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Contributory negligence of persons under dis-
ability, see Negligence, § 88.

Married women, see Husband and Wife, §§ 55-
79.

Of aliens, see Aliens, § 6.

DISBARMENT.

§ 15. Stipulation of facts held not to en-
large the issues made by the pleadings or op-
erate as a waiver of any omission therein.-
Brinkmeier v. Missouri Pac. Ry. Co. (Kan.) Of attorney, see Attorney and Client, §§ 36-57.

221.

$ 79. Where a deposition is not filed as required by Gen. St. 1901, § 4809, an applica

DISCHARGE.

tion for an order to bring the deposition into From indebtedness, see Bankruptcy, §§ 418, 434.
court made at the trial is properly denied.-
Martin v. Chicago, R. I. & P. Ry. Co. (Kan.)

451.

DISCOUNTS.

§ 95. A party held not entitled to offer and By bank, see Banks and Banking, § 181. have admitted a part only of his deposition.Metteer v. Smith (Cal.) 735.

DISCOVERY.

$ 107. Under Mills' Ann. Code, § 353, an See Mines and Minerals. § 17. objection to questions in a deposition as leading cannot be made at the trial.-Greenlaw Lumber & Timber Co. v. Chambers (Colo.) 1091.

DEPOSITS IN COURT.

Suspension of interest, see Interest, § 50.

DEPOTS.

Duty of railroad to fence, see Railroads, § 411.

DEPUTIES.

See Sheriffs and Constables, § 18.

DESCENT AND DISTRIBUTION.

See Dower; Executors and Administrators;
Homestead, § 150; Wills.

III. RIGHTS AND LIABILITIES OF
HEIRS AND DISTRIBUTEES.

DISCRETION OF COURT.

Allowance of alimony, see Divorce, § 223.
Amendment. of pleading, see Pleading, § 236.
Grant or refusal of continuance, see Continu-
ance, §7; Criminal Law, § 586.

Grant or refusal of mandamus, see Mandamus,
$ 7.

Order of proof, see Trial, § 59.

Review in civil actions, see Appeal and Error,
$$ 959-982.

Review of discretionary rulings, see Criminal
Law, §§ 1147-1156.

DISCRIMINATION.

By carrier, see Carriers, § 13.

DISMISSAL AND NONSUIT.

At trial, see Trial, §§ 159, 165.

Conclusiveness of judgment, see Judgment, §
654.

Costs on dismissal, see Costs, § 232.

(A) Nature and Establishment of Rights Dismissal as not bar to another prosecution, see

in General.

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Criminal Law, § 180.

Dismissal of appeal or writ of error, see Ap-
peal and Error, § 781.
Judgment on nonsuit as bar, see Judgment, §
570.

DISQUALIFICATION.

Of judge, see Judges, §§ 49, 51.

DISSOLUTION.

Of attachment, see Attachment, §§ 246, 249.
Of partnership, see Partnership, §§ 255, 311.
Of corporation, see Corporations, $600.

DISTRIBUTION.

Of assets of partnership on dissolution, see
Partnership, § 311.

Of estate of decedent, see Descent and Dis-
tribution.

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§ 7. Under County Government Act (St. 1897, p. 575, c. 277) § 228, subd. 2, a district attorney held entitled to determine for himself in the first instance whether a contemplated expense in the enforcement of the criminal law is necessary.-Yolo County v. Joyce (Cal.) 125. § 7. A district attorney's authority to incur expense in the prosecution of criminal cases, under County Government Act (St. 1897, p. 575, c. 277) § 228, subd. 2, is not subject to any court or judicial officer.-Yolo County v. Joyce (Cal.) 125.

7. The district attorney is an executive officer authorized to detect and prosecute criminal offenses for which he may incur necessary expense under County Government Act (St. 1897, p. 575, c. 277) § 228, subd. 2.-Yolo County v. Joyce (Cal.) 125.

