of the complaint by the answer, apply to actions of forcible entry and
detainer instituted under the Act of 1863, and to said actions upon all
other points not otherwise provided for in said Act. More v. Del
Valle, 170.
2. ANSWER IN FORCIBLE ENTRY AND DETAINER.--If the answer in forcible en-
try and detainer under the Act of 1863 does not deny the material allega-
tions of the complaint, and no material new matter is set up, no issue
is raised, and plaintiff is entitled to judgment on the pleadings. Id.
3. DESCRIPTION OF LAND IN COMPLAINT. -The description of the premises in
a complaint in forcible entry and detainer was as follows: "That tract or
parcel of land situate in the county of Santa Barbara, and known as
the Rancho Sespe, granted by the Mexican nation to Don Carlos Anto-
nio Carrillo, by grant dated November 23, 1833, and bounded and de-
scribed as follows: bounded by the Missions San Fernando and San
Buenaventura, situated in the then jurisdiction of Santa Barbara, con-
taining six square leagues
a little more or less." Held, that
upon the face of the pleadings the description was sufficient. Id.
4. AVERMENT IN COMPLAINT OF LOCATION OF LAND.--If the complaint in for-
cible entry and detainer avers that the lands are in the county where the
suit is brought, a failure to mention the State will not be a fatal defect.
Id.
5. AVERMENT OF POSSESSION IN COMPLAINT.-If the complaint in forcible
entry and detainer sufficiently shows an actual peaceable possession
in plaintiff, it will be sufficient without the use of the word "actual;"
but it is better to use the statutory term. Id.
6. AVERMENT OF TITLE IN FORCIBLE ENTRY AND DETAINER.—If the complaint
in forcible entry and detainer avers title in plaintiff, the averment may
be treated as surplusage. Id.
7. POSSESSION NECESSARY TO MAINTAIN FORCIBLE ENTRY AND DETAINER.—
One who in the morning enters upon a portion of a tract of land in
the possession of another, and incloses it with a fence and puts a
house on it before sundown, does not acquire such a peaceable posses-
sion as to enable him to maintain forcible entry and detainer against
the possessor, who at sundown on the same day destroys the house
and fence and drives him away. Iloag v. Pierce, 187.
8. SAME. The plaintiff in forcible entry and detainer must show an actual
peaceable and exclusive possession in himself; a scrambling or inter-
rupted possession is not sufficient. Id.
9. RIGHT TO PROTECT ONE'S POSSESSION.-One who is in the possession of a
tract of land has the right to resist and expel an intruder if the resist-
ance and expulsion take place before the possession of the intruder has
become actual and peaceable. ld.
10. FORCIBLE ENTRY AND DETAINER.-Where one person has a house upon a
portion of a tract of land of one hundred acres which he is occupying,
and another person enters upon another part of the tract and erects a
house, without doing anything further, this act does not constitute a
forcible entry upon and detainer of the whole tract. Thompson v.
Smith, 527.
11. DAMAGES IN FORCIBLE ENTRY AND DETAINER.-In forcible entry and de-
tainer, if the proofs show that plaintiff was ousted from a portion
only of the tract of land described in the complaint, he is not entitled
to recover damages for the detention of the whole. Id.
12, TITLE DEEDS AS EVIDENCE IN FORCIBLE ENTRY AND UNLAWFUL DETAINER.—
In an action under the Forcible Entry and Detainer Act, if the plaintiff
relies on an unlawful entry and a subsequent forcible detainer, a deed
of conveyance of the property to the defendant or his lessor is admis-
sible in evidence in his behalf to show the good faith of his entry; but
if the plaintiff relies on a forcible entry and detainer, such deed is not
admissible. Id.
13. VIOLENCE, OR FEAR OF VIOLENCE, TO BE SHOWN IN FORCIBLE ENTRY AND
DETAINER.-If the plaintiff seeks to recover on the ground of a forcible
entry and detainer, and the proofs show that there was no actual force,
and that he neither apprehended nor had any ground to apprehend any
positive act of violence from the defendant, he cannot recover. ld.
