PENALTIES. PLACE OF See BANKS AND BANKING. TRIAL. - 1. CHANGE OF PLACE OF TRIAL-RESIDENCE OF DEFENDANTS.-Where one of the defendants resides in the county in which the action is brought, that county is not an improper county for the trial, and the fact that the remainder of the defendants reside in another county does not entitle them separately to move to change the place of trial to the county in which they reside.-McKenzie v. Barling, 459. 2. JOINDER IN MOTION.-Where any of the defendants reside in the county in which the suit is brought a motion to change the place of trial to a county in which others of the defendants reside will not be granted, unless all of the defendants join in the motion, or unless good reason is shown why they have not so joined.—Id. 3. PARTIES CONSENT OF RESIDENT DEFENDANT INSOLVENCY.Where it sufficiently appears upon the face of the complaint that a defendant residing in the county where the suit is begun is not a proper and necessary party to the action the other defendants may have the trial changed to the county where they reside, without the consent of the resident defendant; but where the complaint states the same cause of action as to all of the defendants, the fact that the resident defendant is alleged to have commenced proceedings in voluntary insolvency, and that he sought to be charged with the indebtedness as having been contracted in a fiduciary capacity, does not render him a nominal defendant, or entitle the other defendants to have the place of trial changed without his consent.—Id. 4. AFFIDAVITS ON MOTION-CONFLICT.-Where the affidavits used upon a motion to change the place of trial go mostly to the merits of the action, and all the statements therein are controverted by conflicting affidavits, the ruling of the court in denying the motion will not be reversed upon appeal.-Id. PLEADING. 1. AMENDMENT TO ANSWER.-The court may properly refuse leave to file an amended answer which does not present any new issue, or any defense to the action not embraced in the original answer.— Duff v. Duff, 1. 2. DIVERSION OF WATER-AMENDMENT OF ANSWER-CHANGE OF ISSUES-DISCRETION OF COURT.-In an action by a lower riparian proprietor to restrain an upper riparian proprietor from diverting water from the stream, where the defendant averred in his original answer that as a riparian owner, and also by virtue of a prescriptive right, he was entitled to divert more water than his flume could carry, the court has discretion to allow the defendant to amend his answer by omitting the defense set out in the original answer, and averring that during the time of the alleged diversion a part of his riparian land was leased to tenants over whom he had no control: that if more water was diverted through the flume than the leased riparian land was entitled to the tenants alone were liable for the diversion.-Gould v. Stafford, 32. 3. AMENDMENTS TO BE LIBERALLY ALLOWED.-The courts should be liberal in allowing amendments to pleadings when they do not seriously impair the rights of the opposite party; and this rule is particularly applicable to amendments to an answer.-Id. 4. MISTAKE OF LAW IMMATERIAL.-The power of a court to allow amendment is not limited by the character of the mistake which calls PLEADING (Continued). forth its exercise; and the fact that the proposed amendment is based mainly upon a mistake of law is immaterial.-Id. 5. LAW OF CASE-CHANGE OF PLEADINGS.-The decision of this court upon a former appeal that diversions by third parties constitute no defense under the pleadings as they then stood is not the law of the case, so as to debar the defendant from proving the acts of his tenants upon the second trial under an amended answer setting up that the water was not diverted by himself, but by his tenants, for whose acts he was not responsible.-Id. 6. PLEADING - ADMISSIONS IN VERIFIED ANSWER DISTINCT DEFENSES. An admission or averment in a verified answer, in a separate and distinct defense, as to the fact that the defendant was a consolidated corporation, is not evidence against the defendant upon issues tendered in other defenses contained in the same answer, consisting of denials only.-McDonald v. 8. C. Ry. Co., 206. 7. ASSIGNMENT OF NON-NEGOTIABLE PAPER-SUBJECTION TO EQUITIES -NOTICE OF ASSIGNMENT-SETOFF.-The maker of non-negotiable notes which have been assigned by the payee to a third party may set off against them the note of the payee which he has purchased before notice of the assignment of the notes executed by him.— St. Louis National Bank v. Gay, 286. 8. CONSTRUCTION OF CODE.