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I. DISABILITIES IN GENERAL.

Opinion evidence as to sanity, see Evidence, § 21, subd. 4, held not to limit the power of an

501.

III. GUARDIANSHIP.

Opinion evidence as to mental capacity in proceedings for appointment, see Evidence, § 478. 30. Under Code Civ. Proc. §§ 1763, 1764, the court, to justify the appointment of a guardian for an alleged incompetent, must find that the person is mentally incompetent to take care of himself and manage his property.-In re Coburn (Cal. App.) 924.

IV. CUSTODY AND SUPPORT.

§ 49. Upon a collateral attack, where it is clear that the court had jurisdiction of a person adjudged insane, the presumptions held to be in favor of the regularity of the proceedings leading to the judgment and the order of commitment.-Ex parte Lewis (Cal. App.) 774.

VIII. CRIMES.

Plea of insanity, see Criminal Law, § 270.

IX. ACTIONS.

Effect against guardian, of allegations as to execution of written instruments not denied under oath, see Pleading, § 294.

INSOLVENCY.

See Bankruptcy.

§ 82. Insolvency Act (St. 1880, p. 87, c. 87), assignee in insolvency to sell under order of court any property of the insolvent, simply because it cannot be taken into actual physical Newlove v. Mercantile Trust Co. of San Franpossession by the insolvent or his assignee.cisco (Cal.) 971.

INSTRUCTIONS.

In civil actions, see New Trial, § 38; Trial, §§ 194-278. In criminal prosecutions, see Criminal Law, $$ 778-823; Homicide, §§ 286-309.

INSURANCE.

Payment of premium by mortgagor as consideration for mortgagee's promise to insure, see Mortgages, § 201.

I. CONTROL AND REGULATION IN GENERAL.

5. All the steps required to entitle a company granted a charter by the charter board for the purpose of guaranteeing the payment of deposits in banks to obtain a certificate of authority to do business are prescribed in Laws 1905, p. 223, c. 159, § 3, and in Gen. St. 1901, §§ 3419, 3421, 3422, which under the act of 1905 are applicable.-Bankers' Deposit Guaranty & Surety Co. v. Barnes (Kan.) 697.

5. Where a corporation organized to guar

Collateral attack on insolvency proceedings, see antee bank deposits has complied with all statJudgment, § 518.

II. PROCEEDINGS FOR DECLARATION OF INSOLVENCY AND SURRENDER OR SEIZURE OF PROPERTY. (A) Jurisdiction and Course of Procedure in General.

16. The original voluntary petition in insolvency and the schedules annexed thereto held sufficient under Insolvency Act (St. 1880, p. 83, c. 87), § 4, to confer jurisdiction on the court. Newlove v. Mercantile Trust Co. of San Francisco (Cal.) 971.

(B) Voluntary Proceedings.

§ 21. A voluntary petition in insolvency and the schedule annexed thereto held to confer jurisdiction on the court, under Insolvency Act (St. 1880, p. 82, c. 87), § 2.-Newlove v. Mercantile Trust Co. of San Francisco (Cal.) 971.

§ 21. The jurisdiction of the court in insolvency under the insolvency act (St. 1880, p. 82, c. 87) depends on the sufficiency of the averments in the petition and schedules annexed, and not on the truth of such averments.-Newlove v. Mercantile Trust Co. of San Francisco (Cal.) 971.

utory requirements, superintendent must, under Gen. St. 1901, § 3422, furnish it with a certificate to do business.-Bankers' Deposit Guaranty & Surety Co. v. Barnes (Kan.) 697.

II. INSURANCE COMPANIES.
(A) Stock Companies.

§ 32. Laws 1905, p. 223, c. 159, § 1, held applicable to incorporation of companies to guarantee payment of deposits in state and national banks.-Bankers' Deposit Guaranty & Surety Co. v. Barnes (Kan.) 697.

§ 36. One held estopped from setting up that an act of an insurance company was ultra vires.-Frese v. Mutual Life Ins. Co. of New York (Cal. App.) 265.

§ 36. Where a loan agreement between insurer in a life policy and insured and the beneficiary was fully executed prior to the death of insured, the beneficiary could not urge that the loan agreement was ultra vires.-Frese v. Mutual Life Ins. Co. of New York (Cal. App.) 265.

III. INSURANCE AGENTS AND

BROKERS.

(A) Agency for Insurer.

