the land to his damage. A further allegation that such trespass was committed "contrary to the provisions of an act of the legislature of the state of California, entitled 'An act to restrict the herding of sheep, approved May 18, 1861,' disregarded as surplusage or stricken out. Demarlin v. Albert. Cal., 568.

may be . THE SAME-CROSS-COMPLAINT TRESPASS TO LAND-ACTION FOR PERSONAL INJURIES. In an action to recover damages for injuries inflicted on plaintiff's sheep, the defendant cannot file a cross-complaint to recover damages for a trespass committed on his land, when there is nothing in the pleadings to show that the respective trespasses of the parties related to, or depended upon, or in any way affected each other. Id. See RIGHT OF WAY, 1.

TRIAL.

See CONTINUANCE; CRIMINAL LAW, 5, 20; EJECTMENT, 2, 4.

TRUST.

1. CONSTRUCTIVE TRUST.-Where one party, wrongfully, obtains the legal title to land, which, in equity and good conscience, belongs to another, whether he acts in good faith, or otherwise, he will be charged, in equity, as a constructive trustee of the equitable owner. Lakin v. Sierra Buttes Gold Mining Co. (U. S. Cir. Ct.) Cal., 50. 2. TRANSFER OF REAL PROPERTY-CONSIDERATION PAID FOR ANOTHER.-Under section 853 of the civil code, where a transfer of real property is made to one person, and the consideration thereof is paid for another, a trust is presumed to result in favor of the person for whom the consideration is paid. It is not necessary that the consideration should have been paid by him. Barriolhet v. Anspacher. Cal., 3. THE SAME CESTUI QUE TRUST IN POSSESSION-LACHES.-Such cestui que trust, while in possession, is not guilty of laches in not asserting his rights against the holder of the legal title out of possession. Id.

323.

4. ACTION TO DECLARE TRUST-NOTICE OF PLAINTIFF'S EQUITIES-BURDEN OF PROOF.— In an action against the holders of the legal title to land, to charge them with a trust in favor of the plaintiff, when the complaint expressly alleges that the defendants, at the time of their purchase, took with notice of the plaintiff's equities, it is necessary for the plaintiff to prove facts showing such notice, when there is nothing shown of record to put the defendants on inquiry. Wyrick et al v. Wick et al. Cal., 174.

ULTRA VIRES.

See CORPORATIONS, 3.

UNDERTAKINGS.

See APPEAL, 2, 4, 5, 8-11, 13, 14, 16; REPLEVIN, 3.

UNITED STATES COURTS.

1. JURISDICTION TO ENJOIN PROCEEDINGS IN STATE COURT.-The United States circuit court has no authority to restrain the chief of police of San Francisco from serving warrants of arrest issued by the police court upon criminal charges for violating city ordinances, alleged to have been passed in contravention of the fourteenth amendment of the constitution of the United States, and of the stipulations of our treaty with China. Yick Wo v. Patrick Crowley. (U. S. Cir. Ct.) Cal., 715.

2. SECTION 720 OF THE REVISED STATUTES prohibits the issue of injunctions to restrain proceedings in the state courts. Id.

See INTERPLEADER; REMOVAL, 7; CAUSES, 1; REPLEVIN, 3.

VIII-7

VACANCY.

See ATTORNEY-GENERAL; INSANITY; PUBLIC OFFICERS, 10.

VALUE.

See CLAIM AND DELIVERY, 2.

VARIANCE.

1. VARIANCE EVIDENCE SUSTAINED BY ANSWER.-A variance between the facts proved and those alleged in the complaint is immaterial, if the answer set forth the facts as they appeared in evidence. Thompson v. Reno Sav. Bank. Nev., 634.

See APPEAL, 20.

VENDOR AND VENDEE.

See PRINCIPAL and Agent, 9–11.

VENUE.

1. MURDER-Change of Venue-PreJUDICE AGAINST Defendant.-Where a motion for a change of venue, in a prosecution for murder, is made, on the ground of prejudice against the defendant in the county where the indictment was pending, which would prevent him from having a fair and impartial trial, the court may deny the motion, until it can be shown by an examination of a sufficient number of jurors whether a fair and impartial jury can be obtained or not. State v. Gray.

Nev., 72.

VERDICT.

1. VERDICT-CONFLICT OF EVIDENCE.-A verdict will not be disturbed on the ground of insufficiency of the evidence to sustain it, when the evidence is conflicting. People v. Brick. Cal., 427.

2. VERDICT OF CONVICTION NOT DISTURBED WHEN EVIDENCE IS CONFLICTING.—A verdict convicting the defendant will not be disturbed because contrary to the evidence, when the preponderance of the evidence went to prove the defendant's guilt. People v. Jones. Cal., 200.

3. WHEN THE EVIDENCE IS CONFLICTING THE VERDICT will not be disturbed. v. Bank of Cal. Cal., 212.

Bulkeley

4. RECOMMENDATION TO MERCY.-The refusal of the court to strike from the verdict a recommendation to mercy, is not error. State v. Gray. Nev., 72.

