1. Fishing
of Re-Location.
Laws 1897, p. 218, § 7, which provides that, if the holder
of a fishing license, who has indicated a location for his
trap or pound net by driving piles and posting his license
number, "fails to construct his appliance during the fish-
ing season covered by his license, such location shall be
deemed abandoned," does not preclude one who has
abandoned a fishing site from re-locating thereon for the
next fishing season, when no other person has acquired
a prior claim thereto between the time of his abandon-
ment and his re-location.-Legoe v. Chicago Fishing Co.. 175
2. Same-Priorities. Under Laws 1897, p. 218, § 7, which
provides "that any person or corporation, after having
obtained a license as provided for in this act, shall indi-
cate locations for traps or pound nets made under such
license, by driving at least three substantial piles there-
on, which must extend at least ten feet above the sur-
face of the water at high tide, one of said piles to be
driven at each end of the location claimed, and upon said
terminal piles there must be posted the license number,"
the plaintiff, who on the afternoon of March 16th placed
temporary poles on the beach while the tide was out and
posted his license number thereon, and three days later
drove substantial piles farther out, did not thereby ac-
quire a superior right over defendant, who, on the even-
ing of March 16th, posted its license number on its own
piles already on the site, when the defendant had on the
morning of that day been engaged at the site in mak-
ing tests of the course of the tides by means of lines
and floats, preparatory to fixing a pound net at that
place, the acts of the defendant thus being as effective as
those of the plaintiff to indicate an intention to make a
fishing location on the site, and the defendant being ac-
tually first in time to indicate its intention and also to
literally comply with the statute.-Id....
3. Samc-Indicating Location Statutory Requirements
The act of a locator of a fishing site in posting its li-
cense number upon its own piles, driven upon the site in
prior years, constitutes a literal compliance with the re-
quirement of the statute that locations for pound nets
shall be indicated "by driving at least three substantial
piles thereon," and posting the license number upon the
terminal piles, since the statute does not require the act
of driving the piles and the act of posting notices there-
on to be concurrent.-Id...
4. Fishing Site-Abandonment-Re-location.
of a locator of a fishing site to construct a trap thereon
during the fishing season covered by his license, under
Laws 1897, p. 214, § 7, does not constitute such an aban-
donment of the location as to disqualify the licensee
from relocating the same for the next fishing season.-
DeMers v. Sandy Spit Fish Co......
5. Location of Traps-Sale-Caveat Emptor-Rights of Pur-
chaser. Where plaintiff purchased at a receiver's sale
one of two fish traps owned and operated by defendant,
with actual knowledge that the two locations were with-
in the lateral limits allowed by statute, the rule of ca-
veat emptor applies, and plaintiff having purchased with
knowledge of the defect must be satisfied therewith, and
is not entitled to enjoin defendant from operating its re-
maining trap within the statutory distance of 2,400 feet
from the one purchased by plaintiff, but its remedy is re-
stricted to restraining defendant from moving its trap
location closer than it was at the time of sale.-Fall &
Sockeye Fish Co. v. Point Roberts Fishing & Canning
Co.....
FORCIBLE ENTRY AND DETAINER. See LANDLORD AND
TENANT.
FRAUD. See LIMITATION OF ACTIONS, 3, 4.
1. Payment of Another's Debt as Original Promise. An
agreement to pay the debt of another as consideration
for another contract between the promisor and prom-
isee is not within the statute of frauds.-Dimmick v.
Collins
2. Promise to Pay Debt of Another-When Constitutes
Original Promise. A promise by a debtor to pay the debt
of his creditor to a third party, made in consideration
of receiving credit upon his own indebtedness, is an orig-
inal promise, and not within the statute of frauds.—
Nordby v. Winsor
FRAUDULENT CONVEYANCES.
Action to Cancel-Sufficiency of Evidence. In an action
to set aside a fraudulent conveyance a finding of fraud
is not supported by the evidence, when it appears there-
from that the grantor, about a year prior to the insti-
tution of a suit against him to enforce a stock subscrip-
tion, left the state, leaving no property therein subject
to execution, other than the lands in controversy, which
he at that time conveyed to another in trust for a third
person, but had continued for some time after the trans-
fer to receive rents from a tenant on the premises, when
the cestui que trust testified that he paid a valid con-
sideration for the land, specifying the manner of pay-
ment, which was corroborated both by the grantor and
the trustee, and there were no facts or circumstances in
evidence impeaching the veracity of the witnesses who
denied the fraud.-Troy v. Bickford
GARNISHMENT. See APPEAL, 12.