§ 22. Under Insolvency Act (St. 1880, p. 83, c. 87), § 7, the proof held to show the mailing § 79. Insurance companies employing a broto the creditors of the order adjudicating insol- ker to procure insurance held not entitled to vency and appointing a time and place for the rescind the contract on the ground of the demeeting of creditors, within the time required.-struction of San Francisco by earthquake.Newlove v. Mercantile Trust Co. of San Fran- Levy v. Caledonian Ins. Co. (Cal.) 598. cisco (Cal.) 971.

§ 22. Under Insolvency Act (St. 1880, p. 83, c. 87), 88 6, 7, an order adjudging one insolvent and appointing a time and place for the meeting of creditors held published in a newspaper as required by statute.-Newlove v. Mercantile Trust Co. of San Francisco (Cal.) 971.

III. ASSIGNMENT, ADMINISTRATION, AND DISTRIBUTION OF INSOLVENT'S ESTATE.

(D) Administration of Estate. Collateral attack on insolvency proceedings, see Judgment, § 518.

V. THE CONTRACT IN GENERAL. (B) Construction and Operation.

§ 146. Rule as to construing an insurance policy in case of ambiguity stated.-Barclay v. London Guarantee & Accident Co., Limited (Colo.) 865.

146. Where a policy is susceptible of two constructions, that is to be adopted which is the more favorable to insured.-Taylor v. Insurance Co. of North America (Okl.) 354.

146. The intent of the parties to a contract of insurance must be gathered from the con

tract itself, and from risks excluded as well as | London Guarantee & Accident Co., Limited from risks included.-Stone v. Insurance Co. of (Colo.) 865. North America (Wash.) 856.

§ 178. A policy held to cover a shipment by ship navigating coastwise and inland waters of the United States.-Stone v. Insurance Co. of North America (Wash.) 856.

§ 1792. A loan contract between insurer in a life policy and insured and the beneficiary held to evidence a loan transaction only. Frese v. Mutual Life Ins. Co. of New York (Cal. App.) 265.

$1792. Under Civ. Code, §§ 2823, 2832, 2844, the beneficiary in a life policy pledged to secure a loan made to insured held not prejudiced by an agreement extending the time of the payment of the loan.-Frese v. Mutual Life Ins. Co. of New York (Cal. App.) 265.

VIII. CANCELLATION, SURRENDER, ABANDONMENT, OR RESCISSION OF POLICY.

§ 228. A loan agreement between insurer and insured and the beneficiary in a life policy held not invalid under Civ. Code, § 2889.-Frese v. Mutual Life Ins. Co. of New York (Cal. App.) 265.

§ 229. That insurer in a life policy loaning money to insured and the beneficiary, pursuant to an agreement whereby the policy was pledged, gave notice to the insured of its intention to cancel the policy for nonpayment, held not prejudicial to the beneficiary, who did not receive such notice.-Frese v. Mutual Life Ins. Co. of New York (Cal. App.) 265.

§ 230. That insured did not protest against cancellation of policy held not to amount either to a waiver of a tender of the unearned premium or consent to such cancellation.-Taylor v. Insurance Co. of North America (Okl.) 354. $230. Return of unearned premium held essential to cancellation by insurer of policy.Taylor v. Insurance Co. of North America (Okl.) 354.

XVIII. ACTIONS ON POLICIES.

645. Plaintiff in an action on an insurance policy held not entitled to recover on the ground of waiver of conditions.-Barclay v. London Guarantee & Accident Co., Limited (Colo.) 865.

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III. TIME AND COMPUTATION. § 50. Independent of Ballinger's Ann. Codes & St. §§ 5176, 5177 (Pierce's Code, §§ 1113, 1114), providing that money may be paid into court and thus arrest interest and costs, the courts will apply the rules of equity when necessary to do equal justice between the parties.Murray v. O'Brien (Wash.) 840.

$ 50. In view of a tender made to the holder of a mortgage of all that was due him, and his unwarranted refusal to accept it, held, that in equity he should not claim anything for the use of the money, and that he was estopped to claim interest from the date of the tender.-Murray V. O'Brien (Wash.) 840.

INTERIOR DEPARTMENT.

$234. The local agent being in possession See Public Lands, § 106. of policy as bailee for insured, his marking the same "Canceled" without the consent of the insured held not to amount either to a waiver, estoppel, consent, or acquiescence.-Taylor v. Insurance Co. of North America (Okl.) 354.

INTERLOCUTORY JUDGMENT.

