Volume 1 — California Appellate Reports

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Infamous Crime against Nature—Insufficient Information.—An information which does not designate the offense-of “the infamous crime against nature” as defined in section two hundred and eighty-six of the Penal Code, but merely charges that the defendant did ‘ ‘ commit the crime against nature, with and upon one Frank Derby” by “having carnal knowledge of the body of said Frank Derby” is insufficient in not alleging that Frank Derby-was a male person.</p> <p>Id.—Sex—Judicial Knowledge—Presumption.—Judicial knowledge cannot be taken of the sex of a party upon whom the infamous crime against nature is committed from the name alone. The presumptions are all in favor of innocence; and if the facts stated may or may not constitute a crime, the presumption is that no crime is charged.</p>

<p>The facts are stated in the opinion of the court.</p>

J. E. Prewett, Judge. The main facts are stated in the opinion of the eonrt. Instructions 10,17, and 18 related to the duty of individual jurors, and instruction 19 was covered in substance by the charge of the court.

<p>Criminal Law—Murder—Circumstantial Evidence—Remarks of Judge in Impaneling Jury—Error not Prejudicial.—Where, during the impaneling of the jury, upon an information for murder, after six jurors had been accepted and sworn, and after another juror had stated on his voir dire, in answer to a question, that he would have to be pretty well convinced, especially in circumstantial evidence, as he had seen one case go wrong on circumstantial evidence, the remarks of the judge that “That is one ease out of ten thousand, ’ ’ with other words to the same effect, though highly improper, were not found in an instruction to the jury, and could have no other effect than to impress upon their minds - that circumstantial evidence was to be considered and that conviction could be had upon such evidence, and the error, if any, was not of a nature to injure the defendant.</p> <p>Id—Sufficiency of Circumstantial Evidence.—Where the evidence was circumstantial, but the circumstances all point to the defendant’s guilt, and were sufficient to indicate it, and defendant attempted no explanation of them, a verdict of guilty, showing that the jury must have believed him guilty beyond a reasonable doubt, is sufficiently supported.</p> <p>Id.—Evidence—Shoes and Overalls of Defendant—Human BloodStains.—The shoes and overalls of the defendant, identified as those belonging to him and worn at the time of the murder, and appearing to have human blood-stains upon them, were properly introduced in evidence over defendant’s objection.</p> <p>Id.—Expert Evidence—Nature of Wounds—Use of Blunt Instrument.—Where the physician who made the autopsy of the body of deceased described the nature of the injuries sustained as being sufficient to produce death and necessarily fatal, and described contused wounds and a bruised condition of the body, and the jury were authorized to infer from the evidence and the description of the wounds that the wounds were produced by the heels of the defendant’s bloody shoes, it was not error to permit the physician to testify that the wounds must have been caused by some blunt instrument.</p> <p>Id.—Instructions — Circumstances — Reasonable Doubt. — Where proper instructions are given as to the law of reasonable doubt, as applied to circumstantial evidence, an instruction on that subject in the form approved in People v. Anthony, 59 Cal. 397, is not error, though the words “although the act may be surrounded in a degree by a doubt ’ ’ might be properly omitted as meaningless. An instruction “that each and every fact and circumstance relied on by the prosecution to establish the guilt of the defendant must be proved by the evidence beyond a reasonable doubt, and if the jury are not entirely satisfied beyond all reasonable doubt that such fact and circumstance has been proven, it is your duty to find a verdict of not guilty,” is favorable to the defendant, and when construed with other correct instructions given on that subject the defendant cannot complain.</p> <p>A>,—Refusal of Instructions.—It was not error to refuse instructions requested by the defendant where all the matter contained in them is found in other instructions given by the court.</p>

<p>APPEAL from a judgment of the Superior Court of Yolo County and from an order denying a new trial. E. E. Gad-dis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Distribution of Legacy—Collateral Inheritance Tax.—Upon petition by a legatee for distribution of the amount of the legacy, in determining the amount of money in the hands of the executors, the court was only required to deduct the collateral inheritance tax upon the legacy, and was not requircd to take into consideration the whole amount of the collateral inheritance tax upon the several bequests. Such tax is not a unit; but is imposed upon the several amounts of the decedent’s estate to which the successors thereto are respectively entitled; and it is to be assumed that other beneficiaries before receiving their shares had paid or deducted the amount of the tax upon their respective gifts.</p> <p>Id.—Propriety of Order—Dispensing with Bond.—Where it appeared at the hearing that all allowed debts had been paid and all other legacies had been paid, and that the executors had in their hands a sum much in excess of the petitioner’s legacy, and that an action was pending upon a rejected claim for a comparatively small sum, the court did not err in directing the payment of the legacy and dispensing with a bond.</p> <p>Id.—Questions of Pact—Extent of Indebtedness.—The questions whether the estate is but little indebted, or the payment can be made without loss to the creditors, are questions of fact to be determined by the court upon a comparison of the value of the estate with the amount of the debts.</p> <p>Id.—Action upon Rejected Claim of Petitioner.—The fact that a claim presented by the petitioner against the estate had been rejected, and that a suit thereon was pending, did not preclude the court from making the order for payment of her legacy any more than would a suit upon a rejected claim of any other person; and where it appears that the executors still have in their hands property belonging to the estate many times in value of the amount of the rejected claim, if adjudged valid, it cannot be said that the court decided erroneously.</p> <p>Id.—Amount Required to Erect Tombstones.—The court was not required to take into consideration the amount required for erecting tombstones authorized by the will where it appears that if the money on hand is insufficient, after other payments are made, resort may be had to sufficient real estate. The petitioner was not required to await such expenditure before being entitled to receive her legacy.</p>

<p>APPEAL from orders of the Superior Court of Santa Cruz County settling the third annual account of an administrator and refusing to revoke letters of administration. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for Writ of Habeas Corpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Dewd or Lascivious Acts—Construction of Penal Code—Correction of Manifest Misprision.—The reference to “part II” in section 288 of the Penal Code, making it an offense to commit any lewd or lascivious act “other than the acts provided for in part II of this code,” is manifestly a legislative oversight or clerical misprision, the true reference being to “part I.” The erroneous reference will be deemed corrected under the rules of statutory construction, thus rendering the section intelligible and certain.</p> <p>Id.—Lascivious Acts upon Infant Girl—Competency of Witness— Discretion of Court.—Whether or not the infant girl upon whose body the lascivious acts were charged to have been committed was an incompetent witness on account of her age was a question within the discretion of the court; and where the court determined that she was a competent witness, the weight and effect of her testimony was properly left to the jury.</p> <p>Id.—Proof of Corpus Delicti.—The corpus delicti was sufficiently proved by the testimony of the child with the corroborating testimony.</p> <p>Id,—Testimony of Father—Characteristics of Child—Defendant not Prejudiced.—Though the testimony of the father in relation to the characteristics of the child in respect to education, obedience, pleasure, love for pictures, and timidity with strangers' might well have been omitted, no prejudicial error appears in its admission. „</p> <p>Id.—Proof of Venue.—Though no witness testified in terms that the offense was committed within the county, yet the venue was sufficiently proved where there was evidence that it was committed .within a specified township which was a legal subdivision of the county, and where the whole evidence left no reasonable doubt that the offense was committed in the county.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Bobbery—Insufficient Indictment—Ownership not Alleged—Conviction of Grand Larceny—Arrest of Judgment.— An indictment charging the crime of robbery in talcing money from the person of another forcibly against his consent, which does not allege the ownership of the money taken in some person other than the defendant is insufficient, and will entitle the defendant convicted thereunder of grand larceny to an arrest of judgment.</p> <p>Id.—Presumption of Ownership from Possession—Indictment not Aided.—The presumption of ownership from possession, if uncontradieted, is accepted as matter of proof; but, as matter of pleading, an indictment cannot be aided in any case by presumption.</p>

<p>Ejectment—Title under Foreclosure—Publication of Summons— Evidence—Judgment-Boll—Affidavit and Order not Included. —In an action of ejectment, where judgment was rendered for defendant under title acquired through foreclosure of a mortgage upon publication of summons against the owner of the mortgaged property in the year 1894, the admission in evidence of the judgment-roll as such by the court did not include the admission of the inadmissible affidavit and order for publication, though wrongfully attached to the judgment-roll by the clerk and offered by the defendant, and not objected to by the plaintiff; and no defect in the affidavit and order can be considered.</p> <p>Id.—Duty of Court as to Evidence.—The duty of the court is not confined to passing upon such evidence as may be objected or excepted to, but extends to the preservation of the rights of litigants and a proper disposition of the matter in controversy.</p> <p>Id.—Publication after Betijrn of Summons—Presumption as to Alias Summons.—Where the publication of summons was made after the original summons was returned, it will be presumed upon appeal where nothing appears on the face of the record to the contrary that an alias summons was issued.</p> <p>Id.—Payment of Taxes Assessed to Former Owner of Mortgaged Property.—Where one of the other defendants claiming under the insurance company defendant, which acquired title under foreclosure, paid taxes for a certain fiscal year which were assessed to the owner of the mortgaged property while he was in possession, such payment cannot inure to the benefit of such former owner.</p>

<p>Estates of Deceased Persons—Sale of Beal Estate—Opposition by Grantee of Heir.—A grantee of an heir of real property is entitled to the share of the heir conveyed, and is a person interested in the estate, who is entitled under section 1540 of the Code of Civil Procedure to oppose an application for an order of sale thereof.</p> <p>Id.—Evidence—Deed from Husband—Averments in Petition—Adverse Claim not Involved.—Where the petition of the administrator for the order of sale averred that the person named as grantor in the deed was the husband of the deceased, a deed from the husband to the opponent of the petition was sufficient proof of such opponent's interest in the estate, and its introduction in evidence was proper, and did not involve the determination of an adverse claim to property of the estate.</p> <p>A>.—Petition for Sale of Lands in Different Counties—Expenses of Administration—Best Interest of Estate—Finding.—Where the administrator petitioned for the sale of two distinct "parcels of land in different counties to pay expenses of administration, and on the ground that it was for the best interest of the estate and those interested therein to sell both parcels, where it appeared that the sale of one parcel was amply sufficient to cover the expenses of administration, and the court upon opposition of a party interested denied the petition as to the other parcel, such denial is a finding that it was not for the best interest of the estate or those interested therein to sell the other parcel at probate sale.</p> <p>Id,—Question of Fact—Review upon Appeal.—The question whether it was the best interest of the estate or those interested therein to order a sale of both parcels of real estate was a question of fact to be determined by the superior court upon the evidence before it in relation thereto; and to the extent that its decision depends upon inferences to be drawn from the situation of the property or of the parties interested therein, it is not open to review upon appeal.</p> <p>Id.—Appeal by Administrator—Party not Aggrieved.—It is a sufficient answer to the appeal by the administrator, where none of the parties interested have objected to the terms of the order, that he is not aggrieved by an order refusing to sell one of the parcels, it being a matter of indifference to him whether those interested will be better subserved by a probate sale or by a distribution to them of such parcel.</p>

