is required to enable a party claiming through the possessor to recover in ejectment until the defendant shows an anterior possession, or traces title from a paramount source. Id.

8. EJECTMENT-PRIOR POSSESSION SUFFICIENT.-The rule that the claimant in ejectment must recover upon the strength of his own title, is in this State so far modified that a plaintiff may recover upon proof of a possession prior to that of the defendant, notwithstanding it be shown that the real title is in a stranger, with whom neither party has any connection, and this, whether such real owner be an individual or a corporation, or the Government of the United States. Hubbard v. Barry, 321.

9. DEFENSES TO PART OF COMPLAINT AND DISCLAIMER.-If the defendant in ejectment desires to defend for only a portion of the premises, and to limit his liability for mesne profits in a corresponding proportion, he must frame his answer accordingly and specify the portion of the premises for which it is intended to defend and disclaim as to the balance. Guy v. Hanly, 397.

10. IDEM.-To a complaint in ejectment for a fifty vara lot, the answer admitted the possession of defendants to the extent of one-third, "more or less," and the witnesses who testified upon the subject stated that they (defendants) were "on the lot-a part of it"-without showing of what particular part they were in possession. The judgment was for the recovery of the whole lot, with damages for its detention, and on appeal it was assigned as error that the evidence warranted a recovery of only a portion of the lot with proportional damages: Held, that under the pleadings and proofs the judgment was proper. Id.

11. STATE PATENT AS EVIDENCE OF TITLE.-Where the plaintiff in ejectment claims title under a State patent issued upon a school warrant location, the invalidity of the location cannot be interposed as a defense to the action, nor the efficacy of the patent be contested, by one in possession, who admits that the premises are a part of the public lands of the United States, and traces no title from the United States to himself. Rhodes v. Craig, 419.

12. EJECTMENT-PROOF OF PRIOR POSSESSION.-In an action of ejectment where the plaintiff relied upon pricr possession, his proof showed that several years before defendant's entry he inclosed the premises with a fence, and afterwards, and until the adverse entry, cultivated the inclosure by raising and gathering crops thereon; but there was no direct proof of the character of the fence or its efficiency: Held, that the possession was sufficiently proved; that the use of the property for a series of years, for purposes requiring an inclosure, was enough to show that the inclosure was a suitable one for those purposes, and sufficiently substantial to protect the premises. Hestres v. Brannan, 423.

See ADMINISTRATOR AND EXECUTOR, 1, 2; MORTGAGE, 2; TENANT IN COMMON, 1, 5. 6; PRACTICE, 9; LANDLORD AND TENANT, 2, 11, 13; PLEADING, 9, 10; FRAUD AND STATUTE OF FRAUDS, 6; PUBLIC LANDS, 6; HUSBAND AND WIFE, 3, 4; POSSESSION, 2, 3; MEXICAN GRANT, 5, 10, 16, 19.

EQUITY.

SPECIFIC PERFORMANCE.-Equity will not enforce the specific performance of a contract where the party asking its enforcement cannot, from the nature of the contract, be compelled to perform it specifically on his part. Cooper v. Pena, 404. 2. IDEM-MUTUALITY ESSENTIAL.-In order that a specific performance of a contract may be compelled, the remedy as well as the obligation must be mutual, and as a general rule the question of mutuality is to be determined by the contract itself, and is not affected by circumstances arising after the contract is made and the rights of the parties fixed. Id.

3. IDEM-EXCEPTIONS TO RULE.-The cases in which a want of mutuality at the time the contract has been entered into has been held not to be sufficient reason for refusing to enforce it-as in contracts with infants, those between lessor and lessee, trustee and cestui que trust, voluntary settlements, and the like-are exceptional cases in which peculiar considerations have been allowed to override the principle of mutuality, and they do not contravene the general rule as above stated. Id.

4. SPECIFIC PERFORMANCE IN DISCRETION OF COURT.-The specific performance of a contract is not a matter of course, but rests in the sound discretion of the Court upon a view of all the circumstances, and before the Court will act it must be satisfied that the contract is reasonable and equal in its operation. Id.

