1

rey v. Berke, 11 S. Dak. 159, holding action not maintainable when based on a scrambling possession; extended note, 77 Am. Dec. 553.

Pleadings. Each count in the complaint must state a good cause of action within itself and cannot be aided by a preceding count, unless .such reference is expressly made, p. 353.

Rule approved in Haskell v. Haskell, 54 Cal. 265, where it held that if the matters omitted and referred to in another count relate to the gravamen of the action, they cannot aid such defective count. Cited and followed in Bidwell v. Babcock, 87 Cal. 33; and Clark v. Whittaker Iron Co., 9 Mo. App. 448.

40 Cal. 355. TODD v. MYRES.

Physician. Frequency of visits will be presumed necessary in absence of evidence to the contrary, p. 357.

Cited in Ebner v. Mackey, 186 Ill. 299, 78 Am. St. Rep. 282, sustaining recovery by physician under facts stated.

40 Cal. 358-373. HASTINGS v. DEVLIN.

School Land Warrant.-The location of a school land warrant issued under the act of May 3, 1852, upon unsurveyed lands of the United States, is void and confers no right whatever upon the locator, p. 370.

Approved in Hastings v. Jackson, 46 Cal. 239. But a location upon unsurveyed lands of the United States is valid as between the state and the defendant, and that as soon as the land was listed to the state the title passed to the defendant: Roberts v. Columbet, 63 Cal. 24, where the leading case was distinguished on the ground that there had been a valid and an invalid location upon the land before the passage of the act of 1866, and Congress could not and did not attempt to invalidate valid sales. A selection made upon unsurveyed public lands is utterly void: United States v. Curtner, 14 Saw. 546, 38 Fed. Rep. 9. Cited, also, in 85 Am. Dec. 93, note.

Evidence. A certificate issued by a register of the United States land office, which was unauthorized by statute or by regulation of the land department of the United States, is illegal, and is inadmissible in evidence in an action involving title to the land, p. 371.

Followed in Hastings v. Jackson, 46 Cal. 245. Referred to in People v. Jackson, 62 Cal. 553.

40 Cal. 373-378. BURRELL v. HAW.

Contested Patent-Land.-A person must show in himself all the conditions necessary to enable him to pre-empt before he will be permitted to question the proceedings through, which another has obtained a patent to public lands, p. 377.

Cited in Chapman v. Quinn, 56 Cal. 278, where it was said a patent could be attacked at the instance of the government or any person in privity with the paramount source of title, but not at the instance of a stranger. Doctrine of the leading case applied in Schiefferly v. Tapia, 68 Cal. 186. The refusal of the register of the land office to allow a person to make a proper application to pre-empt land, and pay the fee required, does not establish any privity with the United States: Burling v. Tompkins, 77 Cal. 261. Rule cited and followed in Peabody v. Prince, 78 Cal. 516, where it was held that if a patent is valid, no constructive trust can be enforced for fraud in procuring the patent, unless the claimant affirmatively alleges and proves that he possessed the necessary qualifications entitling him to a patent. Applied in De Toro v. Robinson, 91 Cal. 377, where the boundaries of a Mexican grant were fraudulently extended. Cited, also, in 87 Am. Dec. 80, note.

Contract Contrary to Public Policy.-An agreement between a judgment creditor and one claiming an interest in the land about to be sold under an execution against a third party, that neither shall bid against the other, is void as contrary to public policy, p. 383.

Applied in the case of an agreement between execution creditors and other creditors to prevent competition in the sale of goods under execution: Crawford v. Maddux, 100 Cal. 225. Combinations which might possibly prevent competition at sheriff's sales are looked upon with great disfavor by the courts: Capital Bank v. Huntoon, 35 Kan. 590.

Judgment-roll. An interlocutory judgment comes within the spirit and meaning of the statutory requirements, and properly constitutes a portion of the judgment-roll, p. 383.

Interlocutory judgments are included under the general expression "all judgments": Rust v. State, 31 Tex. Crim. Rep. 76.

