1869, 104) is there used rather in its popular than in its strict legal definition,
and includes rents of buildings used by the State. Ormsby County v. State of
Nevada, 265.
"ORDER" IN PRACTICE ACT, SEC. 332, DOES NOT MEAN NEW TRIAL ORDER-
see APPEAL, 11.
MEANING OF "INDICTMENT OF A GRAND JURY" IN CONSTITUTION-See CON-
STITUTION, 4.
"LOCATION "" IN WHITE PINE MINING LAWS-see CONSTRUCTION, 6.
STOCK-BROKERAGE-WAIVER OF DELIVERY-See BROKER, 1.
DELIVERY AND CHANGE OF POSSESSION-See SALE 3, 4.
DELIVERY AFTER SALE AND BEFORE ATTACHMENT-See STATUTE OF FRAUDS, 2.
MANDAMUS-WHEN PREVIOUS DEMAND NECESSARY-see MANDAMUS, 2
DEPUTY COUNTY ASSESSOR-TERM OF-LIABILITY FO SURETIES FOR-see As-
SESSOR, 1.
POWER OF COUNTY ASSESSOR TO APPOINT DEPUTIES-see Assessor, 2.
DESCRIPTION EXPLAINED IN CONTRACT-See CONTRACT, 7.
DESCRIPTIONS TO BE UNDERSTOOD AS USED AT TIME OF CONTRACT-See CON-
TRACT, 8.
CONTINUANCE WITHIN DISCRETION OF COURT-see CONTINUANCE, 1.
DUTIES OF COUNTY COMMISSIONERS-DISCRETION-See COUNTY COMMISSIONERS, 1.
DISCRETION IN GRANTING PRELIMINARY INJUNCTION—See INJUNCTION, 1.
MANDAMUS AGAINST AN OFFICER HAVING A DISCRETION-See Mandamus, 1.
NEW TRIALS NOT MATTERS OF DISCRETION-See NEW TRIAL, 4.
DISCRETION OF COURTS AS TO THEIR RULES-see RULES OF COUrt, 3.
DISCRETION AS TO CHANGE OF PLACE OF TRIAL-See VENUE, 1.
DISMISSAL OF APPEAL WHERE NOTHING BROUGht up for RevIEW-See APPEAL, 7.
DISMISSAL OF ACTION BY PLAINTIFF NOT TO AFFECT INTERVENORS-see INTER-
VENTION, 1.
SPECIFICATION OF GROUNDS OF NON-SUIT-See Non-Suit, 1.
1. DIVORCE WANT OF LEGAL AGE. Where a female of the age of sixteen years
entered into a marriage "without force or fraud, and with her full and free con-
sent": Held, that there was no ground of divorce on account of want of legal
age, though there was no consent by any parent or guardian. Fitzpatrick v..
Fitzpatrick, 63.
NO DOCKET FEE IN ACTION BY STATE-see Costs, 3.
TIME OF ELECTION OF DISTRICT JUDGES. The constitution contemplates that
the election of district judges throughout the State shall all occur at the
same time; and it is competent for the legislature to provide that a judge to be
elected at another time shall hold only till the time of such general election
of judges, though it may not give him a full term of four years. State ex rel.
Hubbard v. Gorin, 276.
NOTICE OF ELECTION FOR FULL TERM NOT INDISPENSABLE. Where a full term of
the office of district judge is to be filled, the failure to give notice of election
(such as is required when a vacancy is to be filled) will not vitiate an election.
State ex rel. Hubbard v. Gorin, 276.
TIME OF ELECTION TO REMOVE COUNTY SEAT-see COUNTY SEAT, 2.
CONFLICT OF STATUTES RELATING TO ELECTIONS—see STATUTes, 7.