<p>Criminal Law—Bribery of Membiír of Legislature—Constitutionality of Penal Provision—Punishment—Disfranchisement.— Section 86 of the Penal Code, as re-enacted April 6, 1880, punishing legislative bribery as a felony, including disfranchisement as part of the punishment, is a revised and independent act, which is not subject to section 26 of article IV of the constitution. The original section was not repealed by section 35 of article IV of the constitution; and the power of the legislature to punish legislative bribery by section 86 of the Penal Code as re-enacted was not withdrawn by that section of the constitution, and the legislature properly included the additional punishment of disfranchisement established by the constitution.</p> <p>Id.—Power of Legislature—Conclusive Presumption.—An act of the legislature is conclusively presumed to be within its powers unless expressly prohibited by the state or federal constitution.</p> <p>Id.—Investigation Before Senate Com:mittee—Building and Loan Corporations—Corrupt Receipt of Bribe.—The legislature has power under section 1 of article XII of the constitution and section 383 of the Civil Code to investigate the affairs of all corporations in this state; and a member of a senate committee appointed for the purpose of investigating the affairs of building and loan corporations is charged with a duty in his official capacity as a member of the senate, and if he accepts a bribe to prevent such investigation and to east his official vote against it, he is guilty of bribery as a member of the legislature.</p> <p>Id.—Sufficiency of Indictment—Habeas Corpus.—Where the indictment sufficiently charges bribery as defined by subdivision 6 of section 7 and by section 86 of the Penal Code, and states the offense with sufficient particularity to give the court jurisdiction of the charge, the party charged cannot for any alleged defect in the statement be discharged upon writ of habeas corpus.</p> <p>ID.-—Jurisdiction of Court.—The superior court of Sacramento County has jurisdiction of the offense of bribery committed therein by a member of the legislature.</p>

<p>Criminal Law—Assault with Deadly Weapon—Appeal prom Judgment Alone—-Instruction—Beveew of Evidence.—Upon appeal from a judgment of conviction of an assault with a deadly weapon, upon a bill of exceptions, where there was no motion for a new trial, if there is some evidence tending to show that the weapon was deadly, and an instruction correct in law was given upon that subject, the insufficiency of the evidence to show whether the weapon was deadly cannot be reviewed.</p> <p>Id.—Ground for New Trial—Construction of Code—Applicability of Instruction.—The insufficiency of the evidence is made ground for a new trial under section 1181 of the Penal Code, and included in the provisions of section 1170 or 1259 of that code. Where it appears that a correct instruction is inapplicable to any evidence in the case, it may be reviewed upon a bill of exceptions upon appeal from the judgment, and it devolves upon the district attorney to show that there is some evidence to which it is applicable.</p>

<p>Guardianship—Incompetent Person-—Sale of Bf.alty.—The guardian of an incompetent person may be authorized to sell the real property of the incompetent, where it appears necessary and for the best interest of the estate, in order to pay expenses, debts, and cost of maintaining the incompetent ward.</p> <p>Id.—Opposition to Sale—Contract to Devise Property—Insufficient Proof—Compensation—Impossibility of Performance— Unexplained Failure.—An opposition to the sale by one who seeks to enforce a contract with the incompetent to devise the property, for personal services, board and care for life, and cost of burial and monument, will not be sustained, nor the contract enforced in equity, where the proof is not clear, positive, nor convincing as to the existence and terms of such contract, or the services to be rendered, and where the services rendered may be fully compensated, and it is impossible to make a binding offer of full performance, and there is an unexplained failure to perform the alleged contract prior to the guardianship.</p> <p>Id.—Buung upon Evidence:—Question too Broad.—It was not error to overrule a question which was too broad, so as to include any agreement in reference to all real property, and which was not confined to the agreement alleged.</p> <p>Id.—Cross-Examination—Whole of Conversation.—It was proper on cross-examination to bring out the whole of a conversation partially testified to in the examination in chief.</p>

<p>'Wills—Construction of—Desire and Direction for Lease.—A provision in a will expressing a “desire” that a son named “shall have the use and occupation, rents, issues, and profits of my fruit ranch, ’ ’ described, for the period of five years from the death of the testator, together with all household and kitchen furniture and personal property used in connection therewith, at a specified annual rental, to be paid in equal shares to Ms brothers and sisters, and a “direction” to all other children to execute to said son immediately after Ms death “a lease of said premises and personal property for the said term and upon the conditions herein expressed,” shows a clear intention that such son shall have the use of the property described for the period of five years.</p> <p>Id.—Devise of Estate—Subjection to Lease—Distribution.—Where the testator devised all of his estate in equal shares to six children, including such lease, in a previous article of the will, such devise is not without limitation, but is subject to the lease for five years subsequently provided for in favor of one of them as against th£ others, and the property was properly distributed subject to the provision for the lease.</p>

<p>Estates of Deceased Persons—Sale of Beal Estate—Expenses of Administration—Monument Provided for in Will.—An order was properly made to sell the real estate of a deceased testatrix to pay the expenses of administration and to carry out a provision in the will for the erection of a monument over the grave of the testatrix.</p> <p>Ed.—Burial with Husband’s Consent—Bemoval and Cremation to Defeat Sale—Provision for Monument not Affected.—Where, with the consent of the husband, his deceased wife had been buried as provided for in her will, and had remained in her grave for over a year, his subsequent removal and cremation of the body pending a petition for sale of real estate to raise funds for a monument does not change the location of the grave so as to defeat the valid provision in the will for a monument over the grave.</p> <p>Id.—Monument as Funeral Expenses.—The provision for the erection of the monument was legitimate and proper, and even where there is no testamentary disposition or direction therefor, the courts will allow a reasonable sum out of the funds of the estate for the erection of a monument, putting the expenditure on the ground' of funeral expenses.</p> <p>Id.—Indefinite Provision for Care of Burial Lot.—A provision for the care of the burial lot which is too indefinite and uncertain to be enforced cannot be properly included as a ground for an order of sale of real estate, and the order and judgment will be modified by striking out all reference thereto.</p>

<p>The facts are stated in the opinion of the court</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Santa Clara County denying a motion for relief from a previous order. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion of the court</p>

<p>Foreclosure of Liens on Vessel—Stay-Bond on Appeal—Void Bond —Erroneous Judgment against Sureties.—Upon appeal from a judgment against the owners of a vessel foreclosing liens against the vessel and providing for a sale of the vessel, with engines, boilers, tackle, apparel, and furniture, under the provisions of section 813 et seq. of the Code of Civil Procedure, the ordinary bond on appeal is sufficient to stay execution, and a stay-bond given under section 942 of the Code of Civil Procedure in twice the amount found due is without consideration and void, and a judgment against the sureties thereupon must be reversed.</p> <p>Id.—Showing of Error—Service of Bill of Exceptions.—Where the erroneous judgment against the sureties on the void stay-bond appears on the face of the judgment-roll, exclusive of the bill of exceptions, it is immaterial whether the bill of exceptions was not served in time.</p>

<p>Estates op Deceased Persons—Order Settling Pinal Account—-Appeal—Becokd—Documents not Embodied in Bill op Exceptions—Jurisdiction.—Upon appeal from an order settling the final accounts of an executor, where the record contains only the order settling the account, without a bill of exceptions, documents printed in the transcript consisting of a decree of partial distribution, a notice of appeal therefrom, and a remittitur reversing the decree, filed after the order settling the account, cannot be considered as showing that the court had no jurisdiction to settle the final account pending such appeal.</p> <p>Id.—Account not in Becord—Prior Partial Distribution—Presumption—Jurisdiction Pending Appeal.—A decree settling the final account of an executor does not necessarily involve any question respecting the distribution of the estate; and where the account does not appear in the record, but only the order settling it, it must be presumed to contain no account of any payment made under a prior decree of partial distribution appealed from, but only accounts of receipts and payment of debts of the decedent and expenses of administration, of which the court would have jurisdiction regardless of such appeal.</p>

<p>Proceedings Supplementary to Execution—Order Directing Garnishee to Pay Judgment-Creditors—Bes Adjudicata.—An order in proceedings supplementary to execution directing a garnishee to apply a sum due to the judgment-debtor to be paid to the judgment-creditors is in effect a judgment which, if not appealed from, is res adjudicata and conclusive in any other action between the garnishee and the judgment-creditors.</p> <p>Id.—Action by Garnishee to Determine Conflicting Claims—Defense.—In an action by the garnishee to determine conflicting claims between an assignee of the claim and the judgment-creditors, the pleading and proof by the judgment-creditors of the supplementary proceedings as an estoppel against the garnishee constitutes a complete defense against the right of the garnishee to withhold the money from them or to pay it to any other party.</p> <p>Id.—Judgment for Assignee—Omission to Find upon Material Issues—Decision against Law—Beversal of New Trial Order. —Where the answer also pleaded that the assignee had notice of the supplementary proceedings, and by failing to attend upon the same was estopped thereby, the failure to find upon the averments of the answer as to the supplementary proceedings in rendering judgment for the assignee and against the judgment-creditors was a decision against law, for which an order denying a new trial must be reversed.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Division of Community Property—Admissions of Pleadings—Inconsistent Findings Disregarded.—Where the complaint of a husband, in an action for divorce on the ground of desertion, alleged that property described in the complaint was community property, and the answer expressly admitted that allegation, the fact admitted by the pleadings must be treated as found, and the finding of any probative facts inconsistent therewith must be disregarded; and the court, upon granting the decree, was authorized to divide the property, as community property, equally between the parties.</p>

<p>Appeal from Judgment—Expiration of Time—Dismissal.—An appeal from a judgment taken more than six months after its entry must be dismissed.</p> <p>New Trial—Specifications of Insufficiency of Evidence—Agreed Statement—Absence of Objection.—Where the specifications of insufficiency of the evidence were made in an agreed statement substantially embodying the testimony, and plainly pointed to the particular defect in the proof, and no objection was made thereto, though the court evidently passed upon the motion with the agreed statement before it, the specifications must be deemed sufficient.</p> <p>Liens fob Unpaid Labor on Personal Property—Bailment—Exclusive Possession Essential.—A lien for unpaid labor bestowed on personal property exists only in favor of a.bailee for hire who has an independent and exclusive possession of the property, personally or by agent, before and during the service required for. the particular purpose of making, repairing, altering, improving, or protecting the article upon which he claims a lien.</p> <p>Id.—Master and Servant—Possession of Employer—Manufacture of Brandy—Storage with Employee—Absence of Lien for Wages.—Where the relation-of master and servant exists, the possession of the servant, during the term of his employment, is the possession of his employer, and he can have no lien on a manufactured article which is in part the product of his labor. One employed as general manager in a distillery has no lien on the manufactured brandy in part of the product of his labor, and the subsequent storage of the manufactured brandy by the employer, with the consent of the employee, in the cellar of the latter, does not authorize him to retain possession thereof against the employer until his wages are paid.</p>

<p>APPEAL from an order of the Superior Court of Tuolumne County denying a new trial. G. W. Nieol, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

PETITION for Certiorari to review a judgment of the Superior Court of Los Angeles County rendered upon appeal from a justice’s court. The facts are stated in the opinion of the court.

