VII. PAYMENT OR PERFORMANCE
OF CONDITION, RELEASE,
AND SATISFACTION.

307 (Cal.App.) Where new note and mortgage were delivered without surrender of old note and acknowledged satisfaction of outstanding mortgage, the mortgagee's acceptance of the new note and mortgage amounted to an extinguishment of the prior mortgage as a valuable consideration for the new one.-Harding v. Dam, 173 P. 603.

X. FORECLOSURE BY ACTION. (B) Right to Foreclose and Defenses.

(Okl.) A mortgage on realty is not required to be in any particular form, and where instrument is intended to be a mortgage to secure a debt, and contains usual stipulations and hold instrument a mortgage.-Harn v. Missouri holds the legal title, and is such a party in inprovision for defeasance, court of equity will417 (Idaho) The assignee of duly recorded notes and mortgages as collateral security State Life Ins. Co., 173 P. 214. terest that he may foreclose in his own name. -Moore v. Boise Land & Orchard Co., 173 P. 117.

(D) Validity.

78 (Utah) In a suit to foreclose a mort-419 (Or.) Laws 1917, p. 515, § 1, creating gage, wherein defendant set up fraud practiced upon him by his codefendant, plaintiff's a moratorium, does not apply to one enlisting recovery cannot be defeated by such fraud in the Oregon State Guard, whose only duty is where he was not a party thereto.-Shafer v. to guard shipyards and other places of that Killpack, 173 P. 948. character within the state.-Gearin v. Fleckenstein, 173 P. 569.

III. CONSTRUCTION AND OPERA

TION.

(D) Lien and Priority. 15(1) (Colo.) Innocent purchaser of land for value has prior rights over mortgagee, whose mortgage, through error or negligence, did not cover land.-Wedman v. Carpenter, 173 P. 57.

153 (Okl.) Without proof that an investment company, making a loan upon the security of a mortgage, had knowledge of facts which, if followed, would have disclosed a guardian's fraud in a prior sale of his ward's lands, it was reversible error to order such mortgage canceled.-F. B. Collins Inv. Co. v. Waide, 173 P. $35.

171 (5) (Colo.) Recorded deed of trust is constructive notice only as to lands described therein, and none other.-Wedman v. Carpenter, 173 P. 57.

186(5) (Okl.) Evidence held not to support a conclusion that investment company loaning upon a mortgage had such knowledge of facts as should have put it upon inquiry, which, if followed, would have informed it of fraud in former sale of property by a minor's guardian. -F. B. Collins Inv. Co. v. Waide, 173 P. 835.

IV. RIGHTS AND LIABILITIES OF
PARTIES.

a

(I) Judgment or Decree and Execution. 499 (Or.) L. O. L. § 553, relating to counter undertakings on stay of execution, applies to execution issued to enforce decrees of foreclosure.-Gearin v. Fleckenstein, 173 P. 569.

(J) Sale.

ty mortgage ordered a sale "according to law," 510(4) (Okl.) Where decree foreclosing realand order of sale provided that premises "be advertised and sold according to law," the publication required was that provided in Rev. Laws 1910, § 5166.-Johnson v. Taylor, 173 P. 1039.

In foreclosure sale made on order of sale requiring publication under Rev. Laws 1910, § 5166, the notice of sale must be first published at least 30 days before day of sale, and continued in successive issues to day of sale.-Id.

529(10) (Cal.App.) Notwithstanding the testimony of one witness that the mortgaged property was sold at an inadequate price, evidence including the fact that it was sold at a public and advertised execution sale held sufficient proof of sale for a fair and adequate price.Harding v. Dam, 173 P. 604.

XI. REDEMPTION.

601 (Wash.) Where mortgagors, instead of 200(3) (Utah) Where proceeding at law to redeem from foreclosure, mortgagee under brought suit in equity for merchantable timan invalid mortgage paid taxes and interest on a prior incumbrance, the property will not be ber cut during redemption period and to rereleased from the lien for the taxes and in-deem, they are not entitled to treble damages

terest in a suit against the mortgagor for misappropriation of funds.-Utah State Building & Loan Ass'n v. Perkins, 173 P. 950.

under Rem. Code 1915, §§ 939, 940, but en

titled to redeem on payment of difference in

value of timber and amount due on foreclosure.-Cogswell v. Brown, 173 P. 623.