XI. ESTOPPEL, WAIVER, OR AGREEMENTS AFFECTING RIGHT TO AVOID OR FORFEIT POLICY. $388. Insurer in a life policy loaning money to insured and the beneficiary secured by the policy held not to waive its right to cancel the policy for nonpayment of the loan.-Frese V. Mutual Life Ins. Co. of New York (Cal. App.) 265.

§ 388. An insurance company may waive provisions of policy for forfeiture on default in payment of premiums.-St. Paul Fire & Marine Ins. Co. v. Cooper (Okl.) 198.

Appealability, see Appeal and Error, § 66. INTERNATIONAL LAW.

See Aliens.

INTERPRETATION.

Of contracts, instruments, or judicial acts and proceedings.

See Covenants. § 39; Deeds, §§ 97, 113, 181; Wills, § 439-602.

Contract for sale of land, see Vendor and Purchaser, 77.

Insurance contract, see Insurance, §§ 146-1792.

INTERROGATORIES.

$ 392. The acceptance of a cash premium by the general agents of an insurance company To jury, see Trial, §§ 350, 352. after default in payment of premium note and To witnesses, see Depositions. notice of loss is a waiver of the forfeiture.-St. Paul Fire & Marine Ins. Co. v. Cooper (Okl.) 198.

XIV. NOTICE AND PROOF OF LOSS.

§ 539. Insurer against liability for injuries to passengers in an elevator held not liable for lack of notices required by the policy.Barclay v. London Guarantee & Accident Co., Limited (Colo.) 865.

INTERSTATE COMMERCE.

Regulation, see Commerce.

INTERVENTION.

In proceedings for recall of municipal officer, see Municipal Corporations, § 159.

§ 558. An insurer held not to have waived certain conditions of the policy.-Barclay v. See Gifts, § 48.

INTER VIVOS.

INTESTACY.

See Descent and Distribution.

INTOXICATING LIQUORS.

sale of intoxicating liquors in a certain building did not know the liquors were intoxicating. -State v. H. Ilgner & Co. (Kan.) 14.

INTOXICATION.

Restraining publication of advertisements for Contributory negligence of person intoxicated, sale of liquor, see Injunction, § 102.

I. POWER TO CONTROL TRAFFIC.

§ 10. Mills' Ann. St. Rev. Supp. § 4403, subd. 18, held to authorize a town ordinance prohibiting the soliciting or receiving of orders for intoxicating liquors.-Brunstein v. People (Colo.) 857.

II. CONSTITUTIONALITY OF ACTS

AND ORDINANCES.

Restrictions as to number of licenses allowed

in prescribed territory as violation of vested rights, see Constitutional Law, § 93. Special or local laws, see Statutes, § 73. Validity of statute as denial of due process of law, see Constitutional Law, § 296. Validity of statute as grant of special privilege, see Constitutional Law, § 205.

§ 17. A statute prohibiting the sale of intoxicating liquors within designated limits is valid.-State v. Board of Com'rs of Natrona County (Wyo.) 295.

III. LOCAL OPTION.

§ 32. Petition under Act Feb. 20, 1900 (Laws 1909, p. 9), for a local option election, held filed on presentation to official with tender of fee.-O'Connor v. Board of Com'rs of Bear Lake County (Idaho) 560.

IV. LICENSES AND TAXES. Restrictions as to number of licenses allowed in prescribed territory as violation of vested rights, see Constitutional Law, § 93. Special or local laws, see Statutes, § 73.

VI. OFFENSES.

134. The offense of selling liquors to minors is complete within 2 Ballinger's Ann. Codes & St. 7313 (Pierce's Code, § 1778), when the liquor sold is intoxicating, whether spirituous or not.-State v. McCormick (Wash.) 1037.

VIII. CRIMINAL PROSECUTIONS. Computation of term of imprisonment, see Criminal Law, § 1216. Duplicity, see Indictment and Information, 8 125. Restraining criminal acts, see Injunction, § 102. $224. In a prosecution for selling liquor to a minor in violation of 2 Ballinger's Ann. Codes & St. § 7313 (Pierce's Code, § 1778), the burden of proving parental consent is on defendant. -State v. McCormick (Wash.) 1037.

§ 236. In a prosecution for selling liquor to a minor in violation of 2 Ballinger's Ann. Codes & St. § 7313 (Pierce's Code. § 1778), proof that the father had not consented held sufficient to establish a prima facie case.-State v. McCormick (Wash.) 1037.

§ 236. Evidence held to sustain a conviction for illegally selling intoxicating liquors to minors without consent of their parents or guardian.State v. McCormick (Wash.) 1037.