-Section 1459 of the Civil Code, which makes an assignment of non-negotiable paper subject to all equities and defenses existing in favor of the maker at the time of the indorsement, is not restrictive, and must be construed in connection with section 368 of the Code of Civil Procedure, which declares that "the action by the assignee is without prejudice to any setoff or other defense existing at the time of or before notice of the assignment." These two sections are not contradictory, and the rule of construction, that the expression of one thing is the exclusion of another, does not apply to the former section when considered in connection with the latter, which became law at the same moment.-Id. 9. SETOFF-INDEPENDENT CONTRACT-RECOUPMENT-COUNTERCLAIM. "Setoff" differs from "recoupment" in that it is more properly applicable to demands independent in their nature and origin, while recoupment implies a cutting down of a demand by deductions arising out of the same transaction; and "counterclaim" as used in the code includes both recoupment and setoff.-Id. 10. MATURITY OF SETOFF AFTER NOTICE OF ASSIGNMENT.-A note may be claimed as a setoff though not due at the time the defendant received notice of the assignment of his notes to the plaintiff, if it became mature before the commencement of the action by the plaintiff.-Id. 11. RIGHTS OF Debtor-CounTERCLAIM.-A debtor may fortify himself against the coming suit of his creditor by the purchase of any crossdemands, which may be counterclaimed when that suit shall come, and between them an assignee has no standing until he shall have given notice of the assignment.-Id. 12. ACTION UPON CONTRACT-COUNTERCLAIM TORT TRESPASS PROMISE. In an action upon a promissory note, a defendant may set up a counterclaim for an indebtedness upon an account for nursery stock, consisting of fruit trees and grapevines eaten up and destroyed by the hogs, cattle, and horses of the plaintiffs, before the commencement of the action, which the plaintiffs promised and agreed to pay to the defendant.-Poly v. Williams, 648. PLEADING (Continued). 13. PROMISE TO PAY STATED DAMAGES.-While a counterclaim sounding in tort cannot be set up as a defense to an action arising upon contract, yet a promise of agreement to pay a stated sum of money in full satisfaction of damages resulting from a tort becomes a matter arising upon contract, and as such may be properly pleaded as a counterclaim to an action founded upon contract.—Id. 14. EXPRESS PROMISE.-Proof of an express promise or agreement is necessary in order to sustain such counterclaim.-Id. 15. IMPLIED PROMISE-EXPRESS PROMISE.-An implied promise is a mere conclusion of law, and the facts from which such promise is implied must under our system of pleading be stated; but the rule is different in the case of an express promise, which is an ultimate fact, and must be pleaded as such, though the word "express" is not necessary to be used in pleading the promise. When a promise is alleged in a pleading, it must be held to be express.—Id. See CLAIM And Delivery, 1; COMMON CARRIERS, 1; EVIDENCE. PLEDGE. See NEGOTIABLE INSTRUMENTS, 15-17. PRACTICE. 1. CONTINUANCE-NECESSARY ABSENCE OF PLAINTIFF-PREPARATION FOR TRIAL.-Where, upon the day set for the trial of an action, the plaintiff's attorney moved for a continuance upon affidavits showing that the plaintiff, who resided out of the state, was confined to his room by illness, and would not be able to leave his room for at least two months; that the plaintiff's presence at the trial was indispensably necessary; that he was the only person who knew the whereabouts of the witnesses; that their names had not been communicated to plaintiff's attorney, and that the attorney did not know the details of the case, it was error for the court to deny the continuance and proceed to a trial of the action.-Jaffe v. Lilienthal, 175. 2. PRESENCE OF PARTIES AT TRIAL-WAIVER-DISMISSAL.-It is the right of the parties to be present at the trial of their cases, unless such right is waived by voluntary and negligent absence without reasonable excuse; and a dismissal on account of the absence of a plaintiff which involves the destruction of his rights should not be imposed, unless justice clearly requires it.—Id. 3. CONTENTS OF AFFIDAVIT-MATERIALITY OF EVIDENCE.-An affidavit for a continuance on account of the absence of a party under section 594 of the Code of Civil Procedure need not show the materiality of the evidence expected to be obtained.-Id. See APPEAL; ATTACHMENT; BILL OF EXCEPTIONS; COSTS; Evi- PRINCIPAL AND AGENT. See AGENCY. PROHIBITION. See CORPORATION, 34, 35; SUTREME COURT. PROMISSORY NOTE. See NEGOTIABLE INSTRUMENTS. PUBLIC OFFICERS. See MUNICIPAL CORPORATIONS; WRIT OF RESTITUTION. PUEBLO LANDS. 1. PUBLIC TRUST ADVERSE POSSESSION.-Land acquired from the United States by a city as successor to a former pueblo, held in trust for the general public for a specific purpose, as a park, or for a street, or for public buildings, cannot be alienated, and the title of the public thereto cannot be lost by a possession adverse to the city. Ames v. City of San Diego, 390. 2. HOUSE LOTS-POWER OF ALIENATION-PRESCRIPTION.