VI. TRANSFER OF PROPERTY MORT-611 (Wash.) Gutting and removing during
GAGED OR OF EQUITY OF
REDEMPTION.

280 (4) (Okl.) A grantee of mortgaged realty who assumes payment of mortgage is liable to mortgagor only for the amount secured by the

redemption period timber for commercial purposes would be "waste"; therefore, conceding that conversion is neither "rents" nor "profits," within Rem. Code 1915, § 600, suit for an accounting and to redeem would lie against as

signee of certificate of sale before expiration of redemption period, although there had been no tender of amount due on foreclosure, in view of section 601, as to restraining waste; method provided by section 594 et seq. for redemption not being exclusive.-Cogswell v. Brown, 173 P. 623.

MOTIONS.

See Appeal and Error,

237, 520; Judgment, 388; Pleading, 345-367; Trial,

89, 90.

MOTIVE.

See Criminal Law, 371.

that defendant was driving on the wrong side of the street and at an unlawful speed, and by title pleaded ordinance prohibiting speed of over 20 miles per hour, made a complaint good against motions to strike or make more definite and certain, since Rem. Code 1915, § 291, requires judicial notice to be taken of terms of an ordinance pleaded by title.-Peterson v. Pallis, 173 P. 1021.

V. OFFICERS, AGENTS, AND EM-
PLOYÉS.

(A) Municipal Officers in General.
156 (Okl.) Under charter requiring the
mayor to see that ordinances are enforced, his
willful failure to enforce ordinances prohibiting
140; Theaters and Shows, removal.-Wooden v. State, 173 P. 829.
liquor traffic and gambling was ground for his

MOVING PICTURES.

See Mandamus, ~~~1.

29(4) (Kan.) Under Gen. St. 1915, § 1041, property consisting of one body of land may be annexed to a city of the first class, if the whole of tract thus annexed is contiguous to city, although parts of tract may be owned by different persons.-Mason v. Kansas City, 173 P. 535.

33(2) (Kan.) Laws 1913, c. 104, § 1 (Gen. St. 1915, § 1042), held to cure any defects in ordinance for the annexation of land to Kansas City.-Mason v. Kansas City, 173 P. 535.

33(10) (Kan.) Validity of proceedings of city officers under statutory authority to annex tract of land to city can be questioned only in a direct proceeding by the state by proper public officers.-Mason v. Kansas City, 173

535.

II. GOVERNMENTAL POWERS AND
FUNCTIONS IN GENERAL.

VII. CONTRACTS IN GENERAL. 226 (Mont.) A city cannot bind its inhabitants by a contract unreasonable in its terms. State v. Billings Gas Co., 173 P. 799.

250 (Utah) Where contractor agreed to build a conduit and at his own expense to construct a flume to care for the waters during construction and "repair any and all damages caused by high water or from any other cause or source," he did not undertake to repair damages caused by the negligence of the city flow down the stream bed.-Moran v. Salt Lake in permitting the reservoir waters suddenly to City, 173 P. 702.

IX. PUBLIC IMPROVEMENTS. (A) Power to Make Improvements Grant Aid Therefor.

or

266 (Cal.App.) The Improvement Act (St. 1911, p. 730, relating alone to improvement of streets and places within incorporated cities, was not repealed by implication by Public Utilities Act (St. 1913, pp. 421, 429), covering the acquisition of public utilities.-Park v. Pacific Fire Extinguisher Co., 173 P. 615. P.272 (Cal.App.) Where a city has not provided a complete procedure for the creation of a street lighting system as empowered to do by its charter, it may proceed under Improvement Act (St. 1911, p. 730), providing for street Pacific Fire Extinimprovements.-Park v. guisher Co., 173 P. 615.