Bond Given as Guaranty-Liability After Exhaustion of
Prior Security. Where a bond conditioned that the ob-
ligor will build a house of an agreed value upon mort-
gaged premises within a stipulated time is given as addi-
tional security for the mortgage thereon, in an action
on the bond for breach of the condition to build the
obligee is not entitled to other than nominal damages,
when the mortgaged premises have not been sold under
foreclosure and the amount of deficiency determined.
-Johnson v. Cook..
1. Prescriptive Right-Interruption of Use by Public. Α
title by prescription to a highway did not inure to the
benefit of the public from the fact that the public had
been permitted for a number of years to travel a road
across private premises, and that that portion of the
road had been worked by the county during the absence
of the owner, when there were distinct acts on the part
of the owner, prior to the maturing of a prescriptive
right, indicating an intention not to dedicate a highway,
such as maintaining gates across the road, and posting
notices thereon that it was private property, and de-
manding that the gates be kept shut.-Megrath v.
Nickerson
235
2. Same-Laying Out-Vandity. The fact that viewers ap-
pointed by the county commissioners to survey a road
in pursuance of a petition therefor continue the survey
beyond the limits set by the petition would give no
authority to the county to establish a road beyond the
point named in the petition.—Id...
Homestead in Decedent's Estate-Order Setting Aside
in Spouse's Separate Property-Effect Upon Title. A
homestead set aside by the court, under Bal. Code,,
§§6219, 6222, to the widow and minor child of a dece-
dent does not vest the title to such homestead in them,
when the land exempted as a homestead was the sep-
arate property of the decedent; but such sections must
be construed in connection with § 5246, by which it is
provided that if a homestead was selected from the com-
munity property, the land vested in the survivor upon
the death of either spouse, and "in other cases, upon the
death of the person whose property was selected as a
homestead, it shall go to his heirs or devisees, subject
to the power of the superior court to assign the same
for a limited period to the family of the decedent."
-Austin v. Clifford.....
SEE CONSTITUTIONAL LAW, 5.
1. Manslaughter-Sufficiency of Information-Allegations
Setting up Criminal Abortion. Under Bal. Code § 7042,
which provides that every person who shall un-
lawfully kill any human being without malice,
involuntarily, but in the commission of some unlawful
act, shall be deemed guilty of manslaughter, an in-
formation cnarging manslaughter is sufficient there-
under, although it sets up facts constituting the offense
of producing a miscarriage, the punishment for which is
provided in Bal. Code § 7068, when such facts are pleaded
only for the purpose of charging the killing as having
been done in the commission of a prohibited offense and
there is no punishment provided in the statute against
producing miscarriages where death results from the
commission of such acts.-State v. Power.
2. Same-Instructions-Liability of Physicians for Gross
Neglect. In a prosecution for manslaughter as the re-
sult of a criminal abortion, where the evidence tends
to show that the physician had neglected to take proper
sanitary precautions in the care of the deceased, a
charge to the jury that "when a physician undertakes
to attend a sick person, the law imposes upon him the
duty of directing the sanitary conditions surrounding
the patient, of prescribing the proper medicines and the
times and manner of taking, and whatever other ap-
pliances and operations necessary to the restoration of
health," is applicable to one phase of the case, but does
not undertake to define the degree of care and skill re-
quired of a physician; and such charge is not mislead-
ing when the instructions elsewhere charge the jury
as to the criminal liability of a physician for wilful and
felonious neglect of a patient.-Id.....
3. Evidence-Dying Declarations-In Extremis. The fact
that dying declarations were made two days prior
to the death of the person making them would not render
the declarations inadmissible in evidence, since the rule
requiring it to be shown that the declarations were made
while the declarant was in extremis does not require
that the declarant be actually breathing her last, when
making them, but the rule is satisfied where it is shown
that the declarant died in the course of the illness from
which she was suffering at the time they were made and
that the illness from which she was suffering was the di-
rect and proximate result of the original injury which
the declarations tend to illustrate.-Id...
4. Same-Sense of Impending Death. Dying declarations
are admissible in evidence when the court is satisfied
from all the facts and circumstances shown that they
were made under the sense of impending death, not-
withstanding declarant may not have said in specific
terms that she was without hope of recovery, or was
dying, or going to die, or could not live any longer.-
Id....
5. Identification of Body-Conclusiveness of Jury's Find-
ing. In a prosecution for murder, in which the identity
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