Sidebilder
PDF
ePub

I. JURISDICTION, PRINCIPLES, AND

MAXIMS.

(C) Principles and Maxims of Equity. § 65. Where conscience and good faith are wanting, a court of equity cannot be called into activity.-Miller v. Ash (Cal.) 600.

III. EQUITABLE ESTOPPEL. Of particular classes of persons, or persons in particular relations.

Of tenant to dispute title of landlord, see Landlord and Tenant, § 64.

Personal representative, see Executors and Administrators, § 114.

§ 66. Plaintiff who is seeking equity must do Purchase of goods, see Sales, § 176. equity.-Murray v. O'Brien (Wash.) 840.

II. LACHES AND STALE DEMANDS.

Raising defense of laches by demurrer, see
Pleading, § 193.

Particular remedies or proceedings.

See Specific Performance, § 105.
Condemnation proceedings, see Eminent Do-
main, § 171.

For accounting by guardian, see Guardian and
Ward, § 146.

67. Where reasonable diligence is wanting, a court of equity cannot be called into activity. -Miller v. Ash (Cal.) 600.

§ 70. A party possessed of information of extraneous facts and circumstances sufficient to put him, as a prudent person, on inquiry, is charged with constructive notice of all that he might have learned by an inquiry prosecuted with diligence as affecting a plea of laches.Miller v. Ash (Cal.) 600.

§ 71. Whether a plea of laches from long delay should be sustained depends on the circumstances of each case.-Miller v. Ash (Cal.) 600.

§ 80. Greater liberality is allowed with reference to the defense of laches in a case of actual fraud than where constructive fraud only is alleged.-Miller v. Ash (Cal.) 600.

To assert or deny particular facts, rights, claims,
or liabilities.

To allege error, see Appeal and Error, § 882;
Criminal Law, § 1137,

Validity of acts of insurance company, see In-
surance, § 36.

(A) Nature and Essentials in General. § 52. While at common law estoppel was founded on deeds and records of courts, equitable estoppel arises out of the facts and circumstances.-Carruthers v. Whitney (Wash.)

831.

(B) Grounds of Estoppel.

§ 78. An agreement between the Governor and the beneficiary under an appropriation bill held not to estop the beneficiary to claim the full amount of the appropriation.-Lukens v. Nye (Cal.) 593.

83. One who wrongfully or negligently by his acts or representations causes another who has a right to rely thereon to change his condition to his injury cannot afterward deny them for his own advantage.-Carruthers v. Whitney (Wash.) 831.

§ 92. A municipal waterworks company, sought to be compelled to supply water as rethat its contract with a city is indivisible so as quired by its franchise, held estopped to plead to avoid compliance therewith on account of 87. The right to enforce a "vendor's lien the city's failure to pay certain hydrant rentals. held not barred by laches alone.-Finnell v. Fin--State v. Mountain Spring Co. (Wash.) 243. nell (Cal.) 740.

887. Where an express statute of limitations applies to a suit in equity, mere delay to commence the suit for a period less than that of the statute does not justify a dismissal of the suit. -Finnell v. Finnell (Cal.) 740.

§ 87. When a statute of limitation applies to a suit in equity, delay in commencing the suit for a period less than that of the statute is not a reason for dismissing the proceeding, unless accompanied by other circumstances.Marsh v. Lott (Cal.) 968.

[blocks in formation]

(C) Persons Affected.

[blocks in formation]

EVIDENCE.

See Depositions; Witnesses.

Admissibility of evidence under pleading, see
Pleading, §§ 375-382.

Applicability of instructions to evidence, see
Trial, §§ 251, 252.

Questions of fact for jury, see Trial, §§ 139,
143.

Reception at trial, see Criminal Law, §§ 662678; Trial, §§ 43-90.

Refusal to offer testimony as ground for dis-
missal of suit for divorce, see Divorce, §
1392.

Verdict or findings contrary to evidence, see
New Trial, §§ 70-79.

As to particular facts or issues.
See Acknowledgment; Boundaries, §§ 35-53;
Damages, § 168; Fraudulent Conveyances, 88
295-299; Marriage, §§ 40-50; Partnership, S
52; Statutes, § 284.

Acceptance of option to buy land, see Vendor and Purchaser, § 44.

Agency, see Principal and Agent, § 23.

Assignment of lease, see Landlord and Tenant, § 802.

By judgment, see Judgment, §§ 570, 631, 652- Benefits from reclamation district, see Drains, 744.

§ 90.

