(Stat. of 1566, 198) does not sanction a careless or negligent exercise of the privilege conferred by it. Mandlebaum v. Bussell, 958.

4. IDEM-DAMAGES.--In a proceeding by appraisement for damages naturally and necessarily resulting from the acts authorized by the act, it is unnecessary to show carelessness or negligence. I.

5. IDEM-CONSTITUTIONAL.-The act is not unconstitutional on account of providing a special mode, by appraisement, of recovering damages for injuries and thereby depriving the injured party of a trial by jury. Id. See ABATEMENT, 1; ACTIONS, 2; APPEAL, 6; FIXTURES, 3, 4; NEGLIGENCE, 1; PLEADING, 2, 3.

DEADLY WEAPON.

See ASSAULT, 1; CRIMINAL LAW, 14; INSTRUCTIONS, 16.

DEED.

1. DEED-HOW CONSTRUED.-Parties usually describe what is intended to be granted in the granting clause of the deed. And courts should not interpret deeds so as to carry more than is mentioned in that clause, unless the intent to carry more is clearly shown in other portions of the deed. McCurdy v. Alpha G. & S. M. Co., 24.

2. IDEM.-An explanatory or habendum clause in a deed should not be so interpreted as to be repuguant to the granting clause, especially when there is not necessarily any such conflict. Id.

3. IDEM.--A deed may be interpreted by the aid of surrounding circumstances, which are known to, and understood by the contracting parties. Id.

4. IDEM-MUST BE CONSTRUED BY THE COCET.-Where there is no dispute as to the facts, it is for the court, not the jury, to interpret written contracts. Id.

5. DEED-INTEREST TO BE CONVEYED.-The phrase: "The interest herein intended to be conveyed," commented upon and explained. Id. 32. 6. IDEM-MEANING OF WORD "ALSO."-The word also implies something in addition to what has gone before. Id.

7. TAX DEED-WHAN MAY BE REJECTED.-A tax deed which purports to convey the entire fee of the United States land, unaccompanied with any proof that any one ever had a possessory claim on the land, could convey nothing, and was therefore properly rejected by the court below. Wright v. Cradiebaugh, 310. •

8. TAX DEED AS PROOF OF TITLE.-Under the revenue act of 1865, section 36, a tax deed, admitted to have been executed by the tax collector, was offered as of itself conclusive evilence of title: Ieid, not sufficient without proof of a judgment and order of sale. Bolan v. Bolan, 644. 9. RECITALS OF JUDGMENT IN TAX DEED. The recital of a judgment in a tax deed is a mere assertion by the tax collector, and can no more prove the existence of the judgment than the assertion of any other person. Id. 10. A DEED ABSOLUTE ON ITS FACE MAY BE SHOWN TO BE A MORTGAGE.-A deed absolute on its face, if clearly shown to have been given as security for a loan, will be treated as a mortgage in equity, and a reconveyance decreed to the debtor upon payment of the debt. Bingham v. Thompson, 697.

11. SUFFICIENCY OF SHERIFF'S DEED.-If the recitals of a sheriff's deed aro sufficient to show that he is acting in his official character and by due authority of law, it becomes a good deed upon being signed and delivered without reference to acknowledgment. Smith, Claimant of Town Site, 718.

12. ACKNOWLEDGMENT OF SHERIFF'S DEED.-The failure of an acknowledgment of a sheriff's deed, which is otherwise sufficient, to show that he acknowledged it as sheriff, does not render it invalid, for the reason that the deed is good without acknowledgment. Id.

See ALTERATION, 1; ESTATES OF DECEASED PERSONS, 8; EVIDENCE, 7; MORTGAGE, 9, 12, 13; PAROL EVIDENCE, 2, 5; Sheriff, 2.

DEFAULT.

1. RELIEF FROM DEFAULT-APPLICATION WHERE MADE.-When a default is improperly taken, the defendant ought. if an opportunity is presented during the term at which it was taken, to apply to the court below for relief. Kidd v. Four-Twenty M. Co., 346.

2. OPENING DEFAULT.-Courts should be liberal in setting aside defaults, when it appears that the party defaulted has a good defense, and has been guilty only of carelessness and inattention, without willful or fraudulent delay. Howe v. Coldren, 662.

3. AFFIDAVIT OF MERITS.-An affidavit of merits, which merely states that defendant has a good, legal and meritorious defense, is certainly very positive, but not very satisfactory. Id.

4. WHAT AFFIDAVITS OF MERITS SHOULD STATE.-An affidavit of merits which shows that affiant has fully and fairly stated the facts of the case to his counsel, and that such counsel has advised him that he has a good, legal and meritorious defense, will ordinarily be sufficient, without setting forth the facts constituting the defense. Id.

