Sheriff is Liable in conversion for levy on mortgagor's personalty without payment or tender of mortgage debt,

P. 70.

To same effect in Wise v. Jeffries, 51 Fed. Rep. 644, as to liability in replevin for seizure of property in possession of mortgagee.

71 Cal. 72-74. PEOPLE v. HULBERT.

Reclamation Assessment is Barred in three years, as liability created by statute, p. 73.

To same effect in Swamp Land District v. Glide, 112 Cal. 88, further, holding amendment of section 3466, Political Code, constitutional; San Diego v. Higgins, 115 Cal. 175, applying rule to municipal tax; Miller v. Batz, 131 Cal. 405, noted under Higby v. Calaveras Co., 18 Cal. 176. Robertson v. Beaine County, 90 Fed. 70. Land v. Railroad Co., 10" N. C. 76, but holding claim for entry by railroad (exempt from suits of trespass) not such a liability.

71 Cal. 74-80. IN RE BALDWIN.

Exemptions. Expensive threshing outfit principally used for hire on other's lands is not exempt in insolvency, p. 77.

To same effect in In re McManus, 87 Cal. 295; 22 Am. St. Rep. 252, but exempting safe used by jeweler in his business; In re Klemp, 119 Cal. 43; 63 Am. St. Rep. 71, exempting combined harvester when principally used by debtor, though occasionally by others. Distinguished in Spence v. Smith, 121 Cal. 539; 66 Am. St. Rep. 64, where such outfit also necessary for debtor's own use.

General Citation.-Nelson v. Fightmaster, 4 Okla. 45.

71 Cal. 80-82. PEOPLE v. LEE WAH.

Practicing Medicine without Certificate.-Evidence held to show sufficiently, p. 81.

Cited in People v. Boo Doo Hong, 122 Cal. 607, sustaining conviction, and further holding burden on defendant to show possession of such certificate; Board v. Cole, 9 Ind. App. 479, discussing right of such physician to recover for services rendered in case of emergency.

71 Cal. 83-87. HOGAN v. CENTRAL PACIFIC RAILROAD CO. Private Action for Public Nuisance will not lie, unless special and peculiar damage suffered, p. 86.

To same effect in Fogg v. Railway, 20 Nev. 440, denying injunction of operating railroad in street.

71 Cal. 89-94. JONES v. JONES.

Malicious Prosecution.-Want of Probable Cause must be shown affirmatively by plaintiff, p. 91.

To same effect in Smith v. Liverpool etc. Co., 107 Cal. 436, holding probable cause shown for charge of arson. Note citations; Ross v. Hixon, 26 Am. St. Rep. 154, on general subject.

Probable Cause must be considered in light of facts as appearing to defendant when complaint made, p. 92.

To same effect in Wright v. Ascheim, 5 Utah, 492, holding such cause shown, and, further (p. 491), holding question one of la wwhere facts undisputed.

Malicious Prosecution.-Advice of Counsel is good defense if arrest made in good faith, and advice given under full and fair statement of facts, p. 93.

To same effect in Diemer v. Herber, 75 Cal. 290, but holding commitment by magistrate not conclusive upon question of probable cause; Sandell. Sherman, 107 Cal. 396, sustaining instruction; Dunlap v. New Zealand etc Co., 109 Cal. 370, further holding prosecuting witness not obliged to use due diligence in ascertaining other facts than those known to him; majority opinion in Thurston v. Wright, 77 Mich. 103, reversing case for errors in instructions. Note citations: Ross v. Hixon, 26 Am. St. Rep. 144, on general subject.

Malicious Prosecution.-Essentials for actions stated, p. 93.

Cited in Hurgren v. Union etc. Co., 141 Cal. 589, as not having passed upon question of legal termination of prior suit; Griswold v. Griswold, 143 Cal. 622, holding instruction erroneous in action for malicious prosecution of insanity proceedings.

71 Cal. 94-97. LODTMAN v. SCHLUTER.

Judgment of Dismissal may be vacated upon condition of payment of costs, p. 97.

