those of one party are the consideration of those of the others must, to be valid, be executed by all, and cannot be enforced against one executing, by another who fails to execute. Tewksbury v. O'Connell, GO.

2. EFFECT OF REPEAL OF STATUTE.--Where a contract is made and executed in pursuance of a statute, which also prescribes the parties against whom and the mode in which it may be enforced, the right to enforce it in the manner prescribed is a part of the contract, and is not affected by a subsequent act repealing the provisions in reference to the enforcement of the contracts authorized by the statute under which it was made. Creighton v. Pragg, 115.

3. ORAL EVIDENCE TO VARY WRITTEN INSTRUMENT.-The rule that verbal evidence is inadmissible to contradict or vary a written contract, is inapplicable where a mis➜ take has been made and the object is to correct it. Pierson v. McCahill, 122.

1. REFORMATION OF CONTRACT.-Where in reducing an agreement to writing a material clause has been omitted by mistake, a party seeking to avail himself of the actual contract must obtain a reformation of the writing, either by a distinct proceeding to reform it or by specially pleading the mistake in the action in which the contract is sought to be used, and asking its correction as independent relief. Under a pleading which simply states the terms of a contract, the introduction of a written agreement respecting the subject matter cannot be followed by oral proof of a material clause alleged to have been omitted by mistake from the writing. Id.

5. AGREEMENT INVALID FOR WANT OF CONSIDERATION.-An agreement between a debtor and a single creditor for the acceptance by the latter of an amount less than the debt in satisfaction, is invalid for want of consideration; but such an agreement between a debtor and two or more creditors is valid, the engagement of one being a sufficient consideration for that of the others. Id.

6. DEED, CONSIDERATION IN.-In a deed of land the consideration was expressed to be $10,000, $4,000 paid in cash, "and the balance by the assuming, on the part of the said grantees, the payment of a certain mortgage" then existing upon the property to secure the grantor's note for $6.000: Held, that this recital, unless controlled by evidence of a contrary intention, showed an agreement on the part of the grantees to pay the mortgage debt, and not merely to obtain a discharge of the mortgage as a lien upon the property. Lewis v. Covillaud, 178.

7. AGREEMENT TO PAY DEBT.-Where A owes B, and the latter owes C, and A and B, without consulting C, agree that the former shall pay to C what he is owing to B, an action cannot be maintained by C against A for want of privity. The doctrine of McLarren v. Hutchinson, 18 Cal. 80, commented on and questioned. Id.

8. LAW OF PLACE PRESUMED.-Where the validity of a sale made in a foreign State is drawn in question in the Courts of this State the law of the place of contract will be presumed, until the contrary is shown, to have been the same as that of our own State in reference to the same subject matter. This presumption extends to statutory as well as to the common law. Hickman v. Alpaugh, 225.

9. IDEM VALIDITY OF SALE HOW DETERMINED. Thus, where in an action in a District Court of this State, an issue was raised as to whether a sale of personal property made in Oregon was fraudulent, and no proof was made of the laws of Oregon: Held, that the validity of the sale must be determined by the common law and statutes in force in this State on the subject.

See FRAUD AND STATUTE OF FRAUDS, 1; MECHANICS' LIEN, 2; ARBITRATION, 2, 3; STATUTES. 2: LANDLORD AND TENANT, 1; LIMITATIONS, STATUTE OF, 3, 4, 12; ACTION, 2; APPEAL, 6; PARTITION; EQUITY, 1, 6: POSSESSION, 4: POWER.

COSTS.

See PRACTICE, 24, 25.

COUNTY.

See MUNICIPAL CORPORATION.

COURTS,

Ses ESTATES OF DECEASED PERSONS, 1, 2; CERTIORARI, 1, 2; CONSTITUTIONAL LAW, 1–3.

COVENANT.

1. COVENANT FOR QUIET ENJOYMENT.-Upon a covenant in a lease for quiet enjoyment the lessor is responsible only for his own acts and those of others claiming by title paramount to the lease and not for the acts of a mere trespasser, although the effect of these acts may be to deprive the lessee of the benefit of the lease. Playter v. Cunningham, 229.

2. IDEM COMPLAINT INSUFFICIENT.—Thus, where a lessor was sued upon a covenant that the lessees paying the rent shall peaceably and quietly have, hold, and enjoy the premises for the term mentioned," and the breach alleged was that the lessee had been prevented from entering by one R. who was in possession claiming to hold under a prior lease: Held, that the complaint was demurrable in failing to aver any sufficient breach of the covenant. Id.

3. IDEM-COMPLAINT SUFFICIENT.—If the complaint had averred that R. was in possession, actually holding under a superior title, it would have been sufficient without alleging that a suit had been brought and the validity of the title judicially determined. Id.

See PARTITION.

CREDITOR AND DEBTOR.