<p>Action to Abate Nuisance—Capacity to Sue—Demurrer.—In an action to abate a nuisance caused by obstruction of a public alley, upon which plaintiff’s property abuts, where there is nothing on the face of the complaint to indicate a want of capacity of the plaintiffs to sue, a demurrer upon that ground was properly overruled.</p> <p>Id.—Public Nuisance—Obstruction op Public Alley—Cause op Action—Special Injury to Plaintiffs.—Though the obstruction of a public alley is a public nuisance, yet where the complaint of the plaintiffs to abate it alleges that ingress and egress to and from the abutting property owned by plaintiff to and from the alley is prevented by the obstruction thereof by fences constructed thereon by the defendant, it states a cause of action for special injury to a private right incidental to the plaintiffs’ property, different in kind from that sustained by the public at large.</p> <p>Id.—Motion for Judgment upon Pleadings.—A motion of the defendant for judgment upon the pleadings was properly denied where the complaint states a cause of action.</p> <p>Id.—Averment of Public Alley.—The averment that the strip of ground obstructed was a public alley, and had been so used for twenty-five years as a means of ingress and egress to and from plaintiff’s property, is a sufficient statement of fact, without an averment of the manner by which it became a public alley.</p>

<p>Eminent Domain—Condemnation of Property of State—Maturity of Action.—The right to take the private property of the state in condemnation proceedings in the superior court has been granted by subdivision 2 of section 1240 of the Code of Civil Procedure; and a proceeding therefor begun one day before the taking effect of subdivision 7 of that section cannot be abated as premature.</p> <p>Id.—Appearance of Attorney-General—Jurisdiction of Court.—■ Where the attorney-general appeared in the ease for the state, as it was Ms duty to do under the provisions of section 472 of the Political Code, the state was just as much in court as though regularly summoned under section 1245 of the Code of Civil Procedure, and the jurisdiction of the court was complete.</p>

<p>Estates of Deceased Persons—Decree Settling Account and Distributing Estate—Review upon Appeal.—A decree settling the final account of an executor and distributing the estate of the deceased testator will not be disturbed upon appeal unless the appellants show that their own interests in the estate have suffered by reason of the findings or decree of the court. They cannot object that the surviving wife, who is not before the court, has received less than she was entitled to, nor that they have received some part of the estate that should have gone to her.</p> <p>Id.—Terms of Will—Interest Paid to Surviving Wife.—Where by the terms of the will the money of the estate was to be loaned out and the surviving wife was to receive the interest as fast as it accrued, the executor was fully authorized in paying the interest to her.</p> <p>Id.—Compound Interest—Rights of Widow not Represented—Misappropriation of Estate not Shown.—The surviving wife being entitled to any compound interest received by the executor, only she or her legal representatives can be heard to complain as to the disposition thereof; and appellants 'cannot represent her interest, nor can they charge the executor with compound interest in the absence of any showing that he had misappropriated the funds of the estate.</p> <p>Id.—Evidence—Assignment of Interest-Claim of Widow to Appellants—Want of Consideration—Prior Deed for Support— Undue Influence.—An assignment by the widow of her claim for interest to the appellants was shown to be without eonsidera- ■ tiou for support, where it appeared that there was a prior obligation of appellants to support her for life in consideration of a deed from her to them; and where the evidence also tended to show that the assignment was procured by undue influence, the action of the trial court in excluding it from evidence will not be interfered with.</p>

<p>State Swamp Lands—Contest of Eight to Purchase—Intervention by Settler.—Upon a contest of the right to purchase state swamp land, one not a party to the action, who was for a year previous to the time of his application to purchase a settler on the land, which he claims to be fit for cultivation, might intervene before judgment, under the provisions of section 387 of the Code of Civil Procedure, but not after judgment.</p> <p>Id.—Motion to Set Aside Judgment for Intervention—Construction of Code.—Under section 473 of the Code of Civil Procedure only a party to the action or his legal representative can move to set aside a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect; and that section does not authorize a motion thereunder by one who failed to intervene before judgment to obtain the right of intervention after judgment to test his right to the land in controversy.</p> <p>Id.—Neglect of Settler—Knowledge of Adverse Claims.—Where it appears that before the commencement of the action the settler knew that there were other claimants of the land, and had been notified by the surveyor-general of the reference of their claims for contest, it was his duty to look after his rights by intervention pending the action.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County. J. W. Mannon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Jurisdiction or Courts op Appeal—Questions op Law—Support op Verdict.—By the constitution, jurisdiction is conferred upon the district courts of appeal in criminal prosecutions by indictment or information in a court of record on questions of law alone. Where there is some evidence to sustain the verdict, there can be no question of law as to its sufficiency.</p> <p>Id.—Murder—Support op Conviction in Second Degree.—Upon a trial for murder where the defendant was convicted of murder in the second degree, held, in view of the evidence, that it cannot be said as matter of law that the killing was done "upon a sudden quarrel or heat of passion,” or that there was no evidence of the "abandoned and malignant heart” constituting one of the elements of murder in the second degree.</p> <p>Id.-—Evidence—Impeachment op Dependant’s Wipe—Statement op Knowledge to Attorney—Communication not Privileged.—Upon cross-examination of defendant’s wife as a witness for defendant it was proper on cross-examination to lay the foundation for impeaching evidence by an attorney to whom she stated her knowledge of the transaction, while endeavoring, without success, to retain him as counsel for the defendant. Such statement is not a privileged communication under section 1881 of the Code of Civil Procedure.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County and from a final order of condemnation, and from an order staying proceedings and letting plaintiff into possession, and separate appeal from an order denying a new trial. E. P. Unangst, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Fire Insurance—Policy Issued upon Known Facts—Waiver op Inconsistent Conditions.—The issuance of a policy of fire insurance upon known facts waives all conditions inconsistent therewith.</p> <p>Id.—Application by Holder op Equitable Title—Legal Title Held as Security—Condition as to Ownership in Fee.—An applicant for fire insurance in the sum of eight hundred dollars by one who had paid the consideration for the insured property, but who had taken the title in the name of another as security for a loan of five hundred dollars, who stated the facts about the title and the relation of the parties thereto in his application for the policy, and asked for insurance in the name of the creditor, the loss, if any, to be paid to the applicant as his interest may appear, is not precluded from recovery by an expressed condition in the policy that the applicant was the sole owner in fee of the property destroyed.</p> <p>Id.—Construction of Policy—Joinder of Plaintiffs.—The policy having issued with knowledge that the owner of the legal title had a smaller interest than the amount insured, with a proviso that the loss should be payable to the applicant, must be construed as intended to secure the interest of both of them, and the policy ran to both, and they were entitled to join as plaintiffs in an action upon the policy.</p> <p>Id.—Certainty in Pleading—Knowledge of Pacts.—Where the complaint avers that in the proofs of loss the interest of the creditor in the policy was disclosed, it shows with sufficient certainty that defendant was advised of the respective interests of the plaintiffs. Where it affirmatively appears that the facts are equally in possession of both parties, the rule is applicable that ambiguities and uncertainties should be viewed in the light of the situation of the parties as to their knowledge of the facts.</p>

<p>The facts are stated in the opinion of the court.</p> <p>Fred H. Hood, C. S. Farquar, and Barnes & Hood, for Appellant.</p>

<p>APPLICATION for Writ of Habeas Corpus to the Sheriff of Sacramento County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the city and county of San Francisco granting a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Frank H. Dunne, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action to Enforce Trust in Land—Venue—-Incidental Accounting. —An action having as its sole object to establish and enforce a trust in land, in which an accounting asked is merely incidental to the action and which necessarily involves the determination of the amount due from plaintiff under the contract recognizing the trust, to be paid as a condition of relief, is a local action, to be tried where the land is situated; and the prayer for such accounting does not entitle the defendants to a change of the place of trial to the place of their residence.</p>

<p>The facts are stated in the opinion of the court,</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Justice’s Court—Action Involving Title to Bealty—Insufficient Showing.—A mere bald allegation in an unverified answer in a justice’s court that “the determination of the action will necessarily involve title to real property,” without the statement of any fact from which such conclusion would follow, is insufficient to authorize the justice to certify the case to the superior court, and the ease was not legally before it for determination.</p> <p>Id.—Want of Jurisdiction—Denial of Motion to Change Venue.— The superior court, having no jurisdiction of the action, did not err in denying a motion to change the place of trial thereof.</p>

<p>APPEAL from s judgment of the Superior Court of San Bernardino Conintf. Prank P. Oster, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action upon Contract for Plaintiff’s Benefit—Sale by Widow and Heir—Agreement as to Payment.—In so far as a contract for the payment of a certain sum as the price of property sold by the widow and sole heir at law of her deceased husband to the defendant, in excess of a sum paid to the defendant, was made expressly for the benefit of the plaintiff as a creditor of the estate, to whom defendant agreed that it should be paid, the contract is enforceable by the plaintiff.</p> <p>Id.—Time of Payment.—No time for performance of the contract of sale being specified therein, the money was payable immediately.</p> <p>Ip.—Release of Estate Immaterial.—It being no part of the contract that the payment to the plaintiff was to depend upon a release of the estate from his claim as a creditor thereof, it is immaterial whether he executed such release or established it by proof.</p> <p>Id.—Statute of Frauds.—The statute of frauds is inapplicable to the agreement of defendant to pay the plaintiff a part of the price of the property sold.</p>

<p>Sales—Unwarranted Refusal to Accept—Tender.—Under a written contract for the sale and purchase of five carloads of prunes, to be paid for on delivery, the unwarranted refusal of the purchaser to accept the remainder after receiving the first carload, and the non-acceptance of a written offer to' deliver the remainder within the time agreed, was equivalent to an actual production and tender of the property by the vendor.</p> <p>Id.—Action for Breach—Loss on Resale—Measure of -Damages— Decrease in Market Value.—In an action for breach of the contract to buy the remainder of the prunes, where it appears that after the rejection and refusal to accept them, and during the time for delivery, the price declined, and plaintiff promptly resold the prunes, boxed as originally directed by defendant, to other purchasers, at the identical market where delivery was required, such resale was in the line of the plaintiff’s duty under section 3311 of the Civil Code, and the measure of damages is the decrease in the market value so ascertained.</p> <p>.Id.—Unambiguous Contract—Explanatory Testimony.—The contract being unambiguous, there was no error in rejecting testimony explanatory thereof.</p>