See CoNSITTUTIONAL LAW, 1; EVIDENCE, 3; Judgments, 7; JuriSDICTION, 1,
2; LANDLORD AND TENANT, 3, 4.
WHAT IS FORGERY.-The uttering and passing, as well as the making of a
forged instrument, is forgery. People v. Ah Woo, 205.
See CRIMINAL LAW, 41; INDICTMENT, 2, 3, 4, 12, 13.
1. ACTUAL AND CONTINUED CHANGE OF POSSESSION OF GOODS SOLD.-If a mer-
chant, having a stock of goods in his store, and engaged in a retail trade,
with clerks in his employ, makes a sale in good faith of his entire stock
in trade to a creditor in payment of the indebtedness, and for a fair
price, and the creditor immediately goes into the store, takes entire con-
trol of the business, and proceeds to take an inventory, and also to re-
tail the goods to customers with the assistance of the clerks of the ven-
dor, this constitutes an actual and continued change of possession, and
the sale is valid as against the creditors of the vendor, although there
has been no formal discharge of the clerks of the vendor and rehiring of
them by the vendee, and the vendor continues to occupy a room in the
upper part of the store where he had previously slept. Ford v. Cham-
bers, 13.
2. PURCHASER OF LAND WITHOUT NOTICE OF PRIOR UNRECORDED MORTGAGE.-A
judgment creditor who buys at Sheriff's sale the land of the judgment
debtor, and receives a Sheriff's deed without knowledge of a prior un-
recorded mortgage given by the judgment debtor on the land, must show
that his Sheriff's deed was first recorded, before he can claim to be a purchaser in good faith and for a valuable consideration. Thomas v. Vanlieu, 616.
3. WAIVER OF PROTECTION OF STATUTE OF FRAUDS.-If a defendant, sought to be charged as trustee on a contract within the Statuto of Frauds, admits the contract in his answer, and does not claim the benefit of the statute, he is considered as waiving its protection; but if he claims the benefit of the statute in his answer, he is entitled to it. Burt v. Wilson, 632.
See CORPORATION, 1, 2; EQUITY, 3.
See CONSTITUTIONAL LAW, 3.
See EJECTMENT, 5; EVIDENCE, 4, 5.
1. HABEAS CORPUS.-The doctrine of res adjudicata does not apply to proceedings on habeas corpus. In the Matter of Edward Ring, 247.
2. SECOND APPLICATION FOR HABEAS CORPUS.-The decision of one Court or Judge refusing to discharge a prisoner on habeas corpus is not a bar in another application for the same writ before another Judge or Court. Id. 3. HEARING ON HABEAS CORPUS.-If, at the hearing on habeas corpus, the Warden of the prison has not a certified copy of the judgment in a criminal action in his hands, and it appears that a judgment authorizing the detention of the defendant was entered, a copy of which can be procured, the Judge or Court will give a reasonable time to procure such copy, and, if obtained, quash the writ. Id.
ENJOINING SALE OF HOMESTEAD.-If a judgment in personam and decree foreclosing a mortgage given to secure the debt, but not covering the homestead, is rendered against a husband, the Sheriff will be enjoined from a sale of the homestead on an execution issued for a balance reported and docketed after a sale of the mortgaged property, if a declaration of
homestead is filed and recorded before such balance is reported and docketed. Culver v. Rogers, 520.
COUNTY HOSPITAL.-The County Infirmary or Hospital may consist of different buildings used by the county for hospital purposes. Johnson v. Santa Clara County, 545.
1. SEPARATE ESTATE OF WIFE.-Property purchased during coverture with funds which constitute a part of the separate estate of the wife, will also be her separate estate. Ramsdell v. Fuller, 41.
2. CLOUD UPON THE TITLE OF A MARRIED WOMAN'S PROPERTY.-A mortgage executed by the grantee of the husband upon property purchased with funds belonging to the separate estate of the wife, and deeded to the wife during coverture, is a cloud upon the wife's title which a Court of equity will remove. Id.