§ 239. "Knowingly," as applied to a sale of liquor to a minor, within 2 Ballinger's Ann. Codes & St. § 7313 (Pierce's Code, § 1778), defined.-State v. McCormick (Wash.) 1037.

X. ABATEMENT AND INJUNCTION. § 279. It is no defense that a person charged with violating an injunction prohibiting the

see Negligence, § 88.

Defense to prosecution for homicide, see Homicide, §§ 28, 81.

See Patents.

INVENTION.

IRRIGATION.

See Waters and Water Courses, §§ 244-263.
ISSUES.

In civil actions, see Pleading, §§ 375-382.
In criminal prosecutions, see Indictment and In-
Presented for review on appeal, see Appeal and
formation, § 180.
Error, §§ 171, 173.

JEOPARDY.

Former jeopardy bar to prosecution, see Criminal Law, §§ 173-202.

JOINDER.

Of causes of action, see Action, § 45. Of offenses in indictment, see Indictment and Information, § 129.

JOINT OBLIGATIONS.

Right to counterclaim by one joint obligor, see Set-Off and Counterclaim, § 44.

JOINT-STOCK COMPANIES.

See Associations.

JOINT TORT-FEASORS. Enforcement of judgment against, see Execution, § 18.

JUDGES.

See Courts; Justices of the Peace. Jurisdiction of collateral attack on constitutionality of office of supreme court judge, see Courts, $ 205. Mandamus to judge, see Mandamus, § 58. Necessity of signature to case-made in criminal prosecution, see Criminal Law, § 1099. Practice of law by person occupying judicial position as ground for suspension as attorney, see Attorney and Client, § 38. Remarks and conduct at trial, see Criminal Law, 655; Trial, § 29.

Service upon of notice of appeal in criminal prosecution, see Criminal Law, § 1081.

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and Water Courses, § 152.

§ 49. Public confidence in the judicial sys- | In action to determine water rights, see Waters tem demands that the cause be tried by an unprejudiced judge.-Ex parte Ellis (Okl. Cr. App.) 184.

§ 51. Under Snyder's Comp. Laws 1909, § 6647, and Bunn's Const. art. 2, § 15, a motion for a change of judge for bias held in time if presented before the trial begins.-Rea v. State (Okl. Cr. App.) 384.

JUDGMENT.

Review of questions of fact, see Appeal and Error, § 1024.

143. Certain facts held not ground for vacating a default judgment.-Victor Power & Mining Co. v. Cole (Cal. App.) 758; Same v. Zerr (Cal. App.) 761; Same v. Albares, Id.

§ 143. Refusal to set aside a default judgment held not abuse of the court's discretion.Thompson v. Crescent Mill & Elevator Co. (Colo.) 880.

§ 143. That counsel did not receive notice

of an order denying a motion to quash the service of process as provided by the rule of court held a matter for consideration in determining his neglect in permitting a default judgment against his client.-Brown v. Weinstein (Mont.)

Agency to collect judgment on percentage basis
as agency coupled with interest, see Principal
and Agent, § 34.
Decisions of courts in general, see Courts, § 97.
Effect as against officer of judgment against cor-
poration, see Corporations, § 348.
On pleading, see Pleading, § 345.
Practice in territorial courts, see Courts. § 435.730.
Revocation of agency to collect judgment, see
Principal and Agent, §§ 34, 36.

Sales under judgment, see Judicial Sales.

In particular civil actions or proceedings. See Divorce, § 167.

On appeal or writ of error, see Appeal and Error, $ 1119-1202.

To restrain abstraction of waters, see Waters and Water Courses, § 209.

In criminal prosecutions.

See Criminal Law, § 996.

Review.

See Appeal and Error.

III. ON CONSENT, OFFER, OR AD

MISSION.

§ 80. Offer of judgment, not accepted within time provided by Gen. St. 1901, § 5000, is withdrawn without action by the party offering it.-Johnson v. Wamego Tp., Pottawatomie County (Kan.) 530.

§ 81. An offer to allow judgment, not accepted within five days after service, as provided by Gen. St. 1901, § 5000, will not sustain a judgment rendered thereon.-Johnson v. Wamego Tp., Pottawatomie County (Kan.) 530.

IV. BY DEFAULT.

(A) Requisites and Validity.

§ 98. In an action against two for a joint act of negligence for which each could have been sued separately, held in view of Code Civ. Proc. 88 579, 585, that a default judgment could be rendered against one of them.-Cole v. Roebling Const. Co. (Cal.) 255.