57 (Mont.) A city has only such authority as is conferred upon it by express legislative declaration, or by necessary implication.-279 (Mont.) In view of Rev. Codes, § 3291, State v. Billings Gas Co., 173 P. 799. a city could not grant franchise for supplying inhabitants with illuminating gas until application for privilege had been submitted and approved by electors.-State v. Billings Gas Co., 173 P. 799.

Since a city exercises only limited delegated authority, any one claiming benefit of city's act has burden of showing that it acted within scope of its authority.-Id.

58 (Mont.) Any doubt as to existence of a particular power will be resolved against a city, and right to exercise such power denied.State v. Billings Gas Co., 173 P. 799.

281(1) (Cal.App.) In a proceeding for street improvements in a city of the sixth class under Improvement Act, §§ 12, 13, 18, providing time after notice of award of paving within which lot owners may contract to construct the same

IV. PROCEEDINGS OF COUNCIL OR themselves and that the superintendent of OTHER GOVERNING BODY.

(B) Ordinances and By-Laws in General.

108 (Cal.App.) Under St. Ex. Sess. 1911, p. 131 (Deering's Gen. Laws 1915, Act 1624), a city clerk is required personally to examine records to ascertain whether initiative petition is signed by requisite number of qualified electors; otherwise he has no jurisdiction to make certificate.-Gabbert v. Perry, 173 P. 412.

120 (Cal.App.) Ordinance of city of San Francisco, providing sidewalks should not be washed between 8 a. m. and 6 p. m., was designed to obviate inconvenience, annoyance, and danger to pedestrians during hours when streets were most in use, as well as to conserve water supply.-Della Mora v. Favilla, 173 P. 770.

122(1) (Wash.) Plaintiff, injured in collision between automobile and motorcycle, who alleged

streets may make all contracts for improvements, a notice given to trustees confers no rights upon the property owners.-Wentland v. Clark & Henery Const. Co., 173 P. 480; Lillie v. Same, Id. 483.

San Francisco 28(1) (Cal.App.) Under City Charter, art. 5, person actually performing work under a private contract for grading streets need not have a permit; it being sufficient if a permit has been issued to some one. -Flinn v. Zion, 173 P. 602.

330(4) (Or.) That city recorder, on filing by the patentee, of a license for use of its patented gravel bitulithic pavement, put paper where it was not readily found, and indexed it so as not to assist in search for it, does not warrant ignoring it in determining whether principle of competitive bidding was violated in city's contract for improvement.-Wagoner v. City of La Grande, 173 P. 305.

C. Harris Oil Co. v. Standard Construction &
Development Co., Id. 83.

373(3) (Cal.) Where a contract for street
improvements provided that
an assessment
should be levied after two blocks of the im-
provement was completed, a materialman, who
but had not filed his claim therefor within 30
had furnished material used in the two blocks,
days of the completion of such two blocks, was
not deprived of his remedy, where his claim was
filed within 30 days after the completion of the
Accident & Liability Co., 173 P. 81.
total improvement.-Hub Hardware Co. v. Ætna

(E) Assessments for Benefits, and Special Taxes.

408(1) (Kan.) Under Gen. St. 1915, § 1705, placing burden of assessment for paving, and section 1764, relating to procedure in street improvements, expressions indicating property, are not delimitations of assessment areas, and refer to abutting assessment districts created by section 1705.-Glasscock v. City of Larned, 173 P. 302.

streets, it was immaterial that the plans accompanying the specifications were in error as to the exact foot frontage of some owners, particularly where no appeal therefrom, under St. 1911, p. 745, § 26, was taken.-Wentland v. Clark & Henery Const. Co., 173 P. 480; Lillie v. Same, Id. 483.