Defense of statute of frauds, see Frauds, Statute of, 158. Employment, see Master and Servant, § 6. Fraud of building and loan associations, see Building and Loan Associations, § 41. Negligence of city, see Municipal Corporations, § 819.

Payment of mortgage, see Mortgages, § 319. Separate property of married woman, see Husband and Wife, § 131.

Testamentary capacity, see Wills, § 55. Undue influence in procuring will, see Wills, 8 166.

Validity of drainage assessment, see Drains, § 76.

Waiver of vendor's lien, see Vendor and Purchaser, 266.

In actions by or against particular classes of

[blocks in formation]

381.

I. JUDICIAL NOTICE.

§ 5. The court must assume as a matter of manufacture pure olive oil in considerable common knowledge that persons may and do quantities.-Grogan v. Chaffee (Cal.) 745.

§ 22. It is a matter of common knowledge that there is no strictly transcontinental line of railroad in the United States operated by a single company, though one may procure a ticket from one seaboard to the other, traveling over connecting lines of railroad.-Brian v. Oregon Short Line R. Co. (Mont.) 489.

§ 32. Judicial notice held not to be taken of ordinances.-Metteer v. Smith (Cal.) 735.

§ 43. Judicial notice will be taken of prior plaintiff was appointed in the same case.-Hale proceedings by which a guardian ad litem for v. Crown Columbia Pulp & Paper Co. (Wash.) 480.

II. PRESUMPTIONS.

As to particular facts or issues. See Marriage, § 40.

Benefits from reclamation district, see Drains, § 90. Separate property of married woman, see Husband and Wife, § 131.

Undue influence of attorney over client, see Attorney and Client, § 123. Validity of drainage assessment, see Drains, § 76.

In particular civil actions or proceedings. For drainage assessments, see Drains, § 90.

sumed that the party charged had knowledge of § 66. On a plea of laches, it will be prewhat he might have learned from pursuing an inquiry suggested by the circumstances.-Miller

For injuries to servant, see Master and Serv-v. Ash (Cal.) 600. ant, § 276.

For loss of or injury to goods shipped, see Carriers, § 132.

For wrongful injunction against operation of mine, see Injunction, § 261.

On bill or note, see Bills and Notes, §§ 493

523.

To cancel obligations to building and loan association, see Building and Loan Associations, $ 41.

To determine and establish water rights, see Waters and Water Courses, § 152.

To determine conflicting rights in mining locations, see Mines and Minerals, § 38. To dissolve attachment, see Attachment, § 249. To establish and protect water rights, see Waters and Water Courses, § 247.

To foreclose vendor's lien, see Vendor and Purchaser. § 281.

To set aside assessment for public improvements, see Municipal Corporations, § 513.

In criminal prosecutions.

See Adultery, § 12; Burglary. §§ 31-42; Criminal Law, §§ 304-565; Embezzlement, § 42; Gaming, $$ 97, 98; Homicide, §§ 158-200; Larceny, §§ 41, 64; Rape, §§ 43-51. Violations of liquor laws, see Intoxicating Liquors, § 236.

Review and procedure thereon in appellate

courts.

See Appeal and Error, §§ 987-1024.
Harmless error in rulings on, see Appeal and
Error, §§ 1047-1058; Criminal Law, §§ 1169,
11702.

Questions presented for review as to rulings on,
see Appeal and Error, § 696.
Review of discretionary rulings on, see Ap-
peal and Error, § 970; Criminal Law, § 1153.
Review of rulings on, as dependent on presen-
tation in lower court of grounds of review, see
Appeal and Error, § 203; Criminal Law, §
1054.

§ 67. The rule that a status once established is presumed to continue held to obtain in an action to quiet title.-Metteer v. Smith (Cal.) 735.

§ 87. Code Civ. Proc. § 2061, subd. 2. held to recognize that a presumption is evidence which may outweigh the positive testimony of witnesses against it.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

89. Under Code Civ. Proc. § 2061, subd. 2, held, that a fact proved outweighs a disputable presumption.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

III. BURDEN OF PROOF.

As to particular facts or issues.

See Marriage, § 40.

Authority of agent, see Principal and Agent, § 119.

Authority of bank officer, see Banks and Banking, § 113.

In particular civil actions or proceedings. For loss of or injuries to goods shipped, see Carriers, § 132.

On bill or note, see Bills and Notes, § 493. To determine conflicting rights in mining location, see Mines and Minerals, § 38.

$ 98. It is the duty of plaintiff, having the burden of proof, to establish the claims of his complaint by satisfactory proof, and, till he has made out a satisfactory case, defendants need not reply or cross-examine witnesses whose testimony has little tendency to sustain the complaint.-Russell v. Banks (Cal. App.) 261. IV. RELEVANCY, MATERIALITY, AND COMPETENCY IN GENERAL.

