39. CHARGE OF COURT IN CRIMINAL CASE.--The presumption in the appellate
Court is, that the charge of the Court to the jury in a criminal case was
in writing, unless the record shows it was not. Id.
40. FORGING INDORSEMENT UPON an Unstamped DRAFT.—The crime of forgery
may be committed by forging an indorsement upon an unstamped draft.
People v. Frank, 507.
41. UNSTAMPED INSTRUMENT AS EVIDENCE.-A forged instrument, though un-
stamped, may be used as evidence against the person charged with com-
mitting the forgery. ld.
42. EVIDENCE ON TRIAL FOR FORGERY.-On a trial for uttering an instrument
with a forged indorsement on it, other instruments claimed to have been
forged and uttered by defendant about the same time may be used as
evidence for the purpose of proving guilty knowledge, notwithstanding
they had been the subject of other indictments on which the defendant
had been tried and acquitted. Id.
43. SAME.-An indictment for forging an indorsement on an instrument and
uttering it with a forged indorsement on it, knowing it to have been
forged, and a trial and acquittal, does not estop the People from using
it as evidence on a trial for forging an indorsement on and uttering
another instrument about the same time, unless it appear from the evi-
dence offered in support of the estoppel that the jury by their verdict
decided that the defendant did not commit any of the several acts
charged as constituting the forgery. Id.
44. VERDICT OF ACQUITTAL AS AN ESTOPPEL.-A trial and acquittal upon a
charge of forging an indorsement on an instrument, and uttering it.
knowing an indorsement on it to have been forged, does not necessarily
make the judgment of acquittal of itself an estoppel upon any matter
except the forgery of the indorsement by the defendant.
Id.
45, EVIDENCE TO SHOW GUILTY KNOWLEDGE ON TRIAL FOR FORGERY.-On a
trial for forgery no precise rule can be laid down with regard to the dis-
tance of time between the offense charged and the occurrence of col-
lateral facts offered in evidence to prove guilty knowledge. Id.
46. INTERLINEATION IN FORGED INSTRUMENT.-If, on a trial for forgery, it ap-
pears that an interlineation was made in the instrument after the for-
gery, by the consent of the defendant, and the indictment sets forth
the instrument as interlined, there is no such variance as to entitle the
defendant to an acquittal. Id.
47. MOTION FOR NEW TRIAL IN CRIMINAL CASE FOR ERROR IN REFUSING A CON-
TINUANCE.-Where the defendant in a criminal case moves for a new trial
on the ground that the Court erred in not granting him a continuance
by reason of the absence of his witnesses, he should procure the affi-
davits of the witnesses to show that they could testify to the facts de-
sired to be proved by them. People v. De Lacy, 589.
48. DENIAL OF CONTINUANCE IN A CRIMINAL CASE.-If, on application for a con-
tinuance made on affidavit on the ground of the absence of witnesses in
a criminal case, there is a counter affidavit tending to show that the ap-
plication is not made in good faith, the appellate Court will not dis-
turb the judgment because the continuance was denied. Id.
CRIMINAL PRACTICE ACT.-The fourteenth section of the Act of April 3d,
1863, amendatory of and supplementary to the Criminal Practice Act,
refers to the two hundred and ninety-sixth, instead of the two hundred
and ninety-third section of the Criminal Practice Act. People v. King,
265.
1. SPECIAL DAMAGES FOR DETENTION OF A MARE.-If the plaintiff, in an ac-
tion to recover possession of a mare and damages for her detention,
claims damages because the animal has lost flesh in consequence of hav-
ing been kept upon short pasturage, and because she was detained
during the breeding season, these facts must be specially averred as
a ground of damages. Stevenson v. Smith, 102.
2. DAMAGES FOR DETAINING MONEY WHEN ENJOINED.-Where an officer is en-
joined from paying over money in his hands, legal interest only can be
recovered as damages for its detention in an action on the injunction -
bond. Lally v. Wise, 540.
3. LIABILITY FOR INJURIES TO A PERSON DONE BY CATTLE.-The law govern-
ing the liability of persons driving cattle through the streets of a city,
for damages caused by the cattle injuring a person lawfully in the street,
without any fault on his part, is the same as that by which carriers of
passengers are governed. Ficken v. Jones, 618.
