sential to his cause of action.-Pigeon v. W. P.
Fuller & Co. (Cal.) 976.
$377. No proof of an allegation of a com- Suffrage, see Elections.
plaint to foreclose a mortgage that the claims
of certain of the defendants were subsequent to
plaintiff's mortgage which was not denied,
was required. Wardlow v. Middleton (Cal.) Of water course, see Waters and Water Cour-
738.
§ 377. Where, in replevin, defendant an-
swered that plaintiffs were a partnership trans-
acting business under a fictitious name, in vio-
lation of Wilson's Rev. & Ann. St. 1903, §§ Power to regulate or prohibit, see Gaming, §
3901, 3903, and no reply was filed to such new
matter, it must be taken as true and constitut-
ed a complete defense.-Baker v. L. C. Van
Ness & Co. (Okl.) 660.
§ 382. Where it is sufficient for plaintiff to
allege merely that he is the owner of property.
denial of the allegation authorizes admission of
evidence that title under which he claims is ab-
solutely void, and not voidable merely, or any
evidence to show he had no title.-Cooley v. Mil-
ler & Lux (Cal.) 981.
XIII. DEFECTS AND OBJECTIONS,
WAIVER, AND AIDER BY VER-
DICT OR JUDGMENT.
$409. A pleading of inconsistent defenses
held waived.-Kaufman v. Boismier (Okl.) 326.
§ 422. Defective verification of complaint for
injunction held waived.-Moore v. Hupp (Ida-
ho) 209.
§ 433. A defect in a complaint in an action
for the price for goods sold held cured by the
verdict. Christensen v. Cram (Cal.) 950.
Of corporate stock, see Corporations, § 123.
$ 50. Civ. Code, § 3011, held not to endow
pledgors of personalty with the right of re-
demption.-Frese v. Mutual Life Ins. Co. of
New York (Cal. App.) 265.
§ 56. Civ. Code, § 2889, held not to pro-
hibit a sale of pledged chattels by the pledgee
without right of redemption pursuant to the
manner of sale agreed on by the parties as
authorized by section 3000 et seq.-Frese v.
Mutual Life Ins. Co. of New York (Cal. App.)
265.
§ 58. The indorsee of a note as collateral
for a loan held entitled to collect the full
amount thereof from the maker, regardless of
the state of the account between himself and
the person from whom he received it.-Hillman
v. Stanley (Wash.) 816.
Liability of employer for injuries to employé
from poisoning, see Master and Servant, &
101, 102.
Authority of mayor to appoint policemen, see
Municipal Corporations, § 184.
POLICE JUDGE.
Eligibility, see Judges, § 4.
See Constitutional Law, § 81.
Creation of offense of pool selling, see Criminal
Law, § 13.
Cruel or unusual punishment for pool selling,
see Criminal Law, § 1213.
Delegation of legislative power as to punish-
ment, see Constitutional Law, § 61.
POSSESSION.
See Adverse Possession.
Of demised premises, see Landlord and Tenant,
Retention by grantor in fraudulent conveyance,
§ 285.
see Fraudulent Conveyances, §§ 147, 149.
Requirements of corporation commission as to
mailing notice of railroad accident, see Rail-
roads, 9.
Of attorney, see Principal and Agent.
In land office, see Public Lands, § 106.
Prosecution of actions in general, see Action, §
66.
In particular civil actions or proceedings.
See Action on the Case; Contempt, §§ 34, 66;
Divorce, $$ 93-184; Ejectment; Habeas Cor-
pus, §§ 85-113; Mandamus, § 151; Prohibi-
tion; Quo Warranto, § 50; Replevin; Trover
and Conversion, § 32.
Condemnation proceedings, see Eminent Domain,
S$ 169-262.
Particular proceedings in actions.
See Continuance; Costs; Damages, §§ 143-206;
Depositions; Evidence; Execution; Judg-
ment; Judicial Sales; Jury; Limitation of
Actions; Parties; Pleading; Process; Stip-
ulations; Trial; Venue.