(A) Facts in Issue and Relevant to Issues. § 113. The record of the assessment of property for taxation is not admissible to prove the

[blocks in formation]

§ 151. In an action to cancel a deed of gift from a brother to a sister to enable the grantee to more easily settle a decedent's estate, in which both grantor and grantee are interested, it is proper to allow plaintiff to testify that in making the deed he relied on his sister's promise that, when the estate was settled, he would receive his share thereof.-Fagan v. Lentz (Cal.) 951.

§ 151. Where property was purchased with community funds, and the conveyance made to the wife, testimony of the husband and wife as to their intention with respect to the conveyance was competent.-Fulkerson v. Stiles (Cai.)

966.

[blocks in formation]

§ 222. Certain testimony by defendant held admissible as an admission in plaintiff's favor. -Fagan v. Lentz (Cal.) 951.

$222. Evidence of plaintiff's declaration that his injury resulted from his own fault held admissible under Code Civ. Proc. § 1870, subd. 2.-Rudd v. Byrnes (Cal.) 957.

§ 226. In an action on a joint and several note, held competent to receive statements made by one of the defendants.-Rosnagle v. Armstrong (Idaho) 216.

VIII. DECLARATIONS.

(A) Nature, Form, and Incidents in General.

§ 271. In an action against a railroad company for personal injuries, the written report of the accident, made by the conductor, held inadmissible for defendant.-Conner v. Seattle, R. & S. Ry. Co. (Wash.) 634.

[blocks in formation]

XI. PAROL OR EXTRINSIC EVIDENCE AFFECTING WRITINGS. (A) Contradicting, Varying, or Adding to Terms of Written Instrument. Parol or extrinsic evidence affecting certificate of acknowledgment, see Acknowledgment, § 55.

§ 390. Parol evidence is inadmissible to show that a covenant against incumbrances plain and free from ambiguity was subject to an exception.-O'Connor v. Enos (Wash.) 1039.

§ 410. An escrow agreement, whereby a bank contract, held not to contain all the terms of the was to hold money until the fulfillment of a agreement, and hence it could be shown by parol that the other terms were.-John A. Roebling's Sons Co. v. Washington Alaska Bank (Wash.) 174.

411. Parol evidence held admissible to explain a brief memorandum obviously incomplete. -Heskett v. Border Queen Mill & Elevator Co. (Kan.) 432.

$$ 419, 422. Parol evidence held. admissible to explain the meaning of other considerations referred to in a written contract.-Boise Valley Const. Co. v. Kroeger (Idaho) 1070.

(C) Separate or Subsequent Oral Agree

ment.

§ 441. Parol evidence of a mortgagee's contemporaneous contract to procure insurance on the mortgaged premises in consideration of a premium received from the mortgagor held not objectionable as varying the terms of the mortgage.-Hudson v. Ellsworth (Wash.) 463. (D) Construction or Application of Language of Written Instrument.

448. Code Civ. Proc. §§ 1856, 1860, held not applicable to the construction of an unambiguous trust deed, so that parol evidence to explain or contradict it would not be admissible. -MacLeod v. Moran (Cal. App.) 932.

§ 459. Parol evidence held not admissible under the circumstances stated to show that one

signing a contract, but not mentioned therein, is or is not bound as a party thereto.-Henry O. Shepard Co. v. Freeman (Mont.) 484.

$460. Where a boundary in a deed is doubtful, parol evidence of its actual physical loca

tion by the parties pending the negotiations is | Fraud of building and loan association, see competent.-Parks v. Baker (Kan.) 439. Building and Loan Associations, § 41. Negligence of city, see Municipal Corporations, § 819.

XII. OPINION EVIDENCE.

Payment of mortgage, see Mortgages, § 319. (A) Conclusions and Opinions of Wit- Testamentary capacity, see Wills, § 55.

nesses in General.

§ 471. It is error to permit an agent to testify as to his opinion of his authority where called in question.-Keane v. Pittsburg Lead Mining Co. (Idaho) 60.

§ 471. Where the relation between parties was fixed by contract, held error to permit one of them to testify as to what his understanding of the matter was.-Keane v. Pittsburg Lead Mining Co. (Idaho) 60.

§ 471. Testimony as to the quantity of water required for proper irrigation of lands in a certain vicinity amounts only to opinion evidence. -Whited v. Cavin (Or.) 396.