4. ACTION FOR DAMAGE DONE TO THE PERSON BY CATTLE.-In an action to
recover damages for injuries to the person, done by cattle of defend-
ant while being driven through a city, when the plaintiff has proved
that he sustained the injury without fault on his part, he has made a
case of prima facie negligence, and the burden is cast on the defendant
of showing that he was not at fault. Id.
5. SAME. In such case, when the cattle were driven by persons employed by
the owner, the owner is entitled to show in defense that the persons
employed by him were persons of competent skill in the business. Id.
6. DAMAGES FOR LAYING OUT A PUBLIC HIGHWAY.-Under the Act of 1861 a
person whose lands have been taken for a public road has no right of
action against the county for damages until after a fair and honest at-
tempt on his part to agree upon the amount with the Board of Super-
visors. Lincoln v. Colusa County, 662.
7. EVIDENCE AS TO AGREEMENT WITH BOARD FOR DAMAGES FOR LAYING OUT
ROAD. The filing of a petition with the Board of Supervisors claiming
damages in the event of a public road being laid out over the petition-
er's land, is no evidence in an action brought by him for damages, that
he could not compromise or agree with the Board respecting the
damages. Id.
8. POWER OF LEGISLATURE IN RELATION TO DAMAGES FOR OPENING ROADS.-
It is competent for the Legislature to fix the mode of condemnation of
land for public highways, and the method by which damages shall be
ascertained, and the proceedings to be had for their recovery, and as
strict a compliance with the Act is required by those claiming damages
as by the public making the condemnation. Id.
See BOND, 1; CORPORATIONS, 2; EJECTMENT, 12, 13; FORCIBLE ENTRY AND
DETAINER, 12; INJUNCTION BOND, 1, 2; PLEADINGS, 4.
1. DEED BY AN ATTORNEY IN FACT.-A deed made by an attorney in fact, in
which he names himself as the attorney in fact for his principal as the
party of the first part, and to which he signs his own name opposite the
seal, as the attorney in fact of his principal, does not convey the title or
interest of the principal in the land therein described, either under the
Mexican or common law. The words "attorney," etc., are merely de-
scriptio personæ, and the mere fact that the party of the first part is the
attorney does not make the deed a deed of the principal.
Cheney, 157.
2. DISCREPANCY IN THE DESCRIPTIONS IN A DEED-In case of a discrepancy
between the monuments mentioned in a deed, and the courses and dis-
tances therein set forth, the monuments govern. Franklin v. Dorland,
3. MISTAKE AS TO LEGAL EFFECT OF DEED.-If the language of a deed is the
language intended to be used by the grantor, his mistake as to the legal
effect of the language used will not afford him any ground for relief in
equity. Burt v. Wilson, 632.
See ESTOPPEL, 1, 2; EVIDENCE, 2, 4, 5; FRAUDS, STATUTE OF, 1; POSSESSION, 1;
TAXES, 1, 2; TITLE, 1; TRUSts, 1.
JUDGMENT BY DEFAULT.--A notice that defendant will move before a Court
Commissioner to dissolve an attachment issued in a cause is not such an
appearance in an action as will authorize the Clerk to enter a judgment
by default. Glidden v. Packard, 649.
See ANSWER, 1; JUDGMENTS, 7, 8, 22, 23; SUMMONS, 1, 2.
JUDGMENT ON DEMURRER.-Where one only of several defendants appears
and demurs and the demurrer is sustained, it is error for the Court to
give judgment in favor of the defendant who does not appear. Farwell
v. Jackson, 105.
See JUDGMENTS, 24; LIMITATIONS, 1; PLEADINGS, 8.
DESCENTS AND DISTRIBUTIONS.
See ESTATES OF DECEASED PERSONS, 1, 2, 3, 4.
See ESTATES OF DECEASED PERSONS, 2, 4.
SALARIES OF DISTRICT ATTORNEYS.-The salaries of District Attorneys are
not audited and allowed by the Boards of Supervisors of counties, but
by the County Auditors. Boards of Supervisors have no power over or
duties to perform touching the salaries of District Attorneys. Dərsey v.
Smyth, 24.
See ELECTIONS, 2; JURISDICTION, 7.
1. SIX MONTHS' RESIDENCE REQUIRED for a DIVORCE.-The Court has no
jurisdiction to grant a divorce unless the applicant aver and prove that
he or she has been a bona fide resident of this State six months before
making the application. Bennett v. Bennett, 599.
2. IN A DIVORCE SUIT, RESIDENCE MUST BE PROVED.--An averment in a com-
plaint for a divorce, that the applicant has been six months a resident of
this State, and a failure to deny the averment in the answer, does not
do away with the necessity of proving the residence. Id.