5. CONTRACT FOR PERSONAL SERVICES WILL NOT BE ENFORCED.-Equity will not enforce specifically a contract for personal services-especially where they are confidential in their nature and involve in their performance the exercise of discretionary authority-but will leave the party to his remedy at law. Id.

6. IDEM OFFER TO PERFORM.-For the purpose of enforcing specific performance of stipulations, the consideration for which was an agreement by the plaintiff to perform personal services, an offer to perform these services is not equivalen to an actual performance. The rejection of the offer by the defendant excuses the performance as a condition precedent, but does not release the plaintiff from his obligation to perform so long as he insists upon the agreement. Id.

7. TRADE MARK WILL BE PROTECTED.-The name established for a hotel is a trade mark, in which the proprietor has a valuable interest, which a Court of Equity will protect against infringement. Woodward v. Lazar, 448.

8. TRADE MARK OF HOTEL.-W. leased a lot of land, on which he erected a building, in San Francisco, and used it as a hotel, to which he gave the name of "What Cheer House." Before the lease expired, he purchased an adjoining lot, upon which he erected a large building, and for a time occupied both buildings as the "What Cheer House," the principal sign being removed to the one last built. He soon after surrendered the leased lot, with the building which was on it, and continued the business, under the same name, entirely in the building which he had erected on the lot he had purchased. Two months afterwards, the defendants, having purchased the first mentioned lot and building, opened there a hotel, under the name of "The Original What Cheer House"-the word "original" being painted on the sign in small letters, and in a manner calculated to deceive the public into the supposition that it was the same name. In an action by W. against defendants, to restrain them from using the name of "What Cheer House" for their hotel: Held, that plaintiff was entitled to the relief sought, and that defendants should be enjoined from the use of the name. Id.

9. MEXICAN GRANTS, ADVEISE CLAIMS TO.-Where the parties each claimed the same premises under independent Mexican grants, and the defendant, with knowledge of the plaintiff's claim, proceeded to obtain a confirmation of his claim and a patent therefor: Held, that no equities could arise in favor of the plaintiff, and against defendant, from the latter's knowledge of the adverse claim, nor was he, by reason of this knowledge, affected with notice of any equitable rights of the plaintiff. Rico v. Spence, 504.

10. CONCURRENT JURISDICTION IN LAW AND EQUITY.-Where Courts of Law and Equity have concurrent jurisdiction, if a Court of Law has first acquired jurisdiction, and decided a case, a Court of Equity will not interfere to set aside the judgment, unless the party has been prevented, by some fraud or accident, from availing himself of the defense at law. Dutil v. Pacheco, 438.

11. IDEM-EQUITY WILL NOT SET ASIDE.-Where, therefore, the indemnifier has been
notified of the action against the Sheriff, he cannot maintain a bill in equity to set
aside the judgment obtained therein, except under such conditions ao would have
enabled him to maintain it had he been the nominal as well as real party defendant
to the first action. Id.

12. DECREE REMOVING CLOUD ON TITLE.-A decree pronouncing that a conveyance is
fraudulent and void has the effect to remove any cloud resulting from its execu-
tion without an express direction that it be set aside. Gibbons v. Peralta, 629.
13. IDEM INJUNCTION.-Some two hundred persons, of whom plaintiff was one, claimed
each separate parts of a tract of land called the "Encinal," deriving their sev-
eral titles from a common source, and all through a deed of the whole tract from
Peralta to Hays. Plaintiff brought the action for himself and on behalf of the
others, whose titles were similarly situated, for the purpose of obtaining equitable
relief against certain subsequent conveyances of the Encinal made by Peralta,
alleged to be fraudulent, and to constitute a cloud upon the title derived through
the deed to Hays, and asked, as a portion of the relief, a perpetual injunction
against any further alienations by the fraudulent grantees (defendants.) The
decree pronounced the subsequent conveyances fraudulent and void, and granted
the injunction asked as to the plaintiff's separate portion of the land, but not as to
that of the others for whom he sued: Held, on appeal by plaintiff from this de-
cree, that it was not in this respect erroneous-that there was no such community
of interest between the plaintiff and those whom he represented in the action as
entitled him to an injunction in their favor. Id.

