limits as extending "on both sides of Main street, from Washington street to Adams street," is sufficiently definite. Id. 7. DESCRIPTION IN THE COMPLAINT OF LANDS SOUGHT TO BE CONDEMNED held sufficient. Id. 8. CONDEMNATION OF LAND, ORDINANCE FOR-PLEADING.-The necessity for a condemnation of property for a municipal or public use is sufficiently shown by an allegation in the complaint, which sets forth the ordinance of the city council authorizing such condemnation, and avers "that it is now necessary to condemn said land for public use agreeable to the provisions of said ordinance." The existence of such ordinance is sufficiently shown by an allegation that the same was "duly passed and adopted," and which sets forth the ordinance. City of Los Angeles v. Waldron et al. (Cal.), III, 42. 9. ORDINANCE PROVIDING FOR A REMONSTRANCE AGAINST A PROPOSED ASSESSMENT, by the owners of property within the limits to be assessed, and which describes such limits as extending "on both sides of Main street from Washington street to Adams street," is sufficiently definite. Id. 10. DESCRIPTION IN THE COMPLAINT OF LANDS SOUGHT TO BE CONDEMNED held sufficient. Id. 11. CONDEMNATION OF LAND JUDGMENT-EXECUTION.-The defendant, in an action for the condemnation of land for the use of a railroad, in whose favor judgment is given for the cost of fences and cattle-guards along the line of plaintiff's road, is entitled to an execution to enforce the payment of the amount adjudged it, if the plaintiff, after electing to build such fences and cattle-guards, fails to execute to the defendant a bond with sureties in double the assessed cost of the same. A bond which has, in the aggregate, but one surety in double such assessed cost is insutficient. California Southern R. R. Co. v. Southern Pacific R. R. Co. (Cal.), III, 49. 12. ACTION FOR CONDEMNATION OF LAND-FORM OF VERDICT.-In an action for the condemnation of land for the use of a railroad, a verdict is sufficient in form which finds in effect that the defendants are entitled to damages in the sum named therein. Oregon Railway Co. v. Bridwell et al. (Or.), II, 821. 13. THE SAME-FORM OF JUDGMENT.-In such action, no judginent in personam against the plaintiff can be rendered. The judgment should appropriate the right of way to the plaintiff's use after payment of the damages assessed by the jury. Id. 14. THE COMPLAINT IN AN ACTION AGAINST A CORPORATION FOR THE CONDEMNATION OF A STRIP OF LAND for the right of way for a railroad sufficiently complies with the requirements of the code of civil procedure, section 1244, subdivision 2, when it states the name of the defendant, and shows that it was the known owner and claimant of the land sought to be condemned. California Southern R. R. Co. v. Colton Land and Water Co. (Cal.), I, 470. 15. THE COMPENSATION TO WHICH THE OWNER OF LAND IS ENTITLED, in a proceeding to 'condemn the same for the use of a railroad, is the market value of such land at the time of making the assessment, and not such value at the time of issuing the summons. Id. 16. AN ACTION FOR THE CONDEMNATION OF LAND MUST BE BROUGHT and tried in the county in which the land is situated. California Southern R. R. Co. v. Southern Pacific R. R. Co. (Cal.), III, 357. 17. PROCEEDINGS FOR THE CONDEMNATION OF LAND SHOULD BE BROUGHT, and, it seems, prosecuted, in the county in which the land is situated. California Southern R. R. Co. v. Southern Pacific R. R. Co. (Cal.), III, 301, 302. 18. WHAT CONSTITUTES A "TAKING" OR "DAMAGING" OF PRIVATE PROPERTY, within the meaning of the constitution, stated, and the distinctions between commented upon and explained. Denver v. Bayer (Col.), I, 505. 19. JUDGMENT AFFIRMED on authority of California Southern R. R. Co. v. Kimball, 61 Cal. 90. California Southern R. R. Co. v. Colton Land and Water Co. (Cal.), III, 377. See APPEAL, 18; Certiorari, 14; NUISANCE, 4; Removal of Causes, 2, 3. ENDORSEMENT. See NEGOTIABLE INSTRUMERTS, 15, 16. ENTRY. See FORCIBLE ENTRY AND DETAINER. EQUITY. 