339(4) (Or.) It was within discretion of city council to let, in one contract for street improvement, work of excavation, drainage, and curbing, all incidental to paving.-Wagoner v.444 (Cal.App.) Where the specifications and City of La Grande, 173 P. 305. the resolution of intention provided for im347(1) (Cal.) A bond for street improve-provement of a street between certain other ments, executed by a contractor and a surety company, held an independent contract, whereby the surety agreed to pay for labor and materials furnished the contractor in doing certain street work, and not for the faithful performance of the contract to do such work. Los Angeles Stone Co. v. National Surety Co., 173 P. 79; C. C. Harris Oil Co. v. Standard Construction & Development Co., Id. 83, The right of a materialman to against a surety under a bond to pay for materecover rials and labor held not affected because the materials were furnished after an unauthorized extension of the contract.-Id.

488, 489(1) (Or.) Property owners who applied to pay street improvement liens in annual 3245, expressly waived in their applications irinstallments, and, as required by L. O. L. § regularity or defect, were concluded thereby.Wagoner v. City of La Grande, 173 P. 305.

lic improvements in a city of the first class are 491 (Kan.) If special assessments for pubattacked, they must be attacked within 30 days from the time when the amounts due are ascertained, as required by Gen. St. 1915, § 1217.Mason v. Kansas City, 173 P. 535.

347(1) (Cal.) That a city has failed to establish an official street grade, as it was authorized to do by Improvement Act 1911, does not release the liability of the surety on a contractor's bond to pay for material and labor used in the improvement, since the inva-491 (Or.) Where objections to municipal lidity of the contract with the city does not involve the liability of the surety.-Hub Hardware Co. v. Etna Accident & Liability Co.,

173 P. 81.

That materials have been furnished and used for a street improvement after the expiration of the time for completing the contract does not relieve a surety on a bond for the payment of material and labor used, the surety's liability being independent of the contract between the contractor and the city.-Id.

347(1) (Cal.) Tubing at the end of which was attached a knife, used solely as an appliance in perforating the casing of a well, which the contractor retained unimpaired save wear and tear, was not, but rental and transportation of tools used were, "materials or supplies" within St. 1897, p. 201, relating to contractors' bonds on public improvements.-Sherman v. American Surety Co. of New York, 173 P. 161.

street improvement involved questions of fact, them by council.-Wagoner v. City of La record must affirmatively show finding upon Grande, 173 P. 305.

495 (Or.) In suit to enjoin enforcement of municipal liens imposed to pay for street improvement, Supreme Court has no jurisdiction to review acts of city council in determining question of benefits, and whether improvement is out of proportion to value of objectors' property.-Wagoner v. City of La Grande, 173 P. 305.

513(5) (Okl.) Under Rev. Laws 1910, § 644, an action to enjoin assessments levied to pay bonds issued under the paving act, on ground that the material furnished was not that petitioned for by property owners, where city properly acquired jurisdiction to make improvement, must be commenced within 60 days from Warner-Quinlan Asphalt Co. v. Smith, 173 P. passage of ordinance, making final assessment. 516.

347 (2) (Cal.) A bond given by a contractor for municipal improvement, specifying, as St. 1911, p. 738, expressly provides, that the principal and surety are bound to any and all per-514(1) (Or.) The only fraud which will desons, companies, or corporations who perform feat reassessment for street improvement is labor on or furnish material to be used in the fraud of city council in reassessment proceedimprovement, inures to the benefit of the con- ing-Wagoner v. City of La Grande, 173 P. tractor's assignee.-Hub Hardware Co. 305. V. Etna Accident & Liability Co., 173 P. 81.

353 (Cal.) A street improvement contract is assignable by the contractor.-Hub Hardware Co. v. Etna Accident & Liability Co., 173 P. 81.

The council's lack of jurisdiction in original defeat reassessment therefor.-Id. proceeding for street improvement will not

der void contract will not preclude reassessThat street improvement work was done un373(1) (Cal.) No lien for materials or labor-Id. ment of property where statute authorizes it. attaches to public improvements.-Los Angeles | Stone Co. v. National Surety Co., 173 P. 79; C. ment district for street improvement prior to Failure of council of city to create assess

performance of work did not preclude reas- by company.-City of Portland v. Public Servsessment under city charter to charge proper-ice Commission of Oregon, 173 P. 1178. ty benefited with portion of cost commensurate with special benefits.-Id.