RIGHT OF WAY OVER PUBLIC LAND WITHOUT COMPENSATION. Under the act of
congress giving the right of way over public land for mining or agricultural
ditches or canals, (14 Statutes at Large, 253, Sec. 9) there is no question of
taking private property either for public or private use-the land being public
land the government has the absolute control over it. Hobart v. Ford, 77.
PRESUMPTION OF CLAIM TO ENTIRE TRACT BY ENTRY UNDER DEED. A person
entering upon a tract of land under a deed with definite boundaries, is presumed
by the mere act of entry so made to intend to claim the entire tract. Sharon
v. Minnock, 377.
EQUALIZATION.
(SEE TAXES.)
1. EQUITY JURISDICTION--REMEDY AT LAW. Equity will not take jurisdiction
where there is a full, complete and adequate remedy at law; that is, where the
wrong complained of may be fully compensated in damages which can easily
be ascertained, and it is not shown that a judgment at law cannot be satisfied
by execution. Conley v. Chedic, 222.
ERROR WITHOUT PREJUDICE. If upon admitted or undisputed facts a verdict
for plaintiff upon a question of title to property could not legally have been
against him, it cannot be said that the admission of illegal evidence upon the
same point, or the refusal of the court to instruct the jury to disregard it,
could have prejudiced the defendant. Brown v. Lillie, 244.
ERROR WITHOUT PREJUDICE. A judgment will not be reversed on account of
an erroneous instruction, if it appear that such instruction was impertinent to
the issue, and did no injury to the party complaining. Sharon v. Minnock, 377.
NO REVERSAL FOR ERROR WHICH DOES NOT PREJUDICE-See APPEAL, 3, 16.
ASSIGNMENT OF ERRORS ON APPEAL-See APPEAL, 15.
SHOWING OF IMMATERIALITY OF ERROR IN CRIMINAL CASES MUST BE CONCLU-
SIVE-See APPEAL, 18.
ERROR IN ASSUMING GUILT IN CRIMINAL CASES-See CRIMINAL LAW, 7.
EXCLUSION OF RELEVANT TESTIMONY ERROR-See EVIDENCE, 17.
PRESUMPTION AGAINST WAIVER OF ERRORS-See WAIVER, 1.
ESTOPPEL-ACCEPTANCE OF PERFORMANCE OF CONTRACT. The acceptance of a
performance differing from that contracted for, will estop the party so accept-
ing, from afterwards taking advantage of the failure to perform in accordance
with the contract. Gilman v. Douglas County, 27.
ENTERING UNDER LEASE WRONGLY DESCRIBING LESSEE ESTOPPEL. Where
the City of Hamilton entered upon and held certain premises under a lease pur-
porting to run to the "Trustees of Hamilton City," but signed only by the lessor:
Held, that the corporation was estopped from taking advantage of the fact
that it was not correctly named in the lease. Fitton v. Inhabitants of Hamil-
ton City, 196.
LIABILITY OF SURETIES OF DE FACTO OFFICERS-RECITALS IN OFFICIAL BONDS-
ESTOPPEL. Where a person discharges the duties of an office as an officer de
facto and not as a mere intruder, he and his sureties are estopped by the re-
citals in his official bond from denying that he is entitled to the office. State v.
Rhoades, 352.
ESTOPPEL IN PAIS. To constitute an estoppel in pais it is essential among
other things that the party relying on it should have been influenced by the
acts or silence of the other, and been caused thereby to act as he would
not otherwise have acted; else he cannot complain that he was deceived to
his prejudice. Sharon v. Minnock, 377.
5. ESTOPPEL MUST BE PLEADED. An estoppel cannot be proved if it be not
sufficiently pleaded. Sharon v. Minnock, 377.
POSSESSION OF LAND AFTER DEED NO NOTICE OF TRUST IN IT-ESTOPPEL-see
POSSESSION, 1.
