the United States,
by any corporation or association for religious
or charitable purposes, of greater value than
$50,000, shall be forfeited and escheated to the
United States, "provided that the existing
vested rights in real estate shall not be im-
paired by the provisions of this section," and
was not subject to forfeiture.-United States v.
Tithing Yard and Offices, (Utah,) 34 P. 55;
Same v. Church Coal Lands, Id. 60; Same v.
Church Farm, Id.

Estates.

See "Deed:" "Homestead;" "Wills."

ESTOPPEL.

Res judicata, see "Judgment," 12-23.
To allege error on appeal, see "Appeal," 58.
To deny authority to fill blanks in bond, see
"Bonds.'

corporate existence, see "Corporations,"
6, 7.
lessor's title, see "Landlord and Tenant," 1.
By deed.

1. A grantee of land in fee is not estopped
from disputing the title of his grantor.-Wenzel
v. Schultz, (Cal.) 34 P. 696.

2. A subsequently acquired title does not
relate back so as to give effect to a void deed.-
Powell v. Patison, (Cal.) 34 P. 677.
By record.

5. In an action against an administrate e
a contract for the payment of money, it appe
ed that one W. had a judgment agains 6:
decedent and plaintiff's father, as sureties
another, and a separate judgment against på
tiff as surety for the same person.
Two d
before the sale of the principal debtor's
on executions, plaintiff agreed to pay the
ment against her father and decedent, and e
latter agreed to repay her one-half such saz
At the sale, plaintiff bid in the land for te
amount of both judgments, and gave to T.
her notes for the amount, which she afterwar
paid. The sheriff returned the executions
isfied by such sale. Held, that she was actes
topped from showing that the land was beari
incumbered, and worth much less than -
amount bid by her at the sale.—Snyder v. Cars,
(Cal.) 34 P. 1034.

6. A bank having a claim against an e
vent firm, which is consulted by a firm of A
creditors with reference to collecting the
claim, is not legally bound to disclose the e
istence of its claim, but may keep silent,
protect its own interest, provided it is
of no fraudulent conduct, and does nothi
more than is necessary to its own protec
First Nat. Bank v. Naill, (Kan.) 34 P. T
7. The bare fact that the members of a
firm hold the record title to land which berta
to another, while such firm is engaged in t
ness, does not estop the true owner from ea
ing it as against the firm's creditors, where
does not appear that the creditors had
knowledge that either member of the firm ever
held such title, at any time before exec
was issued on their judgment against the f
-Girault v. A. P. Hotaling Co., (Wash.) 34 P
471.

Who may assert estoppel.

8. Where a street grading assessment, me
by a town, is invalid, the town cannot asser
an estoppel against a lot owner refusing to pay
his assessment. If such an estoppel exists t
can only be enforced by those who actually
the grading.-Town of Medical Lake v. Sh
(Wash.) 34 P. 835; Same v. Landis, Id. 836

Representatives.

9. Where defendant refuses to perform b
contract to convey land to plaintiff because the
land was community property, and his
who was not a party to the contract, refused
sign the deed, he is estopped afterwards to de
ny that the land was community property-
Graves v. Smith, (Wash.) 34 P. 213.

Clothing person with title.

10. Defendant J. gave his note to plaintif
for money borrowed, and deposited as security
therefor a contract for the purchase of land. in
which he was named as vendee. Afterwards
3. A county auditor, as required by the he obtained possession of the contract under
county government act, (section 115.), settled pretense of making a payment thereon,
the accounts of a tax collector, certified to the promised to return it, instead of which he pas
treasurer the amount payable into the county the purchase money in full, surrendered the
treasury, and, on the presentation and filing of contract to the vendor, and took a deed of the
the treasurer's receipt therefor, discharged the land in the name of his wife, defendant E.
collector, and charged the treasurer with the who testified that the land was her separ
amount. The county treasurer gave his re-
ceipt to the collector, and charged himself with property, and that J. acted as her agent. The
money borrowed from plaintiff was applied in
the amount in his official books; and in mak-part payment for the land. Held that, a
ing his monthly settlements with the auditor, ting the claim of H. to be true, the facts showed
as required by section 80, he made a sworn
statement that he had received such amount plaintiff, as H. was chargeable with know se
a conspiracy between defendants to defraud
from the collector, and that it was then on of the acts of J. as her agent, and she is e
hand. Held, that the treasurer was estopped topped.-Curtis v. Janzen, (Wash.) 34 P. 131.
by his receipt and his statement under oath to
deny the receipt of such amount from the col-
lector. San Luis Obispo County v. Pettit,
(Cal.) 34 P. 1082.

Silence.

11. A landowner does not, by mere silence
and inaction at the time of the construction of
4. In an action on an injunction bond de- a railroad on part of his land, and on a street
fendants cannot escape liability on the ground in front of his premises, lose his right sube
that the writ
of injunction was ambiguous, quently to obtain an injunction restraining the
and should not have been obeyed, as they are in operation of the road unless damages are pa
no position to make such an objection.-Ase-Coomb v. Salt Lake & F. D. Ry. Co.
vado v. Orr, (Cal.) 34 P. 777.

Utan,) 34 P. 148