1. THE SUPERIOR COURT HAS JURISDICTION OF AN EQUITABLE ACTION BROUGHT TO COMPEL AN ASSIGNEE IN INSOLVENCY to perform his trust, and account for the property assigned. The remedy afforded creditors in such cases, under the law regulating insolvency proceedings, is not exclusive. Sanderson v. McIntosh (Cal.), I, 784. 2. A COURT OF EQUITY WILL NOT SET ASIDE A JUDGMENT OF A COURT OF LAW, and subsequent proceedings thereunder, for the reason that the complaint in the action in which such judgment was rendered was filed on a legal holiday, when there is nothing in the record to indicate that the debt for which such action was brought was not justly due, especially when the party seeking equitable relief negligently omitted to avail himself of such defense in the action at law. Peterson v. Weissbein Bros. & Co. (Cal.), I, 853. 3. A SUIT IN EQUITY FOR THE PURPOSE OF DETERMINING AN ADVERSE CLAIM, estate, or interest in real property, under section 500 of the code of civil procedure, can not be brought by a person not in possession. Such section has no effect upon the ordinary jurisdiction of courts of equity as to cases not within the scope of its operation. Its purpose is to enlarge, not to impair, such jurisdiction. Coolidge v. Forward (Or.), I, 832. 4. EQUITY WILL INTERFERE TO PROTECT RIGHTS WHEN it sufficiently appears that the evidence by which such rights can be established is liable to be lost. N. P. R. R. Co. v. Carland (Mont.), II, 326. 5. STATE DEMANDS EQUITY MAY REFUSE TO ENTERTAIN.-A court of equity may refuse to entertain a suit, brought after unreasonable delay, although the defendant has not in his answer alleged that the claim is stale. A delay of more than twenty years in bringing this action held unreasonable. Harris et al v. Hillegass, Administratrix, etc., et al. (Cal.), IV, 355. See BONA FIDE PURCHASERS; CANCELLATION; CONSIDERATION, 1; CORPORATIONS, 47, 49; DUPLICITY; ESTOPPEL, 4; EVIDENCE, 13; FORCIBLE ENTRY AND DETAINER, 1; FRAUD, 3-6; INFANTS, 6; INJUNCTION; LACHES, 1, 4; MISTAKE; SPECIFIC PERFORMANCE; TRESPASS, 1; UNITED STATES COURTS, 1. ESCAPE FROM STATE PRISON. 1. OVERT ATTEMPT TO ESCAPE FROM STATE PRISON-EVIDENCE OF PUNISHMENT AFTER CAPTURE-INDICTMENT.-An indictment for an overt attempt to escape from the state prizon is sufficient if it alleges that the defendant, while lawfully confined in state prison under a judgment of a competent court, for the crime of burglary, did make an overt attempt to escape therefrom; that he did unlawfully, forcibly, and feloniously break out of the cell in said prison, in which he was confined, and out of the building in which said cell was and is. It is unnecessary to aver that a certified copy of the judgment against the defendant, for burglary, has been delivered to the warden of the state prison. At the trial of such indictment evidence of the punishment received by the defendant at the hands of the prison authorities after his recapture is immaterial. State y. Angelo (Nev.), IV, 482. ESTATES OF DECEASED PERSONS. 1. THE PROBATE COURT HAVING ONLY AN INFERIOR AND LIMITED JURISDICTION CONferred by express provisions of statutes, jurisdiction must appear affirmatively upon its record; it can not be presumed. Chaves v. Perea (N. M.), I, S07. 2. THE PROBATE COURT HAS NO JURISDICTION TO PASS UPON A CLAIM against the estate of an intestate, presented to it for allowance, unless the administrator of such estate be present in court while the evidence is being taken and the claim passed upon, or has had an opportunity to be present and to be heard by having a citation to appear served on him. Unless such requirements have been complied with, an appeal from the judgment of the probate court allowing or rejecting a claim must be dismissed. Id. 3. THE DISTRICT COURT OF A TERRITORY IS NOT A UNITED STATES DISTRICT OR CIRCUIT COURT.