1. AGREEMENT INVALID FOR WANT OF CONSIDERATION.-An agreement between a debtor and a single creditor for the acceptance by the latter of an amount less than the debt in satisfaction, is invalid for want of consideration; but such an agreement between a debtor and two or more creditors is valid, the engagement of one being a sufficient consideration for that of the others. Pierson v. McCahill, 122.

See FRAUD AND STATUTE OF FRAUDS, 1; PAYMENT, 2.

CRIMINAL LAW.

1. CHANGE OF PLACE OF TRIAL-POPULAR PREJUDICE.-The affidavit of the accused, that he cannot have an impartial trial in the county where he is indicted, is not alone sufficient to authorize a change of the place of trial. People v. Graham, 261. 2. IDEM-INSUFFICIENCY OF CAUSE.-Nor does the fact that thirty or forty persons in the community, upon being solicited, have contributed small sums to defray the cost of employing a lawyer to assist the District Attorney in the prosecution of a criminal action, show such a general prejudice in the citizens of the county as to require the granting of a change of venue. Id.

3. HEARSAY EVIDENCE INCOMPETENT.-On the trial, under an indictment charging an assault upon a young child, after the child had been examined as a witness by the prosecution, and had not been able, from her tender age, to state any material fact, it was proposed to ask another witness this question: “Did the child tell you how this occurred at the time?" and under the objection of defendant the Court

permitted the question: Held, that this was error, and that if the witness answered the question affirmatively, it was material error for which a new trial should be granted. Id.

4. CHILDREN AS WITNESSES.-That a child, for an assault upon whom defendant is being tried, not having sufficient capacity to be a witness, was sworn and questioned but withdrawn before she had testified to any material fact, is no ground for granting a new trial. The suggestion that her appearance was calculated to excite the sympathy of the jury and influence their judgment, is not entitled to any consideration. Id.

5. QUESTION BASED ON SUPPOSITION.—A question based upon the supposition of a state of facts not proved is improper. Id.

6. DECLARATIONS OF DEFENDANT.-An instruction embracing the proposition that what was said in his own behalf by the defendant, in a conversation proved between him and a witness, must be taken as true if what he said against himself is taken as true, is erroneous. Id.

7. OWNER CANNOT ROB ANOTHER OF HIS OWN PROPERTY.-The owner of property is not guilty of robbery in taking it from the person of the possessor, though he may be guilty thereby of another public offense. People v. Vice, 344.

8. KILLING IS PRESUMPTIVE MURDER.-Presumptively, every killing is a murder; but so far as the degree is concerned, no presumption arises from the mere fact of the killing, considered apart from the circumstances under which it occurred. People v. Belencia, 544.

9. MURDER, DEGREE OF.-The question of degree is one of fact, to be determined by the jury from the evidence; and drunkenness, as evidence of a want of premeditation, is not within the rule which excludes it as an excuse. Id.

10. DRUNKENNESS NO EXCUSE FOR CRIME.-A man who is drunk may act with premeditation as well as a sober one, and is equally responsible for the consequences of his act; but in determining the question of premeditation, the defendant's condition, as drunk or sober, and any other fact tending to show his mental status at the time, is proper for the consideration of the jury. Id.

See JUROR AND VERDICT, 1-3; EVIDENCE, 4, 5; INDICTMENT.

DAMAGES.

See EJECTMENT, 1; FORCIBLE ENTRY AND DETAINER, 1; CORPORATION, 14.

DECREE.
See JUDGMENT,

DEED.

1. EXECUTOR'S DEED AS EVIDENCE OF SALE.--An executor's deed is not admissible in evidence of a sale of a testator's property, except upon preliminary proof of a compliance with the statutory provisions for sales by executors and administrators, or of an express power in the will authorizing the sale in the mode in which it appears by the deed to have been made. White v. Moses, 43.

2. PAROL EVIDENCE OF CONSIDERATION IN DEED.-The consideration clause of a deed is not conclusive. It estops the grantor from alleging that he executed the deed without consideration. It cannot be contradicted so as to defeat the operation of the conveyance according to the purposes therein designated, unless it be upon the ground of fraud; but, with this exception, it is open to explanation, and may be varied by parol proof. Coles v. Soulsby, 47.

8. DEED OF TENANTS IN COMMON, HOW EXECUTED.-Where a number of tenants in common were parties to a deed of partition, by the terms of which each party conveyed and released his undivided interest in the whole premises in consideration of the conveyance to him of the undivided interests of the others in a specified portion, and the deed was signed by a large proportion of the parties, but not by all Held, that as a conveyance it was void as to those who did sign, and that they still retained their interests as tenants in common in the whole tract. Tewksbury v. O'Connell, 60.

4. DESCRIPTION OF PROPERTY IN DEED.-The description of property in a tax deed must be certain of itself, and not such as to require evidence aliunde to make it certain. Keane v. Cannovan, 291.