1. JUDGMENT IN EJECTMENT WHERE DEFENDANTS SEVER IN THEIR ANSWERS.—
If, in an action against several defendants, sued jointly to recover the pos-
session of a tract of land, the defendants sever in their answers, but do
not demand separate trials, and the jury finds specially that the defend-
ants are severally in possession of separate parcels of the land sued for,
and if, on appeal to the Supreme Court, that Court directs judgment to
be entered in the Court below "for the plaintiff upon the special findings
for the premises in controversy, pursuant to the prayer of the complaint,”
a joint judgment rendered in the Court below upon filing the remittitur
there against all or a part of the defendants is erroneous. Leese v.
Clark, 33.
2. IDEM.-In such case, notwithstanding the entry of the joint judgment,
the plaintiff may apply for and have a several judgment against the de-
fendants. Id.
3. IDEM.-In such case, also, the entry of a several judgment against part of
the defendants is not a discontinuance of the action nor an abandonment
of the same by the plaintiff as to the others, nor does it preclude him
from afterwards moving for and having a several judgment against a de-
fendant not included in the first several judgment. Id.
4. AGAINST WHOM A RECOVERY IN EJECTMENT IS EVIDENCE.-The recovery of
a judgment in an action of ejectment is evidence that at the commence-
ment of the action the plaintiff was entitled to the possession as against
the defendant; but, in order to constitute it evidence against a third per-
son, not claiming under the defendant, it must be shown that the third
person bore such a relation to the defendant's title that it was his duty
to have defended the action upon the requisito notice thereof being
given, and that he had a proper opportunity to make a defense founded
upon his title. Calderwood v. Brooks, 151.
5. DEFENSE IN EJECTMENT BY GRANTEE AGAINST THE GRANTOR.-If one who is
not the owner of a lot of land executes a deed of it to another, and the
grantor is afterwards placed in possession of the lot by the real owner,
he may avail himself of this fact as a defense in ejectment brought
against him by the grantee. Franklin v. Dorland, 175.
6. PROOF OF TITLE IN A STRANGER IN EJECTMENT.—If the plaintiff, in an ac-
tion to recover the possession of land, shows possession in himself, or
the better right to the possession as between him and defendant at the
time of the entry of the defendant, the defendant will not be permitted
to overcome the presumption of title in the plaintiff by showing title in
a stranger. Carleton v. Townsend, 219.
7. OUSTER OF TENANT IN COMMON BY A CO-TENANT.-A finding, in a special
verdict, in an action of ejectment brought by a tenant in common
against a co-tenant who is in the occupancy of the land held in common,
that the plaintiff demanded of his co-tenant to be let into the immediate
possession of the same, and that the co-tenant refused, is not a finding
of an ouster, either in terms or by legal conclusions. Carpentier v. Men-
denhall, 484.
8. THE FACT OF OUSTER OF A CO-TENANT MUST BE FOUND.-The law will not
presume from acts of ownership by one tenant in common, nor from his
refusal to allow a co-tenant to enter, nor from both combined, that there
was an intent to oust, but the intent to oust must be established as a
fact by the finding of the jury. Id.
9. OUSTER OF CO-TENANT MAY BE INFERRED FROM DEMAND AND REFUSAL.—
If a tenant in common demand of his co-tenant, who is in the occupancy
of the common property, to be let into possession, and the co-tenant re-
fuses and does not give any explanation of his refusal, the Court would
be justified in directing or advising the jury to infer an ouster. Id.
10.- PURCHASE OF AN INTEREST IN LAND BY ONE WHO HAS TAKEN POSSESSION
WRONGFULLY.--If one who takes possession of land unlawfully after-
wards becomes a tenant in common in the ownership of the same, the
moment he becomes such tenant in common his possession loses its hos-
tile character, and the presumption is that it remains amicable until the
contrary is made to appear. Id.
11. DAMAGES IN EJECTMENT.--In ejectment by a tenant in common against a
co-tenant who took possession wrongfully, but afterwards became a co-
tenant, plaintiff cannot in that action recover damages for the period
while the defendant was unlawfully in possession. Id.
12. DAMAGES IN EJECTMENT AGAINST CO-TENANT. - A tenant in common, in
ejectment against his co-tenant, cannot in that action recover damages
or mesne profits for the period during which the possession of the co-
tenant was not adverse.
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