Nonsuit, see Trial, §§ 159, 165.
Verdict, see Trial, §§ 335-352.
Particular remedies in or incident to actions.
See Arrest, §§ 22-28; Attachment; Injunction;
Receivers; Tender.
Procedure in criminal prosecutions.
See Bail, § 89; Criminal Law.
For offenses against liquor laws, see Intoxica-
ting Liquors, §§ 224-239.
Procedure in exercise of special or limited juris-
diction.
In equity, see Equity.
In insolvency, see Insolvency, §§ 16-22.
Of municipality, see Municipal Corporations, §§ In_justices' courts, see Justices of the Peace, §
594-643.
Of insurance, see Insurance.
Procedure in or by particular courts or tribu-
nals.
See Courts.
Procedure on review.
See Appeal and Error; Certiorari, §§ 39, 69;
Exceptions, Bill of; Justices of the Peace, §§
141-171; New Trial.
PREFERENCES.
By carrier, see Carriers, § 13.
PREGNANCY.
Application to companies guarantying payment
of bank deposits of laws governing incorpora-
tion of surety company, see Insurance, § 32.
§ 34. A contract of agency held not coupled
with an interest, so that it was revocable at
will.-Lowell v. Hessey (Colo.) 870.
§ 36. An assignment by the judgment cred-
itor of a certificate of sale of the judgment
debtor's property upon execution revoked plain-
tiff's agency under a contract with the judg-
ell v. Hessey (Colo.) 870.
Admissibility of evidence of in prosecution for ment creditor to collect the judgment.-Low-
rape, see Rape, § 43.
Ground for reversal in civil actions, see Appeal
and Error, §§ 1027-1074.
Of judge, see Judges, § 49.
Element of murder, see Homicide, §§ 14, 286.
See Insurance, §§ 230, 392.
Pleading performance of conditions by plaintiff
in action to recover premium offered by State
Board of Agriculture, see Contracts, § 335.
Acquisition of rights, see Waters and Water
Courses, § 146.
Establishment of highways, see Highways, § 16.
Of claim against member of stock exchange, see
Exchanges, & 7.
Of claims against estate of decedent, see Exec-
utors and Administrators, § 229.
PRESUMPTIONS.
In civil actions, see Evidence, §§ 66-89.
In criminal prosecutions, see Criminal Law, §
308.
On appeal or error, see Appeal and Error, $$
909-939; Criminal Law, §§ 1141, 1144.
PRINCIPAL AND ACCESSORY.
See Criminal Law, § 59.
PRINCIPAL AND AGENT.
Agency in particular relations, offices, or oc-
cupations.
See Attorney and Client; Brokers.
Corporate agents, see Corporations, §§ 282-348.
Insurance agents, see Insurance, § 79.
Municipal agents, see Municipal Corporations,
§ 7452.
I. THE RELATION.
(A) Creation and Existence.
Appointment of agent by foreign corporation as
constituting doing business in state, see Cor
porations, 642.
§ 23. An agency may be proved by circum-
stantial evidence. - McCreery v. Morrison
(Colo.) 876.
§ 23. That defendant took in a horse trade
notes from plaintiffs payable to a third party
held not conclusive evidence that defendant was
the agent of such third party.-Hewitt v. Huff-
man (Or.) 98.
II. MUTUAL RIGHTS, DUTIES, AND
LIABILITIES.
(B) Compensation and Lien of Agent.
§ 89. In an action by an agent for the col-
lection of a judgment to recover the amount
plaintiff would have received had he been per-
mitted to collect the judgment, plaintiff held
required to prove certain facts.-Lowell v. Hes-
sey (Colo.) 870.
III. RIGHTS AND LIABILITIES AS TO
THIRD PERSONS.
(A) Powers of Agent.
Opinion evidence of agent as to authority, see
Evidence, § 471.
$103. Defendant held not liable under the
circumstances for the price of goods purchased
by his general manager for the latter's own
benefit. Saul v. Lapidus (Colo.) 863.
