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by the companies the court was to determine, accident at a crossing, unless that be the poor
them, and that it did not have to declare a imate cause of the injury, and there te
necessity for a crossing at a particular point such negligence on the part of the person :
desired by the new road where it would greatly jured as to prevent his recovery.-Chicago,
injure the senior road, and near by which the I. & P. R. Co. v. Crisman, (Colo. Sup.) 34 P.
new road could pass without such injury, and 286.
with merely an additional expense to the new Contributory negligence.
road.-Seattle & M. Ry. Co. v. State, (Wash.)

12. Where the view of the track from the
34 P. 551.

highway is obstructed, or the crossing is in
Taxation Exemption on paying per- other respects especially dangerous, it is the
centage of gross earnings.

duty of a traveler, aware of such facts, to a
5. Act Wash. T. Nov. 28, 1883, (Laws view is unobstructed; and if he cannot otha

ercise a higher degree of care than when the
Wash. 1883, p. 64,) known as the “Gross Earn: wise satisfy himself that it is prudent to a
ings Law," which provided for the taxation of he must stop and listen before driving on the
the gross earnings in lieu of any and all other track.-Chicago, R. 1. & P. R. Co. v. Crisma,
taxes upon any railroad

or upon the (Colo. Sup.) 34 P. 286.
equipment, appurtenances, or appendages there-
of, or upon any other property situated in this road company does not excuse negligence on

13. Gross negligence on the part of the re-
territory, belonging to the corporation owning the part of one injured at a railroad crossing
or operating such railroad," did not limit the
exemption from taxation to property actually Sup.) 34 P. 288.

-Chicago, R. I. & P. R. Co. v. Nunes, (Cosa
used in the operation of railroads, but exempt-

14. Failure to give the statutory sistak
ed all property of such corporations.-Columbia
& P. S. R. Co. v. Chilberg, (Wash.) 34 P. 163. speed, does not excuse negligence on the rest

or running the train at a too rapid rated
Liability for negligence Of consoli- of one injured on a railroad crossing.–Chiae
dated company.

R. I. & P. R. Co. v. Crisman, (Colo. Sup.) 34

P. 286.
6. Where two or more railroad companies
are consolidated under the statutes of the state, Injuries to persons on track-Contrib-
the new or consolidated company is answerable utory negligence.
for the obligations of the old companies, includ- 15. In an action for injuries from being
ing torts, in the absence of any evidence or struck by a train while walking along a ni
stipulations to the contrary.-Berry v. Kansas road track in a cut in a street with an emback.
City, Ft. S. & M. R. Co., (Kan.) 34 P. 805. ment on each side, an instruction that it is the
Injury to trespasser on cars.

duty of men walking on the track, on discure
7. Where plaintiff was injured through the ing the approach of a train, to leave the truck,
gross negligence of defendant's trainmen, who if possible, and it is negligence if they fail to
had knowledge that he was on the train, de- do so;. that, if plaintiff knew the train was er
fendant is liable for the injury, even if the proaching, and could have gotten away front
plaintiff was a trespasser.- Everett v. Oregon even by throwing himself prostrate on the s
S. L. & U. N. Ry. Co., (Utah) 34 P. 289.

bankment, and failed to use such means of st

preservation as were obvious and were at has
Statutory provisions—Rate of speed. he was negligent,-is not erroneous, where the

8. The mere fact that a train which caused is evidence to warrant it -Beck v. Portland &
an injury to a person on the track was running V. Ry. Co., (Or.) 34 P. 753.
at a speed prohibited by an ordinance, which 16. Nor' is it error, in such case, after ett
merely prescribed a penalty for its violation, is dence that there was another road which plain-
not, per se, conclusive proof of negligence, ren- tiff could have chosen, to charge that a sisi
dering the railroad company liable, but such vio- cannot go deliberately, and with his eyes open
lation must have been the proximate cause of into danger, and then complain of another inst
the injury; and whether the company is liable he is injured; that it is his duty to use all
is for the jury, and not the court, to say.-Beck dinary means for self-preservation, and if he
v. Portland & V. Ry. Co., (Or.) 34 P. 753. fails to do that,-if there is a choice of ways fæ
Accidents at crossings.

