2. Writ of prohibition will be issued only where there is no plain,
speedy and adequate remedy at law. Ducheneau v. Ireland, 108.
3. EXECUTION UPON DOCKETED JUDGMENT OF A JUSTICE OF THE
PEACE. Where a transcript of a judgment of a justice of the
peace was filed in the district court under section 784, code of
civil procedure, and execution issued thereon out of the district
court, and the judgment and execution were regular upon their
face, a writ of prohibition against officer from enforcing the ex-
ecution will not lie, the officer acting in accordance with his
legal authority. Ducheneau v. Ireland, 108.
4. ADEQUATE REMEDY AT LAW.-Where execution was issued as
above, upon an erroneous judgment of justice of the peace, the
remedy was by motion in the district court to quash the execu-
tion, and prohibition will not lie. Ducheneau v. Ireland, 108.
5. WHEN ISSUED. -Where a commissioner is proceeding to try a
cause, where he has jurisdiction of the subject matter, but not
jurisdiction of the persons, there is a plain, adequate and speedy
remedy at law by appeal or certiorari, and prohibition will not
lie. People v. Hills, 410.
6. WHEN IT LIES.-A writ of prohibition will lie against a commis-
sioner proceeding in such case as above to punish for contempt,
since appeal, certiorari or habeas corpus, is not an adequate and
speedy remedy. People v. Carrington, 531.
PROMISSORY NOTE. See NEGOTIABLE INSTRUMENTS, 1, 3.
PROVOCATION. See CRIMINAL LAW, 3.
PUBLIC LANDS. See EQUITY, 4.
CONGRESSIONAL GRANT. Congress by the act of July 1, 1862, grant-
ing certain lands to the Central Pacific Railroad Company of
California, granted the perfect legal title in praesenti, to all the
lands included in the grant, whether surveyed and selected or
not, provided the lands did not come within the exceptions.
Tarpey v. Salt Co., 494.
QUASHING INDICTMENT. See CRIMINAL LAW, 21.
QUIETING TITLE. See PLEADING, 4.
REAL ESTATE. See ARBITRATION.
RECEIVER. See ASSIGNMENT, 1; EQUITY, 3.
RECEIVER OF CORPORATION RIGHT TO TAKE POSSESSION OF PROP-
ERTY. The receiver's power to take possession of property, while
limited to such property as the corporation owned at the date of
the dissolution of the corporation, is not bounded by the rights
of the corporation at the date of dissolution, and he may attack
any assignment of the church corporation made prior to the dis-
solution, which was illegal as to third parties. United States v.
Church, 538.
RECOGNIZANCE. See BAIL BOND, 1, 4.
RECORD. See APPEAL, 2; PRACTICE, 2.
RECORD OF STATUTE. See EVIDENCE, 10.
REFORMATION. See DEED, 3.
REHEARING. See TITLE TO OFFICE.
1. A rehearing will not be granted when it apears that the errors as-
signed on petition was considered by the court and decided.
People v. Olsen, 87.
2. REHEARING DENIED. Petition for rehearing is a pleading and
should not be an argument. If points and authorities are sub-
mitted it should be in a separate instrument. Enright v. Grant,
400.
RANDS . BRAIN, 272; UNITED STATES r. SMITH, 273; PEOPLE ?.
CHALMERS, 274; PEOPLE T. TIDWELL, 88; MINING Co. v. JEN-
NINGS, 385; SWITZGABLE . WORSELDINE, 386; ENRIGHT r. GRANT,
400; FARREL v. PINGREE, 530.
REMEDY. See PROHIBITION, 4, 5, 6.
REMITTER. See NEW TRIAL, 3.
RENTS, ISSUES, AND PROFITS. See TRUST.
RESCISSION. See CONTRACT, 2, 3.
RISK. See MASTER AND SERVANT, 2.
CORRESPONDENCE WITH SAMPLE FINDING.-Where there was evi-
dence tending to show in an action for the price of brick delivered
that the pile of rejected brick had been examined, and that
over half the pile was of the quality of the examined brick, and
two of the bricks from the rejected pile were produced in court,
and found to be of the quality of brick to be delivered; held, that
a finding of the trial court that half of the rejected pile were of
the quality agreed to be delivered, is not so clearly unwarranted
by the evidence, as to demand a reversal of the judgment on the
ground that the evidence was insufficient to support the finding.
Mumford v. Sulphur Co., 476.
SEPARATE TRIAL. See CRIMINAL LAW, 19.
STATEMENT. See APPEAL, 2.
STATUTE, RECORD OF. See EVIDENCE, 10
STATUTE OF LIMITATIONS. See BOUNDARIES; EVIDENCE, 7.
1. Where a declaration of trust provided for the payment of the
money advanced out of the rents, issues and profits of a mine,
and further provided for the obtaining of the rents, issues and
profits, primarily, by working the mine, the indebtedness was
not due immediately, and the statute did not begin to run until
the trust was closed. Life Ins. Co. v. Gisborne, 319.
2. ACKNOWLEDGMENT. -Acknowledgment in writing of an open ac-
count already barred, and promise in writing to pay the same,
becomes a new promise in writing and will not be barred until
four years from date of new promise. Gruenberg v. Buhring,
STATUTORY CONSTRUCTION. See CONSTRUCTION; WITNESS.