3. PROPERTY Purchased during COVERTURE.-The presumption is that property conveyed to the wife for a money consideration is common property; but this presumption may be rebutted by showing that it was purchased with money belonging to her separate estate. Id.
4. PURCHASE FROM HUSBAND OF PROPERTY DEEDED TO WIFE.-Parties purchasing of the husband real estate deeded to the wife for a money consideration during coverture, do so at their peril. The record of the deed to the wife is notice to all the world that the land may be the separate property of the wife, and is sufficient to put purchasers upon inquiry. Id.
5. MORTGAGE ON SEPARATE ESTATE OF WIFE.-If land is purchased with funds belonging to the separate estate of the wife, and the deed, expressing a money consideration, is executed to the wife during coverture, and recorded, and the husband afterwards sells the land, the wife not joining in the deed, and his grantee executes a mortgage on the same to one who has no notice other than the record of the deed to the wife that it was purchased with the separate funds of the wife, the mortgage will be set aside by a Court of equity, although the deed on its face did not state that the consideration paid was the separate estate of the wife. The fact that the title stands in the name of the wife is sufficient to put parties dealing with land upon inquiry. Id.
See ESTATES OF DECEASED PERSONS, 1, 3, 4.
IDENTITY OF NAMES AND PERSONS.
See EVIDENCE, 4, 5.
1. SUFFICIENCY OF AN INDICTMENT.-The sufficiency of an indictment in this
State is to be determined by the rules prescribed in the "Act to regulate
proceedings in criminal cases," and if an indictment, upon a fair read-
ing, stands this test, it is sufficient, though not good at common law.
People v. Ah Woo, 205.
2. INSTRUMENT FORGED IN THE CHINESE LANGUAGE.-An indictment for forg-
ing an instrument in a foreign language is good if it set out a translation
in the English language of the instrument charged to be forged, without
containing a copy of the original in the foreign language. Id.
3. MISNOMER OF FORGED INSTRUMENT.-Where the instrument charged to
have been forged, or a translation of it, is set out in full in the indict-
ment, a misnomer of its technical designation is immaterial. Id.
4. PASSING A FORGED INSTRUMENT.-If a forged order is made payable to the
defendant, it is sufficient to charge him in the indictment with uttering
and passing the same to another with intent to defraud, without charg-
ing an indorsement. The manner in which the fraud was committed is
matter of evidence. Id.
5. USE OF TERMS IN INDICTMENT CONJUNCTIVELY.-Where the intent to de-
fraud by a forgery is described in the statute by different terms stated
disjunctively, the indictment may state these terms conjunctively. Id.
6. INDICTMENT CONTAINING MORE THAN ONE COUNT.-If the indictment con-
tains more than one count, it should appear clearly on its face that the
matters set forth in the different counts are descriptive of one and the
same transaction. People v. Thompson, 214.
7. WHAT DIFFERENT COUNTS IN INDICTMENT SHOULD CHARGE.-An indictment
charging the defendant with entering a dwelling-house with intent to
steal, may contain different counts, charging the ownership of the goods
intended to be stolen in different persons, if each count charge the
same entry into the same house and at the same time. Id.
8. STATEMENT OF OFFENSE IN SECOND COUNT IN INDICTMENT.-The words
"said," "aforesaid," or equivalent expressions in the second count of
an indictment, are necessary to fix the identity of the offense therein
stated with that stated in the first count, except as to facts, of which the
Court will take judicial notice. Id.
9. NAME OF HOUSE IN DIFFERENT COUNTS OF INDICTMENT.—In an indictment
for entering a dwelling-house with intent to steal, if the second count
give the name of the house entered the same as the first, the Court will
presume that it is the same house without the word "said" or its equiv-
alent. Id.
10. INDICTMENT FOR ROBBERY.—An indictment for robbery is not bad because
it charges that the property was forcibly and violently taken from one
person and against his will, and that another person was the owner of
it, though it fails to aver that it was taken without the consent or against
the will of the owner, and also fails to aver the character of the posses-
sion of the person from whom it was taken. People v. Shuler, 490.
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