him to pass, one safe and the o:her dangeres

and, with knowledge of the situation, be talas
9. Defendant, having a contract to build a the latter,-he must abide the consequenas-
length of sea walí, was hauling sand for filling, Beck v. Portland & V. Ry. Co., (Or.) 31 P. 152
in a train of cars on a temporary track along
the water front, said train making about 20

Stock-killing cases.
trips a day. Subcontractors were hauling stone

17. Plaintiff's son testified that he was ou
and other material in large quantities by tea in foot, driving the stock killed on the road cross-
on a road crossing over said track. Held, that ing defendant's railroad; that when the stort
a charge that said crossing was not a highway were struck he was behind them. 31N) yards
crossing was irrelevant on the question of de from the crossing. It appeared that the trus
fendant's liability for injuries to one of the was going fast. Held, that the evidence did
teamsters.--Carraher v. San Francisco Bridge not support a finding that the engineer's fail-
Co., (Cal.) 34 P. 828.

ure to whistle 80 rods from the crossing party
10. The complaint in an action against a caused the accident.-Atchison, T. & F. R
railroad company alleged that the driver of a Co. v. Bell, (Kan.) 34 P. 350.
horse car in which plaintiff was a passenger,

Fires.
on approaching a crossing of defendant's track, 18. Act Jan. 8, 1891, requiring railroad com
observed an engine standing on the track with- panies, between September 1st and November
in 25 feet of the crossing, whereupon he stop- 1st in every year, to burn the vegetation 00
ped the car; that, after ascertaining that the their right of way as a guard against fire, and
engine was not in motion, he started to cross making them liable for damage resulting frog
the track; that when he was very near it the failure to do so, does not authorize a recrety
engineer of defendant's engine negligently com- for fire occurring. October 20, 1891. - Tuis
menced to back it towards the car, whereupon Pac. Ry. Co. v. Gilland; (Wyo.) 34 P. 953.
the passengers, including plaintiff, observing 19. It is not per se negligence for
that a collision was imminent, jumped from way company to permit combustible material,
the car, and that in so doing plaintiff, though such as "stalks, grass, grain, or stubble," te
using due care, was injured. Held, that the grow or remain on its right of way in cous-
complaint stated a cause of action.-Stephenson erable quantities.-Union Pac. Ry. Co. i. Gii-
v. Southern Pac. Co., (Cal.) 34 P. 618.

land, (Wyo.) 34 P. 953.
11. Failure to ring the bell or blow the 20. Under Act March 31, 1887, making rail-
whistle at a crossing, as required by law, does road companies liable for loss from fire staried
not render a railroad company liable for an by their engines, no negligence on the part of

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one whose property is destroyed is to be consid- | trict attorney, unknown," and the evidence for
ered unless he knowingly or purposely placed the prosecution showed that before the in-
liis property where sparks wouid be likely to formation was prepared the district attorney
ignite it, or, being present, suffered it to re- was informed as to who stole the property,
main in proximity to a fire in actual progress, and from whom it was received by defendant,
without effort to protect it; and, in the ab- the variance is fatal.-Sault v. People, (Colo.
sence of evidence of such neglect, an instruc- | App.) 34 P. 263.
tion on contributory negligence is properly re-
fused.-Union Pac., D. & G. Ry, Co. v. Wil-

Recognizance.
liams, (Colo. App.) 34 P. 731.

See "Bail."
Ratification.

Records.
See “Principal and Agent," 5–7.

Correcting journal entry of conviction, see

"Criminal Law," 70.
Real Estate Agents.

Estoppel by, see "Estoppel," 3, 4.
See "Factors and Brokers."

On appeal, see “Appeal," 27-47.
Right to have deed recorded, see “Constitu-

tional Law," 17.
RECEIVERS.

Redemption.
Estoppel to object to appointment, see “Estop From execution sale, see “Execution," 6.

pel, 13.
Removal of receiver and appointment of an-

Sale of equity, see “Mortgages," 14.
other, right of appeal, see "Appeal,” 5.