See CLAIM ANd Delivery, 2, 3; CRIMINAL LAW, 12, 19; DAMAGES, 1; MURDER AND MANSLAUGHTER, 10; NEW TRIAL, 15; NEGLIGENCE, 11.

WAGER.

1. AT COMMON LAW WAGERING CONTRACTS WERE NOT ILLEGAL, unless contrary to public policy, morality, or the like. Mesner v. Knapp et al. Or., 648.

2. TO CONSTITUTE A WAGER THERE MUST BE TWO OR MORE contracting parties having mutual rights in respect to the thing wagered, and each of the parties necessarily risks and has a chance to make something upon the happening or not of an uncertain event. Id.

3. THE SAME PURSE OFFERED ON HORSE-RACE.-A purse or prize offered by a party, and to be awarded to the successful competitor in a contest, such as a horse-race, in which such party does not engage, is not a wager. Id.

WAREHOUSEMAN.

1. WAREHOUSEMAN'S RECEIPT ASSIGNMENT OF CONSTRUCTIVE DELIVERY.-When the terms of a warehouse receipt are such that the warehouseman offers or undertakes to deliver the property to whomsoever the receipt may be indorsed, a symbolical delivery may be affected by its assignment or delivery, and he becomes bailee to such

assignee, in accordance with the terms of his contract. In such case a delivery of the receipt is a symbolical delivery of the property itself. But when the receipt restricts the promise to deliver to the bailor personally, and not to his order, a change in possession of the property bailed cannot be affected by a mere assignment of the receipt, without the consent of the bailee thereto, so as to defeat the rights of subsequent attaching creditors to the bailor. Gill v. Frank. Or., 413.

2. WAREHOUSE RECEIPTS-BONDED WAREHOUSE-BRANDY STORED IN NAME OF DISTILLER.-Plaintiff was the owner of the brandy in controversy. It was manufactured for him by one B., a licensed United States distiller, and in order to delay payment of the revenue tax, was stored by him in a United States bonded warehouse, controlled and regulated by the act of congress of March 3, 1877, and the special treasury regulations of May 15, 1877. Such laws require the brandy to be stored in the name of the distiller, but do not require that the distiller shall be the owner. The warehouse receipt was issued to B. in his own name. Subsequently B., without authority, sold the brandy to the defendant, and transferred the receipt to him. The defendant was a bona fide purchaser for value and without notice. Held, that the plaintiff was entitled to a return of the property, upon paying to the defendant the amount of the warehouse charges and the government tax paid by him. Bliss v. Carroll. Cal., 506.

WAIVER.

SEE CONTINUANCE, 4; EJECTMENT, 2; FINDINGS, 8; NEW TRIAL, 8, 9; PLEADINGS, 5; STATUTE OF LIMITATIONS, 10, 11.

WARRANTS.

See CONSTITUTIONAL LAW, 4-8; SEARCH WARRANT.

WARRANTY.

1. SALE OF MANUFACTURED ARTICLES-WARRANTY OF FITNESS-RESCISSION OF CONTRACT.-Plaintiffs sold to the defendant a harvesting machine of their own manufacture, and guaranteed, in writing, "that it would do good work in cutting and thrashing ordinary grain;" they also agreed to send a man with the machine, to start it, "and show to the defendant's satisfaction that it was all that they represented it to be." The machine was shipped by rail to the defendant; upon its arrival he carefully adjusted it, and commenced to haul it away, when it broke down, so that it could not be moved; he immediately notified the plaintiffs, who forwarded a duplicate of the broken part; this was adjusted, and the machine started, when it again broke down in the same manner. The defendant thereupon immediately notified the plaintiffs of his refusal to accept the machine. In an action to recover the purchaseprice of the machine, Held, that under sections 1679 and 1770, of the civil code, as well as under the written guaranty, the plaintiffs warranted the machine to be reasonably fit for the purpose intended, and to be free from any latent defects, arising from the process of manufacture, not disclosed to the defendant; that upon a breach of such warranty the defendant was entitled to rescind the sale by returning, or offering to return, the machine, and that a refusal to so instruct the jury was error. Hoult et al. v. Baldwin. Cal., 17.

WATER RIGHTS.

See INJUNCTION, 4, 5; RIPARIAN PROPRIETORS, 1.

WEARING APPAREL.
See EXECUTION, 1.

WITNESS.

1. EVIDENCE-VOLUNTARY WITNESS-NONPAYMENT OF FEES.-The facts that a witness was not subpoenaed by the party calling him, and attended the trial from a distance,

without any fees being paid to him, are not of sufficient importance to justify the jury in drawing any inference therefrom prejudicial to the witness. Hurst v. Burnside. Or., 446.

2. WITNESS FALSE IN PART-JURY MAY DISREGARD.-The jury, if they believe that any witness has willfully testified falsely to any material point in the case, are at liberty to disregard the entire testimony of such witness. Minich v. People. Col., 580. See CONTINUANCE, 1-3; CRIMINAL LAW, 8; Evidence, 18-20.