$478. In proceedings for the appointment of a guardian for an alleged incompetent, held error to permit witnesses to give their opinions as to the ability of a person to manage his property and as to whether he is likely to be imposed on by others.-In re Coburn (Cal. App.) 924.

§ 501. Under Code Civ. Proc. § 1870, subd. 10, a person giving his opinion as to the mental sanity of another held required to give the reason on which the opinion is based.-In re Coburn (Cal. App.) 924.

(B) Subjects of Expert Testimony. § 508. Experts held properly permitted to testify as to the manner in which a river in controversy was created.-City of Los Angeles v. Hunter (Cal.) 755.

(C) Competency of Experts.

§ 5392. The engineer in charge of surveys for a railroad right of way is competent to testify as to the necessity for taking certain land for such right of way.-State v. Superior Court of Spokane County (Wash.) 639.

(D) Examination of Experts.

§ 553. A hypothetical question held objectionable as asking a witness to assume a recollection of all of the matters testified to by another witness.-City of Los Angeles v. Hunter (Cal.) 755.

$553. Hypothetical questions based on facts which the evidence tends to prove are proper.Dunkin v. City of Hoquiam (Wash.) 149.

XIII. EVIDENCE AT FORMER TRIAL OR IN OTHER PROCEEDING.

Undue influence in procuring will, see Wills, § 166.

Waiver of vendor's lien, see Vendor and Purchaser, § 266.

In particular civil actions or proceedings. See Habeas Corpus, § 85.

For compensation of sheriff or deputy, see SherFor injuries from gas, see Gas. § 20. iffs and Constables, § 74.

For injuries to passenger, see Carriers, § 318. For injuries to servant, see Master and Servant, § 276.

For loss of or injury to goods by carrier, see Carriers, 134.

For wages, see Master and Servant, § 80. For wrongful ejection of passenger, see Carriers, § 381.

For wrongful injunction, see Injunction. § 261. On bill or note, see Bills and Notes, § 523. To cancel obligations to building and loan association, see Building and Loan Associations, § 41.

§ 586. The testimony of a witness testifying to a negative held equal to the testimony of a witness testifying to the affirmative.Catlin v. Sheldon (Wash.) 828.

$588. Testimony of a witness that a flow of 17 inches of water per acre was necessary for the irrigation of certain lands was so obviously unreliable that it will not be accepted by the court, though undisputed.-Whited v. Čavin (Or.) 396.

§ 591. A party bringing out testimony of a witness by making the witness his own witness is bound by his statements, though they may be a conclusion of the witness.-Reclamation Dist. No. 70 v. Sherman (Cal. App.) 277.

EXAMINATION.

Of expert witnesses, see Evidence, § 553. Of witnesses in general, see Witnesses, §§ 269, 277.

EXCAVATIONS.

Liabilities of abutting owner for injuries from unguarded excavations in the street, see Municipal Corporations, § 808.

EXCEPTIONS.

Necessity for purpose of review, see Appeal and Error, &$ 248-273.

EXCEPTIONS, BILL OF.

§ 582. To reproduce testimony of deceased or absent witness, the court may permit_court stenographer to read his notes of such evidence, instead of requiring that they be transcribed and certified.-Wilmoth v. Wheaton (Kan.) 39. $582. Laws 1905, p. 810, c. 494, § 1, relating to stenographic notes of court reporters, does not restrict the use to be made of a stenographer's notes in a nisi prius trial to a writ- I. NATURE, FORM. AND CONTENTS ten transcript.-Wilmoth v. Wheaton (Kan.) 39.

XIV. WEIGHT AND SUFFICIENCY. Question of law or fact, see Trial, § 139.

As to particular facts or issues.

See Boundaries, § 37; Fraudulent Conveyances, S$ 295-299; Marriage, § 48; Partnership, § 52. Acceptance of option for purchase or sale of realty, see Vendor and Purchaser, § 44. Agency, see Principal and Agent, § 23. Assignment of lease, see Landlord and Tenant, $ 802.

Employment, see Master and Servant, § 6.

Taking exceptions at trial, see Criminal Law, § 693; Trial, §§ 90, 278.

IN GENERAL.

[blocks in formation]

the party seeking the settlement of a bill of exceptions presents the proposed bill and amendments to the trial judge on five days' notice to the adverse party, or delivers the same to the clerk or to the judge.-Girard v. McClernan (Mont.) 224.

EXCESSIVE DAMAGES.

See Damages, §§ 132, 140.

Ground for new trial, see New Trial, § 76.

EXCHANGES.