Reformation,
Appointment.
1. Although, under the statute, the pur-

Of contracts, see "Equity,” 3, 4.
chaser of mortgaged premises on foreclosure
sale is entitled to rents of the premises or the

Regents, Board of.
value of the use and occupation from the time
of the sale until redemption, a receiver will See “Colleges and Universities."
not be appointed for the premises before the
expiration of the period allowed for redemption,
eren though the judgment debtor is insolvent,

RELEASE AND DISCHARGE.
as the latter, until then, is entitled to the pos- See, also, “Compromise;" "Payment.”
Session.-West v. Conant, (Cal.) 34 P. 705.

2. A complaint in an action to recover pos- Of insolvent, see "Insolvency,” 5.
session of land, with damages for witholding it Of mortgage, see "Chattel Mortgages,” 5.
and rents, alleged plaintiff's ownership of prem- Of surety, see “Principal and Surety,” 3-7.
ises withheld by defendant; that defendant What constitutes.
was renting the premises and collecting the
rents; that the premises were mortgaged; and

1. A subcontractor assigned to a creditor
that plaintiff needed the rents to pay interest all money due or to become due under his con-

tract.
falling due on the mortgage. Held not to show

When the creditor presented his claim
grounds sufficient for the appointment of a re- tioned the amount due, he gave å receipt ex-

at the request of the contractor, who gues-
ceiver pending the action.-State v. Second Ju- pressed to be in full of all claims under the
dicial District Court, (Mont.) 34 P. 609.

subcontract, the contractor stating that, if any
Rights of attaching creditors.

more was due, it should be paid irrespective
3. Where one has attached property the of the receipt. The creditor reassigned his in-
court has no authority to direct a receiver ap-

terest to the subcontractor. Held, in an ac-
pointed in an action other than the attachment tion against the original contractor to recover
suit to take charge of the attached property, a balance alleged to be due, that the unau-
as the attachment creditor has not only a thorized receipt given by the creditor was not
right to have his debt satisfied out of such conclusive.-Moore v. Vickers, (Colo. App.) 34
property, but to have the sheriff retain it in P. 257.
the mean time.-State v. Superior Court of Fraud or mistake.
Snohomish County, (Wash.) 34 P. 430.

2. In an action against a stea mship com-
Liability for losses.

pany for personal injuries sustained by falling
4. Where goods, under an order of the through the hatchway of defendant's vessel,
court procured by the parties in interest, are

defendant pleaded a release by plaintiff, but
sold at auction at a loss, the receiver is not it did not appear that anything was
chargeable therewith. Rush worth v. Smith, said to him concerning a release by any one on
(Ccio. App.) 34 P. 482; Appeal of Eskridge, 1d. behalf of defendant, and he testified he could

not and did not read it when he signed it. An
Power to make contracts.

employe of defendant read it to plaintiff's wife,
5. A consent order for the appointment of who could not read it, and she testified that
a receiver of a mercantile partnership provided from what he read, and from his explanation of
that he might continue the business of the it, she was led to believe it was simply a re-
La Jara store, and replenish the stock therein ceipt, and that on her request plaintiff signed it.
from the moneys received, until said stock can Such employe was a witness, but did not testify
be sold at a good and reasonable price.” Held, about reading the paper to plaintiff's wife.
that the receiver was justified in buying goods Held, that the court properly charged that plain-
necessary to replenish the stock at 30 days' tiff was not bound by the release unless he had
time, as customary, liquidating the bills out knowledge of its contents or purport, or had
of the proceeds of the sales.--Rushworth v. the means of such knowledge.-- Smith v. Occi-
Smith, (Colo. App.) 34 P. 482; Appeal of Esk- dental & Oriental Steamship Co., (Cal.) 34 P.
rige, Id.

84.

Scope of releasə.
RECEIVING STOLEN GOODS. 3. A receipt for money, recited to be "in

full settlement of account as follows: 40 cubic
Information-Variance.

yards stone a $1.50 per yard," is not a re-
Where the information on which de- ceipt in full for anything further than the stone
fendant was tried charged that he received specified.-Union Pac., D. & G. Ry. Co. v. Mc-
stolen property "from some person to the dis- | Carty, (Colo. App.) 34 P. 767.