§ 119. The burden is on a seller, seeking to
recover the price, to show the authority of the
agent to whom the sale was made on defend-
ant's credit.-Saul v. Lapidus (Colo.) 863.
§ 120. On an issue of agent's authority to
such authority or limitation thereon held admis-
make contract, any evidence tending to show
sible.-Keane v. Pittsburg Lead Mining Co.
(Idaho) 60.
§ 123. The extent of an agent's authority
may be proved by circumstantial evidence.-
McCreery v. Morrison (Colo.) 876.
§ 136. In general when a person acts avowed-
ly as an agent for another who is known as the
principal, his acts and contracts within the
scope of his authority are considered the acts
and contracts of the principal, and involve no
personal liability.-Roach v. Rutter (Mont.) 555.
(B) Undisclosed Agency.
145. Where the evidence supported a find-
ing that in making purchases from plaintiff
one M. acted as agent for defendant, it was im-
material whether plaintiff knew, or could have
known, of the agent's financial irresponsibility.
-McCreery v. Morrison (Colo.) 876.
§ 145. Principal suing for goods sold by his
agent supposed by the purchaser to be the
principal held liable for the price of clothes,
agreed by the agent to be received in part pay-
ment of the coal.-Eldridge v. Finnegar (Õkl.)
334.
$145. Purchaser of coal, having reason to
believe he is dealing with the principal, can
set up, in the action for the price, any defense
he has against the agent.-Eldridge v. Fin-
negar (Okl.) 334.
§ 145. The right of purchasers to assume
that the agent has authority determined.-Rob-
erts v. Tuttle (Utah) 916.
§ 146. In an action on a note, where defend-
ant answered that plaintiff was not the real
party in interest, a cross-complaint, claiming
damages due from the original payee to the
maker, held subject to demurrer.-Bierce v.
State Nat. Bank of Memphis, Tenn. (Okl.) 195.
(C) Unauthorized and Wrongful Acts.
§ 149. Where an agent undertakes to act for
a principal without authority, though in good
faith, he is liable to the person with whom he
contracts for the damages sustained because
of such want of authority.-Roberts v. Tuttle
(Utah) 916.
§ 155. Liability of agent to purchaser of
land on a contract the agent was unauthorized
to make determined.-Roberts v. Tuttle (Utah)
916.
Between water rights, see Waters and Water
Courses, § 140.
Of mortgages, see Mortgages, § 181.
Of taxes, see Taxation, § 510.
Validity of statute relating to boarding prison-
ers not to be operative until put in effect by
county board as delegation of legislative pow-
er, see Constitutional Law, § 63.
§ 155. Measure of recovery by the purchaser
against the agent who was without authority Of married women, see Husband and Wife, §§
to make the contract determined.-Roberts v.
Tuttle (Utah) 916.
§ 155. Where an agent exceeds his authority,
though in good faith, he is liable to the person
with whom he contracts for the damages sus-
tained because of such want of authority.-
Roberts v. Tuttle (Utah) 916.
PRIVILEGED COMMUNICATIONS.
Disclosure by witness, see Witnesses, §§ 203-
222.
PROBABLE CAUSE.
§ 159. In an action for the pollution of wa-
ters of a stream, it was no defense that de- For prosecution, see Malicious Prosecution, §
fendant acted solely as agent for mine owners
whose ores it was treating.-Humphreys Tun-
nel & Mining Co. v. Frank (Colo.) 1093.
Ratification of conditions in passenger ticket
purchased by agent, see Carriers, § 259.
Of will, see Wills, §§ 215-386.
§ 169. Evidence held insufficient to show See Courts, § 202.
ratification by principal of unauthorized con-
tract of agent.-Findlay v. Hildenbrand (Ida-
§ 171. Defendant held not liable for price of See cross-references under Practice.
stock of goods purchased by manager of de-
fendant's store merely because two or three ar-
ticles included in the stock were found in the
store.-Saul v. Lapidus (Colo.) 863.