<p>Municipal Chaster—-Duty of Assessor—Power of City Council to Contract for Special Data.—-Where a municipal charter makes the general law pertaining to revenue and taxation for state and county purposes applicable to revenue and taxation for city purposes, and the powers of the' city council are as unlimited as the powers of the boards of supervisors, the council has power, in aid of its work of equalization in eases of undervaluation, to make a special contract for an abstract of the assessment-roll by the city, with comparisons with the county assessment-roll, and with maps and other data and information relevant to undervaluation not included in the information required from the city assessor, and to order the compensation therefor paid out of the city treasury.</p> <p>Id.—Mandamus—Evidence—Willingness of Assessor Immaterial.— In a proceeding for a writ of mandate against the city treasurer to compel the payment of a warrant for such compensation, evidence of what data the city assessor had the ability and inclination to furnish ms immaterial; and was properly excluded.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Riverside County and from an order denying a new triaL J. S. Noyes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Ejectment Against Tenant at Will—Termination of Tenancy— Notice to Quit—Refusal to Surrender Possession—Unlawful Detainer.—A complaint alleging plaintiff’s ownership and right of possession of the premises described, that a tenancy at will of the defendant had been determined by notice, and that defendant after three days from the notice to quit refused to quit the premises, and still occupies the same, and stating the rental value of the premises, and praying for restitution thereof, for treble damages, and for costs, states a cause of action in ejectment and for relief which may be granted in such action; and it is immaterial in the absence of any ambiguity or uncertainty that the facts stated may also show a cause of action in unlawful detainer.</p> <p>Id.—Issues as to Title—Findings and Judgment—Untenable Objection.—Where defendant took issue upon plaintiff’s ownership and right of possession and set up title in himself, the issues were properly involved and tried in the action of ejectment; and where findings and judgment thereupon were in favor of plaintiff, the objection of defendant that title could not be tried or found in an action of unlawful detainer must be deemed inapplicable.</p> <p>Id.—Deed from Plaintiff to Defendant—Delivery Essential to Title—Insufficient Escrow—Testamentary Disposition.—Conceding that a deed from plaintiff to defendant was sufficient in form, it did not pass title where there was no delivery with that intent. A delivery in escrow was not sufficient where it was not irrevocable, and the deed was not intended to take effect until after her death, and was in fact revoked by her, and when last seen was found in her possession. The law does not allow a testamentary disposition by deed.</p> <p>Id.—Agreement to Devise Property—Insufficient Proof.—An agreement to devise property from plaintiff to the defendant must be established by clear and convincing evidence; and where the evidence is vague and unsatisfactory as to the terms of any agreement, and does not show a meeting of minds on any definite proposition, and shows that everything was dependent upon the plaintiff’s will, and that defendant did not perform the expected services, equity cannot protect the defendant in possession by enforcing an agreement to devise.</p> <p>Id.—Possession by Permission—Tenancy at Will.—Where the defendant entered into the possession of the property of plaintiff by her permission, without valid agreement or transfer of title, he became a tenant at will of the plaintiff.</p> <p>Id.—Motives or Desires of Guardian—Conversations Inadmissible. —The motives of the guardian and what he believed and desired were immaterial; and conversations between the guardian and the defendant and Ms wife were inadmissible, where it appears that the guardian had never talked with Ms ward about the matter in controversy, and knew nothing concerning it.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Building Contract—Substantial Compliance—Independent Promise —Defects in Stairway—Measure of Damages—Improper Evidence—Cost of New Stairway.—In an action against the owners of a building by contractors to recover the balance due on the contract, and for extra work, where plaintiffs had substantially complied with the contract, which contained an independent promise to pay before the commencement of the work, and where it appeared that alleged defects in a stairway could be remedied at moderate cost, the measure of damages therefor is merely the detriment suffered from breach of the contract. It was error for the court to admit evidence of the cost of a new stairway, and to render judgment therefor, as a measure of damages against the plaintiffs.</p>

<p>The facts are stated in the opinon of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County and from an order sustaining a demurrer to the complaint. J. W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Sale of Engine—Breach of Warranty—Measure of Damages.— Where an engine was sold upon warranty of its fitness for use in running machinery, the measure of damages for a breach thereof is the excess of value which it would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time, together with a fair compensation for the loss incurred by an effort in good faith to use it.</p> <p>Id.—Consequential Damages—Reasonable Contemplation op Parties.—Consequential damages are recoverable in such case only in so far as from the circumstances of the particular case they' may be reasonably supposed to have been contemplated by the parties when making the contract as the probable result of a breach.</p> <p>Id.—Resale op Engine upon Warranty—Delay in Payment by Purchasers to Subvendees—Costs op Suit—Attorney’s Fees.— Where the engine was resold by the purchasers upon a like warranty, the delay of the purchasers to pay for the breach to their subvendees cannot be reasonably supposed to have been contemplated by the parties to the original sale, and the costs of suit of which the original vendor had no notice, and attorneys’ fees paid therein to defend against the rewarranty, are not recoverable against the original vendor upon its warranty.</p> <p>$d.—Compromise op Damages—Interest not Recoverable on Sum Paid.—Where the purchasers compromised the damages with their subvendees, they cannot recover any interest on the principal sum. paid against their original vendor, in an action in which breach of its warranty is involved.</p> <p>Id.—Defects not Waived by Retention op Engine—Remedies op Purchasers—Rescission—Action—Counterclaim.—Defects in the engine which constituted the breach of warranty were not waived by retention of the engine. The purchasers had the option either to return the engine and rescind the contract, or retain it and sue for damages for the breach, or may counterclaim the damages in an action for the purchase money.</p> <p>Id.—Credit por Repairs—Future Damages not Waived.—A credit given for repairs by inserting a new governor in the engine, which it was supposed would remedy the defects, but which failed to do so, does not constitute a waiver of future damages, or of expense incurred in the continued use of the engine, for which the original vendor is liable. Such credit was in effect a payment which the vendor was bound to make.</p> <p>Id.—Delay in Presenting Claim—Exclusive Right op Purchasers— Estoppel.—The delay in presenting the claim for damages for breach of warranty, in addition to the credit for repairs, cannot constitute an estoppel to claim further damages for breach in view of the relations of the parties and that the purchasers had the exclusive right to handle on this coast articles manufactured by the vendor, and were charged with the duty to advance its sales and trade on this coast.</p>

HABEAS CORPUS to test the validity of a. justice’s sentence for misdemeanor in the town of Suisun City, Solano County. The facts are stated in the opinion of the court.

<p>Action fob Money Loaned—Mode of Repayment—Conflicting Evidence.—In an action for money claimed to have been loaned to the defendant without conditions, where defendant claimed that it was advanced by plaintiff as agent of an insurance company to defray expenses of defendant as a soliciting agent of the same, and was not to be repaid except out of commissions earned, when sufficient, where the evidence was sharply conflicting, the verdict of the jury for the defendant cannot be disturbed in the absence of reversible error.</p> <p>Id.—Cross-Examination of Plaintiff—Question not Answered.— The alleged error of the court in overruling an objection to a question asked of the plaintiff on cross-examination does not appear prejudicial where the record shows no answer to the question.</p> <p>Id.—Proper Cross-Examination—Customary Action of Plaintiff.— It was proper to ask of plaintiff upon cross-examination how many agents he had employed during the last five years that had received loans from him whose commissions had not covered the amount of loans and whom he had not sued, and to show in answer thereto that there were at least a dozen of them, as tending to discredit plaintiff's theory that the advance to defendant was to be paid irrespective of commissions.</p>

<p>The facts are stated in the opinion of the court.</p> <p>C. W. Eastin, Edward F. Fitzgerald, and G. W. McEnerney, for Appellant.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Divorce—Adultery not Condoned—Support op Findings.-—Where a divorce was granted to the wife on the ground of adultery of the husband, and the defense was condonation, on the ground that the physical condition of the defendant, long known to the wife before ceasing to cohabit with him,, was such as would ordinarily be taken as proof of unfaithfulness, but the court found upon sufficient evidence that plaintiff at first believed his representation that his condition was not so occasioned, and that after becoming convinced of the contrary she never thereafter cohabited with him— the condonation was not sufficiently established to bar the plaintiff’s right of action.</p>

<p>Wbit of Mandate—Non-Bnfobceability—Tax undeb Chabteb—Dismissal of Appeal.—A writ of mandate whieh cannot-be enforced will not issue; and an appeal from a judgment sustaining a demurrer to a petition for a writ of mandate to enforce the levy of a sehool tax whieh could not be enforced under the city charter when the appeal was taken, will not be reviewed upon its merits, but will be dismissed.</p>

<p>Prohibition—Contempt Proceedings by Justice of the Peace—Deposition of Witness in Superior Court—Refusal to Obey Subpoena—Jurisdiction.—A deposition of a witness to be taken in an. action pending in the superior court is a proceeding in that court which can alone punish a disobedience to a subpoena for such witness, and a justice of the peace before whom the deposition is taken has no jurisdiction to punish such disobedience as a contempt, and prohibition will lie to restrain the justice from so doing.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Waldo M. York, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Obtaining Monet bt Fraud—Insufficient Verdict— Judgment not Sustained.—Under an information charging the crime of knowingly and designedly by false and fraudulent representations defrauding a person named of over one hundred dollars in money a verdict finding the defendant “guilty of the crime of felony, to wit, obtaining money by false pretenses,” does not respond to the issue, nor show any crime, and cannot sustain a judgment of imprisonment.</p> <p>Id.—Province of Jury—Legal Definition of Crime.—The words “the crime of felony” may be omitted from the verdict. It is not the province of the jury to determine the legal definition of the acts claimed to constitute a crime.</p> <p>Id.—Jeopardy—Discharge of Defendant.—The defendant having been placed in jeopardy by trial under a valid information, was entitled to be discharged after the receipt and record of an insufficient verdict.</p>