V.34P.-76

ever

Pleading release-Necessity.

Retrospective Laws.
4. A release of a cause of action is not
available unless it is specially pleaded.-Grun- See “Constitutional Law," ul.
wald v. Freese. (Cal.) 34 P. 73.

Return.
Religious Societies.
Disposition of property, res judicata, see "Judg-

Of writ, see “Writs," 2-4.
ment," 19.
Escheat of property, see "Escheat."

Revenue.

See “Taxation."
Remedy at Law.

Review
See "Equity," 1;, “Injunction,” 1, 2; "Specific
Performance," 1.

On appeal, see "Appeal," 53-88; "Criminal
Remittitur.

Law," 77-79.
See “Appeal," 98.

REVIEW, WRIT OF.
Removal.

Extent of review.
of officers, see "Office and Officer," 2-5

1. A finding by the board of equalizatio

that a person has omitted taxable papers
Repeal.

from his list to a certain amount is concess

on the courts on writ of review, sicce Code
Of statutes, see “Statutes," 14.

Civil Proc. § 1074, provides that the review
such writ cannot be extended further tta: 5

determine whether the inferior tribuna!
REPLEVIN.

board has regularly pursued its authority.-se

curity Sav. Bank & Trust Co. v. Board Sap's
Demand-When necessary.

Los Angeles County, (Cal.) 34 P. 437; Me
1. Where the defense in replevin is found. Street Sav. Bank & Trust Co. 7. Same, id-
ed on title in a defendant, and the right of Los Angeles Sav. Bank v. Same, Id.
possession incident thereto, it is not necessary 2. Even if the fact that property has been
to prove demand and refusal.-Greenawalt v. so omitted is necessary to give the board jaar
Wilson, (Kan.) 34 P. 403.

diction, the court cannot review the evid
Damages.

to determine whether there was eridese

show such fact, since the fact is one to be do
2. In an action by a farmer to recover termined by the board.-Security Sav. Bank
possession of horses, wagon, and harness, and Trust Co. v. Board Sup'rs Los Angeles Ceon
for damages for their wrongful detention, a ! (Cal.) 34 P. 437; Main Street Sav. Banii
charge that the measure of damages is "the Trust Co. v. Same, Id.; Los Angeles Sar. Bart
value of the use or hire of the property while v. Same, Id.
in possession of defendant from the time of
demand" is prejudicial to defendant when un-

Revival.
accompanied by considerations of whether the
property could bave been constantly employed Of judgment after satisfaction, see "Judgment
by plaintiff at a given rate of earnings, either 29.
by letting for hire or by employment at home,
and whether the gross earnings would have

Reward,
been diminished by expense for, feeding and Funds applicable to payment, see “States and
care.—Brunell v. Cook, (Mont.) 34 P. 1015.

State Officers," 6.
Representations.

Riparian Rights.
Estoppel by, see "Estoppel," 9.

See "Irrigation;" “Waters and Water Courses."
Rescission.

Risks of Employment.
Of contract, see "Contracts," 21; "Equity,"
5-9.

See “Master and Servant," 20–26.
Of land contract, see “Vendor and Purchaser,"
9-11.
Reservoir.

Rivers,
Right to maintain, see "Waters and Water See "Waters and Water Courses."
Courses," 2.
Resignation.

ROBBERY.
Of officers, see "Office and Officer," 2-5.

Description of money stolen, see “Larceny," 1

Possession of stolen property, instructions,
Res Judicata.

"Burglary," 3, 4.
See "Judgment," 12-23.

Instructions—Possession of stolen prop-

erty.
Resolutions.

On a prosecution for robbery, an i

struction that defendants' possession of the
Of cities, see "Municipal Corporations," 10–15. stolen property shortly after the crime, &!

their failure to account for such possesse,
Resulting Trusts,

are circumstances to show their guilt, and the

they were bound to explain the possession in
See "Trusts," 46.

remove its effect, is not error where the court

has also charged that such possession is not
Retraxit.

itself sufficient to warrant a conviction, but

merely a circumstance to show guilt.-Peuple F.
See "Judgment," 16.