§ 7. Code Civ. Proc. § 274, held not to deprive the district attorney of authority under County Government Act (St. 1897, p. 575, c. 277) 228, subd. 2, to order a transcript of the testimony of a criminal case at the expense of the county which he deemed necessary.-Yolo County v. Joyce (Cal.) 125.

DITCHES.

See Drains; Waters and Water Courses, § 244.

DIVERSION.

93. A complaint, in an action for divorce, held to state a cause of action for extreme cruelty.-Grierson v. Grierson (Cal.) 120.

§ 93. An allegation in the complaint in an action for divorce held immaterial.-Grierson v. Grierson (Cal.) 120.

(E) Dismissal, Trial or Hearing, and New Trial.

1392. Under Code Civ. Proc. § 581, an action for divorce is properly dismissed on plaintiff's refusal to offer any testimony in support of her complaint.-Stewart v. Stewart (Cal.) 955.

(F) Judgment or Decree.

§ 167. Under Ballinger's Ann. Codes & St. §§ 4878-4880, 5153, 5156 (Pierce's Code, §§ 336-338, 1033, 1036), a petition to vacate a default decree in a divorce suit held sufficient to

give the court jurisdiction.-Chaney v. Chaney (Wash.) 229.

(G) Appeal.

Appealability of decision relating to costs, see Appeal and Error, § 119.

§ 184. Where, on appeal in divorce proceedings, the record showed that an objection to testimony had not been made until it had been substantially received, and, the case being tried de novo, the court finds that, excluding all illegal testimony, there was sufficient left to sustain the judgment, it will be affirmed.-Smith v. Smith (Wash.) 1030.

V. ALIMONY, ALLOWANCES, AND DISPOSITION OF PROPERTY.

$223. Ordering the husband in an action for divorce to pay the expenses of his wife's apOf percolating waters, see Waters and Water peal held within the discretion of the trial Courses, § 105.

DIVORCE.

Effect of divorce of prosecuting witness from accused on prosecution for adultery, see Adultery, § 4.

II. GROUNDS.

§ 12. Marriage relation will not be dissolved except for grave and substantia! cause.-Barker v. Barker (Okl.) 347.

§ 27. It is not necessary that the husband should entertain, in connection with his acts of cruelty, any settled purpose to drive his wife from him, but it is enough where such is the natural consequence of his acts.-Grierson v. Grierson (Cal.) 120.

§ 27. Incompatibility of temper held not ground for divorce predicated on extreme cruelty.-Barker v. Barker (Okl.) 347.

IV. JURISDICTION, PROCEEDINGS, AND RELIEF.

(C) Pleading.

§ 93. A complaint, in an action for divorce on the ground of desertion, held to sufficiently allege the continuance of the desertion to the time of the filing of the complaint, as against a demurrer without alleging that the desertion lasted longer than the reasonable period mentioned in Civ. Code, § 124.-Grierson v. Grierson (Cal.) 120.

§ 93. A complaint, in an action for divorce on the ground of desertion, held to show that

court.-Stewart v. Stewart (Cal.) 955.

$223. Under Civ. Code, § 137, an order of the court refusing to allow a plaintiff, in an action for divorce, costs for prosecution of the action held proper.-Stewart v. Stewart (Cal.) 955.

VI. CUSTODY AND SUPPORT OF CHILDREN.

$298. The welfare of children is the controlling consideration in determining the custody as between divorced parents.-Wingard v. Wingard (Wash.) 833.

VII. OPERATION AND EFFECT OF DIVORCE, AND RIGHTS OF DIVORCED PERSONS. Effect of divorce of prosecuting witness from accused on prosecution for adultery, see Adultery, § 4.

DOCKETS.

Of judgments, see Judgment, §§ 282, 288.

DOCUMENTS.

As evidence in civil actions, see Evidence, §§ 341, 376. As evidence in criminal prosecutions, see Criminal Law, § 442.

DOMICILE.

in the desertion of plaintiff defendant remained Of parties as affecting venue, see Venue, § 32. away from her without sufficient cause.-Grier

son v. Grierson (Cal.) 120.