To same effect in Wolff v. Railway, 89 Cal. 337, as to action to vacate default judgment, holding doubt to be resolved in favor of application.

71 Cal. 100-104. CORCORAN v. DESMOND.

Mechanic's Lien.-Undertaking on Appeal from judgment of foreclosure is sufficient if under section 945, Code of Civil Procedure, p. 102. To same effect in Central etc. Co. v. Center, 107 Cal. 198, holding ordinary stay bond insufficient.

Undertaking on Appeal.--Three hundred dollar bond will cover appeal from judgment and from new trial order included in one notice and transcript, p. 102.

To same effect in Webb v. Trescony, 76 Cal. 622, denying motion to dismiss; and Williams v. Dennison, 86 Cal. 431, ruling similarly and construing notice as containing such appeals; Granger v. Robinson, 114 Cal. 632, holding undertaking sufficient as specifying appeal embraced.

Cited in Robinson v. Kind, 25 Nev. 278, noted under Chester v. Association, 64 Cal. 42.

Undertaking on Several Appeals is insufficient when not distinctly specifying to which of two appeals taken it was applicable, p. 103.

To same effect in Wadleigh v. Phelps, 147 Cal. 142, appeal taken by one notice from several orders after judgment, each of which was independently appealable is not perfected by bond on appeal from judgment; Home etc. Associates v. Wilkins, 71 Cal. 626; Centerville etc. Co. v. Bachtold, 109 Cal. 113, and Estate of Heydenfeldt, 119 Cal. 348, and denying motion to file other undertakings; Forni v. Yoell, 95 Cal. 442, but holding defect waived by stipulation; McCormick v. Belvin, 96 Cal. 193, dismissing both appeals; Estate of Heydenfeldt, 119 Cal. 348, holding such undertaking not specially applicable to only appealable order embraced; Carter v. Butte etc. Co., 131 Cal. 351, quoting Estate of Heyderfeldt, 119 Cal. 316; Creek v. Bozeman etc. Co., 22 Mont. 329, holding bond insufficient.

71 Cal. 105-112. WINGERTER v. WINGERTER.

Administrator becomes trustee for heir under whose conveyance he obtains distribution to himself, when procured by false statements, p. 109.

Cited in dissenting opinion in Mulcahey v. Dow, 131 Cal. 80, main opinion refusing to declare trust for fraud as to distribution.

Laches.-Administrator cannot after thirteen years apply for order of sale to pay debt, p. 112.

See note to Killough v. Hinton, 26 Am. St. Rep. 26.

71 Cal. 115-122. WHITE v. DOUGLASS.

Finding is Erroneous when contrary to admissions in pleadings, p.

119.

To same effect in Hendy etc. Works v. Pacific etc. Co., 99 Cal. 424, where against admission in complaint not denied by answer.

71 Cal. 122-123. ARCATA ETC. CO. v. MURPHY.

Eminent Domain.-Damages are to be computed according to market value on day after filing complaint if not increased at time of trial, p.

123.

To same effect in San Diego etc. Co. v. Neale, 78 Cal. 68, defining "market value" and discussing means of its ascertainment.

71 Cal. 123-124. SCROUFE v. CLAY.

Complaint on Promissory Note must specifically allege nonpayment, p. 124.

To same effect in Wise v. Hogan, 77 Cal. 188, but holding allegation of nonpayment by deceased sufficient in action on claim against estate; O'Hanlon v. Denvir, 81 Cal. 61, 15 Am. St. Rep. 20, holding allegation of failure to pay sufficient, and Gardner v. Donnelly, 86 Cal. 373, ruling similarly as to allegation of neglect and refusal, as against general demurrer; Grant v. Sheerin, 84 Cal. 199, 200, sustaining allegation of reiusal to pay as against general demurrer and defect cured by findings; Notman v. Green, 90 Cal. 173, and Ryan v. Holliday, 110 Cal. 337, holding insufficient an allegation that sum remains due and unpaid (but see Tomlinson v. Ayres, 117 Cal. 571, sustaining such allegation); Barney v. Vigoreaux, 92 Cal. 632, reversing default judgment because of lack of such allegations; London etc. Co. v. Liebes, 105 Cal. 208, applying rule to action had and received; Hurley v. Ryan, 119 Cal. 72, holding defect not cured by verdict nor answer filed after demurrer overruled; Hawley etc. Co. v. Brownstone, 123 Cal. 646, holding complaint bad for ambiguity as to debtor; Penrose v. Winter, 135 Cal. 291, and Knox v. Buckman etc. Co., 139 Cal. 599, noted under Frisch v. Caler, 21 Cal. 71; denied in Hartzell v. McClurg, 54 Neb. 314.

