VOLUME LIV.

By CHARLES T. BOONE.

Revised to include citations to Volume 147, by CHARLES L. THOMPSON.

54 Cal. 3-5. POPE v. KINMAN.

Riparian Right is the interest which an owner has in a living stream of water flowing over his land, p. 5.

Cited in Lux v. Haggin, 69 Cal. 359, holding that the principal case was not in conflict with the law as to priority of possession; S. C., 69 Cal. 392, holding that by the common law the right passed with the soil as part and parcel of it; Willis v. City of Perry, 92 Iowa, 302, defining the rights of the riparian owner; Weiss v. Oregon Iron Co., 13 Oreg. 499, to same effect; note to 43 Am. Dec. 280, on doctrine of riparian rights applied to lands of United States.

54 Cal. 6-24. HILL v. DEN.

Findings contrary to allegations and admissions in the pleadings must be disregarded, p. 20.

Cited in Silvey v. Neary, 59 Cal. 99, holding that a finding which negatives the existence of a fact admitted by the pleadings is a finding against evidence; White v. Douglass, 71 Cal. 119, to same effect; Ortega v. Cordero, 88 Cal. 226, to same effect; Hendy Machine Works v. Page C. C. Co., 99 Cal. 424, holding that a fact alleged in the complaint and not denied in the answer is conclusive.

Partition. Where land is held by A and trustees of a deed as tenants in common, it is the duty of the court, on the death of A, to partition the land in severalty between the estate of A and the trustees. of the deed. Until that is done, A's executors cannot divide the testator's estate, pp. 15-24.

Approved in Richardson v. Loupe, 80 Cal. 500, where a similar decree making the devisees tenants in common of their testator's interest was upheld.

Law of the Case.-History and state of facts-validity of the trust deed-want of power in executors to sell-estoppel of heirs-statute of limitations, pp. 15-24.

Cited and referred to in Huse v. Den, 85 Cal. 398, 399, 400, 20 Am. St. Rep. 233, 234, 235, being a further appeal on a retrial of the principal case, in which the rulings in the principal case under the above heads were held to be the law of the case. Cited in Campbell v. Drais, 125 Cal. 260, but not discussed.

Agreement for Partition not signed by one of the tenants in common is void, p. 23.

Cited in Center v. Davis, 113 Cal. 309, 54 Am. St. Rep. 353, holding that all the parties are bound or none; Pacific Bank v. Hannah, 90 Fed. 77, noted under Sutter v. San Francisco. 36 Cal. 112.

Will.-Direction to executors to pay debts does not give them a power of sale, p. 21.

Cited in note to 19 Am. St. Rep. 272, on sales and conveyances by trustees.

Purchasers from Trustees in breach of the trust take upon same trusts as their grantors and with no greater title, p. 22.

'Cited in note to 19 Am. St. Rep. 278, on sales and conveyances by trustees.

54 Cal. 28-35. FOLZ v. HOGE.

Hastings Law College, how affected by affiliation with the University of California, p. 34.

Cited in People v. Kewen, 69 Cal. 216, approving the ruling, and S. C., p. 217, by McKinstry, J., in his concurring opinion, doubting whether for all purposes the fact of affiliation had been established by the principal case; Estate of Royer, 123 Cal. 619, discussing power of university to accept bequests.

Power of Directors to Exclude intending students does not extend to female students, pp. 34, 35.

Cited in State v. White, 82 Ind. 285, 42 Am. Rep. 502, as to Purdue University.

54 Cal. 35-37. EX PARTE SMALLMAN.

Bail after Conviction for felony, pending appeal, should only be granted in exceptional cases, p. 36.

Cited in Ex parte Brown, 68 Cal. 183, holding that after death sentence, no bail; after imposition of fine, bail is of right; in other cases, bail is discretionary; Ex parte Smith, 89 Cal. 80, holding that the appeal court considers the application independently; Ex parte Turner. 112 Cal. 629, holding that the determination of the trial court will not be disturbed except in an instance of manifest abuse; United States v. Hudson, 65 Fed. Rep. 75, holding that the right of bail after conviction only arises under statute; In re Boulter, 5 Wyo. 268, sustaining refusal of bail in manslaughter case under local statute.

54 Cal. 37-41. PEOPLE v. COLBY.

Indictment.-Motion to Set Aside can be based only on one of the statutory grounds under section 995 of the Penal Code, p. 38.

Cited to same effect in People v. Hunter, 54 Cal. 65; People v. Ramirez, 56 Cal. 535, holding that order denying motion is not reviewable; People v. Murback, 64 Cal. 372, holding a clerical error not prejudicial to the defendant not ground for reversal; Territory v. Pendry, 9 Mont. 72, holding that when the indictment was not found as prescribed by the act, the proper remedy was a motion to quash; United States v. Cutler, 5 Utah, 609, showing when a motion to quash could be made.