EVIDENCE OF CONTRACT-DIRECT PROOF AS OPPOSED TO PRESUMPTION.
an attorney proposed to do the legal business of a Mining Company for a certain
period at a certain rate per month, the mere fact that his bills at that rate for
several months had been allowed and paid, though sufficient to raise a pre-
sumption of the acceptance of his proposition, would not overbear direct
evidence that the proposition was not submitted to or acted upon by the
company, and consequently never accepted. Hillyer v. Overman Silver Min-
ing Co., 51.
EVIDENCE OF SALES OF STOCK FOR ASSESSMENTS. An indorsement by the sec-
retary of a company on a certificate of stock, to the effect that the same had
been sold for assessments, as well as evidence that the secretary had made
statements to the same effect, is mere hearsay, and not competent to prove
the fact of any sale for assessments. Cahill v. Hirschman, 57.
BOOKS OF ACCOUNT-LEDGER AS EVIDENCE. A stock-broker's ledger is not a
book of original entry, and is not competent to prove an original purchase or
transaction; but it is competent testimony in rebuttal in explanation of a bill
sent by the broker to the principal, and to supplement the broker's own testi-
mony that such bill was not general, as claimed, but only a partial bill. Ca-
hill v. Hirschman, 57.
PROOF OF CRIMINAL INTENT. Criminal intent can only be proven as a deduc-
tion from declarations or acts;-when the acts are established, the natural and
logical deduction is that defendant intended to do what he did do, and if he
offers no excuse or palliation of the act done, such deduction becomes conclu-
sive. State v. McGinnis, 109.
PROOF OF "THEORY OF CASE." If the establishment of a plaintiff's case de-
pends upon the establishment of a theory, the correctness of the theory need
not be established by any stronger proof than would be required for the case
itself, which in general is only preponderating proof. Silver Mining Company
v. Fall, 116.
CONCLUSIVE PROOF NOT REQUIRED. "Conclusive proof" is not required by
the law; that degree of certainty is left to the domain of mathematics. Silver
Mining Company v. Fall, 116.
AMOUNT OF SECONDARY EVIDENCE TO ESTABLISH A FACT. If evidence of a
secondary character be admitted to establish a fact, there is no rule that
requires more of such evidence than would be required of the best.
Mining Company v. Fall, 116.
DECLARATIONS OF POSSESSOR TO CONTRADICT ALLEGED GIFT OF PERSONAL PROP-
ERTY. Where in a replevin suit for a wagon and horses, alleged to be the
property of the estate of a deceased person, but claimed by defendant as a
gift executed by deceased in his life-time, a witness testified that after the
alleged gift he saw deceased in possession of the property, having the wagon
repaired, and exercising other acts indicating ownership: Held, that the
question, "Did the deceased tell you at that time that he was the owner of the
property?" was not amenable to the objection that the evidence would be
hearsay, and that to rule it out on that objection was error. Rollins v. Strout,
150.
DECLARATION OF PARTY AS PART OF RES GESTE. Declarations made by a party
to an action, if a part of the res gestæ, are admissible in evidence even in his
own favor; but only such declarations as are a part of the res gestæ, such as
accompany acts pertinent to the case, are so admissible. Rollins v. Strout,
150.
10. DECLARATIONS OF DECEASED PERSONS AS PART OF RES GESTE. Where the issue
was as to the fact of a gift having been made by plaintiff's testator and its
consummation by delivery: Held, that acts of ownership exercised by de-
ceased after the time of the alleged gift, and his declarations accompanying
them, were part of the res gestæ and admissible in evidence. Rollins v. Strout,
150.
11. FORGERY-PROOF OF EXISTENCE OF CORPORATION INJURED. In a prosecution for
forging a check upon an "Agency of the Bank of California": Held, that the
facts of the existence of the corporation and of the agency might be made by
oral testimony, and that the production of the certificate of incorporation was
unnecessary. State v. Cleavland, 181.
12. ALLEGATIONS AND PROOF AS TO PERSONS INJURED BY FORGERY. In cases of
forgery there are generally two persons who legally may be defrauded-the one
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