$93. A complaint held not to state a cause

of action for divorce on the ground of habitual See Gifts.

DONATIONS.

intemperance.-Grierson v. Grierson (Cal.) 120. By states, see States, § 119.

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Appellate jurisdiction in proceedings for organization of district, see Courts, § 212. Creation of districts and fixing boundaries as exercise of legislative power, see Constitutional Law, § 50.

Judicial power to question validity of statutes as affected by wisdom of enactment, see Constitutional Law, § 70.

Mandamus to compel establishment of reclamation district, see Mandamus, § 70. Presumptions as to validity of statutes, see Constitutional Law, § 48.

Special or local laws, see Statutes, § 80.

§ 2. St. 1893, p. 174, c. 147, providing for

nishing money to his wife, who made a loan, secured by mortgage on lands in the district.Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

§ 76. An assessment for reclamation purposes held not invalid merely because meetings were held in accordance with an invalid amendment to the by-laws adopted by the trustees. -Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

§ 90. Where the Legislature fixes the boundaries of a reclamation district, it must be conclusively presumed. in an action for an assessment for reclamation purposes, that the lands therein will be benefited by the reclamation works.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

$90. A finding in an action to enforce an assessment for reclamation purposes held a finding that a taxpayer objecting to the assessment has failed to sustain the burden of rebutting the presumption in favor of the validity of the assessment.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

DUE PROCESS OF LAW.

an appeal to the superior court from a decision See Constitutional Law, §§ 251-298.

of the board of supervisors, held in conflict with Const. art. 6, § 5.-Inglin v. Hoppin (Cal.) 582.

DUPLICITY.

8. The state may accomplish the work of In indictment, see Indictment and Information, reclaiming swamp lands ceded to it by the fed§ 125. eral government without organizing a district as such, and without giving the landowners any

DURESS.

voice in the selection of trustees.-Reclamation Of witness, see Witnesses, § 46. Dist No. 70 v. Sherman (Cal. App.) 277.

DYING DECLARATIONS.

14. The writ of review is sufficient for the correction of errors of the board of supervisors in the proceedings for the establishment of rec- See Homicide, § 200. lamation districts.-Inglin v. Hoppin (Cal.) 582.

§ 18. Under Pol. Code, § 3452, the trustees of a reclamation district held without power to amend the by-laws of the district adopted by the landowners.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

II. ASSESSMENTS AND SPECIAL

TAXES.

EARTHQUAKES.

Ground for terminating insurance agency, see
Insurance, § 79.

EASEMENTS.

See Dedication; Highways.

I. CREATION, EXISTENCE, AND TER-
MINATION.

§ 73. A defendant sued by a reclamation district for an assessment held not entitled to collaterally attack the legal existence of the Destruction of party wall, see Party Walls, § 5. district.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

EJECTION.

EJECTMENT.

§ 76. Pol. Code, § 3456, held to require com- Of passenger, see Carriers, §§ 358-384.
missioners making an assessment for reclama-
tion purposes to make an estimate of the whole
expense of the works, and to assess the lands
in the district proportionately to the whole ex-
pense thereof, and according to the benefits,
and that their assessment is presumptively val-
id under section 3463.-Reclamation Dist. No.
70 v. Sherman (Cal. App.) 277.

$76. The office of assessment commissioner to make an assessment for reclamation purposes held a de jure office, and that one appointed who qualifies and participates in the duties of the commissioners acts under color of office, and is a de facto officer.-Reclamation Dist.' No. 70 v. Sherman (Cal. App.) 277.

§ 76. A substantial compliance with the law governing the organization of reclamation districts and the administration of their affairs is sufficient to render an assessment for reclamation purposes valid.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

$76. Under Pol. Code, § 15, an assessment for reclamation purposes held not invalid merely because one of the assessment commissioners was removed from the class of disinterested persons, within section 3456, by his act in fur

III. PLEADING AND EVIDENCE.

§ 63. A complaint in ejectment held sufficient. -Victor Power & Mining Co. v. Cole (Cal. App.) 758; Same v. Zerr (Cal. App.) 761; Same v. Alvares, Id.