-In the case of pueblo lands, such as house lots, the legal title of which is vested in the city, and which may be alienated by it, the title of the city thereto may be lost by adverse possession for the period of time required to acquire a prescriptive title under the statute of limitations.-Id. 3. FINDINGS-PRESUMPTION—SUPPORT OF JUDGMENT.-Where the findings in an action to determine an adverse claim to land state facts showing a prescriptive title in the plaintiffs, and also that the land in controversy was patented by the United States to the city defendant as the pueblo lands of the defendant, "in trust for municipal purposes," without stating that the land in controversy was held by the defendant in trust for a specified public use, it must be presumed in favor of the judgment that the land was a house lot which the pueblo was authorized to convey, and the findings are sufficient to support a judgment for the plaintiffs.-Id. See DEEDS, 8-13. QUIETING TITLE. IMPROVEMENTS—IMMATERIAL AVERMENT IN ANSWER-FINDING NOT REQUIRED. In an action to quiet title, where the plaintiff's ownership of the land in controversy is established, an averment in the answer that the defendant made valuable improvements upon the land while in possession thereof is immaterial, and a finding thereupon is not required.-Eshleman v. Malter, 233. RAILROADS. See COMMON CARRIERS; NUISANCE; WHARF. RECEIVER. See CORPORATION, 25, 26, 31, 34. RECLAMATION DISTRICT. 1. CONSTITUTIONAL LAW-CREATION OF LEVEE DISTRICT-UNCONSTITUTIONAL STATUTE.-Section 21 of the act of March 25, 1868, providing for the creation of a levee district upon petition of persons in possession of more than one-half of the acres of any specified portion of the county, without vote of the people, without notice, and without opportunity for protest, no discretion being vested in the board of supervisors to reject the petition, or to change the proposed boundaries, is unconstitutional.-Brandenstein v. Hoke, 131. 2. CORPORATION DE FACTO COLLATERAL ATTACK.-A levee district formed under an unconstitutional act has no rights, and is not entitled to be protected against collateral attack as a corporation de facto.-Id. CI. Cal. 47 RECLAMATION DISTRICT (Continued). 3. VALIDITY OF BONDS-WAIVER-ESTOPPEL-MANDAMUS.-The board of reclamation fund commissioners of a levee district have not waived objection to the validity of the organization of the district under an unconstitutional act, and are not estopped from disputing the validity of its bonds, by retaining the benefit derived from the proceeds of their sale, and by the payment of interest upon them for several years; and a holder of bonds of such district which were issued and sold for the purpose of securing funds to carry on im provements in such levee district, is not entitled to a mandamus requiring the board of fund commissioners to levy a tax to pay the principal and interest of the bonds.-Id. RESCISSION. See AGENCY, 1; FINDINGS, 2; VENDOR AND VENDEE. RESIDENCE. See ATTACHMENT, 3, 4. RESTITUTION. See WRIT OF RESTITUTION. RESTRAINT OF TRADE. See CONTRACTS, 2-5; INJUNCTION, RIPARIAN PROPRIETORS. See WATER AND WATER RIGHTS. SALE. 1. CONDITIONAL SALE-LEASE OF PERSONAL PROPERTY-TITLE TO PASS UPON PAYMENT.-An agreement by which the owners of personal property "lease" it to others, and which provides that upon the prompt payment of the sum of money to be paid as rental the title to the property would pass to the lessees, although called a lease, is not one, but is either a complete or conditional sale.— Parke and Lacy Co. v. White River Lumber Co., 37. 2. FORECLOSURE OF MORTGAGE TO SECURE PURCHASE MONEY-RATIFICATION OF SALE.-Conceding such an agreement to be a conditional rather than an absolute sale, the action of the owners of the property in foreclosing a mortgage of realty, given by the purchasers of the property to secure the purchase price, is a ratification of the sale, and defeats the rights of the sellers to reclaim the property because of noncompliance with the conditions of the instrument in regard to payments.-Id. 8. ELECTION OF INCONSISTENT REMEDIES.-When two inconsistent remedies are open to a person he must elect which he will pursue. and having elected one, he is debarred from the other.-Id. See CLAIM AND DELIVERY, 2-4; VENDOR AND VENDEE. SAN DIEGO. See DEEDS, 8-13. SCHOOL LANDS. STATE SCHOOL LANDS-APPLICATION TO PURCHASE-FALSE STATEMENT AS TO PART OF LAND-CONSTRUCTION OF CODE.-The false statement spoken of in section 3500 of the Political Code relating to the purchase of school lands, which provides that any false statement contained in the affidavit of the applicant as to the character of the land defeats his right to purchase the land, refers to a false statement made with reference to the particular tract of land, and the fact that an applicant's affidavit does not state the true condi |