5. AFFIDAVIT OF MERITS BY ATTORNEY.--An affidavit of merits by the attorney in a cause, stating that in his opinion his client has a meritorious defense, will ordinarily be sufficient, if it appear that the attorney is familiar with the facts of the case. Id.

6. JUDGMENT BY DEFAULT--INEXCUSABLE NEGLECT.--The facts set out in defendant's affidavit reviewed by the court: Held, a case of inexcusable negligence, and that the refusal of the court below to open the default and judgment was proper. Johnson, J., dissenting. Harper v. Mallory, 878.

7. IDEM.—Пlowe v. Coldren, ante 171, was correctly decided; but the opinion contains many dieta on the subject of defaults which are not applicable to the facts involved therein, and are therefore not authority. Id. See APPEAL, 1; SUMMONS, 1; Taxes, 21.

DEFECT.

See VERDICT, 2.

DEFINITIONS.

See DUE PROCESS OF LAW, 1; FIXTURES, 1; ROAD, 1.

DELIVERY.

See LIMITATIONS, 2; MORTGAGE, 6; STATUTE OF FRAUDS, 2, 3.

DEMAND.

1. DEMAND UPON TRUSTEE, WHEN NECESSARY.-When a person takes a title in his own name at the request of another, who furnishes the consideration, the former has the right to presume that he is to hold it until a demand is made upon him for it. White v. Sheldon, 739.

2. DEMAND, ITS PURPOSE IN TROVER AND REPLEVIN.-The only purpose of proving a demand in the actions of trover and replevin, is to show the defendant's possession wrongful. Whitman G. & S. M. Co. v. Tritle, 917. 3. IDEM FOR PERSONAL PROPERTY UNNECESSARY.-Where the owner of personal property does not part with it voluntarily, but it is tortiously taken from his possession, or any act is done which makes the possession of the person having it wrongful, no demand is necessary to be shown to entitle the owner to a recovery of it. Id.

4. IDEM-IN ACTION TO RECOVER VALUE OF PERSONAL PROPERTY.—If no demand be necessary in an action to recover certain specific personal property, no demand is necessary in an action brought to recover its value only. Id.

5. ACTION FOR VALUE OF WOOD CUT AND SOLD BY TRESPASSERS.-Where trespassers cut wood on lands belonging to plaintiff, and sold it to defendants, who were bona fide purchasers: Held, that no previous demand was requisite to sustain an action for the recovery of the wood or its value. Id.

See ASSESSOR, 7; Replevin, 1, 2.

DEMURRER.

1. NO DEMURrer for Want OF PLAINTIFF.-A demurrer for "defect of parties plaintiff," or "that plaintiff has not legal capacity to sue," will not reach the defect of a proceeding in such a name. Mexican Mill Co. v. Yellow Jacket S. M. Co., 553.

See APPEAL, 9, 10; PLEADINGS, 2, 3.

DEPOSITION.

1. DEPOSITION-EFFECT OF STIPULATION.-Where the parties to a suit agree that a deposition may be taken at a certain place, during a certain month before T., a notary public in another State, the deposition certified by T., made under his official seal, as a notary, may be read by either party without other proof that T. was a notary when the deposition was taken. The seal is prima facie evidence of his official character. Johnson, J., dissenting. Sargent v. Collins, 231.

DILIGENCE.

1. DUE DILIGENCE AS A QUESTION OF LAW.-Due diligence is sufficiently clearly defined to enable courts to determine whether any given state of facts is sufficient to constitute it or not. Ophir S. M. Co. v. Carpenter,

946.

See WATER RIGHTS, 5, 6, 7.

DISCRETION.

See VENUE, 3.

DIVORCE.

1. Extreme CRUELTY.-The acts or character of treatment which will amount
to extreme cruelty sufficient to constitute a ground of divorce, must in
a great measure depend on the character of the respective parties, and
the peculiar circumstances of each case. Reed v. Reed, 836.

2. IDEM-WITHOUT PERSONAL VIOLENCE.-There may be extreme cruelty with-
out the slightest violence; if it appear probable that the life of one of
the parties will be rendered miserable by any character of misconduct
on the part of the other, although no personal violence be apprehended,
a separation should be decreed. Id.

3. IDEM SINGLE ACTS OF VIOLENCE.-A mere act of violence, where there is
no apprehension of its repetition, and which is the result of rashness
rather than malignity, does not furnish a ground of divorce on the
ground of extreme cruelty. Id.