<p>Action fob Bent—Lease in Name of Agent—Payment of Bent to Psincipai.—An agent authorized to execute a lease and to cause rents to he paid to the principal who executes it in his own name without any title in himself, and who has directed the rent to he paid to the principal, who received it until the property was sold to the tenant’s wife, cannot maintain an action in his own name to recover rent.</p> <p>Id.—Evidence of Agency.—A lease formerly made by the principal to the same tenant, her receipt of the rent, her contract with the plaintiff, and her deed to the tenant’s wife were all competent as tending to establish the agency alleged in the answer, the authority of the principal, and its exercise by the plaintiff as agent.</p> <p>Ib.—Estoppel of Tenant—Pboof of Agency of Lessob.—The proof of the agency of the lessor for a principal not named in the lease was not in furtherance of an attempt of a tenant to dispute a landlord’s title.</p> <p>Id.—Estoppel of Agent and Pbincipal.-—The acts of the agent in representing himself only as agent for the principal, and declaring that he was executing the lease for her, and in not asserting owner- • ship in himself, but directing the rent to be paid to her, estops him to deny that the lease was her contract, and that in executing it his intention was to bind her, and her authority for the lease and reception of rent accordingly would estop her from denying an execution in her behalf.</p>

<p>Negligence—Master and Servant—Injury of Servant in Bailroad Tunnel—Instruction—Completed Bart of Tunnel—Appliance —Safety.—Where the plaintiff was injured while working in a railroad tunnel from the falling of a rock from the side of a track laid therein, it Vas proper in effect to instruct the jury that where a permanent tunnel is being driven into a mountain to furnish a permanent bed for a railroad, the completed portion of the tunnel in which substantially all the work of excavation is performed, in order to render the tunnel of the size and capacity provided for in the plans and specifications, becomes an appliance and means furnished by the master by which the remaining work is to be prosecuted, and if so completed the employees of the defendants were obligated to use ordinary care to render such completed portion a safe place in which to work, and to keep it in a condition reasonably fit.</p> <p>Id.—Completion to Temporary Grade op Track.—The excavation of the tunnel to the temporary grade of a track laid therein was a substantial completion of that portion of the tunnel.</p> <p>Id.—Contributory Negligence—Imminent Danger—Instruction— Choice op Wrong Direction.—Where there was no evidence to show that the plaintiff was brought into his dangerous position by any negligence of his own, it was proper to instruct the jury in effect that a person in imminent danger is not called upon to exercise that intelligence and judgment he would be expected to exercise were he not in danger, and that if plaintiff found himself in imminent danger and had not time to stop and consider and determine the better course to pursue, his choosing to run out toward the portal instead of back toward the bend was not negligence on his part, even though in so doing he may have run right under the falling rock instead of away from it.</p> <p>Id.—Negligence a Question op Fact.—The question of negligence is commonly a question for tho jury, and it is only in extreme eases that this court would be justified in disregarding the verdict of the jury.</p> <p>In.—Evidence—Privileged Communications—Physician and Patient. —A physician in charge of defendant’s hospital whose services were remunerated by assessments upon the wages of the men employed was in effect employed by the plaintiff, and answers made by the plaintiff to questions asked of him by the physician as to how the injury was sustained, for the purpose of determining his condition, as preliminary to treatment, were privileged communications.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Flooding of Land—Destruction of Crops—Interference with Drainage System—Liability of Biparian Owners.—Where an owner of land, by an established system of drainage to the ocean, has rendered his land tillable, riparian owners who, by the subsequent erection of dams, have interfered with such drainage system, . and caused hack-water to rise on such land, to the destruction of crops growing thereon, are liable for the resulting damage.</p> <p>Id.—Action for Damages—Joinder of Plaintiffs—Land Tilled upon Shares.—The owner of the land and one who is engaged in tilling it upon shares, each being interested in the crop destroyed, were properly joined as co-plaintifEs in the action for damages therefor.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Bailroads—Ejection of Passenger from Freight-Train—Evidence— Condition of Passenger—Payment of Pare—Declarations of Conductor.—In an action of damages for the ejection of a passenger from a freight-train, where the conductor and numerous witnesses testified that he was drunk, and the plaintiff denied it and attributed resulting injury to his sickness, and it appears that he then paid his fare to the brakeman, it was prejudicial error, without legal foundation for impeachment, to admit evidence of the mere declarations of the conductor made on the subsequent day that the plaintiff was not drunk, that he had paid his fare, and that he had been put off at a prior station because be did not intend to stop at ,his destination.</p> <p>Id.—Custom as to Passengers on Freight-Trains—Bights of Passenger.—A passenger having knowledge of the custom to carry passengers on freight-trains between certain points has a right to assume its continuance unless notified in the usual manner, and is not bound to make special inquiry or to obtain a special permit; and the railroad company, having knowledge of such custom, would be liable to the passenger for a violation of his rights, though the custom was in violation of its rules.</p> <p>Id.—Suspension of Bight—Notice to Passengers—Custom as to Stoppage of Freight-Train.—The mere fact that passengers were carried on the freight-train did not confer upon plaintiff an absolute right of transportation. The company could suspend or de- • termine the permissive use; and notice to passengers, given at the starting station, or such suspension, or then given under a custom not to stop at plaintiff's station because handling of freight there was not required, if heard by plaintiff, made it his duty to leave the train, and he could be lawfully ejected at an intermediate station if he remained upon the train in violation of such notice.</p> <p>Id.—Payment of Pare to Brakeman—Burden of Proof—Want of Authority—Error in Bbfusing Instruction.—A brakeman upon a freight-train is not usually authorized to receive payment of fare; and the burden of proof is on the passenger paying fare to him to show that he was authorized to receive it, or that it was paid to the conductor; and in the absence of such proof, and upon proof of the brakeman's want of authority, it wds error to refuse an instruction based upon such want of authority.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Unlawful Detainer—Lease with Privilege of Purchase—Equitable Defense—Fraudulent Conveyance by Lessor.—A lease making the lessee a preferred purchaser in case of sale contemplates a hona 'fide sale, and not a fraudulent one; and in an action for unlawful detainer brought by grantees of the lessor the defendant may set up as an equitable defense that the sale to such grantees was collusive and fraudulent for a fictitious price, with the intent to deprive the defendant of his rights under the lease and to oust him from the premises, after the lessor had refused his request to place a cash price thereupon so that he could purchase the same, which he was able and willing to do.</p> <p>Id,—Bight to Affirmative Beltef not Essential.—It is not essential to the equitable defense that the defendant should show any right to affirmative relief, or that the contract in the lease should be an enforceable contract for the sale of land.</p> <p>Id.—Attornment to Fraudulent Grantees not Required—Refusal to Pay Bent—Findings.—The lessee having been deprived by a pretended sale of the important privilege to purchase the land, which the lease gave him, he could not attorn to the fraudulent grantees without recognizing the validity of their purchase and their right to terminate the lease and deprive him of the balance of his term; and where the court found upon sufficient evidence that the deed was made for the fraudulent purpose shown, it was not necessary to find that defendant has refused to pay the rent to the plaintiffs.</p> <p>Id.—Evidence—Ability and Willingness to Purchase—Offer to Pay Bent to Lessor—Financial Condition of Grantees.—Under the issues it was competent for defendant to show ability and willingness to purchase the property at its fair market value. Evidence that he offered to pay the rent to the lessor, who is not a party, and that the lessor refused to accept it was not prejudicial. It was permissible to prove the financial condition of one of the grantees as bearing upon the issues, and to contradict his testimony.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County and from an order denying a new trial. H. Z. Austin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Argument—Review.—An appellate court will consider only the assignments of error discussed in the appellant’s brief, and will not prosecute an independent inquiry to find out reasons for or against tho correctness of other rulings.</p> <p>Action pob Alienation of Affections of Husband—Support of Verdict.—In an action by a wife against another woman for alienation of the affections of her husband, where the testimony of the plaintiff and defendant, aside from a letter written by the latter, sustains the conclusion reached by the jury, it cannot be disturbed for insufficiency of the evidence.</p> <p>Id.—Instructions—Construction—Malicious Intention—Burden of Proof—Damages.—The instructions in the action must be construed together in the light of the evidence before the jury; and when the instructions were not misleading nor prejudicial, and made it clear that there must have been a malicious intention to alienate the husband’s affection from the wife, and to cause the separation, and properly defined the burden of proof, though omitting it in a single instance, and properly confined the damages recoverable to what should fairly seem the pecuniary loss of plaintiff, there is no reversible error therein.</p> <p>Id.—Inadmissible Evidence—Declarations of Husband—Incompetency under Code.—The declarations of the husband made to the wife as to his relations with the defendant, and of his desire for a divorce to marry her, were incompetent under section 1881 of the Code of Civil Procedure, and were properly excluded under a general objection of incompetency, in the absence of a showing of the consent of the husband.</p> <p>Id.—Hearsay.—Such declarations were essentially incompetent as being mere hearsay evidence in the action for damages for alienation of his affections from the plaintiff by the defendant.</p> <p>Id.—Evidence—Other Causes of Separation—Mitigation of Damages.—Any evidence tending to show that the separation or alienation of affection resulted from other causes than those alleged is admissible as bearing upon the necessary averment that the loss of consortium was due to defendant’s conduct, evidence tending to show the unhappy relations of the parties and want of affection between them prior to the defendant’s interference and intrigues would be admissible in mitigation of damages.</p>

<p>The facts are stated in the opinion of the court</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing to set aside an order for the enforcement of a judgment. N. P. Conrey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from a judgment upon demurrer and from a judgment of nonsuit in the Superior Court of Los Angeles County. N. P. Conrey, Judge. The facts are stated in the opinion of the court.

PETITION for Writ of Habeas Corpus to test validity of a conviction in the Superior Court of Calaveras County. A. I. McSorley, Judge. The facts are stated in the opinion of the court.