SUPERSEDEAS. See APPEAL, 8.
SURETY. See BAIL BOND, 1, 3, 4; NEGOTIABLE INSTRUMENTS, 2, 3.
SWITCHMAN. See MASTER AND SERVANT, 2.
TITLE. See CORPORATION, 8; ARBITRATION.
TITLE OF JUDGE TO OFFICE.--The question whether one of the jus-
tices who sat in the hearing of a case upon appeal, but who dis-
sented from the decision, was legally a member of the court, will
not be examined upon a motion for a rehearing, no such question
having been raised before, and no facts being shown to warrant
the inquiry. People v. Tidwell, 88.
TRANSCRIPT. See APPEAL, 5, 6.
TRESPASS. See PLEADING, 1; EQUITY, 4.
TRIAL. See CRIMINAL LAW, 17, 18, 19, 20; JURY, UNLAWFUL CO-
HABITATION, 16.
INSTRUCTIONS-It is not error for the court to refuse to give proper
instructions requested, if in its own language it gives the sub-
stance of such instructions. Reddon v. Railway Co., 344.
TRUST. See Corporations, 10; Evidence, 8, 9; PLEADING, 3; Stat-
UTE OF LIMITATIONS.
DECLARATION OF TRUST-RENTS, ISSUES AND PROFITS.-A declaration
of trust given as security for sums of money advanced as purchase
money for mining property, and to be satisfied out of the rents,
issues and profits of the mine, without qualifying words, creates
a lien upon the property itself and it may be sold to satisfy the
lien. Life Ins. Co. v. Gisborne, 319.
TRUSTEE. See ASSIGNMENT, 2; TRUST.
ULTRA VIRES. See CORPORATIONS, 2.
UNLAWFUL COHABITATION. See BAIL BOND, 1; CRIMINAL
LAW, 25.
1. INSTRUCTION AS TO PURPOSE OF LAW.-An instruction that the law
aims at the unlawful example or the appearance, as well as the
actual continuance, of the polygamous relation correctly states
the law. United States v. Smith, 232.
2. CONTINUOUS OFFENCE.-Where the cohabitation is by the same
man continuously and uninterruptedly with the same women,
the defendant can be prosecuted but once for offense before in-
dictment; but where cohabitation is continued after indictment,
there can be a subsequent prosecution for that offense. United
States v. Eldredge, 161.
3. The crime of unlawful cohabitation is proved by showing that as
to the legal wife, she lives in defendant's vicinity and bears his
name, that he maintains and supports her household and visits
her for that purpose, the cohabitation with the polygamous wife
being admitted. United States v. Harris, 436.
4. EVIDENCE.-Proof of conduct of defendant towards the women
prior to the time laid in the indictment is admissible, as tending
to characterize the relation of defendant toward the women
named in the indictment during the time laid. United States v.
Smith, 232,
UNLAWFUL COHABITATION (Continued.)
5. EVIDENCE-CONFESSION.---On trial of defendant under an indict-
ment for unlawful cohabitation, where the evidence showed that
defendant had married the two women named in the indictment,
that one of the women was his lawful wife, and that he had never
been divorced from her, and that at the time of the alleged con-
fession he was living with the other woman, who was his polyg-
amous wife, a statement of defendant, that he would never give
it up, that the law against it was unconstitutional, and that he
had as much right. to decide upon it as the supreme court, was
admissible. United States v. Smith, 232.
6. INSTRUCTION. An instruction that the law aims at the wrongful
example of an apparent as well as the actual continuance of a
polygamous relation, without reference to what actually occurs
with the plural or polygamous wives is not error. United States
v. Peay, 263.
7. Under the Edmunds law against unlawful cohabitation, the gist
of the offense is not living ostensibly with more than one wife,
but the fact of such cohabitation, whether open or secret. United
States v. Peay, 263.
8. INSTRUCTION AS TO PRESUMPTION OF COHABITATION. An instruc-
tion that it is presumed that a man lives and cohabits with his
lawful wife, but that this presumption is a disputable one and
may be rebutted, and that the presumption of cohabitation is
stronger in the case of a lawful marriage, than in the case of an
unlawful marriage, correctly states the law. United States v.
Smith, 232.
9. PRESUMPTION AS TO LEGAL WIFE.-If a man visits his legal wife
while she lives in his vicinity and bears his name and her house-
hold is maintained by him, the presumption of law is conclusive
that the man visits the wife as her husband and in no other char-
acter. United States v. Harris, 436.
10. If a man has a legal wife living, the presumption of fact is that
he cohabits with her, but this is a disputable presumption,
which may be rebutted. But if a man having a legal wife living
makes habitual visits to her at her house, the presumption of law
is that he makes the visits as a husband, and he should not be
permitted to say that the visits were made by him in any charac-
ter other than as husband. United States v. Clark, 226.
11. SUFFICIENCY OF EVIDENCE.-Evidence that defendant cohabited
with the polygamous wife as a husband, and that he had been in
the house of his lawful wife and frequently around her house
and yard and had stated that he would not give it up, but that
he intended to live with his wives, is sufficient to convict for un-
lawful cohabitation. United States v. Smith, 232.
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