Indictment "not found as prescribed in this Code" means not concurred in by twelve of the grand jury, p. 38.

Cited in Bruner v. Superior Court, 92 Cal. 253, holding that error in impaneling the grand jury could only be reached by prohibition. S. C., pp. 267, 268, in concurring opinion of Garoutte, J., to same effect; Territory v. Staples, 2 Idaho, 780, to same point.

Where Some of Grand Jury are successfully challenged the remaining jurors, if of the requisite number, constitute the grand jury; dissenting opinion of Wallace, C. J., p. 39.

Cited in People v. Gray, 61 Cal. 165, holding indictment properly found in the absence of evidence to the contrary.

54 Cal. 48-51. DOWD v. CLARKE.

Specific Performance.-Tender Before Action not right of purchase is denied, p. 50.

necessary when

Cited in Barsolon v. Newton, 63 Cal. 226, holding that part performance and readiness to perform the remainder sufficient to maintain the action; Smith v. Phoenix Ins. Co., 91 Cal. 330, 25 Am. St. Rep. 195, holding that a contract of sale and purchase passed the equitable title; Merrill v. Merrill, 95 Cal. 338, holding that withdrawal of deed placed in escrow and denial of right to purchase avoided necessity for tender; Sheplar v. Green, 96 Cal. 221, to same effect as principal case; dissenting opinion in McCowen v. Pew, 147 Cal. 312, majority determining amount of damages for breach of contract to convey timber land when specific performance rendered impossible by removal of timber prior to exercise of option.

54 Cal. 51-53; 35 Am. Rep. 67. HANKS v. NAGLEE.

Promise to Marry.-Immoral consideration will not support action, p. 52.

Cited in Boigneres v. Boulon, 54 Cal. 147, the same where the consideration was the continuance of past illicit relations; Saxon v. Wood, 4 Ind. App. 245, to same effect, where the alleged consideration was

future cohabitation and consequent pregnancy; Burke v. Shaver, 92 Va. 348, 349, to same effect; note to 44 Am. Dec. 178, on evidence of seduction in action for breach of promise; note to 63 Am. Dec. 536, on promise of marriage on immoral consideration against law or public policy; note to 40 Am. St. Rep. 173, on defenses to actions for breach of promise.

Instruction is Erroneous when hypothesis on which it is based cannot be assumed from the evidence, p. 53.

Cited in Lathrope v. Flood, 135 Cal. 461, holding instruction erroneous as foreign to the issues.

Name of Crime given in indictment differing from that charged is a mere irregularity and not fatal to the indictment, p. 54.

Cited in State v. Jarvis, 18 Oreg. 361, holding that the character of the offense was that charged; State v. Crook, 16 Utah, 218, noted under People v. Phipps, 39 Cal. 326; note to 58 Am. Dec. 246, on exceptions to rule against duplicity; note to 23 Am. St. Rep. 145.

54 Cal. 54-57. BEVERIDGE v. LIVINGSTONE.

Street Work. Time for completion cannot be extended after expiration of contract, p. 56.

Cited in Mahoney v. Braverman, 54 Cal. 570, 571, holding that completion within the contract time was essential to recovery; Fanning v. Schammel, 68 Cal. 429, following the principal case; Dougherty v. Coffin, 69 Cal. 455, to same point and effect and that an appeal against a void assessment did not create an estoppel; Raisch v. San Francisco, 80 Cal. 4, extending the ruling to city contracts for work on accepted streets; McVerry v. Boyd, 89 Cal. 306, holding that the date of the extension is fixed by the resolution granting it; Brock v. Luning, 89 Cal. 319, to same point; Brady v. Burke, 90 Cal. 7. to same point and effect; Ede v. Knight, 93 Cal. 163, holding that failure to perform an official duty would not operate to the prejudice of any one but the officer and especially when the statute fixed no time when the act should be done; Heft v. Payne, 97 Cal. 111, holding that a direction by the council for further work to be done does not operate as an extension of time; Palmer v. Burnham, 120 Cal. 366, holding that when work is to commence within fifteen days from date, and completion to be within one hundred and eighty days thereafter, the word "thereafter" means the date of the contract; dissenting opinion in Chase v. Trout, 146 Cal. 375, majority holding under curative clause of Street Bond Act, objection that time for completion of work extended after time first fixed had expired, must be after issuance of bonds, conclusively presumed to be unfounded; Rose v. Trestrail, 62 Mo. App. 357. hold