5. IDEM-DEED VOID FOR UNCERTAINTY.-A tax deed in which the property is described as follows: "A lot on Dupont Street, one hundred and thirty-seven feet and six inches from the north-west corner of Washington Street, with the improvements thereon 12x100," is void for uncertainty of the description. Id.

6. CONVEYANCE BY ATTORNEY-AUTHORITY MUST BE IN WRITING.-The authority of an attorney to execute for his principal a conveyance of real estate must be in writing, and a deed purporting to have been executed by an attorney is inadmissible in evidence without proof being first made of the attorney's written authority. Videau v, Griffin, 389.

7. IDEM-PAROL ACKNOWLEDGMENT WILL NOT RENDER VALID.-When a deed has been executed by an attorney without any previous written authority, no subsequent parol acknowledgment of his authority by the principal will make the conveyance valid. Id.

8. IDEM-EXCEPTION TO RULE.-The only exception to the rule that an authority to execute a deed must be conferred by writing, is when the execution by the attorney is in the presence of the principal, and to bring a case within this exception it is not sufficient that the attorney was directed to sign the name of the principal and affix his seal, but the execution must have been in his immediate presence, and under his immediate direction. Id.

9. IDEM-EXECUTION NOT INFERRED.-The fact that the execution was in the presence of the principal must be affirmatively established by the party who relies upon it as an excuse for the absence of a power in writing, and it is not to be inferred from any coincidence between the date of the deed and an acknowledgment of the principal that it was executed by his attorney. Id.

See ESTOPPEL, 2; TAXES, 1; CONTRACT, 6; SALE, JUDICIAL, 12; MORTGAGE, 21–23.

DEFAULT.

DEFAULT HOW WAIVED.-An acceptance by plaintiff's attorney of service of a demurrer, filed by a defendant after his default has been entered, is a waiver of the default. Hestres, Administrator, v. Clements, 425.

See PRACTICE, 9-11.

DESCENT AND DISTRIBUTION.

See HUSBAND AND WIFE, 4.

DESCRIPTION.

See-PLEADINGS, 9, 10, 12.

DISMISSAL OF ACTIONS.

See PRACTICE, 13-15, 19, 20; ACTION, 1, 2

DYING DECLARATIONS.

See EVIDENCE, 4, 5.

EJECTMENT.

1. EJECTMENT-IMPROVEMENTS SET-OFF AGAINST DAMAGES.-Where, in an action of ejectment, the proof shows that the entry of the defendants was upon a lot within the limits of an incorporated city, no presumption arises therefrom that they entered bona fide under any supposed rights amounting to color of title adverse to the owner, and under such proof they are not entitled to have the value of improvements made by them upon the premises deducted from the damages sustained by the plaintiff. White v. Moses, 34.

2. EJECTMENT, LEGAL TITLE TO CONTROL.-In ejectment the legal title must control. The plaintiff, establishing in himself the legal title, cannot be defeated by showing that such title was acquired by fraud, or is held by him in trust. These are considerations for a Court of Equity, which will control the legal title in his hands so as to protect the just rights of others. Clark v. Lockwood, 220.

3. EJECTMENT-PATENT ADMISSIBLE TO PROVE LOCATION.-The plaintiff in ejectment claimed title under a decree of confirmation of a Mexican grant, in which the tract confirmed was described as bounded upon the north by the Bernal Rancho, and to prove the position of this northern boundary offered in evidence a patent of the rancho issued by the United States: Held, that the patent was admissible, and was prima facie evidence of the location of the northern boundary of the tract sought to be recovered. Id.

4. EJECTMENT EVIDENCE OF EXTENT AND BOUNDARIES.-Where the plaintiff in ejectment relies upon prior possession as evidence of title, a deed of the premises to him from one not shown to have had at the date of its execution either title or possession is admissible evidence, in connection with proof of entry and occupation under it, to show the extent and boundaries of the premises of which possession was claimed. Keane v. Cannovan, 291.

5. EJECTMENT-TAX TITLE.-Where in an action of ejectment the defendant claimed title under a tax sale, and to prove an admission of title in him by plaintiff, oflered in evidence a complaint in an action by the plaintiff against a third person, in which it was averred that in consequence of the neglect of the plaintiff's agent the premises were sold for taxes and no redemption was made, and that the sale thereby became absolute, in consequence of which neglect of the agent the plaintiff had sustained damage: Held, that the complaint was inadmissible for that purpose; that the statements in it did not amount to an admission of title, and that even if they did the admission would not operate to transfer such title. Id. 6. EJECTMENT-TITLE UNDER VAN NESS ORDINANCE.-A defendant in ejectment for a lot in San Francisco, who had possession of the premises on the first day of January, 1855, and thence up to the passage of the Van Ness Ordinance, cannot invoke the protection of that ordinance when the issue in the action is whether his possession was acquired by an intrusion upon the prior rights of the plaintiff. ld.

7. POSSESSION EVIDENCE OF SEIZIN IN FEE.-The possession of real property is evidence of seizin in fee in the possessor, and no further or higher evidence of title