§ 189. A complaint held to sufficiently al-
lege, as against a general demurrer, a cause of
action against an undisclosed principal through
dealings with his agent.-McCreery v. Morri-
son (Colo.) 876.
§ 190. In an action against an undisclosed
principal through dealings with his agent, cer-
tain evidence held admissible to show pur-
chases of goods by defendant from plaintiff.-
McCreery v. Morrison (Colo.) 876.
§ 190. An agent is presumed to intend to bind
his principal, and not himself.-Roach v. Rutter
(Mont.) 555.
PRINCIPAL AND SURETY.
See Bail; Bonds.
Liabilities of sureties on bonds in legal proceed-
ings, see Attachment, § 343.
I. CREATION AND EXISTENCE OF
RELATION.
(A) Between Individuals.
§ 10. Plaintiff, who merely signed a contract
under a statement that it thereby consented to
the contract which was in terms between de-
fendant and certain corporations who signed it,
held not bound as surety for the performance
by such corporations of their obligations under
the contract.-Henry O. Shepard Co. v. Free-
man (Mont.) 484.
II. NATURE AND EXTENT OF LIA-
BILITY OF SURETY.
§ 59. Sureties may rely upon the strict terms
of their obligation.-Bergevin v. Wood (Cal.
App.) 935.
In actions against particular classes of persons.
See Corporations, § 507.
Particular forms of writs or other process.
See Arrest; Execution; Injunction; Manda-
mus; Prohibition; Quo Warranto; Replevin.
I. NATURE, ISSUANCE, REQUISITES,
AND VALIDITY.
§ 33. Under a published summons made in
pursuance to section 4878, Ballinger's Ann.
Codes & St. (Pierce's Code, § 336), held, that
the court had jurisdiction, though the form of
the summons was not to be commended.-Se-
curity Sav. Society v. Collins (Wash.) 1034.
II. SERVICE.
(C) Publication or Other Notice.
In action against partnership, see Partnership,
§ 204.
§ 99. In view of Ballinger's Ann. Codes &
St. §§ 4877, 4878, 4882 (Pierce's Code, §§ 335,
336, 340), held, that publication and proof of
service confers jurisdiction and not the orig-
inal published summons, so that it was not
required to be filed.-Security Sav. Society v.
Collins (Wash.) 1034.
Of traffic in intoxicating liquors, see Intoxica-
ting Liquors.
II. JURISDICTION, PROCEEDINGS,
AND RELIEF.
§ 17. The applicant for a writ of prohibi-
tion must make a demand on defendant that he
accede to the course sought to be enforced,
and therefore an action against the superior
court and the judge thereof cannot, after the
death of the judge, be maintained against his | II. SURVEY AND DISPOSAL OF LANDS
successor without such demand.-Lewis v. Su-
perior Court of Butte County (Cal. App.) 763.
§ 29. Before a judge should be prohibited
from doing an act, it should appear that he is
about to do the act, and, where he denies in
his return that he will do the act complained
of, the peremptory writ should not issue.
Lewis v. Superior Court of Butte County
(Cal. App.) 763.
PROMISSORY NOTES.
See Bills and Notes.
(B) Entries, Sales, and Possessory Rights.
§ 32. By an entry on land the entryman be-
came the equitable owner, though it was after-
wards necessary to amend his entry to describe
the land before he received a patent.-Baldwin
Star Coal Co. v. Quinn (Colo.) 1101.
§ 35. Under Rev. St. U. S. § 2291 (U. S.
Comp. St. 1901, p. 1390), a homestead entry-
man, on making final proof, must file an affi-
davit that he has not directly or indirectly alien-
ated, or agreed to alienate, said land.-Harris v.
McCrary (Idaho) 558.
Of loss insured against, see Insurance, §§ 539, lands granted by the federal government to the
Constitutional guaranties of rights of property,
see Constitutional Law, §§ 93, 101, 251–298.
Particular species of property.