Etting, (Cal.) 34 P. 237.

SALE.

levy, was presented with a bill for freight and

delivery charges on goods ordered before his
See, also, “Vendor and Purchaser;" "Fraudu- insolvency, by the collector of a city transfer
lent Conveyances.”

company, to which he had given a general or-
: Change of possession, see "Fraudulent Convey- der to transfer goods shipped to him from the

depots to his store. He refused to pay the
ances," 10.
- On execution, see “Execution," 4, 5.

bill, or receive the goods, explaining his rea-
Purchase pendente lite, see “Lis Pendens."

sons, and advising the collector that the goods
Validity of contract, see "Frauds, Statute of,” 5. should be returned to the seller. The com-

pany, however, delivered the goods at his old
Change of possession as against cred place of business, and accepted payment of the
itors.

charges from the sheriff in possession, who

forthwith levied on them. Held, that the trans-
1. A change in possession of barrels of fer company was not the merchant's agent to
whisky, as against attaching creditors of the take and keep the goods, so that the delivery
seller, is not accomplished by rolling them to it would end the transit, and, on demand,
apart from the rest of the stock in the seller's the seller was entitled to the right of stoppage
store, and marking them with the buyer's brand, in transitu.-Weber v. Baessler, (Colo. App.) 34
-the latter having then no room for them in his P. 261.
store, but agreeing to remove them in a few
days.--and the good faith of the parties is im- Action for price.
material. – Burchinell v. Weinberger, (Colo. 9. A complaint alleging ihe sale to defend-
App.) 34 P. 911.

ants of plaintiffs' right, title, and interest in
Revesting title in seller-What is nec. and to certain personal property, and seeking

recovery of part of the purchase money, is not
essary.

defective for failure to define plaintiffs' right
2. Where one who has sold and delivered of the ownership of the property.-Duzan v.
goods on credit takes them back in payment of Meserve, (Or.) 34 P. 548.
the price, the transaction is not a rescission of

10. The allegation of the complaint that de
the sale, as the sale has become complete, and fendants took possession of the property under
the title has vested, but is a resale by the buyer the contract is not open to the construction
to the seller, and therefore within Gen. St. 8 that defendants took tortious possession thereof.
1454, making a sale invalid as against cred- -Duzan v. Meserve, (Or.) 34 P. 548.
itors and innocent purchasers, where the ven- 11. In an action for the price of a threshing
dor retains possession, unless a bill of sale is machine, where the questions whether a ma-
recorded.-Whiting Manuf'g Co. v. Gephari, chine sold was as represented by the seller,
(Wash.) 34 P. 161.

and whether there had been a return of the
3. Even if this could be beld a mere re machine by the purchaser and a rescission of
scission, it could not be so held where part of the contract were involved, testimony that the
the goods had been disposed of by the buyer, seller had received it back, and sold it to an-
and the seller took back only the remainder, as other, in substantially the same condition, six
the original sale could not be divided up into years afterwards, and that it was then de
separate contracts of purchase of the different fective in construction, and therefore unfit for
articles. - Whiting Manuf'g Co. v. Gephurt, the use for which it was intended, was ad-
(Wash.) 34 P. 161.

missible as tending to show that it was de
Warranty.

fective and unfit for use when first sold.-C.
4. The fact that a contract for the sale of Aultman & Co. v. Miller, (Kan.) 34 P. 404.
certain engines located at certain places, which
the purchasers have seen and approved, de Buyer's rights and remedies.

scribes them as of certain horse powers named, 12. In an action for breach of a contract of
It does not render the seller liable in damages if sale, whereby plaintiff agreed to convey and

they prove to have less than such named capac transfer to defendant, at a certain date and for

Fities, such averment being treated as mere mat- a consideration named, certain described prop
mi ter of description.-Kleeb v. Bard, (Wash.) 34 erty, an allegation by plaintiff that he owned
P. 138.

