ORDINANCE (Continued).

be found, etc.; and also provided that no person other than the said W. or his associates or assigns or the person owning or having possession of any animal at the time of its death should remove or dispose of the carcass of such animal unless the said W. and his associates and assigns should fail to remove the same within twenty-four hours after receiving notice thereof.

Held: By the provisions of this ordinance the owner or the person, in whose possession the animal should be when death occurred, was given the right to dispose of the carcass in such a manner as not to become a nuisance at any time within twenty-four hours after death, and it was competent for him to exercise that right in any way he should see fit by contract or otherwise.- Alpers v. Brown, 447.

See SAN FRANCISCO, OUTSIDE LANDS OF; MONEY HAD AND RECEIVED, 1;
WATER RATES, 1, 2, 3.

OTHER ACTION PENDING. See UNLAWFUL DETAINER, 8.

OUSTER. See EJECTMENT, 4, 5, 6, 7.

OVERDRAFTS.

1. OVERDRAFTS-LIABILITY OF OFFICERS TO A BANK-INSTRUCTIONS-USAGE.— Action by a bank against its President for the amount of overdrafts of one C., alleged to have been drawn for the benefit of the business of a hotel in which the defendant and C. were jointly interested, and to have been paid by direction of the defendant. The verdict and judgment were for the plaintiff. The evidence tended to show that the money was drawn for use in the joint business as alleged; that C. was induced by the defendant to open an account with the bank, and that at various times, from April 1st to July 9th, overdrafts of C. were paid by direction of defendant; that at the latter date (the account then showing a balance in favor of C.) defendant, by reason of ill-health, left the city, and was absent from the bank till July 30th, but before absenting himself did not give instructions to the Cashier not to pay overdrafts; that during his absence the overdrafts in question were made and paid by the Cashier; that according to the by-laws of the plaintiff it was the duty of the Finance Committee to pass upon and to allow or refuse all loans. The court instructed the jury in effect, that if the overdrafts of C. during the months of April, May, and June, were authorized by the defendant it was the duty of defendant, upon absenting himself, to instruct the Cashier to discontinue paying the overdrafts of C.; that the question was were the overdrafts made in the month of July, which were lost to the bank, paid by the Cashier in the course of a dealing established and inaugurated by the defendant, or were they paid by the Cashier contrary to or against the express directions of the defendant; also, that a usag at the bank (of which there was some evidence before the jury) to allow customers to overdraw, would not justify an officer of the bank in case of loss; that such usage was nothing more than a usage or practice to misapply the funds of the bank.

OVERDRAFTS (Continued).

Held, The law as applicable to this case was, in substance, correctly given by the Court below. There were, substantially, but two questions for the jury to consider, viz.: 1. Did Wilcox inaugurate the account and its method of being carried on, and direct officers of the bank to pay overdrafts, and were the amounts of overdrafts after July 9th paid in pursuance of and as a part of the method inaugurated by Wilcox? 2. Was he interested in the business of the hotel, and in maintaining it? These questions answered in the affirmative fix the liability upon him, and to sustain such answers the evidence is ample.- Oakland Bank of Savings v. Wilcox, 126.

2. ID. ID. ID. IMMATERIAL ERROR.-An instruction indicating that all overdrafts, under all circumstances, constitute fraud, and also an instruction that "if he (the president) should fail in skill," he would be responsible, held to be incorrect, but in view of the actual issues involved, not calculated to injure the defendant.- Id.

8. ID. ID. BY-LAWS.- Where the by-laws of a bank forbid loans to be made without the approbation of the finance committee, it is a violation of duty for the President or Cashier to loan upon his or their own judgment.— Id. 4. ID.- ID. BREACH OF TRUST - FIDUCIARY.-An officer of a bank can not

make profit to himself out of the loans made by him of the money of the bank, and if losses occur in the attempt he must bear the losses.— Id.

5. ID. ID. INSTRUCTIONS.-There was no error in refusing the instructions asked for by defendant and refused.— Id.

OWELTY OF PARTITION, SUBSEQUENT MORTGAGE FOR. See ATTACH

MENT.

PARTIES.