14. VOID GRANT BY MUNICIPAL CORPORATION.-A municipal corporation cannot invoke
the aid of a Court of Equity to set aside a grant made by its authorities when the
grant is void. Such a grant, being a nullity, casts no cloud upon the title of the
corporation, and offers no embarrassment to the exercise of its legitimate functions.
Oakland v. Carpentier, 642.

15. VOIDABLE GRANT.-Where the Board of Trustees of a municipal corporation makes
a grant of its franchises and lands which is not void, but only voidable, the
corporation cannot obtain the aid of a Court of Equity to set aside the grant
without doing equity-that is, without tendering compensation to the grantee for
the expenditures which he may have incurred under the grant, reling upon its
validity. Id.

See-EJECTMENT, 3; TRUST AND TRUSTEE, 1-4; INDEMNITY, 1; FRAUD AND STATUTE OF
FRAUDS, 3, 4; SALE, JUDICIAL, 9; PURCHASE AND PURCHASER, 1; MUNICIPAL COR-
PORATION, 5

ESTATES OF DECEASED PERSONS.

1. FORECLOSURE OF MORTGAGE AGAINST ESTATE OF DECEASED PERSON.-An action
may be maintained in the District Court against an executor or administrator, to
foreclose a mortgage upon real estate executed by his testator or intestate, al-
though the debt secured by the mortgage has been presented as a claim to the
executor or administrator and allowed by him, and also by the Probate Judge of
the county, where the only object of the action is to reach the property mortgaged
and subject it to sale, and have the proceeds applied to the payment of the debt
secured, and a judgment is not asked against the general estate of the deceased
for the debt or any part of it. Fallon v. Butler, 24.

2. PROBATE SALES-TO WHAT STATUTE APPLIES.-The provision of the act regu-
lating the settlement of the estates of deceased persons, declaring that no sale
of any property of an estate shall be valid unless made upon an order of the Pro-

bate Court, applies only to sales by executors and administrators. It has no ref-
erence to judicial sales under the decrees of the District Courts, nor to sales in
pursuance of testamentary authority. Id.

3. "CLAIMS" DEFINED.-The term "claims," as used in the act, does not embrace
mortgage liens, but has reference only to such debts or demands against the de-
cedent as might have been enforced against him in his lifetime by personal ac-
tions for the recovery of money, and upon which only a money judgment could
have been rendered.

Id.

See ADMINISTRATOR AND EXECUTOR, 1, 2; MORTGAGE, 3, 4; HUSBAND AND WIFE, 3, 4;
PARTNERSHIP, 1, 2.

ESTOPPEL.

1. DEED OF PARTITION, HOW MADE EFFECTUAL.-Where a deed of partition is invalid
as a conveyance, by reason of its non-execution by some of those who are parties
to it, it may become effectual by the parties taking and holding in severalty in
pursuance of its terms and dealing with their respective portions as if owned in
severalty, but such acts of ratification do not operate to make the deed a valid
conveyance, but only by way of estoppel or as a determination of boundaries and
only upon the interests of those performing them. A party who signed the deed
is not estopped from insisting upon its invalidity by reason of any acts of ratifica-
tion either of the others who did execute or of those who failed to execute.
Tewksbury v. O'Connell, 60.

2. SELECTION AND LOCATION UNDER MEXICAN GRANT.-Where a Mexican grant cedes a
specified quantity within a larger area, a selection and location of the specific quan-
tity may be made by the grantee under such circumstances, and accompanied with
such disclaimers, as to estop him from the assertion of any title or right to the
possession of the remainder, existing within the exterior boundaries of the general
tract, until by the action of the Government it is determined that his claim under
the grant shall be satisfied by land elswhere selected. Mahoney v. Van Winkle,
552.

3. INFANTS AND MARRIED WOMEN NOT ESTOPPED.-Infants and married women are
incapable of giving any binding assent to a restriction of their rights to land
claimed under a Mexican grant, or of making any disclaimers in respect to such
rights which will bind them as an estoppel. Id.