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mandamus—Bestobation or Dismissed Teaches—Investigation ot Charges—Case Aettbmed.—A writ of mandate will not lie to compel the restoration of a teacher dismissed upon written charges made by citizens after investigation thereof by the board of education without charges preferred by the county superintendent of schools. (The ease of McKenzie v. Board of Education etc. et at, ante, p. 406, applied and affirmed.)</p>

<p>APPEAL from an order of the Superior Court of Kern County , and from an order refusing a new trial. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>J. G. Bossiter, C. L. Shinn, and H. H. Appel, for Appellant.</p>

<p>Crimin'An Law—Evidence—Impeachment of Witness.—The impeachment of a witness by showing that he has made statements in conflict with his present testimony cannot be met by the party calling such witness with evidence that at other and different times the impeached witness has made statements in harmony with his present testimony; and to permit the introduction of such testimony is prejudicial to the party against whom it is received. Particularly is this the rule where there is nothing to show that the witness did not have the same motive or interest to deceive when he made the confirmatory statement that he may have had when he testified to the faet.</p> <p>Id.—Hearsay.—In a prosecution for larceny a witness cannot testify to a conversation had with a third person, the effect of which was to convey the impression that such third person had told the witness that the defendant was one of the parties engaged in the stealing. Such testimony is hearsay.</p> <p>Id.—Accusation in Presence of Defendant.—In such prosecution evidence of a statement made by the prosecuting witness in the presence of the defendant, that the defendant was one of the persons concerned in the stealing, is inadmissible if the defendant at the time denied the charge.</p>

<p>Criminal Law—Instructions—Circumstantial Evidence.—In a criminal prosecution it is error to instruct the jury without qualification that “where the evidence is entirely circumstantial, yet is not only consistent with the gnilt of the defendant, but inconsistent with any other rational conclusion, the law makes it the duty of the jury to convict, notwithstanding such evidence may not be as satisfactory to their minds as the direct testimony of credible eye-witnesses would have been.”</p> <p>Id.—Error without Prejudice.—The giving of such instruction, although erroneous, will not warrant a reversal where the circumstantial evidence of the defendant’s gnilt was entirely uncontradicted, and was, if not absolutely conclusive, at least “satisfactory” in the sense of that term as defined in the Code of Civil Procedure,—to wit, such as “ordinarily produces moral certainty or conviction in an unprejudiced mind. ’ ’</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing a new trial. M. T. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Edwin A. Meserve, and Jeff Paul Chandler, for Appellant.</p>

<p>Criminal Law—Assault to Commit Rape—Simple Assault.—On a prosecution for an assault to commit rape the defendant may be convicted of a simple assault. In the present ease the evidence is sufficient to sustain the verdict of simple assault.</p> <p>Id.—Instructions without Prejudice.—On such a prosecution, where the defendant was convicted of simple assault, instructions relating only to the higher ofíense, whether erroneous or otherwise, are without prejudice.</p>

<p>Judgment—Bendition—Findings.—The making and filing of findings of fact and conclusions of law constitute the rendition of judgment. Id.—Ejectment—Writ or Possession.—In an action of ejectment a writ of possession may be executed against a defendant against whom judgment has been rendered or his grantee pendents iiie, although the judgment had not been entered against him prior to the issuance of the writ.</p> <p>Id.—Entry Pendente Lite.—A person not a party to an action of ejectment who enters into possession of the demanded premises pending the action may be dispossessed under a writ issued on a judgment against the defendants unless he dearly and satisfactorily shows that he did not enter under or in collusion with either of them.</p>

<p>APPEAL from a judgment of the Superior Court of Tulare County and from an order refusing a new trial. W. B. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>T. J. Norton, E. E. Millikin, and U. T. Clotfelter, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. William P. Lawlor, Judge.</p> <p>The facts are stated in the opinion of the court.</p> <p>Samuel M. Shortridge, and Prank J. Murphy, for Appellant.</p>

<p>Action to Enforce Trust—Judgment Protecting Mortgagee—Affirmance upon Appeal.—Where land was conveyed to one defendant in trust for the benefit of plaintiff and another defendant, and in the judgment rendered in an action to enforce the trust the holder of a mortgage which was executed by the trustee with the consent of all parties interested is fully protected, and has no right to complain of the judgment, it will be affirmed upon appeal taken by such holder therefrom.</p> <p>Id.—Error nr Judgment—Fraudulent Satisfaction of Judgment-Lien upon Trust Land—Reinstatement in Equity—Mortgage by Trustee for Redemption.—Where there was a judgment-lien upon the trust land which bound plaintiff’s interest, and satisfaction was fraudulently entered by the defendant beneficiary without payment in fact, and" the lien was reinstated in equity in suit against the trustee, who borrowed money upon mortgage to redeem from the lien, the judgment in equity against the trustee is binding upon the plaintiff beneficiary, and the money raised and paid by the trustee was expended for the common benefit of both beneficiaries; and it was "error not to hold the interest of plaintiff subject to the reimbursement of half the sum expended by the trustee, with interest, to be paid for the use and benefit of such mortgagee.</p>

<p>Sale of Hat—Estimated Tonnage—Action fob Excess of Monet Paid—Burden of Proof.—In an action to recover an alleged excess of money paid for hay sold, under an alleged agreement between the parties to adjust any excess or deficiency of tonnage at a fixed price per ton, paid upon an estimated amount, the burden is upon the plaintiffs to show that under the contract alleged in the complaint there was a deficiency in the estimated quantity paid for.</p> <p>Id,—Mode of Measuring Tonnage—Oral Modification of Written Contract—Exclusion of. Original.—Where the plaintiffs relied upon an oral modification of a written contract as to the mode of measuring the tonnage of the hay sold, and had offered the written contract, and had withdrawn it before ruling upon objection of defendant as to variance, such objection cannot be considered: but it was prejudicial error subsequently to exclude the written contract when offered by defendant to show its stipulations as to such mode. In the absence of the original contract the oral modification thereof could not be satisfactorily determined.</p> <p>Id.—Sale of Part of Hat Delivered—Parties.—Purchasers from the plaintiffs of part of the hay delivered are not necessary parties to the action to recover the excess of the money alleged to have been paid by plaintiffs to defendant upon Ms sale to plaintiffs.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Homestead—Estates of Deceased Persons—Value—Evidence Deceived after Submission of Contest—Appraisement.—After a contest by a creditor of an insolvent estate of a deceased person to an application by Ms widow to have certain premises set aside as a homestead has been tried and submitted for decision, the issue involved being whether the value of the premises sought to be set aside was in excess of five thousand dollars, it is error for the court, without the knowledge or consent of such creditor, to appoint appraisers and receive the evidence contained in their appraisement as to the value of the premises; and an order setting aside the premises as a homestead, based upon the evidence of value contained in such appraisement, of which no notice was given the creditor as required by section 1478 of the Code of Civil Procedure, will be vacated.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial M T. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court</p>

<p>PETITION for Writ of Prohibition to William P. Lawlor, Judge of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Corporation—Partnership—Agency—Warehouse Receipts by Secretary to Himself—Ratification—Findings against Evidence.— Where a corporation owning a warehouse is virtually an incorporated partnership, of which its secretary is the managing partner, and he has been in the habit of storing hay in the warehouse and issuing receipts therefor in his own name, signed by the corporation, by himself as secretary, which were regularly entered upon the books and known to the directors, he had authority to issue-such receipts to himself; and where it clearly appears that a particular receipt so issued was ratified by the company upon report, thereof, and by failure to object thereto upon inquiry of a subsequent assignee thereof for value as to the rate of storage, findings that the corporation did not issue or ratify the receipt are against the evidence.</p> <p>Id.—Warehouse Receipt Conclusive as to Amount Stored—Estoppel.—Both under the general law and by force of the statute-law of this state it is not competent for a warehouseman to contradict his receipt as to the amount stored; but he is estopped thereby to deny the actual receipt and possession of the goods represented by said receipt.</p>

<p>Action upon Note—Purchase op Oil Stock—Depense—Rescission por Fraud.—In an action upon a note given on account of the purchase price of oil stock an answer setting forth that the defendant, having friendly relations with the plaintiff, was induced by his fraudulent representations, specifically set forth, to purchase the stock and to give the note sued upon, and setting forth a ease of aggravated fraud, and prompt notice of rescission of the contract therefor upon discovery of the fraud, with demand for return of the note, discloses a complete defense to the action.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Mechanics’ Liens—Waiver of Defect in Complaint.—A defect in the complaint in an action to foreclose a mechanic’s lien, in not alleging that the materials contracted for were actually used in the building, is waived where the defendant’s counsel made a statement to the court limiting his objection to evidence solely to insufficiency in the form of the lien and practically allowed the plaintiff to prove the fact of use without amendment in that regard; and the defendant cannot be permitted upon appeal to urge an objection to the complaint in that regard which might have been obviated' by a timely amendment.</p> <p>Id.—Sufficiency of Lien.—Where the complaint shows that the claim of lien stated all the matters required by section 1187 of the Code of Civil Procedure, and was filed in due time, it shows that a lien attached; and it is of little consequence whether the claimant styles it a claim of lien or a claim of benefit under the lien law.</p> <p>Id.—Lien upon Counter and Partitions—Additions to Building— Permanent Fixtures—Support of Finding.—The lien was properly claimed upon a counter and partitions which were added to the building where they were shown to be such additions as amounted to a “repair and alteration’’ of the building, and the evidence was sufficient to support a finding that they were permanently attached to the building and became part thereof.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Sufficiency of Evidence.—Upon review of the evidence, held that it is sufficient to sustain a verdict of guilty of murder in the second degree, and to show that .the killing was wholly unnecessary, in shooting an unarmed man in an intoxicated condition, and not in necessary self-defense.</p> <p>Id.—Inadmissible Evidence—Declaration of Deceased to His Wife. —Where it appeared that prior to the homicide the wife of deceased was trying to get him away, evidence of what he said to her was properly excluded, there being no intimation in the question as to the nature of the statement sought to be elicited.</p> <p>3d.—Apprehension of Bodily Injury—Inapplicable Instruction— Strength and Activity of Parties.—Where there was no evidence as to the relative size, strength, and activity of the parties an instruction that the jury should take the same into consideration in determining whether the defendant had reason to apprehend bodily injury from the defendant was properly refused; and error cannot appear in refusing it where the record does not show that it was requested by the defendant.</p> <p>Id.—Newly Discovered Evidence—Insufficient Affidavits.—Affidavits of newly discovered evidence whieh are not shown in the record to have been offered or read on the motion for a new trial, and the contents of whieh would not justify a new trial, being designed merely to impeach a witness for the prosecution on a point which might have been fully shown at the trial, are insufficient to justify a new trial.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. Benjamin P. Bledsoe, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of Sonoma County. A. 6. Burnett, Judge. The facts are stated in the opinion of the court.