§ 7. An assignee of a seat in a stock exchange in an assignment to secure a debt due from the owner held barred from participating in an award made by the exchange based on claims of members and others duly filed against the owner.-Shannon v. Cheney (Cal.) 588.

§ 7. An assignment of a seat in a stock exchange to secure a debt due from the owner gives the assignee only the rights of the assignor subject to the rules of the exchange.Shannon v. Cheney (Cal.) 588.

§ 7. A seat in a stock exchange, so far as it is property, is subject to the rules of the exchange, and a sale thereof must be in subordination to such rules.-Shannon v. Cheney (Cal.) 588.

§ 14. An assignee of a seat in a stock exchange in an assignment to secure a debt due from the owner held not entitled to sue the exchange, or its president, for the debt.-Shannon v. Cheney (Cal.) 588.

§ 14. In a suit by an assignee of a seat in a stock exchange against the assignor, the exchange, and its president, the court held not authorized to enter a personal judgment against the president, where other claimants against the assignor were not made parties.-Shannon v. Cheney (Cal.) 588.

EXCISE.

Regulation of traffic in intoxicating liquors, see Intoxicating Liquors.

EXCUSABLE HOMICIDE.

See Homicide, §§ 116, 117.

EXCUSABLE NEGLECT.

Construction of statutory provision for relief from default caused by, see Action, § 66.

EXCUSE.

For default judgment, see Judgment, § 143.

EXECUTION.

See Attachment; Judicial Sales. Exemptions, see Homestead.

Of will, see Wills, '§ 108.

I. NATURE AND ESSENTIALS IN GENERAL.

§ 18. A joint judgment against tort-feasors may be enforced by execution against one; the only limitation being that but one satisfaction can be obtained.-Cole v. Roebling Const. Co. (Cal.) 255.

VII. SALE.

Assignment of certificates of sale as revocation of agency to collect judgment, see Principal and Agent, § 36.

EXECUTORS AND ADMINISTRATORS.
See Descent and Distribution; Wills.
Authority of executor of guardian to present his
account, see Guardian and Ward, § 139.
Courts of probate, see Courts, § 202.
Testamentary trustees, see Trusts.
Testimony as to transactions with decedents, see
Witnesses, §§ 159, 178.

II. APPOINTMENT, QUALIFICATION, AND TENURE.

§ 29. The appointment of an adminstrator of a surviving partnership by the probate court. cannot be collaterally attacked.-Thompson v. Parnell (Kan.) 502.

35. A petition for the appointment of an administrator held sufficient to secure the removal of a former administrator.-In re Koller's Estate (Mont.) 549.

that the person petitioning for the removal of § 35. Under Rev. Codes, § 7446, evidence an adminstrator and the appointment of himself had received a request from decedent's mother that petitioner be appointed held sufficient.-In re Koller's Estate (Mont.) 549. IV. COLLECTION AND MANAGEMENT OF ESTATE.

(A) In General.

§ 114. In an action to foreclose the lien on stock certificates brought against the administrator of the deceased assignor, the administratrix held not entitled to urge that a payment made by her should be applied on the instock which had been assigned to her subject to debtedness secured by one of the certificates of the indebtedness secured.-Beyer v. Bullock (Wash.) 155.

§ 114. An administratrix held estopped by her conduct to deny that property sold as property of the estate, which, in fact, was her individual property, belonged to the estate.-Carruthers v. Whitney (Wash.) 831.

(C) Personal Property.

§ 153. In an action by an administrator for conversion of personalty of decedent, where judgment was rendered for plaintiff, held error to direct that, if there was sufficient personalty to pay the debts and costs, the property should be returned to defendants.-Vaughan v. Browne (Kan.) 30.

VI. ALLOWANCE AND PAYMENT OF CLAIMS.

(B) Presentation and Allowance. § 229. That wards presented a claim for allowance against their guardian's executors did not affect their right to recover on such claims, though it changed their remedy.-Miller v. Ash (Cal.) 600.

VIII. SALES AND CONVEYANCES UNDER ORDER OF COURT.

(C) Sale.

§ 367. An administrator's sale of property not mortgaged to pay the deficiency on a mortgagee's claim held valid, in view of Act March 28, 1890 (Laws 1889-90, p. 82, § 3), though the procedure was not in accordance with Ballinger's Ann. Codes & St. § 6289 (Pierce's Code, & 2597), and involved irregularities.-Jones v. Seattle Brick & Tile Co. (Wash.) 238.

X. ACTIONS.

§ 431. Wards of a deceased guardian held not required to sue the guardian's executors for an accounting before suing them for money

« ForrigeFortsett »