General Citations. Cited in Thompson v. Whitf, 63 Cal. 509, to the point that an interlocutory judgment often determines the rights of the respective parties.

40 Cal. 384-385. GAGE v. BATES.

Forfeiture for Nonpayment of Rent.-To work a forfeiture of a lease for nonpayment of rent, the demand must be made for the precise sum due, on the premises, or wherever the rent is payable, p.

385.

If the amount due is not demanded, a refusal to pay does not work a forfeiture: O'Connor v. Kelly, 41 Cal. 434. Cited, also, in Johnston v. Hargrove, 81 Va. 122; and in 26 Am. St. Rep. 912, extended note.

Practice Appeal. The action of the court below cannot be reviewed when the objections to the admission of a deed in evidence are not stated, p. 390.

"A general objection is unworthy of consideration": Rush v. French, 1 Ariz. Ter. 125.

40 Cal. 391-395. STOKES v. STEVENS.

Partnership. Each copartner has an unlimited power of disposition of his share of the partnership property, subject only to the claims of creditors and the other copartners; but the claims of the creditors and other copartners can only be asserted in a court of equity, p. 394.

Purchaser under execution sale of an interest in the real estate of a partnership acquires the legal title, and not a mere equity; McCauley v. Fulton, 44 Cal. 362. See, also, extended note, 30 Am. Rep. 535. Leading case said to be distinguishable in Thomas v. Stetson, 62 Iowa, 539; 49 Am. Rep. 150.

Idem. Where one partner, without the consent of his copartner, conveys his interest in the partnership property to another, the latter becomes a tenant in common with the copartner, p. 395.

Merely referred to in Noonan v. Nunan, 76 Cal. 48, holding that a plaintiff is not entitled to an accounting upon the mere proof of a tenancy in common.

40 Cal. 396-408. GRIGSBY v. CLEAR LAKE WATER COMPANY. Evidence-Agency.-The declarations of an agent are not admissible in evidence against his principal until the fact of his agency is first proven, p. 405.

A declaration by a wife that her husband had sent her to demand the money is not sufficient proof of agency: People v. Dye, 75 Cal. 113. Evidence of the declarations of the person claiming to be such agent are inadmissible to establish the agency: Smith v. Liverpool etc. Ins. Co., 107 Cal. 437.

Agency-Practice on Appeal.-It will not be presumed that evidence to establish an agency was given, but the statement on appeal must show that fact, p. 405.

If there is a proper specification of the insufficiency of the evidence to justify the decision, the presumption is, that the statement contains all the material evidence in relation to it: Judson v. Lyford, 84 Cal. 509.

Expert Evidence. In an action to abate a nuisance caused by the Notes Cal. Rep.-129.

erection of a dam, the evidence of an expert as to the effect of an obstruction in causing the backwater, is admissible, p. 405.

Cited and the rule applied in Railway Co. v. Lyman, 57 Ark. 523. It is error to refuse to admit expert evidence to show that the overflow was caused by natural agencies and not by a railroad embankment: O. & M. Ry. Co. v. Webb, 142 Ill. 407. Cited in Ball v. Hardesty, 38 Kan. 543, where expert evidence was admitted to show the effect of the erection of a mill-dam.

Idem. The evidence of an expert should be received with great caution by the jury, and should not be allowed except upon subjects which require unusual scientific attainments or peculiar skill, p 405.

But it is not error to refuse to instruct the jury that they should exercise caution in accepting the opinion of an expert; People v. Smith 106 Cal. 79, where the rule of the leading case is explained. The only plausible objection to such instructions is that they encroach on the province of the jury: People v. Barthleman, 120 Cal. 14. Cited in Estate of Blake, 136 Cal. 311, but held not to authorize instruction given; Baxter v. Chicago etc. Co., 104 Wis. 332, and applied to expert evidence as to safe boiler pressure. It is not error to exclude the testimony of so-called expert witness as to the effect of a fire in a meadow on the roots of the grass growing thereon: Gates v. C. & A. Ry. Co., 44 Mo. App. 491. Cited, also, in 66 Am. Dec. 229, 231, note.