(F) Swamp and Overflowed Lands.
§ 61. A purchaser from the state of swamp
state held to take the lands subject to the con-
ditions imposed on the state.-Reclamation
Dist. No. 70 v. Sherman (Cal. App.) 277.
(I) Proceedings in Land Office.
See Animals; Crops; Fish; Fixtures; Mines jurisdiction to permit an amended entry and
Remedies involving or affecting property.
Protection of rights of property by injunction,
see Injunction, § 54.
Transfers and other matters affecting title.
See Adverse Possession.
Dedication to public use, see Dedication.
Taking for public use, see Eminent Domain.
§ 7. One who has a valid and subsisting in-
terest in real property has a right to protect
it in any manner or by any method sanction-
ed by the law.-Murray v. O'Brien (Wash.)
840.
PROSECUTING ATTORNEYS.
See District and Prosecuting Attorneys.
PROVINCE OF COURT AND JURY.
In civil actions, see Trial, § 194.
§ 106. The federal land department has
to cancel an entry for fraud, and having done
so, and determined that fraud was perpetrated
on the government by one making an entry
conflicting with the amended entry and that
his entry was fraudulent, his alleged rights
thereunder were void ab initio.-Baldwin Star
Coal Co. v. Quinn (Colo.) 1101.
(M) Conveyances, Contracts, and Exemp-
tions.
§ 135. Evidence held to show that, under an
agreement by a person filing on public land, he
was to assign a part of the land to another after
the required improvements had been made and
he had obtained a patent, and not that he was to
transfer his rights as entryman.-McMillan v.
Wright (Wash.) 176.
§ 139. An illegal contract by an entryman to
convey a homestead held not validated by oral
agreement made after patent has been received.
-Harris v. McCrary (Idaho) 558.
§ 139. Under Rev. St. U. S. § 2290 (U. S.
Comp. St. 1901, p. 1389), any agreement by the
In criminal prosecutions, see Criminal Law, §§ homestead entryman to convey part of the home-
stead is absolutely void and unenforceable.-
Harris v. McCrary (Idaho) 558.
§ 139. An agreement between an entryman
and another to convey land which he was to
file upon after he had made final proof held
illegal under Act Aug. 18, 1894, c. 301. § 4,
28 Stat. 422 (U. S. Comp. St. 1901, p. 1554),
and the statutes of Idaho, and could not be spe-
cifically enforced.-McMillan v. Wright (Wash.)
176.
III. DISPOSAL OF LANDS OF THE
§ 185. Where the state issued a patent of
tide lands to an assignee of a contract of sale,
the title could not be attacked on the ground
that the assignments were defective.-Price v.
Loe (Wash.) 469.
PUBLIC NUISANCE.
By municipalities, see Municipal Corporations, See Nuisance, §§ 72, 73.
§§ 284-378.
Appropriation of water rights, see Waters and Affecting validity of contract for conveyance of
Water Courses, §§ 4, 17.
Indian lands, see Indians, § 15.
Lands under water, see Navigable Waters, § 37.
Mineral lands, see Mines and Minerals, §§ 17-
41.
rights in public lands, see Public Lands, § 139.
PUBLIC SCHOOLS.
See Schools and School Districts, §§ 32-154.
PUBLIC SERVICE CORPORATIONS.
See Carriers; Railroads; Street Railroads.
Gas Companies, see Gas.
Water companies, see Waters and Water Cours-
es, §§ 200, 209.
Dedication of property, see Dedication.
II. JURISDICTION, PROCEEDINGS,
AND RELIEF.
§ 50. Pleading held to put in issue whether
a corporation had increased its capital stock.-
State v. St. Louis & S. F. R. Co. (Kan.) 685.
* RACE.
Taking property for public use, see Eminent Do- Pleading performance of conditions by plaintiff
main.
PUBLIC WATER SUPPLY.
See Waters and Water Courses, §§ 200-263.
See Criminal Law, §§ 1208-1216; Pardon.
Delegation of legislative power, see Constitu-
tional Law, § 61.