-When the United States comes into court to enforce its rights, it must come in as any other suitor, and the proceedings in such action must be in accordance with local laws in force at the time in the state or territory where such action is pending. United States v. Hailey, Administrator, etc. (Idaho), II, 324. 837 4. IN PROSECUTING A CLAIM AGAINST AN ADMINISTRATOR, THE PROBATE LAWS IN FORCE where the action is pending must govern and determine the method of procedure. Id. 5. A CLAIM IN FAVOR OF THE UNITED STATES AGAINST THE ESTATE OF A DECEASED PERSON must be presented for allowance before an action can be maintained thereon. Id. 6. THE CIRCUIT COURT HAS NO JURISDICTION OF AN ACTION BROUGHT BY AN ADMINISTRATOR against a former administrator of the same estate, who had been removed from his office, to obtain an accounting and a judgment for the balance of the property of such estate in the hands of the latter. Such an action is within the exclusive jurisdiction of the county court. Adams, Adin'r, etc., v. Petrain et als. (Or.), II, 198. 7. UNDER THE MEXICAN LAW, WHERE A FATHER DIES, HAVING DEVISED HIS ESTATE to his wife and children in certain proportions, and after his death, but before the death of their mother, certain of such children die intestate, the interests so devised to such deceased children vest in their mother, and not in their surviving brothers and sisters. Emeric v. Alvarado (Cal.), I, 708. - STATUTE 8. ESTATE OF DECEDENTS-DISTRIBUTION UNDER MEXICAN LAW-SALE OF LAND UNDER ORDER OF PROBATE COURT ACT OF APRIL 22, 1850, CONSTRUED OF LIMITATIONS.-The estate of a person dying intestate, after the organization of the state government and before there was any legislation by the state regulating the administration, descent, and distribution of estates, descended and Under such law, on the death of was subject to the operation of the Mexican law in existence at the time of the cession of California to the United States. No administration of such esan intestate his heirs succeeded immediately to the estate and became personIt was not subally responsible for the debts of the deceased. tate, in the common-law sense, was needed or could be had. ject to the administration of the alcaldes' courts or court of first instance, nor to the operation of the probate law subsequently passed. An order of the probate court, made after the passage of the act of April 22, 1850, authorizing the persons appointed by the alcalde as administrators of such estate to sell the real estate of such intestate would be void for want of jurisdiction. That act had no application to the estates of persons who died before its passage. Section 1573 of the code of civil procedure, limiting the time within which an heir or his grantee can McNeil et al. v. First maintain an action for the recovery of real estate sold by an executor or administrator to three years, has no application to such void sale. Congregational Society (Cal.), IV, 421. 9. ESTATE OF DECEASED PERSON - CLAIM BARRED BY STATUTE OF LIMITATIONS-ALLOWANCE OF.--An administrator has no authority to allow a claim against the estate based on a loan which has become barred by the statute of limitations. Doland·v. Doland (Cal.), IV, 611. In re 10. ATTORNEYS' FEES PAID BY AN ADMINISTRATOR IN CONTESTING THE PROBATE of the 11. IN SETTLING THE ACCOUNT OF AN ADMINISTRATOR the court may adjudicate upon 12. SETTLEMENT OF ADMINISTRATOR'S ACCOUNT.-Items not found in the account of an administrator, nor in the report accompanying the same, can not be settled by the court. Id. 13. REVOCATION OF PROBATE-APPOINTMENT OF SPECIAL ADMINISTRATOR-APPEAL. 14. ESTATE OF DECEASED-SETTLEMENT OF ACCOUNTS-DISTRIBUTION.-When an ex- 16. JUDGMENT AGAINST EXECUTOR-PAYMENT IN DUE COURSE OF ADMINISTRATION— prosecutes a motion for a new trial, the notice for which had been given by her testator before his death, with the result of securing a modification of the judgment, the judgment as modified must be payable in due course of administration, and neel not be presented as a claim against the estate. Estate of Brennan, Deceased (Cal. }, III, 631. 