§ 101. Facts not alleged, though proved, cannot form the basis of a judgment by default.International Harvester Co. of America v. Cameron (Okl.) 189.

§ 101. The only allegations fixed by a default judgment are those traversible, and issues cannot be joined on mere conclusions of law.-International Harvester Co. of America v. Cameron (Okl.) 189.

§ 102. Where, after default entered, a complaint is amended in matter of substance, it opens the default, and, unless served on the defaulting defendant, no judgment can be properly entered, but this rule does not apply to a judgment entered on the original complaint before amendment; defendant not being "affected," nor an "adverse party," within Code Civ. Proc. 88 432, 465, 472.-Cole v. Roebling Const. Co. (Cal.) 255.

(B) Opening or Setting Aside Default. Certiorari to review vacation of default, see Certiorari, § 29.

§ 143. The setting aside of a default_judgment held not an abuse of discretion.-Brown v. Weinstein (Mont.) 730.

$143. Facts held to constitute an unavoidable casualty or misfortune, entitling petitioner to the vacation of a judgment by default.-McLaughlin v. Nettleton (Okl.) 662.

§ 145. When a judgment is sought to be vacated under Wilson's Rev. & Ann. St. 1903, § 4760, subds. 4-9, the defense on the part of the defendant so applying must be affirmatively alleged in the petition; but, where the judg ment is to be vacated under the provisions of subdivision 3 of such section, an affirmative averment as to the defense is not necessary.Leforce v. Haymes (Okl.) 644.

§ 159. A petition to vacate a judgment, under Wilson's Rev. & Ann. St. 1903, § 4760, must be verified, and set out the judgment or order, the grounds for vacating or modifying it, and the defense to the action.-McLaughlin v. Nettleton (Okl.) 662.

§ 161. An answer, served on plaintiff's attordefendant, held no ground for vacating the deneys after default judgment was entered against fault judgment, in view of Code Civ. Proc. § 182.-Victor Power & Mining Co. v. Cole (Cal. App.) 758; Same v. Zerr (Cal. App.) 761; Same

v. Alvares, Id.

VI. ON TRIAL OF ISSUES. (A) Rendition, Form, and Requisites in General.

Judgment on special findings notwithstanding general verdict in action for negligence, see Negligence, § 142.

Necessity of findings to authorize affirmative relief of cancellation, see Cancellation of Instruments, § 53.

(B) Parties. Enforcement against one or more joint tort-feasors, see Execution, § 18.

§ 239. In a case wherein plaintiff sued two defendants for negligence, held that he might take judgment against but one of them.-Cole v. Roebling Const. Co. (Cal.) 255.

§ 239. In view of Code Civ. Proc. § 578, held that judgment may be given against one defendant and in favor of another, in an action for a joint act of negligence.-Cole v. Roebling Const. Co. (Cal.) 255.

§ 241. There is no severance of damages because, after a default is entered against one defendant, plaintiff is allowed to proceed and obtain judgment against the other for a different amount, for the wrongful act of both.Cole v. Roebling Const. Co. (Cal.) 255.

§ 241. Different judgments against different wrongdoers for the same wrongful act may be for different amounts, and the same result may

follow where there is one action against all the | held not to support a plea of res judicata.wrongdoers.-Cole v. Roebling Const. Co. (Cal.) Keane v. Pittsburg Lead Mining Co. (Idaho) 60. 255.

(C) Conformity to Process, Pleadings, Proofs, and Verdict or Findings. § 256. In an equity suit, the general finding for defendants will support the judgment, where some of the special findings were insufficient, but plaintiffs neglected to ask a modification or for further findings.-People's Gas Co. v. Fletcher (Kan.) 34.

VII. ENTRY, RECORD, AND DOCK-
ETING.

Liability for failure to cancel transcript after
appeal, see Appeal and Error, § 485.

(B) Persons Concluded. $682. A purchaser by a parol sale of an heir's interest in land should appear, and, under a power of attorney from the heir authorizing him to receive his interest, claim distribution on final settlement, and, failing to do so, he is bound by the decree.-Cooley v. Miller & Lux (Cal.) 981.