4. PROVOCATION OF VIOLENCE.-A divorce will not be granted on the ground
of extreme cruelty where it appears that the complaining party has will-
fully provoked the violence or misconduct complained of, unless such
violence greatly exceeds the provocation. Id.

5. DISPOSITION OF COMMON PROPERTY ON DIVORCE.-In an action for divorce
for extreme cruelty, where nothing is said in the pleading about the dis-
position of the common property, it is error to award it at all to one of
the parties. Howe v. Howe, 898.

See ALIMONY, 1.

DUE PROCESS OF LAW.

1. "DUE PROCESS of Law.”—“Due process of law” requires that a party
shall be properly brought into court, and when there shall have a right
to set up any lawful defense to any proceeding against him. The legis-
lature, under pretense of regulating pleading, cannot deprive a party of
substantial rights. Wright v. Cradlebaugh, 310.

EJECTMENT.

1. POSSESSION NECESSARY TO MAINTAIN EJECTMENT.- A settler on public
land, if ousted after the lapse of reasonable time within which to im-
prove it, can recover against the person in possession only by showing
an actual notorious prior possession. Staininger v. Andrews, 567.
2. SANKEY U. NOYES (1 Nev. 68), APPROVED as to possession of public land
required to maintain ejectment. Id.

3. REASONABLE DILIGENCE IN TAKING ACTUAL POSSESSION.-

A locator upon

public land, who shows that he first entered upon it, marked out the
boundaries, and diligently proceeded, or diligently made preparations,
to do such acts as were necessary to constitute an actual possession,
will be entitled, even without showing an actual possession, to recover
against a person subsequently entering. Id.

4. QUESTION OF FACT.-The question as to whether a settler on public land
has proceeded with reasonable diligence to follow up his location with
the necessary improvements, so as to recover against a subsequent
possessor, is a question of fact for the jury. Id.

5. PRIOR POSSESSION-QUESTION OF FACT.-In ejectment for land, on the
ground of prior possession, if there is some evidence tending to prove

acts of appropriate domain, its sufficiency is a question of fact for the jury, and not one of law for the court to decide. Sharon v. Davidson, 855.

6. INSUFFICIENCY OF EVIDENCE-NONSUIT.-It is error to grant a nonsuit on the ground of insufficiency of the evidence to show prior possession, where there is some evidence tending to show such prior possession. Id.

See JUDGMENT, 4; TENANT IN COMMON, 1.

ELECTION.

See CORPORATIONS, 4, 9, 10, 11, 12; Mandamus, 13, 14, 15, 18.

EQUITY.

1. EQUITY CASES-DECREE OF APPELLATE COURT.-In an equity case, this court may order the proper decree to be entered in the court below, without the formality of a new trial. Feusier v. Sneath, 106.

2. IDEM-CONFLICTING EVIDENCE.-The rule that an appellate court will not disturb the judgment of a nisi prius court founded on the verdict of a jury where there is conflicting testimony, has no application to chancery cases tried without a jury. Id.

3. EQUITY CASE BEFORE JURY.-If an equity case is treated as an ordinary action at law, and submitted to a jury as such, and the court considers itself bound and controlled by the verdict as in an action at law, each party has the same rights with respect to instructions as if it were a case at law. Van Vleet v. Olin, 592.

4. NO EQUITABLE INTERFERENCE WHERE REDRESS AT Law ADEQUATE.-When there is a complete and adequate remedy at law, affording full redress, equity will not interfere. Sherman v. Clark, 632.

5. EQUITIES OF CESTUI QUE TRUST.--Where there is a purchase of real estate from the legal owner and no consideration is paid, or where the property passes in payment of or as a security for a pre-existing debt, the grantee takes subject to all existent equities against the grantor. Sime v. Howard, 899.

6. MERGER NOT FAVORED IN EQUITY.-Mergers are not favored in equity, and are not allowed, unless to promote the intention either averred or presumed of the party. Grellet v. Heilshorn, 941.

See INSTRUCTIONS, 1, 2; JURY, 7; MERGER, 1; MORTGAGE, 9; TRUST AND TRUSTEE, 4, 5.

ERROR.

1. ERROR TO JUSTIFY REVERSAL.-Held, that in order to justify a reversal of the case the error should be of such a character that its natural and probable effect would be to change or modify the result. Fleeson v. Savage S. M. Co., 142.

2. ERROR TO JUSTIFY REVERSAL MUST BE MATERIAL.-A judgment will not be reversed on account of error in the proceedings, unless such error be material or calculated to mislead the jury, or produce an erroneous result. Quint v. Ophir S. M. Co., 762.

3. APPELLANT MUST SHOW ERROR AFFIRMATIVELY.-An appellant, to entitle himself to a reversal of the order or judgment complained of, must make