17. NON-RESIDENT ALIEN HEIRS-INHERITANCE BY.-Section 17, article 1, of the con stitution does not inhibit the legislature from extending the right of succession or inheritance to non-resident alien heirs. Estate of Billings (Cal.), III, 774. 18. THE SAME-NON-RESIDENT BROTHERS AND SISTERS.-The non-resident alien brothers and sisters of an intestate, who dies leaving no wife, no descendants, and no father or mother, are entitled to share in the estate of such intestate equally with the resident alien brothers or sisters. Id. See ACCOUNTING, 5; APPEAL, 5, 25, 26; CANCELLATION, 2; EXECUTORS AND ADMINISTRATORS; GUARDIAN AND WARD, 4; HOMESTEAD, 1. ESTOPPEL. 1. AN ESTOPPEL CAN NOT BE FOUNDED UPON WORDS, ACTS, OR SILENCE, unless they were intended to lead the party who seeks to set up the estoppel to act upon them, and he did so act to his injury. Hallack v. Bresnahen (Wy.), II, 60. 2. AN EXECUTOR WHO STATES in his petition for letters testamentary, and in the inventory of the estate, that certain property belonged to the testator, is not estopped from afterwards claiming such property as his own. Anthony v. Chapman (Cal.), II, 66. 3. DESCRIPTION BY REFERENCE to MAP-ESTOPPEL.-One who records his claim to certain real estate, describing the same as bounded by a certain street as shown upon a recorded map, and who afterwards receives a deed to such property by the same description, is estopped to deny the existence of the street as shown by such map. Walla Walla v. Moore (Wash.), II, 214. 4. A GRANTEE IN A DEED WHICH RECITES THAT THE SAME IS GIVEN IN LIEU of a previous deed for different premises, who accepts the same in lieu thereof, is estopped from claiming under such previous deed. Whether such grantee is divested of the title conveyed to him by the previous deed, without a reconveyance, quare. Equity might compel such reconveyance, unless the rights of innocent purchasers had intervened. Emeric v. Alvarado (Cal.), I, 708. 5. PARTY IS ESTOPPED FROM TAKING ADVANTAGE OF AN ERROR IN THE ORDER of the introduction of evidence, for which he is himself responsible. Richardson v. Bricker (Col.), I, 270. 6. UNITED STATES CAN NOT BE ESTOPPED BY THE FRAUDS or crimes of its public officials. United States v. Southern Col. etc. Co. (U. S. Cir. Ct., Col.), I, 11. 7. OWNER OF PERSONAL PROPERTY IS NOT ESTOPPED FROM ASSERTING HIS RIGHTS THERETO as against a purchaser from one having the ostensible ownership, if such purchaser had notice of his title. Sacalaris v. Eureka etc. R. R. Co. (Nev.), I, 398. 8. PURCHASE OF REAL ESTATE - TRUST - CORPORATION ESTOPPEL. One who purchases real estate in his own name, although representing himself to the vendor as acting in behalf of a corporation, is not estopped from disputing the right of the corporation to hold him as a trustee of the property bought, if such purchase were made without the authorization of the corporation. Kelig v. Ruble (Or.), III, 737. See ARBITRATION AND AWARD, 8; ASSIGNMENT, 4; CONTRACT, 14; CORPORATIONS, 19, 51, 52; EJECTMENT, 10; NEGLIGENCE, 34; OREGON DONATION Acr, 2; RELEASE, 2; WATER RIGHTS, 46. ESTRAY. 1. NO ONE BUT A HOUSEHOLDER CAN TAKE UP AN ESTRAY ANIMAL under the Colorado statute, and he only when it is found in the vicinity of his residence. Webber v. Hartman (Col.), I, 272. 2. WHETHER THE TAKING UP OF AN ESTRAY ANIMAL BY AN EMPLOYEE OF A HOUSEHOLDER, without his knowledge or direction, can be subsequently ratified by him, quære. Id. 3. TAKER-UP OF AN ESTRAY ANIMAL FORFEITS ALL CLAIM TO COMPENSATION, and can not defeat an action for the possession of the property brought by the owner, if the taking up was originally unlawful, or if it has subsequently become unlawful by an abuse of the authority vested in him by statute. Id. 4. TAKER-UP OF ESTRAY HORSES CAN NOT USE THEM FOR THE PURPOSE OF GENERAL LIVERY, and if he does so, such use is tortious, and the taker-up forfeits his claim to compensation. Id. 1. BURDEN OF PROOF. 