See DEED, 2; LANDLORD AND TENANT, 5-9; MEXICAN GRANT, 5, 15-17; TENANT IN
COMMON, 3.

EVIDENCE.

1. ALCALDE'S RECORDS.-The books of record of deeds, mortgages, and other instru-
ments, kept by Alcaldes previous to the organization of the State Government,
which were transferred to the custody of the County Recorder by the Act of April
13th, 1850, entitled "An Act concerning the Transfer of certain Records, Convey-
ances, and Papers," have been placed by the twenty-first section of the Act of
March 26th, 1851, entitled "An Act concerning County Recorders," upon a footing
with other records kept by the County Recorders; and certified copies of instru-
ments found therein are admissible in evidence under the same circumstances as
are certified copies of records made by the Recorders themselves-namely, upon
proof of the loss or the inability of the party to produce the originals. Touchard
v. Keyes, 202.

2. IDEM-Per NORTON, J., dissenting.-The twenty-first section of the Act concerning
County Recorders of March 26th, 1851. applies only to such records as are by that

act required to be kept in the Recorder's office. It has no application to the
records of Alcaldes which by a previous act had been transferred to the custody of
the Recorders, and a copy from such records is not admissible upon the certificate
of the Recorder. Id.

3. EFFECT OF FAILURE TO DENY.-The admission by the Court, under the objection
of defendants, of improper evidence offered by plaintiff to prove a fact alleged in
his complaint and not denied in the answer is no cause for granting a new trial.
Wells v. Mc Pike, 215.

4. DYING DECLARATIONS.—Where, on trial upon an indictment for murder, the dying
declarations of the deceased are introduced by the prosecution, it is error to
exclude proof offered by defendant of other statements made by the deceased
contradicting his dying declarations. People v. Lawrence, 368.

5. IDEM-IMPEACHING WITNESS.-Such proof is admissible under the general rule
that the credit of a witness may be impeached by proof that he has made state-
ments contrary to what he has testified, and the condition that the attention of the
witness must first have been called to the supposed contradictory statements, is
from necessity dispensed with in the case of dying declarations. Id.

6. COPY OF NOTICE OF LOCATION AS EVIDENCE.-In an action involving the right to
and extent of a water privilege claimed by plaintiffs under an alleged appropria-
tion by a number of copartners, defendants, to limit the extent of the appropria-
tion, offered in evidence a paper, purporting to be a copy of the original locating
notice of the copartners, and without direct proof of its execution, showed that it
was prepared with a knowledge of some of the partners, and was seen as a posted
notice by a portion of them at the point of diversion, and about the time the work
was commenced, and that its position was such that it must probably have been
seen by all: Held, that upon this proof the paper was admissible as part of the
res gesta. McKinney v. Smith, 374.

7. PROOF OF DRUNKENNESS IN TRIAL FOR MURDER.-On a trial for murder, under
our statute, where the means employed in the killing are not such as to determine
the degree of the offense, proof that the defendant was drunk at the time of the
killing is admissible in his favor. People v. Belencia, 544.

8. IDEM-WEIGHT OF EVIDENCE.-The weight to be given to such evidence is a mat-
ter for the jury to determine; but it should be received with caution, and carefully
examined in connection with the other circumstances. Id.

See PLEADING, 2; ADMINISTRATOR AND EXECUTOR, 1, 2; MECHANIO'S LIEN, 2; NEW
TRIAL, 1; CRIMINAL LAW, 4, 6; CONTRACT, 3, 4; MEXICAN GRANT, 16; PRACTICE,
29.

EXCEPTION.

See JUROR AND VERDICT, 4.

FINDING OF FACT.

See APPEAL, 1, 5, 6: NEW TRIAL, 8.

FIXTURE.

See LANDLORD AND TENANT, 10.

FORCIBLE ENTRY AND DETAINER.

1. FORCIBLE ENTRY AND DETAINER-RENTS AND PROFITS.-In an action of forcible
entry and detainer, the value of the rents and profits of the premises is not re-