§ 66. An averment in a complaint in ejectment held surplusage, not rendering the complaint subject to general demurrer.-Victor Power & Mining Co. v. Cole (Cal. App.) 758; Same v. Zerr (Cal. App.) 761; Same v. Alvares, Id.

5508, 5509 (Pierce's Code, §§ 1144, 1145), de§ 84. Under Ballinger's Ann. Codes & St. §§ fendant in ejectment held not entitled to prove title in himself by adverse possession unless pleaded.-Brown v. Haley (Wash.) 478.

ELECTION.

Between counts in indictment, see Indictment
and Information, § 132.
Between testamentary provisions and other
rights, see Wills. §§ 778-801.

ELECTION OF REMEDIES.

§ 7. Claimants of a fund, having consented to a hearing of a receiver's claim thereto in the receivership proceedings, waived their right to litigation thereof in an independent action.Olympic Oil Co. v. Kane (Wash.) 477.

ELECTIONS.

Of corporate officers, see Corporations, § 282. Recall of municipal officer, see Municipal Corporations, § 159.

VII. BALLOTS.

$194. Under Pol. Code, § 1205, a ballot held to have a distinguishing mark.-Bass v. Leavitt (Cal. App.) 771.

§ 194. Under Pol. Code, § 1211, ballots held to have distinguishing marks.-Bass v. Leavitt (Cal. App.) 771.

§ 194. A blotch of ink on a ballot, attributable to other causes as readily as to design, held not a distinguishing mark.-Bass v. Leavitt (Cal. App.) 771.

VIII. CONDUCT OF ELECTION.

§ 221. Laws 1905, p. 233, c. 17, § 4, relating to the deposit of ballots, held mandatory.Rampendahl v. Crump (Okl.) 201.

X. CONTESTS.

Authority of Legislature to reimburse individual for expense of contest, see States, § 119. County seat election, see Counties, § 29.

§ 285. A statement of election contest held to state sufficient facts.-Bass v. Leavitt (Cal. App.) 771.

§ 285. Statement of what illegal ballots, under Code Civ. Proc. § 1116, contestant of an election must deliver a list to the other party. -Bass v. Leavitt (Cal. App.) 771.

§ 286. An answer to a statement of contest of election, though not required by Code Civ. Proc. held proper.-Bass v. Leavitt (Cal. App.) 771.

§ 293. Rejected ballots held sufficiently identified to be admitted on contest of election, notwithstanding noncompliance with Pol. Code, § 1257.-Bass v. Leavitt (Cal. App.) 771.

$305. Rejection of the ballots voted in the precinct where the election law was flagrantly violated would not be set aside on appeal in an election contest.-Rampendahl v. Crump (Okl.)

201.

$ 307. Under Pol. Code, § 280, the fees of officers for duties performed in the preliminary steps of a contested election case must be paid by the contesting parties.-Wessling v. Nye (Cal.) 408.

ELECTRIC RAILROADS. Acquiescence in construction as bar to action for compensation for lands taken for right of way, see Eminent Domain, § 280.

EMBEZZLEMENT.

Duplicity in information, see Indictment and
Information, § 125.
Right to confront witnesses, see Criminal Law,
§ 662.

§ 28. In an indictment of a public officer, held not necessary to specify with certainty the particular kind of money or funds embezzled, but necessary to specify the particular sum embezzled.-State v. Leonard (Wash.) 163.

§ 34. An information charging embezzlement by a public officer held specific and certain with reference to the requirements of Ballinger's Ann. Codes & St. § 1606 (Pierce's Code, § 4004).-State v. Leonard (Wash.) 163.

§ 42. In a prosecution for larceny by embezzlement, certain evidence held relevant and competent.-State v. Nilson (Wash.) 829.

44. In a prosecution of a public officer for the embezzlement of funds collected by him by virtue of his office, evidence held sufficient to support a conviction.-State v. Leonard (Wash.) 163.