such property at the date of the contract is im-
5. Where the contract for the sale of a material.-Kleeb v. Bard, (Wash.) 34 P. 138.
quantity of dates, of two kinds, makes no dis- 13. Statements by the owner of a mining
tinction as to the respective values of the two lease to one about to purchase an interest that
kinds, evidence is incompetent, in an action for he was about to go east, and could dispose of
the breach of warranty of the merchantable the lease at a profit, are speculative matters of
condition of one of the kinds, as furnished, to opinion, and resting on the future, and are
show that such kind was not worth as much as not such fraudulent statements as could in-
the other kind.--Levi v. Dimmick, (Cal.) 34 P. validate the sale.-Beard v. Bliley, (Colo. App.)
79.

34 P. 271.
6. The fact that part of a lot of potatoes 14. A statement that he and other lessors
contracted for as “merchantable" have *sprout- had secured an extension of the lease is not of
ed a little" does not necessarily show that they a character to vitiate the sale, where there
are unmerchantable, but, there being evidence was an agreement for an extension which was.
that the lot in question were salable for table afterwards indorsed on the lease.--Beard y.
use or shipment, the question whether the pur- Bliley, (Colo. App.) 31 P. 271.
chaser was justified in refusing to receive them 15. A false statement that the mine was
is for the jury.-Varshall v. Keefe, (Cal.) 34 paying expenses, a fact which the owner alone
P. 89.

had knowledge of, would render the sale void,
Warranty of title - When right of ac- the statement being the inducement for the

purchase.-Beard v. Bliley, (Colo. App.) 34 P.
tion accrues.

271.
7. The vendee of a chattel cannot recover 16. Where there are grounds for rescission
from his vendor on the implied warranty of of a sale by the purchaser, the fact that he de
title, when it appears that not he, but his ven- lays returning a portion of the property is im-
dee, was dispossessed of the chattel by the material if, when it is returned, it is accepted
legal owner, and that he has not reimbursed by the other party without objection as
such second rendee, or been made liable by time.-C. Aultman & Co. v. Miller, (Kan.) 34
him for the value of the chattel.--Myers v. P. 401.
Bowen, (Colo. App.) 34 P. 585.
Stoppage in transit.

Sanitary Districts.
8. A merchant, having become insolvent,
and lost possession of his stock of goods by Police power, see "Constitutional Law," 22.

to

Satisfaction

Compensation.
See “Compromise;" “Payment;” “Release and issuance of a liquor license by certain of the

1. Laws 1891, c. 9, 88 1, 3, provide for se
Discharge."

county or city officials on payment by the <

plicant therefor of the fee to the county to
SCHOOLS AND SCHOOL DIS- urer to be credited to the school fund. Cars

Laws 1884, 88 2903, 2904, provide for a
TRICTS.

ment of license fees and collection by the
School lands, see “Public Lands," 7-11.

iff. Held that, under the Laws of 181, tbas

is no provision for the collection of the 19
Investment of school fund.

fee by any person, and, where the sheriff Ta
A school district is a municipal corpora- to no commission thereon.—Board of Edteago

untarily collects the license fee, he is earta
tion, within the meaning of Const. art. 16, § 5, of Socorro v. Robinson, (N. M.) 34 P. 25,
which directs that the permanent school fund
“may be invested in national, state, county or 159,) $ 9, relating to sheriff's fees, prorias

2. Act March 5, 1870, (St. 180tiu,
municipal bonds.' Hoyt, J., dissenting.-State that the sheriff is entitled to receive
s. Grimes, (Wash.) 34 P. 836.

every mile necessarily traveled in going car

in executing any warrant of arrest,
Service of Process.

or for mileage in any criminal case or pront

ing, * thirty cents.” St. 1887. D.
See "Writs," 1.