71 Cal. 124-126. CROGHAN v. SPENCE.

Statute of Limitations may be asserted as to grantee if assertable against grantor, p. 125.

To same effect in Galvin v. Palmer, 113 Cal. 53, as to relief based on fraud, where grantees were minors.

71 Cal. 126-129. WHEELER v. WEST. S. C. 78 Cal. 96-98

Amended Pleading supersedes original and allegations of latter are admissible, p. 128.

To same effect in Ralphs v. Hensler, 114 Cal. 199, as to admissions in original answer; dissenting opinion in Barrett v. Featherstone, 89 Tex. 580, main opinion, however, ruling aliter where pleading verified.

License to Extract Gold passes title thereto when extracted, p. 120. To same effect in Christensen v. Borax Co., 26 Oreg. 304, but holding agreement not a license.

License is revocable at will, p. 129. See note to Lawrence v. Springer, 31 Am. St. Rep. 717.

71 Cal. 130-134. ELY v. YORE.

Forcible Entry defined, p. 32.

To same effect in Bank v. Taaffe, 76 Cal. 630, holding such entry shown by facts. Knowles v. Crocker Estate Co., 125 Cal. 265, noted under Cummins v. Scott, 23 Cal. 526.

Notes Cal. Rep.-220.

71 Cal. 134-135.

PACKER v. BIRD. S. C. 137 U. S. 661.

Patent Bounded by Navigable Stream conveys title only to its edge, p. 135.

To same effect in Heckman v. Swett, 99 Cal. 308, on point that such title extends to high water mark; Pacific etc. Co. v. Ellert, 64 Fed. Rep. 437, discussing right of state to dispose of lands below high water mark, and on same point Shively v. Bowlby, 152 U. S. 44.

71 Cal. 136-142. HAMBLETON v. DUHAIN.

Indemnity School Lands.-Act 19 Stats. at Large, p. 267, was intended to cover any and all defects in indemnity school selections, p. 141.

To same effect in Daniels v. Gualala etc. Co., 77 Cal. 303, sustaining state patent issued after act for selection before it, as against subsequent United States patent.

71 Cal. 142-149. SNOW v. HOLMES.

Sale of Good Will implies warranty that vendor will not attempt to draw off former customers, p. 148.

To same effect in Gregory v. Spieker, 110 Cal. 154; 52 Am. St. Rep. 73, holding good will of medical compound injured by vendor under facts. Where breach of warranty is discovered after delivery vendee may return goods and sue on warranty or may plead breach in reduction of damages in action for purchase-money, p. 149.

Approved in Browning v. McNear, 145 Cal. 277, following rule.

71 Cal. 149-153. TAIT v. HALL.

Highway. Question of Existence as public road is one of fact, p. 152. To same effect in Smithers v. Fitch, 82 Cal. 158, sustaining findings that no public road was created by user.

Evidence. Declarations of party while engaged in performance of act and illustrating object thereof, are admissible, p. 152.

To same effect in Lewis v. Burns, 106 Cal. 384, as to declarations of intent to purchase, in question of nature of marital property. Note citations: People v. Vernon, 95 Am. Dec. 70, on general subject.

71 Cal. 153-155. CITY AND COUNTY OF SAN FRANCISCO v. HEYNEMANN.

Statute of Limitations in action on tax collector's bond for moneys received by him from end of term and not demand, p. 155.

To same effect in People v. Van Ness, 76 Cal. 124, holding action barred against commissioner of immigration; People v. Burkhart, 76 Cal. 608, holding such action barred in four years from dereliction of