JOINDER OF PARTIES

PARTIES ACTION - TRUSTEE BOND.-The defendant, C., entered into a contract with the plaintiff, D., for the construction of a building upon a lot belonging to them, upon which the plaintiff, the Savings and Loan Society, held a mortgage; and for the faithful performance of the contract, C. and the other defendants as sureties gave their bond to the Savings and Loan Society, for the benefit of all the plaintiffs. Held (in an action for a breach of the bond): The plaintiffs were properly joined. Daley v. Cunningham, 530.

See EJECTMENT, 9; PRESUMPTION, 1, 2; SUBSTITUTION OF.

PARTITION. See ATTACHMENT; ESTOPPEL, 1.

PATENT.

1. PATENT MINERAL LANDS-STATUTE OF LIMITATIONS-CONSTRUCTIVE TRUST. - Action to quiet title. The plaintiff deraigned title under a patent of the United States issued within five years of the commencement of the action. The defendants pleaded title by the statute of limitatations; and also facts which they contended constituted the plaintiff trustee for them of the title; but on this issue the Court found against them.

CAL. REPS. LX-45

PATENT (Continued).

Held, as to the latter defense, that the finding was justified by the evidence, and as to the former that the statutes could not avail the defendants against the patentee.- Nessler v. Bigelow, 98.

2. PATENT

CONSTRUCTIVE TRUST — REVIEW OF DECISION OF LAND OFFICERS

PURCHASER IN GOOD FAITH COMPLAINT

EVIDENCE

1

CER.
LEGAL CONCLUSIONS
RIGHT OF PRE-EMPTION UNDER THE

TIFICATE OF PURCHASE ACT OF JULY 23, 1866. In an action by the assignee of a purchaser from the State under an invalid selection claimed to have been confirmed by the Act of Congress of July 23, 1866, "to quiet land titles in California " - against a pre-emption claimant, to whom, after a contest before the Land Department, a patent had been issued -the object of the action being to have the defendant adjudged a trustee of the legal title for the plaintiff the complaint alleged that on the contest the commissioner "found as a matter of fact, that in the year 1863. the State of California selected and located said land under the laws of said State, and did thereafter sell and dispose of the same to the grantor of the plaintiff, as is hereinbefore more fully stated; and that on the seventeenth day of February, 1864, the gran tor of the plaintiff became the purchaser in good faith of said land from the State under her laws-paid the purchase price and received a certificate of purchase therefore as herein before stated;" •

· that the only objection made to said claim, on said contest and investigation, and the only objection which has ever existed thereto, was the fact that said land so selected and located as aforesaid was embraced by said exterior boundaries of the Mexican grant "Las Pocitas.". that said contest and investigation was had long after said tract of land in question had been forever excluded from any claim under said Mexican grant;" and that the decision of the commissioner and of the Secretary of the Interior was based solely on this mistake of law; but it did not appear from the allegations of the complaint that the plaintiff's grantors had complied with the laws of the State so as to constitute them bona fide purchasers except so far as this might appear from the general averment that they were purchasers in good faith and that a certificate of purchase had issued to them; nor was it alleged that the plaintiff himself was a bona fide purchaser from his assignors.

Held: The complaint was fatally defective in not alleging the facts essential to constitute the plaintiff's grantors purchasers in good faith from the State. The general averment that they were such purchasers was an averment of a conclusion of law only. The certificate of purchase, hav ing been issued for land not subject to location, and being consequently void, was not competent evidence of the purchase. The complaint was also defective in not alleging that the plaintiff himself was a purchaser in good faith from his assignors. Inferentially he became the owner of the certificate after the decision of the Land Department, and assuming this to be the fact, he bought with notice of the possession of the defendant, of the judgment in his favor, and of the issuance of the patent, and was therefore not a bona fide purchaser from the State within the meaning of the Act. The complaint was also defective in not alleging that the land, in lieu of which it was alleged the land in dispute was selected, had been lost to the State. Aurrecoechea v. Sinclair, 532.

See EJECTMENT, 8.

PAYMENT. See FAMILY ALLOWANCE, 1; PROMISSORY NOTE, 5.

PHYSICIAN'S SERVICES ON POST-MORTEM EXAMINATION. See CLAIM

AGAINST COUNTY.

PLACE OF TRIAL.