<p>Action against Payee on Notes as Indorser—Pleading—General Issue — Evidence — Indorsement to Maker—Title through Maker.—In an action by an administrator against the payee of notes as an indorser thereof, where the ease was tried upon the theory that a general denial in the answer was sufficient to raise an issue, except as to the execution of the notes, it was error to exclude evidence to show that the notes were transferred by the indorsement to the maker, and were to be surrendered up thereto, and were to be transferred by the maker as evidences of debt secured by mortgage, in consideration of advances to be made to the maker by plaintiff’s intestate.</p> <p>Id.—Effect of Transfers—Right of Action against Payee not Transferable by Maker.—The indorsement and surrender of the notes to the maker, with the understanding that they were to be transferred by the maker with the benefit of the mortgage security, was merely to keep the notes and security therefor alive for purposes of such transfer by the maker; but as the maker could not acquire any right of action upon the indorsement made thereto by the payee, no such right could be transferred by the maker, and the mere title to the notes was vested in the transferee of the maker.</p>

<p>Criminal Law—Larceny—False Pretenses.—In order to constitute the crime of larceny, the owner of the money stolen must not have intended to part with the property or the money stolen; and where-the evidence shows that the prosecuting witness loaned the money to the defendant, thus parting with the title and possession of it, which was secured by reason of false and fraudulent representations knowingly and designedly made, no conviction can be sustained for larceny, the crime being that of obtaining money by false pretenses.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Specific Performance—Contract for Transfer of Stock, Books and Papers—Control of Mining Corporation—Pleading—Inadequate Bemedy at Law.—In an action for the specific performance of a contract alleged to have been fully performed on plaintiff’s part, to transfer a certain number of shares of stock, and to turn over the books, papers, seals and certificates of a mining corporation, so as to insure to plaintiff the majority of the stock and the control of the corporation,' averments in the complaint that the stock, books, papers, etc., have no specific or certain market value, but would be of great value to plaintiff, and that the retention thereof by the defendant and his refusal to perform the contract will work irreparable injury to plaintiff, and that it will be difficult to- do justice to plaintiff by an award of pecuniary damages, are sufficient to show that plaintiff has no adequate remedy at law, and a demurrer to the complaint was properly overruled.</p> <p>Id.—Parties—Corporation.—The mining corporation is not a necessary party to such action for specific performance.</p> <p>Id.—Surrender of Numbered Certificate—Issuance of New Shares to Defendant—Identity not Affected.—Where it was agreed that a certain numbered certificate held by the defendant should be surrendered, and the agreed shares, issued to plaintiff and the remainder to defendant, and upon surrender thereof the whole number of shares were issued to the defendant, which he retained, and, upon perfecting his appeal, deposited with the clerk, the change in the number of the certificate does not affect the identity of the stock affected by the agreement.</p> <p>Id,—Form of Finding.—A finding that defendant has not surrendered the agreed numbered certificate to the secretary of the company, so that a specified number of shares should be issued to the defendant, and the remainder to the plaintiff, is not untrue as to the substantive matter found.</p> <p>Id.—Immaterial Error in Form of Judgment.—There was no substantial error in the form of the judgment in requiring the original numbered certificate to be surrendered for cancellation, and that the plaintiff receive the specified number of shares thereof, and that the defendant take the remainder. The real thing ordered is the transfer of the specified number of shares to plaintiff, and such transfer would be a sufficient compliance with the judgment to entitle defendant to a satisfaction thereof.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

J. C. B. Hebbard, Judge. The main facts are stated, in the opinion of the court. The will introduced in evidence showed that deceased had bequeathed all of her household furniture to the plaintiff, and by a codicil had bequeathed to her five hundred dollars in cash.

<p>Note—Illegal Consideration—Lobbying Contract—Public Policy.— A promissory note given to raise money for the purpose of carrying out a contract between the maker and payee for lobbying is given for a contract against public policy, which renders the consideration illegal.</p> <p>Id.—Definition of “Lobbying.”—The term “lobbying” has a well-defined meaning in this country, and signifies to address or solicit members of a legislative body in the lobby or elsewhere for the purpose of influencing their votes. The term is not used in any good sense.</p> <p>Id.—Penal Offense not Material.—It is not material that the contract does not provide for acts to be done within the penal provisions of the constitution and the Penal Code. It is sufficient that it was the object and purpose to provide means to enable the maker of the note to carry on the business of lobbying. It is not the policy of the law that the members of the legislature during the session should be subjected to the personal solicitation of experienced and paid lobbyists.</p> <p>Id.—Contracts not Aided by Courts.—Courts will not permit themselves to be used for the purpose of aiding or enforcing such contracts, and this cannot be made the basis of any action, legal or equitable.</p> <p>Id.—Transfer of Illegal Note—Presumption—Burden of Proof.— Where it is clearly proved that the consideration of the note was illegal and that the payee was a party to the illegal contract, and the note is sued upon by a transferee of the payee, the law presumes that the transferee suing upon the note stands in the shoes of the payee, and the burden of proving a bona fide purchase for value without notice rests upon the holder.</p> <p>Id.—Order Granting New Trial—Surprise—Mistake of Law.—Am order granting a new trial on account of the surprise of the holder, which consists only of a mistake of law as to the burden of proof, which was supposed to rest on defendant, to prove that plaintiff was not a bona fide holder for value, cannot be justified.</p> <p>Id.—Trial—Parties at Swords’ Length.—Upon the trial of a cause the parties are at swords’ length, and each one relies upon his own knowledge of the law, and the evidence which he deems essential. Id.—Laches—Application after Judgment.—One who would apply for relief on the ground of mistake of law, must apply before judgment to have the submission set aside upon terms, and it is too late to make the application after decision and judgment, as ground for new trial.</p> <p>Id.—Presumption in Favor of Order—Abuse of Discretion.—Though in general all presumptions are in favor of an order granting a new trial, yet where it is granted without any legal reason for so doing the court’s discretion has been abused.</p>

<p>Slander—Charge of Murder—Words Actionable Per Se—Presumption of Malice.—A complaint alleging that the defendant spoke of and concerning plaintiff in the presence of a person named and divers other persons words importing that .defendant has proof that the plaintiff was guilty of the murder of a person named, states words that are actionable per se, and if false they are presumed to have been spoken with malice.</p> <p>Id.—Allegata and Probata.—The words spoken must be set out in the complaint, that the defendant may have notice of the particular charge which he is required to answer; and the words proved to have been spoken, though they need not correspond with precision to the identical words set forth, must be in substance the same, or have substantially the same meaning, and enough of them must be proved to sustain his cause of action. The aUegata and probata must substantially correspond, and plaintiff is not entitled to recover upon proof of words not set forth, or upon a failure to prove the slanderous words alleged in the complaint.</p> <p>Id.—Gravamen of Cause of Action—Failure of Proof.—Where, notwithstanding the use of other words in the complaint which are not slanderous per se, the gravamen of the cause of action is that defendant had proof that plaintiff was guilty of the murder of the person named, proof that defendant had spoken the other words and that his words did not contain any direct charge of killing or murder, and that he used other expressions not corresponding with the words spoken in the complaint, and not containing such direct charge, is insufficient to authorize a recovery.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Thomas F. Graham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Murder—Evidence—Degrading Questions—Harmless Cross-Examination.—Where a witness for the defendant charged with murder had testified on his examination in chief that he was in the habit of sitting around the saloon where the homicide occurred a great deal of the time, and that he had been arrested on a charge of vagrancy as being an idle and dissolute person, the case will not be reversed because of harmless error in permitting the prosecution on cross-examination to ask questions in regard to the same matters that did not tend more strongly to discredit or ■ degrade the witness than the facts he had already testified to on direct examination.</p> <p>Id.—Testimony at Coroner’s Inquest—Answer to Question—Contention without Merit.—Where such witness was cross-examined on an answer given by him at the coroner’s inquest, and upon objection that the whole answer should be read, the court informed the district attorney that he could use as much of it as he desired, a contention that error was committed is without merit where the district attorney read the whole answer and asked questions thereupon.</p> <p>Id.—Compromise Verdict for Manslaughter—Inadmissible Affidavits of Jurors.—The affidavits of jurors are not admissible to impeach their verdict, except when there is a resort to chance, and it was not error to strike out affidavits of jurors that they had voted “Not guilty” and had agreed upon a verdict of manslaughter as matter of compromise with other jurors who had voted for different degrees of murder.</p> <p>Id.—Instruction—Duty of Jurors.—It was not error to instruct the jury that “it is the duty of every juror to reason with his fellow-jurors to the end that he may join in á lawful verdict.” The instruction only states that which each juror is presumed to have known. The law requires that the jury retire for deliberation, which means careful consideration of the reasons for and against a choice or measure.</p> <p>Id.—Self-Defense—Instructions—Burden of Proof—Reasonable Doubt.—When the defendant admitted the killing and claimed self-defense, it was proper for the court to read as part of its charge section 1105 of the Penal Code, that “the commission of the homicide by the defendant being proved, the burden of proving circumstances in mitigation or that justify or excuse it devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that defendant was justifiable or excusable,” the court having also instructed the jury that the' law does not require the defendant to establish his defense, even by a preponderance of evidence, but that if the evidence was such as to create in the minds of the jurors a reasonable doubt as to the guilt of the defendant, they should acquit him.</p> <p>Id.—Challenge to Panel—Power of Superior Judges—Constitutionality of Code Provision.—A ground of challenge to the panel that section 204 of the Code of Civil Procedure in so far as it empowers superior judges to draw jurors in counties having over one hundred thousand inhabitants, and requiring the supervisors to draw them in other counties, is unconstitutional is not tenable. That section is constitutional and valid.</p> <p>Id.—Constitutional Law.—In eases of reasonable doubt the courts will not hold an act void because unconstitutional, and practice and acquiescence in the machinery provided for by the section in question as to the selection of juries, for so many years, sanctioned by the courts, furnish an almost irresistible reason for not overturning it.</p> <p>Id.—Untenable Grounds for Chat,tenge.—The work delegated to the secretary of the judges, and the qualifications of jurors on the list, are not grounds for challenge to the panel.</p> <p>Id.—Directory Statute-Panel Drawn from List of Previous Tear—Error not Shown.—The provisions of the code as to the selection of jurors in January of each year are directory and are to receive a liberal construction, where the code provides that after a list of jurors has been made and returned they shall serve for the "ensuing year," or until a new list shall be provided. No error appears in a panel drawn from the list of the previous year, in the absence of any showing that a new list for the current year had been certified and filed with the clerk.</p>

John Hunt, Judge. The facts are stated in the opinion of the court. A. A. Moore, and Stanley Moore, for Market-Street Rail-way Company, Appellant. M. S. Eisner, for San Francisco and Pacific Glass Works, Appellant.