§ 682. A decree of distribution in proceedings initiated after a written grant by distributees of part of their interests held not to bar the right of their grantee's successor to the property granted by them, if their grant is otherwise valid.-Cooley v. Miller & Lux (Cal.) 981. § 282. Plaintiff held not entitled to notice of § 682. Where a landlord was not concluded the time and place of signing judgment.-Lind-by a judgment against the tenant in ejectment, subsequent purchasers from the landlord were say v. Scott (Wash.) 462. also not bound thereby.-Ditlinger v. Miller (Kan.) 20.

§ 288. A party is chargeable with_notice of the entry of judgment in the action.-Lindsay v. Scott (Wash.) 462.

VIII. AMENDMENT, CORRECTION,
AND REVIEW IN SAME COURT.

In action to determine water rights, see Wa-
ters and Water Courses, § 152.

XI. COLLATERAL ATTACK.

§ 682. One acquiring an interest in mortgaged premises, pending an appeal on foreclosure, was bound by the judgment entered against his grantor.-Bartlett Estate Co. v. Fairhaven Land Co. (Wash.) 846.

§ 682. Persons acquiring rights in mortgaged premises, pending foreclosure, held to have no greater right to object to the decree than the original defendants.-Bartlett Estate Co. v.

On commitment to insane asylum, see Insane Fairhaven Land Co. (Wash.) 848.
Persons, § 49.

(B) Grounds.

§ 490. A default decree by a tax deed holder quieting title against a mortgage describing mortgagees by their firm name only held not open to collateral attack.-Ord v. Neiswanger (Kan.) 17.

§ 501. A judgment by a court having jurisdiction, not appealed from or questioned as provided by law, is conclusive on all parties affected thereby.-Taggart v. Fugel (Colo.) 1090.

(C) Proceedings.

§ 518. An action held a collateral attack on insolvency proceedings, so that only such matters may be considered as go to the jurisdiction of the court in insolvency.-Newlove v. Mercantile Trust Co. of San Francisco (Cal.) 971. XIII. MERGER AND BAR OF CAUSES OF ACTION AND DEFENSES. (A) Judgments Operative as Bar. § 570. Where a nonsuit is granted for insufficient facts, there has been no trial on the merits.-Lewis v. Superior Court of Butte County (Cal. App.) 763.

(C) Persons Who may Take Advantage of the Bar.

§ 631. No bar arises as to any wrongdoer till the injured party has received satisfaction, or what in law is deemed its equivalent, and a judgment against one wrongdoer which remains wholly unsatisfied is not such satisfaction.Cole v. Roebling Const. Co. (Cal.) 255.

XIV. CONCLUSIVENESS OF ADJUDI

CATION.

(A) Judgments Conclusive in General. § 652. Judgment pro confesso against intervener upon failure to file an answer or crossbill within the time required held only to preclude the right to intervene, and not to conclude intervener upon any matter which might have been put in issue.-Keane v. Pittsburg Lead Mining Co. (Idaho) 60.

§ 654. A judgment dismissing petition to intervene for failure to file answer or cross-bill

§ 684. A landlord held not concluded by a judgment against his tenant in ejectment.-Ditlinger v. Miller (Kan.) 20.

§ 710. In an action against a landlord for conversion of the tenant's property, an allegation in the landlord's answer as to a suit brought by the owner of mortgages on the property held properly stricken out.-Swank v. Elwert (Or.) 901.

(C) Matters Concluded.

§ 714. Judgment enjoining collection of an assessment held not res adjudicata as to the validity of an assessment under a different ordinance.-Shepherd v. Kansas City (Kan.) 531. § 715. The basis of res judicata stated.Keane v. Pittsburg Lead Mining Co. (Idaho) 60. § 740. Findings of fact and a recital in a mortgage foreclosure decree held without the issues, and neither conclusive on the defendants nor competent evidence against them in another action.-Wardlow v. Middleton (Cal.) 738.

§ 744. A judgment on the merits denying specific performance, based on the finding of the invalidity of his alleged contract, precludes further litigation of that question between the parties.-Marsh v. Lott (Cal.) 968.

XV. LIEN.

§ 752. A judgment plaintiff has a mere general lien upon the real property of the judgment the original judgment plaintiff is not ordinarily defendant, and such lien is an incumbrance, but an incumbrancer for a valuable consideration. Fulkerson v. Stiles (Cal.) 966.

JUDICIAL DISCRETION.

Grant or refusal of continuance, see Continu-
ance, § 7.
Grant or refusal of mandamus, see Mandamus,
$ 7.
Order of proof, see Trial, § 59.

JUDICIAL NOTICE.

In civil actions, see Evidence, §§ 5-43.
In criminal prosecutions, see Criminal Law, §
304.

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