PLACE OF TRIAL - ACTION FOR DIVERSION OF WATER APPEAL FROM ORDER REFUSING TO CHANGE THE PLACE OF TRIAL.- Appeal from order deny. ing defendant's motion for change of place of trial. The action was for the diversion of water from the plaintiff's ditch, and was commenced in Tulare County. The defendant's principal and only place of business was in Fresno County. The plaintiff's ditch is situated partly in Fresno and partly in Tulare County the head of the ditch and the point of diversion of the water by the defendant being in the former county. Held: The order denying the motion was correct. The right of the plaintiff, as stated in the complaint, to have the water flow in the river to the head of its ditch is an incorporeal hereditament appurtenant to the ditch, and is co-extensive with plaintiff's right to the ditch itself. The subject of the action is, therefore, situated in both counties and the action might have been brought in either. The injury is not confined to that part of the ditch in Fresno County.- Lower Kings River Water Ditch Co. v. Kings River and Fresno Canal Co., 408.

PLEA OF "NOT GUILTY." See MURDER, 1.

PLEADING.

PLEADING

ISSUES

DENIAL OF
EVIDENCE

EXECUTION OF

WRITTEN INSTRUMENT.-RELEASE PRACTICE. In an action for damages for the death of the plaintiff's minor son- alleged to have been killed by the negllgence of defendant- the defendant pleaded in bar a release in writing by the plaintiff of all demand for the damages sued for, and in his answer inserted a copy of the release. The execution of the release was not denied by the plaintiff, in the mode required by Section 448, C. C. P., but the evidence was offered by the plaintiff, and admitted without objection, tending to show that at the time he signed the release he was incompetent to contract. The verdict was for the plaintiff.

PLEADING (Continued).

Held: Under such circumstances, the defendant can not be allowed to raise the point in this Court, that the verdict of the jury is against an admission made by the pleadings.- Crowley v. City Railroad Company, 628.

See EJECTMENT, 3-7; FORECLOSURE, 2, 5; JUDGMENT; PROMISSORY NOTE, 2, 5; SALE, 1; SLANDER OF TITLE, 1, 2; UNDERTAKING ON ATTACHMENT, 4; VERIFICATION OF, BY AGENT.

PLEDGE BY CONSIGNEE. See REPLEVIN, 1.

PLUMAS COUNTY, FEES OF CLERK OF SUPERVISORS.

STATUTES

FEES OF CLERK OF BOARD OF SUPERVISORS OF PLUMAS COUNTY CONSTITUTIONAL LAW. - The provisions of the Act of 1878, relating to fees of county officers in Plumas County (Stats. 1877-8, p. 547) which were to take effect on the first Monday of March, 1880, never went into effect. Whiting v. Haggard, 513.

POLICE POWER. See SUNDAY LAW, 1, 2.

POLICE OF THE LAW. See UNDERTAKING ON ATTACHMENT, 8.

POLITICAL CODE. See TAXATION, 2, 16.

POSSESSION OF DEFENDANT. See EJECTMENT, 2; NEW TRIAL, 2.

POSSESSION OF STOLEN PROPERTY.

1. POSSESSION OF STOLEN PROPERTY LARCENY PRESUMPTION.- To Justify the inference of guilt from the fact of possession of stolen property, it must appear that the possession was personal, and that it involved a distinct and conscious assertion of possession by the accused.- People v. Hurley, 74.

2. ID.— ID.— ID. The better opinion seems to be, that the presumption arising from possession alone is completely removed by the good character alone of the prisoner. Id.

8. ID. ID. ID.-A finding of stolen property in the prisoner's house or apartment, is equally competent in evidence against him as a finding upon his person; but the house or room must be proved to be in his exclusive occupation. If the property were in a locked-up room or box, of which he kept the key, it would be a fair ground for calling upon him for his defense. But if it were only found lying in a house or room in which he lived jointly with others equally capable of having committed the theft, it is clear that no definite presumption of guilt could be made.- Id. 4. ID. ID. ID. The bare fact of finding the hides of cattle, that had been stolen in the defendant's barn, which was shown to have been open to any one who chose to enter it, in the absence of any evidence tending to prove that he knew or had any reason to suppose that such hides were there, is not sufficient to justify the inference of guilt; and until his declaration, that he knew nothing about the hides being there, was shown to be false, he was not called upon to give any explanation as to how they came there.- Id.