§ 44. In a prosecution of a public officer for the embezzlement of funds collected by him by virtue of his office, evidence held to show a criminal intent.-State v. Leonard (Wash.) 163. § 47. In a prosecution for larceny by embezzlement, a refusal of accused's motion to dismiss held not error.-State v. Nilson (Wash.) 829.

48. The proposition that the failure of a his possession by virtue of his office must be public officer to pay over funds coming into with a criminal intent to convert the same to his own use to constitute embezzlement held sufficiently covered by an instruction given.State v. Leonard (Wash.) 163.

§ 48. In a prosecution for larceny by embezzlement, an instruction held not erroneous as being nullified by an exception therein.-State v. Nilson (Wash.) 829.

EMINENT DOMAIN.

Public improvements by municipalities, see Municipal Corporations, §§ 284-578.

I. NATURE, EXTENT, AND DELEGATION OF POWER.

§ 10. Though a corporation is organized to engage in private business in addition to its purpose to construct and operate railroads, it may exercise the power of eminent domain.-State v. Superior Court (Wash.) 637.

§ 10. That private individuals and corporations having a special interest in the construction of a railroad have subscribed to its capital stock, as authorized by Laws 1905, p. 51, c. 27, does not deprive the road of its public character, and right to condemn a right of way.-State v. Superior Court (Wash.) 637.

§ 14. The character of the use and not its extent, or the length of the proposed railroad, determines the question of public use and necessity.-State v. Superior Court (Wash.) 637.

II. COMPENSATION.

(C) Measure and Amount.

shore lands for dam purposes, where plaintiff § 134. In an action to condemn uplands and could not operate its boom without acquiring defendant's property, it was not error to permit the jury to consider its value as a boom site in making the award.--Columbia & C. R. Boom & Rafting Co. v. Hutchinson (Wash.) 636.

(D) Persons Entitled and Payment.

§ 155. The court in eminent domain proceedings held not to have erred in directing the payment of an award to the lessee of condemned property.-North Coast Ry. Co. v. Hess (Wash.) 853.

§ 11. Where money is collected in a fiduciary capacity, proof of a demand by one authorized to receive payment of such fund held not necessary before a conviction for criminal conversion can be had.-State v. Leonard (Wash.) 163.

§ 158. The court in eminent domain proceedings held to have erred in directing the pay

ment of the award representing the value of the | against an objection on motion for new_trial land to the owner and also in vacating a show- that it was excessive.-Columbia & C. R. Boom cause order and dismissing the petition against & Rafting Co. v. Hutchinson (Wash.) 636. him.-North Coast Ry. Co. v. Hess (Wash.) 853.

§ 158. A railway company which had paid an award in condemnation proceedings into court held to have an equitable right to be protected against liens against the property.-North Coast Ry. Co. v. Hess (Wash.) 853.

§ 158. The right of lien claimants to have an award in condemnation proceedings applied to the satisfaction of their liens held to be an equitable right and not dependent upon a statute, irrespective of whether they were parties to the proceedings.-North Coast Ry. Co. v. Hess (Wash.) 853.

$158. Under Ballinger's Ann. Codes & St. § 5644 (Pierce's Code, § 5109), a mortgagee, a lien claimant, and a municipality held to be "claimants" against the money paid into court by the railway company in the condemnation suit.-North Coast Ry. Co. v. Hess (Wash.) 853. § 158. An award in eminent domain proceedings held to represent the land itself and lien claimants to have the same claim upon that fund for the satisfaction of their claims.-North Coast Ry. Co. v. Hess (Wash.) 853.

$158. Under Ballinger's Ann. Codes & St. § 5644 (Pierce's Code, § 5109). lien claimants held to have the right to voluntarily submit themselves and claims to the jurisdiction of the court and have their claims adjusted, or, in case of a contest by the owner, to have the payment to the owner withheld until in some proceeding the claims could be established.-North Coast Ry. Co. v. Hess (Wash.) 853.