Public Nuisance.-A plaintiff cannot recover damages for a public nuisance, but, if he has suffered damages peculiar to himself, it becomes to that extent a private nuisance for which he may recover damages, p. 406.

Equity has jurisdiction to enjoin a public nuisance at the suit of a private party if such nuisance is specially injurious to such private party: Redway v. Moore, 2 Idaho, 1043. If the nuisance complained of only affects the plaintiff in common with the public at large, although in a greater degree, he cannot have his private action: Fogg v. N. C. O. Ry., 20 Nev. 435. Cited, also, in 31 Am. Dec. 134, note; and 71 Am. Dec. 312, note.

Nuisance. If a party is not the original creator of a nuisance, he must have notice of it, and a request must be made to remove it, before any action can be brought, p. 407.

This rule is supported by the weight of authority: Groff v. Ankenbrandt, 124 Ill. 55; 7 Am. St. Rep. 344. Cited in City v. Bozarth, 153 Ind. 539, but held applicable in case of action against lessee for nuisance created by him on leased ground. When a lessee or grantee continues a nuisance, of a nature not essentially unlawful, erected by his lessor or grantor, he is liable to an action only after notice to reform or abate it: Slight v. Gutzlaff, 35 Wis. 677; 17 Am. Rep. 477. The mere

continuance of a dangerous culvert and embankment was insufficient to charge the defendant with liability, in the absence of knowledge or notice that they constituted a nuisance: Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 57 Fed. Rep. 451. Principle followed in Philadelphia & R. R. Co. v. Smith, 64 Fed. Rep. 682. Cited, also, in 14 Am. Dec. 339, 340, extended note.

To acquire this right there must have been an uninterrupted enjoyment under a claim of right for the period of five years; there must have been an actual occupation to the knowledge of the plaintiff such as would give plaintiff a right of action; there must have been such a use of the premises, and such damage as will raise a presumption that the paintiff would not have submitted to it, unless the defendants had acquired a right so to use it, p. 406.

The general doctrine upheld in Woodruff v. N. Bloomfield Min. Co., 18 Fed. Rep. 790; 9 Saw. 517; and in Union Mill & Min. Co. v. Dangberg, 81 Fed. Rep. 92. Approved in Carson v. Hayes, 39 Or. 107, where upper and subsequent appropriators of water for mining purposes on stream had used stream for carrying off debris for long time, but such use did little injury until a couple of years before suit brought to restrain such use, defendant cannot claim prescriptive right to such use.

40 Cal. 408-419. SEXEY v. ADKISON.

Excessive Levy.-Where a plaintiff sues to recover property in the hands of a sheriff under an attachment, on the ground that the levy was excessive, and the respective parties have agreed to a general verdict for the whole property, it is too late for the plaintiff to assert a right to a portion of the property upon principles not applicable alike to all the property, p. 418.

The question whether it is illegal to seize and detain more than enough property to satisfy a judgment cannot be raised in detinue: Thompson v. Jones, 84 Ala. 281.

40 Cal. 419-421. EX PARTE SMITH.

Construction of Statutes.-An act of the legislature is repealed by a subsequent act when it appears from the last act that it was intended to take the place of or repeal the former, and when the two acts are so inconsistent, that effect cannot be given both, p. 420.

Rule applied in the construction of a municipal ordinance: In the Matter of Yick Wo, 68 Cal. 304. Repeal by implication is not favored, and it is only in cases of clear repugnancy that a repeal by implication occurs: Cerf v. Reichert, 73 Cal. 363, Cited in Town v. Easton, 113 Fed. 65, discussing conflict between general and special local acts; dissenting opinion of Thornton, J., in Ex parte Henshaw, 73 Cal. 506.

Idem.—Where an act of the legislature recognizes the existence of a