2. PAROL EVIDENCE. 3. DECLARATIONS. EVIDENCE. 4. EXPERT AND OPINION EVIDENCE. 5. EVIDENCE IN PARTICULAR CASES. 6. ADMISSION AND REJECTION OF EVIDENCE, AND OBJECTIONS THERETO. 1. BURDEN OF PROOF. 1. BURDEN OF PROOF IS ON THE PLAINTIFF TO PROVE THE ALLEGATIONS of his complaint essential to his recovery; but he need not prove the negative of facts that go merely to support the defense, although he has himself alleged them. Gilson v. Price (Nev.), I, 373. 2. IT IS NOT ERROR FOR A COURT TO PERMIT THE PLAINTIFF TO ANTICIPATE THE DEFENSE of a prior recovery by introducing evidence in the opening of his case tending to show that the cause of action in such case was not identical with that in issue and determined at a prior date. Id. 3. BURDEN OF PROOF IS ON THE COMPLAINANT TO SHOW THAT NEGATIVE ALLEGATIONS are at least prima facie true when such allegations are made the basis of his suit. United States v. Southern Col. etc. Co. (U. S. Cir. Ct., Col.), I, 11. 4. PROOF OF THE NON-EXISTENCE OF PERSONS NAMED IN UNITED STATES PATENTS AS GRANTEES may be made by the evidence of witnesses who lived in the neighborhood of the lands granted, and who would probably have known such grantees if they had lived at the time and in the place in question. Id. 5. AMOUNT OF EVIDENCE REQUIRED TO SUPPORT A NEGATIVE ALLEGATION, and to shift the burden of proof, varies according to the circumstances of the case; and very slight evidence will often be sufficient to shift the burden to the party having the greatest opportunities of knowledge concerning the fact to be inquired into. Id. 6. COMPLAINANT IN A SUIT TO SET ASIDE CERTAIN LAND PATENTS alleged to have been obtained through a fraudulent conspiracy between the officers of the land office and others need not call such persons as witnesses to prove the fraud if he can make out a prima facie case without doing so. On the other hand, the failure of the respondents to call such persons to disprove the fraud, when no reason appears for not having done so, is a strong circumstance of suspicion. Id. 2. PAROL EVIDENCE. 7. EVIDENCE OF PAYMENT IS ADMISSIBLE UNDER THE PLEA of non assumpsit, in an action on a promissory note. Staab v. Jaramillo (N. M.). I, 57. 8. A PARTIAL FAILURE OF THE CONSIDERATION UPON WHICH A PROMISSORY NOTE WAS GIVEN may be shown in an action thereon by the payee, under a plea of the general issue. Staab v. Ortiz (N. M.), I, 516. 9. PAROL EVIDENCE IS ADMISSIBLE TO SHOW THAT A PROMISSORY NOTE SUED ON WAS DELIVERED AT A DATE other than that which it bears on its face; but a refusal to admit such evidence is not error when the same would have been immaterial. Paige v. Carter (Cal.), I, 558. 10. PAROL EVIDENCE IS ADMISSIBLE TO SHOW THAT CERTAIN PROMISSORY NOTES SUED ON WERE GIVEN by the maker to the payee in pursuance of an agreement between them, whereby the latter conveyed to the former certain lands in consideration of the grantee's giving him a home and supporting him during the residue of his life, and that such notes were given by the maker to secure the performance of said agreement on his part and that he had performed the same. Howard v. Stratton (Cal.), I, 562, 563. 11. THE ADMISSION OF SUCH EVIDENCE WOULD NOT VIOLATE THE RULE forbidding the introduction of parol evidence to vary or contradict a written contract, as parol evidence is admissible to prove that a written agreement has been totally discharged. Id. 12. A WRITTEN INSTRUMENT PURPORTING TO BE AN AGREEMENT between parties, but understood and intended to be a mere form, and never delivered to take effect as an actual agreement, is of no force as between such parties, and parol evidence is admissible to prove such facts. Branson v. Oregonian R'y Co. (Or.), I, 624. |