III. PROCEEDINGS TO TAKE PROPERTY AND ASSESS COMPENSATION.

§ 169. That a proposed railroad must cross a navigable stream, and that the consent of the

IV. REMEDIES OF OWNERS OF

PROPERTY.

266. Where land has been taken for a railroad right of way, and a road built thereon, the owner may waive other remedies, and recover the value of the land taken.-Boise Valley Const. Co. v. Kroeger (Idaho) 1070. use of certain of his land for a railroad right § 280. Acquiescence by a landowner in the of way held not to divest him of title, nor prevent his recovering reasonable compensation for the land taken.-Boise Valley Const. Co. v. Kroeger (Idaho) 1070:

for a railroad right of way, after which defend$284. Where defendant's land was taken ant sold the same, an instruction that he could the building of the embankment and the time only recover such damages as accrued between of the sale was erroneous.-Boise Valley Const. Co. v. Kroeger (Idaho) 1070.

303. Where the construction of a railroad over defendant's land has been completed, and the injury is permanent, the whole damages, past, present, and prospective, must be recovered in one action.-Boise Valley Const. Co. v. Kroeger (Idaho) 1070.

from a railroad construction company are not 303. Damages sustained by a landowner allowed in nuisance cases.-Boise Valley Const. recoverable on the theory that damages are Co. v. Kroeger (Idaho) 1070.

303. The measure of damages for taking or injuring land by a public service corporation stated.-Boise Valley Const. Co. v. Kroeger (Idaho) 1070.

EMPLOYÉS.

Secretary of War to the bridging has not been See Master and Servant.
obtained, does not affect the right to condemn a
right of way.-State v. Superior Court (Wash.)

637.

ENCROACHMENT.

ENTRY.

§ 171. That there had been laches in con- On highways, see Highways, §§ 154, 155. struction of a railroad is no defense to condemnation proceedings for a right of way if the company is about to construct its road and utilizes the property acquired in the near future. State v. Superior Court (Wash.) 637.

§ 171. That some of the stock of a railroad company was subscribed by trustees without disclosing their principals is no objection to the right of the company to condemn land for a right of way, as such subscription is valid.State v. Superior Court (Wash.) 637.

Of judgment, see Judgment, §§ 282, 288.
Of public lands, see Public Lands, §§ 32, 35.
Re-entry by landlord, see Landlord and Ten-
ant, 285.

ENTRY, WRIT OF.

See Ejectment.

EQUALIZATION.

$177. Under Ballinger's Ann. Codes & St. § 5638 (Pierce's Code, § 5103), lien claimants held proper parties in a condemnation suit by a rail- Of taxes, see Taxation, § 449. way company to condemn property for railway purposes.-North Coast Ry. Co. v. Hess (Wash.)

853.

EQUITABLE DEFENSES.

§ 180. Notice required to be served on op- Against subrogation, see Subrogation, § 40.

posite party under Wilson's Rev. & Ann. St. 1903, § 1041, held prerequisite to jurisdiction.Lacik v. Colorado, T. & M. Ry. Co. (Okl.) 655.

EQUITABLE ESTOPPEL.

EQUITY.

§ 181. The notice required to be served upon See Estoppel, §§ 52-110. the opposite party in condemnation proceedings, under Wilson's Rev. & Ann. St. 1903, § 1041, is insufficient where it is neither signed by the party nor by its officer, agent, or attorney.Lacik v. Colorado, T. & M. Ry. Co. (Okl.) 655. 8191. A petition held to sufficiently show that the right of way sought to be obtained was for a public purpose.-State v. Superior Court (Wash.) 637.

§ 262. Where the trial court and jury viewed the land taken, the Supreme Court is less reluctant to approve their award of damages as

Equitable defenses against subrogation, see Subrogation, § 40. Equitable estoppel, see Estoppel, §§ 52-110. Particular subjects of equitable jurisdiction and equitable remedies.

See Cancellation of Instruments; Fraudulent Conveyances; Injunction; Quieting Title; Receivers; Reformation of Instruments; Specific Performance; Trusts.

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