$ 211, provides that the fees prorided in te

act shall be in full compensation, "pre
SET-OFF AND COUNTER-

further, that the board of supervisors 5621 2.-

low to the sheriff his necessary expens
CLAIM.

pursuing criminals or transacting any ciu

business without the boundaries of his a
When allowable.

ty." Held, that the sheriff was not entirlo)
1. Defendant agreed to pay the debts of mileage while unsuccessfully hunting fie
plaintiff corporation, and, as security, plaintiff caped prisoners for whose arrest he had to
conveyed to her all its notes, and accounts, bara, 3 P. 877, 65 Cal. 257, followed.-Otes.

rants. Broughton v. County of Santa Fe
merchandise on hand, and all its property,
with certain exceptions. It was agreed that v. Tulare County, (Cal.) 34 P. 519.
plaintiff should endeavor to sell the merchan-

8. Where a sheriff arrests two or more
dise, and apply the receipts to the payment of sons at the same time he is not entitled to it
defendant, and that the property conveyed to mileage at such statutory rate for each pro
defendant should not be sold at less than its arrested.-Overall v. Tulare County, (CAL

P. 519.
cost to plaintiff, without the consent of plain-
tiff's directors. Subsequently, defendant, with- Retaining property until payment of
out plaintiff's knowledge, sold a portion of the

fees.
goods, and plaintiff sued for conversion. De
fendant, for answer, set up the whole agree.

4. In order to justify a sheriff in rett:
ment; alleged performance on her part, and for his fees, after notice of the filing of the nig
that there was due her, above the value of the bond, property levied on, he should, on demand
property sold, a large sum; and prayed an ac-

for the property, state the amount of his in
counting. Held, that such answer was a prop and offer to return the property op payu-
er counterclaim, within Code Civil Proc.'s thereof.-Sam Yuen v. McMann, (Cal.) 34 P:
438, providing that “a cause of action arising Liabilities.
qut of the same transaction" may be so set up,
and the fact that plaintiff alleged no facts to 5. Where a plaintiff seeks to amere
show that the counterclaim arose out of the sheriff, for failure to return an executioa,
same transaction did not prevent defendant execution must conform strictly to the a:
from setting out the entire transaction, and ment rendered, and if additional costs,
thus showing the relation of her claim thereto. have accrued subsequent to the renditio perts en
-Story & Isham Commercial Co. v. Story, (Cal.) judgment, are to be included in the esett..
34 P. 671.

they should be indorsed upon or be *

to in the execution as additional costs.-Glass
Pleading.

v. Itten, (Kan.) 31 P. 22.
2. On a petition for the sale of decedent's 6. The supreme court, at a prior term..
land to pay a debt due petitioner, a claim that Pac. 200,) decided that plaintiffs were enti
the debt had been paid by petitioner's use and to the possession of certain mining claims, ak
occupation of a portion of the estate is a counter- ordered that they be put into possession, a
claim, which must be pleaded.-In re Couts' the court below thereon issued a writ of me
Estate, (Cal.) 34 P. 865.

tution. The sheriff made return to the

"that he found parties in possession of the
Settlement.

premises that were not parties to the suit, an

who were claiming the premises by location
See "Compromise;" “Payment;” “Release and it was cited to show cause why he did DAI

der the laws of the United States."

The shers
Discharge.”'
Between partners, see “Partnership," 2.

ecute the writ of restitution, to which he ma's
By executors, see "Executors and Administra- Held, that the sheriff was not entitled to

answer that plaintiffs refused to indemnify Ez
tors," 10.

demnity.-Ah Kle v. Gregory, (Idaho.) 34 P.

812.
Severable Contracts.

7. In an action on a sheriff's bond for this
See “Contracts," 1-4.

tention, after the giving of an appeal al siis
bond, of property levied on under erectia.

letter of the sheriff offering to return part 2
SHERIFFS AND CONSTABLES. of the property was properly excluded. -=

Yuen v. Mclann, (Cal.) 31 P. 80.
Conditions precedent to action against surety Liability for seizing mortgaged pTIP

on constable's bond, see "Principal and Sure
tr," 9.

erty.
Liability in assumpsit for illegal fees retained, 8. Where a constable remores propery
See "Assumpsit," 1, 2.

der attachment against the mortgagor therez
Right to carry weapons, see "Carrying Weap after having notice of the mortgagee's rist:
Olis."

possession, he is a trespasser, and liable ibert

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