514(4) (Or.) Provision of charter of 1915 of city of La Grande as to reassessments for street improvements, held referable only to provision of same charter that if owners of 55 per cent. of property object commission shall be ousted of jurisdiction for six months, and without application to remonstrances filed before amendment of charter in 1913, when it did not make remonstrance effectual to defeat improvement.-Wagoner v. City of La Grande, 173 P. 305.

Voters of city, in amending charter to give city power to make reassessments for street improvements, could make such powers retroactive.-Id.

703(1) (Wash.) License to operate motor vehicles for hire, taken out under Laws 1915, p. 385, does not permit carrying of passengers in motor propelled vehicles in cities of first class; to secure such privilege bond must be furnished and permit obtained pursuant to Laws 1915, p. 227.-Puget Sound Traction, Light & Power Co. v. Grassmeyer, 173 P. 504. Laws 1915, p. 227, requiring bond as condition to operation of motor vehicles carrying passengers in cities of first class, is not inapplicable to jitney bus operators, who do not run on fixed routes, who charge different rates for different distances, and who carry passengers across boundaries of city.-Id.

Permit to jitney bus operators, from city of first class, to operate, under ordinance, does not authorize them to operate in city without having filed bond required by Laws 1915, p. 227, as condition to operation of motor vehicles carry

Remedial legislation, as amendment to city's charter empowering it to make reassessments for street improvements, must be construed so as to effectuate purpose of electors in adopt-ing passengers in cities of first class.-Id. ing it. Id.

514(7) (Kan.) Where special assessments for public improvements in a city of the first class are levied on property not liable, and are enjoined as to that property, the assessments under Gen. St. 1915, § 1216, may be relevied on property liable therefor, and must be levied under section 1231 on that property in each block separately.-Mason v. Kansas City, 173 P. 535. 519(1) (Cal.App.) Under Improvement Act, a lien exists before the making of the record by the superintendent of streets, and an error in the record stating the contract was to be completed in 80 days, when the original contract on file called for 180 days, does not affect the lien.-Wentland v. Clark & Henery Const. Co., 173 P. 480; Lillie v. Same, Id. 483.

X. POLICE POWER AND REGULA-
TIONS.

That it is impossible for jitney bus operator, in city of first class, to procure bond required by Laws 1915, p. 227, to be filed as condition to operation of motor vehicles carrying passengers in cities of first class, is not defense to operator in suit against him by street railway specially aggrieved.-Id.

705(10) (Cal.App.) A pedestrian who crosses a crowded street at 5 o'clock in the afternoon when traffic is heavy, looking straight ahead without glancing to either side, and is struck by an automobile of which he is oblivious until moment of collision, is negligent.-Mayer v. Anderson, 173 P. 174.

In a pedestrian's action for injury while crossing a public street, due to collision with defendant's automobile, where there was evidence that the chauffeur did not discover plaintiff's peril in time to avoid the accident, and the chauffeur's negligence, if any, being contemporaneous with plaintiff's continuing negligence, the doctrine of last clear chance held not ap

(A) Delegation, Extent, and Exercise of plicable.-Id.

Power.

590 (Mont.) Regulation of rates of public utilities being distinctly a legislative function of state, courts will not indulge presumption that surrender of such power has been made unless legislative intention is expressed in clear and unmistakable language, or necessarily implied from powers expressly given, and all doubts will be resolved in favor of continuance of power.-State v. Billings Gas Co., 173 P. 799.

593 (Mont.) Where city has entered into a binding contract with a public utility, fixing rates for a definite period, it surrenders for duration of contract its governmental function of rate regulation so far as altering contract rates is concerned.-State v. Billings Gas Co., 173 P. 799.

619 (Mont.) There is a well-defined distinction between authority of a city to regulate public utility rates from time to time and authority to fix rates by contract for a definite period. State v. Billings Gas Co., 173 P. 799.

XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.

(A) Streets and Other Public Ways.
680, 681(1) (Or.) A city's right to grant
franchise to street railway was as an agent of
the state.-City of Portland v. Public Service
Commission of Oregon, 173 P. 1178.

683(1) (Or.) Under Portland City Charter, $94, giving city council the right to grant a franchise, the franchise does not become operative until grantee has accepted: the word

706(6) (Wash.) It is not negligence per se to drive an automobile on the left-hand side of a city street.-Peterson v. Pallis, 173 P. 1021.

706(8) (Wash.) Where defendant driving an automobile turned from the right-hand to the left-hand side of the road to avoid other vehicles, it was erroneous to instruct to find for plaintiff "if defendant was driving on the wrong side of the road."-Peterson v. Pallis, 173 P. 1021.

XII. TORTS.

(A) Exercise of Governmental and

Cor

porate Powers in General. 741(1) (Utah) Since under Comp. Laws 1907, § 286, stating the powers of the board of public works, such board has no power to consider or settle damage claims for the city's on the negligence, notice of claims served board of public works was not binding upon the city.-Moran v. Salt Lake City, 173 P. 702.

741(2) (Utah) Letter to mayor and city council demanding payment for damages due to city's negligence in releasing water from reservoir, and statement made to board of public works demanding payment, were insufficient to comply with Comp. Laws 1907, § 312, as to filing claims for damages due to city's negligence with the city council.-Moran v. Salt Lake City, 173 P. 702.

846 (Cal.App.) Property owner held entitled to enjoin city from maintaining paved street at such level as to drain surface waters onto his land.-Farrell v. City of Ontario, 173

(A) Power to Incur Indebtedness and Ex-City and County of San Francisco, art. 3, c. 1,

1000 (5) (Okl.) Petition, in suit to enjoin 907 (Kan.) Laws 1913, c. 75, relating to sale of refunding bonds, merely alleging that municipal bond issues for construction of comindebtedness refunded was incurred in violabined water and electric light plants, and Laws tion of Const. art. 10, § 26, and Laws 19101913, c. 123, both purporting to amend an earli-11, c. 80, does not state facts sufficient to coner statute, are to be construed together, so stitute a cause of action.-Hume v. Wyand, 173 that the present law is Laws 1913, c. 123, as P. 813. affected by Laws 1913, c. 75.-Loe v. City of Palco, 173 P. 299.

See Insurance, 773-815.
MUTUAL BENEFIT INSURANCE.
NATIONAL CONSCRIPTION ACT.
See Attorney and Client, 39.

NAVIGABLE WATERS.

III. RIPARIAN AND LITTORAL 46(2) (Wash.) Contract RIGHTS. whereby maintain waterway thereon held to were to purchase tidelands from the state and parties cross-easements, each party being entitled to create lege on his own side merely.-Pioneer Sand & use entire waterway, but with dockage priviGravel Co. v. Seattle Construction & Dry Dock Co., 173 P. 50S.

NECESSARIES.

See Husband and Wife, 19.

NEGLIGENCE.

See Carriers, 280-347; Death; Electricity; Gas, 142; Master and Servant, 87-417; Municipal Corporations, 705, 706; Physicians and Surgeons, 14-18; Railroads. ~~222-443; Street Railroads,

958 (Cal.) The charter of the city and county of San Francisco authorizing the board I. ACTS OR OMISSIONS CONSTITUT

6 (Cal.App.) The violation of a city ordi(A) Personal Conduct in General. nance in and of itself constitutes and establishes negligence.-Della Mora v, Favilla, 173 P. 770. (B) Dangerous Substances, Machinery,

958 (Wash.) If Rem. Code 1915, § 7653, as to tax levies in cities of second class, does not provide a limit for tax levy, and section 5131 does, it cannot be said that there is a conflict within rule that, where there is a conflict, stat

and Other Instrumentalities. 21 (Wash.) Where, according to custom, a lumber company burned waste when wind was