See Schools and School Districts, § 154.
QUANTUM MERUIT.
Attachment, see Attachment, §§ 246, 249.
QUESTIONS FOR JURY.
In civil actions, see Trial, §§ 139, 143.
In criminal prosecutions, see Criminal Law, §§
757, 759.
Action against purchaser under sale by assignee
in insolvency, as collateral attack on pro-
ceedings, see Judgment, § 518.
I. RIGHT OF ACTION AND DEFENSES.
§ 7. A recorded notice of a contract for sale
of land held a cloud on title.-McGuinness v.
Hargiss (Wash.) 233.
§ 10. An action to quiet title may be main-
tained by a person in possession claiming
ownership under color of title.-Mitchell v.
Trowbridge (Colo.) 878.
§ 20. Under Ballinger's Ann. Codes & St. §
5521 (Pierce's Code, § 1156), it was not nec-
essary that an instrument, on its face, should
confer some interest in land in order that it
should be a cloud on title.-McGuinness v.
Hargiss (Wash.) 233.
II. PROCEEDINGS AND RELIEF.
Parties in action by wife, see Husband and
Wife, 221.
Pleading in action to quiet title to community
property, see Husband and Wife, § 270.
Presumption of continuance of title, see Evi-
dence, § 67.
§ 42. Amendment to answer to correct mis-
description of the land in controversy held
properly allowed.-Kibby v. Hensel (Kan.) 696.
Deed, see Vendor and Purchaser, § 224.
in action to recover premium offered by State
Board of Agriculture, see Contracts, § 335.
RAILROAD COMMISSIONERS.
Powers as to railroad and street railroad cross-
ings, see Street Railroads, § 41.
Acquiescence in construction as bar to action for
compensation for lands taken for right of way,
see Eminent Domain, § 280.
As employers, see Master and Servant.
Carriage of goods and passengers, see Carriers.
Nature of remedy for lands appropriated for
right of way, see Eminent Domain, § 266.
Persons entitled to sue for injuries to land tak-
en for right of way, see Eminent Domain, §
284.
I. CONTROL AND REGULATION IN
GENERAL.
§ 9. Order of the Corporation Commission
respecting reports by railroads of accidents held
not within Const. art. 9, § 20 (Bunn's Ed. §
231), and an appeal will not lie therefrom.-St.
Louis & S. F. Ry. Co. v. State (Okl.) 351.
§ 9. An appeal will not lie to the Supreme
Court to review the action of the Corporation
Commission, requiring railroads and street rail-
ways to send a report of accidents to the Corpo-
ration Commission.-Atchison, T. & S. F. Ry.
Co. v. State (Okl.) 352.
v. RIGHT OF WAY AND OTHER IN-
TERESTS IN LAND.
Acquiescence in construction as bar to action for
compensation for lands taken for right of
Condemnation of property for right of way,
way, see Eminent Domain, § 280.
conditions precedent, see Eminent Domain,
169.
Condemnation of property for right of way, il-
legality of subscriptions for stock of railroad
company, as a defense, see Eminent Domain,
§ 171.
Nature of remedy for lands appropriated for
right of way, see Eminent Domain, § 266.
Persons entitled to sue for injuries to land tak-
en for right of way, see Eminent Domain, §
284.
§ 64. A contract between defendant and a
trustee for a railway company held to contain
two several obligations; one for the convey-
ance of a right of way, and the other for the
payment of a bonus on the construction of the
road.-Boise Valley Const. Co. v. Kroeger
(Idaho) 1070.
$ 64. A bonus contract, providing for pay-
ment when an electric railroad was in operation
"to the strip of land above described," did not
require that it should be in operation on or
over the strip described.-Boise Valley Const.
Co. v. Kroeger (Idaho) 1070.
$ 64. A bonus contract to aid in the con-
struction of an electric railway held definite as
to the time when the obligation matures.-Boise
Valley Const. Co. v. Kroeger (Idaho) 1070.
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