<p>Action fob Conversión—Judgment foe Damages—Lessee Liability of One Defendant—Payment—Credit upon Judgment—Satis- ■ faction.—In an action for damages for the wrongful conversion of plaintiff’s property by sale thereof under execution, found to be of the value of one thousand dollars at the time of the taking, for which sum, with interest, judgment was rendered against three defendants, while as to a fourth defendant the judgment was limited to a less sum, in which the proceeds of sale had been applied to his use, after payment by him of such less sum, the other defendants are entitled to credit therefor upon the judgment against them, and upon payment of the residue of one thousand dollars, with interest and costs of suit, are entitled to a satisfaction of the judgment.</p> <p>Id.—Benefit of Execution Sale.—The plaintiff by accepting such less sum from one of the defendants has availed himself to that extent of the benefit of the execution sale, and is only entitled to the residue to the extent to which he has been injured thereby.</p>

<p>Charter op Vessel—Contract for Lumber—Assignment.—A contract to charter a vessel, and by the owners to furnish lumber for freight at a fixed price per thousand, is assignable without the consent of the owners. Although the assignor is not released by the assignment from the burden of the contract, the assignee takes all of the rights from the assignor thereunder.</p> <p>Id.—Consideration op Assignment—Obligation op Assignee.—Where the assignee as a recharterer, in consideration of the assignment, agreed to pay a higher than the contract rate to the assignor, he is under an implied obligation to carry out the contract purchased, and to act in good faith with the assignor.</p> <p>Id.—Breach op Duty by Assignee—Ret,ease op Owners—New Charter—Where as the result of the breach of duty by the assignee to comply with the terms of the contract, the owners assumed to cancel it, and the assignee thereafter without the assignor’s consent released the owners from the original contract, and took a new and different contract, though such release concludes the assignor, the assignee is directly liable to him for the consideration agreed to be paid, and cannot evade such liability by reason of the release or of the failure of the owners through his fault to carry out the original contract.</p>

<p>APPEAL from an order of the Superior Court of the ■City and County of San Francisco vacating a judgment by default. John Hunt, Judge.</p> <p>The facte are stated in the opinion of the court.</p> <p>Sullivan & Sullivan, and Theodore J. Roche, for Appellant.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Frank H. Kerrigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract to Remove Mortgage-Lien—Action tor Breach—Sufficiency of Complaint.—A complaint in an actio* upon a contract executed by a husband and wife to remove a mortgage-lien, which alleges that the mortgage was fraudulently executed by the husband under a power of attorney from plaintiff executed for a different purpose, that he appropriated the proceeds to his own use, that the contract was executed to prevent legal proceedings by plaintiff against the husband, that the contract was broken, and that plaintiff’s title was lost under foreclosure of the mortgage, and claiming damages for its alleged value, states a cause of action.</p> <p>Id.—Consideration—Forbearance—Money Received and Appropriated.—The complaint shows a sufficient consideration for the contract sued upon, both in the agreement to forbear legal proceedings against the husband in regard to the iniquitous transaction alleged and to the money received and appropriated by the husband to his own use.</p> <p>3d.—Support of Findings—Responsibility of Husband—Conflicting Evidence.—Where there is evidence tending to support all of the findings for the plaintiff, and the evidence was substantially conflicting as to whether the husband or an attorney associated with him in business, and who prepared the papers, received the money, but the testimony of the latter, that he received the cheek and that the money was immediately turned over to the defendant husband, taken in connection with the fact that defendants by signing the contract sued upon acknowledged the husband’s liability to remove the mortgage-lien, amply sustains the finding for plaintiff on that question.</p> <p>Id.—Legal Liability of Plaintiff on Mortgage—Equitable Liability of Defendant.—It is immaterial whether plaintiff by giving a power of attorney to raise funds on mortgage to carry on an appeal, if taken, and not to be used unless the appeal was taken, of which notice to the contrary was given, made herself legally liable to the mortgagee. It is sufficient that as between herself and her attorney in fact she was not in equity bound by it, but he was, and acknowledged himself to be so bound by executing the agreement sued upon.</p>

<p>Promissory Note—Installments—Statute of Limitations.—Where a promissory note is payable in monthly installments, the statute of limitations begins to run against each installment from the time when an action might have been brought upon it.</p>

<p>Mandamus—Statute of Limitations—Reinstatement of Policeman Dismissed.—An application for a writ of mandate to compel the police commissioners of the city and county of San Francisco to reinstate a patrolman of the police force dismissed by them nearly nine years prior to the application is barred by subdivision 1 of section 338 and by section 343 of the Code of Civil Procedure.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Tuolumne County and from an order denying a new trial. G. W. Nieol, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Estates or Deceased Persons—Mortgage—Presentation oe Claims —Waiter—Foreclosure.—It is not necessary to present a mortgage claim against the estate of a deceased person in order to foreclose the mortgage, where the complaint of the mortgagee waives all recourse against any other property of the estate.</p> <p>Id.—Statute oe Limitations—Mortgage Debt not Mature at Death oe Decedent.—Notwithstanding the mortgage debt was not mature at the death of the decedent, and more than four years elapsed from its maturity before foreclosure, yet it is saved from the bar of the statute by the concluding clause of section 353 of the Code of Civil Procedure, where the foreclosure suit was begun within one year after the issuing of letters testamentary or of administration.</p>

<p>Action fob Brokers ’ Commissions on Sale of Realty—Support of Findings — Conflicting Evidence.—In an action to recover brokers’ commissions on the sale of real estate, where the court found, upon substantially conflicting evidence, that the property was sold, and that the sale resulted through the efforts of the plaintiffs, such finding will not be disturbed upon appeal.</p> <p>Id.—Stipulation—Submission upon Record of Former Jury Trial— Reporter’s Notes—Exceptions not Reserved or Reviewed.—A stipulation that the cause he submitted to the court for decision upon the record of a former trial before a jury as shown by the-reporter’s notes taken upon such former trial, without expressing any reservation of rulings and exceptions taken upon the former trial, does not require the trial court to review them; and in the absence of any showing that the trial court actually passed thereon,, the appellant from its decision cannot have them reviewed in this, court.</p> <p>Id.—Duty of Appellant—Presumptions upon Appeal—Intent of-Stipulation—Absence of Consent of Court.—It is the duty of the appellant to show error affirmatively, and every intendment is in favor of the action of the trial court; and where it is not clearly apparent from the record that the parties and the court understood that the stipulation included exceptions formerly taken, it must be presumed that nothing of the kind was intended, and that the court did not consent thereto,—the parties being powerless to make up a new record based upon the former rulings without the consent of the court.</p> <p>Id.—Error Removed by Consent—Estoppel of Appellant.—He who consents to an act is not wronged by it; and acquiescence in error takes away the right of objecting to it. In the absence of an express agreement to that effect sanctioned by the trial court, the appellant will not he allowed to predicate error on a record to which he has consented.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Municipal Corporations—Special Chaster Referring to General Laws—Amendments—Pines in Police Court under State Laws —Payment to County Treasurer.—The disposition of fines for misdemeanors imposed by a police judge under the state law in a municipal corporation chartered by special act prior to the constitution of 1879, and charter of which referred to the general law for its powers and duties, is not to be determined merely by the general law as it then stood, but is to be governed by existing amendments to such general law, providing that all such fines shall be paid to the county treasurer.</p> <p>In.—Power op Legislature—General Laws Affecting Municipal Corporations.—The legislature may pass general laws affecting municipal corporations, without reference to whether such corporations were formed before or after the constitution of 1879.</p> <p>Id.—Construction of Constitution—"Municipal Affair."—The disposition of fines for misdemeanors punished by virtue of the state law, and not of any municipal ordinance, is not a "municipal affair ’ ’ under a special charter which says nothing about fines, and leaves their disposition to be regulated by the Penal Code.</p>

<p>Sale of Stock-Yard by Assignee of Insolvent—Dispute as to Fixtures—Compromise—Conveyance—Becitals—Steel Bails not Included.—Where the assignee of an insolvent corporation sold its stock-yard with all buildings, structures, tracks, and appurtenances, and where, upon a dispute as to whether certain articles were ‘ ‘ personal property not sold, ’ ’ or were ‘ ‘ fixtures, ’ ’ a compromise was allowed pursuant to a stipulation referring it to the court, which permitted an admission in the conveyance that all property in and about the premises shall pass as fixtures with the realty; held, that a conveyance reciting a sale of “all property used in connection with” the stock-yard company, and an agreement that all “personal property in and about the buildings is to be considered as fixtures,” did not pass sixty tons of steel rails not on the premises, and far removed from any buildings or tracks, of the existence of which the assignee was ignorant, and which were not included in the stipulation referring the dispute, and were listed for taxation by the vendee as “old iron.”</p>

<p>Contract to Collect City Bonds—Half Interest of Attorney—Sale of Owner’s Interest in Judgment—Second Assignment As Collateral—Conditional Promise of Attorney.—Where the owner of city bonds contracted with an attorney to collect them for a one-half interest, and absolutely sold and assigned all his interest in the judgment rendered» in payment of a canceled note, but subsequently assumed to assign his interest in the original contract as collateral security for Ms note to a tMrd person, and directed the attorney to pay the note out of any money wMch may be due Mm under the contract: Held, that a conditional promise by the attorney that, should any money come into his hands payable to the maker of the note, he would out of such funds pay the note, does not render the attorney liable by its terms, as no money coming into his hands could be so payable.</p> <p>In.—Ownership op Collateral — Lien—Bights op Pledgor.—An assignment by way of collateral security for the payment of a note creates only a lien, and confers no title, which remains in the pledgor, who may at any time extinguish all rights under the assignment by simply paying the note.</p> <p>Id.—Prior Notice op Second Assignment—Note Barred by Statute —Extinguishment op Lien—Bights op Prior Assignee.—The fact that no notice was given to the attorney- of the prior assignment of the owner’s half interest in the judgment before prior notice had been given of the assignor’s assignment of the original contract (which had become merged in the judgment) by way of collateral security, is not material, where it appears that, long before -any money was collected, the lien in favor of the payees of the note became extinguished by the lapse of time in which an action could be brought on the note, and that the prior assignee of the judgment, as a purchaser thereof for value, became absolutely entitled to any money that might be collected on the judgment under the interest of the assignor, discharged of any lien in favor of such payees.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. M. C. Sloss, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sale op Hay—Purchase by Owner op Land prom Cropper—Delivery and Change op Possession—Attachment—Support op Findings. —In an action involving the title to hay sold by a cropper to the owner of the land, and the validity of an attachment against the cropper, where the court found in favor of the plaintiff, and that there was an actual delivery and continuous change of possession prior to the attachment, all conflict in the evidence must be resolved in favor of the action of the trial court, and the findings are sufficiently supported by evidence tending to show that aside from plaintiff’s interest in the hay as owner of the land, he in good faith purchased the cropper’s interest for full value, and that, after the sale the hay was under Ms exclusive dominion and control by his own agent on the land.</p>

<p>The facts are stated in the opinion of the court.</p> <p>L. F. Byington, District Attorney, and I. Harris, Assistant District Attorney, for Appellant.</p>

MOTION to dismiss appeals from an order of the Superior Court of the City and County of San Francisco vacating an order refusing probate of a will and from an order vacating the appointment of an administrator. Frank H. Kerrigan, Judge. The facts are stated in the opinion of the court. Philip L. Manson, and Lucius L. Solomons, for Appellant.

<p>Estates op Deceased Persons—Claim upon Notes—Action upon Rejected Claim—Supficibncy op Complaint.—Although, where a claim against the estate of a deceased person is rejected in whole or in part, a recovery in an action thereon is limited to the items of the claim rejected, yet, where action is upon the identical notes rejected, and additional facts stated in the complaint are merely explanatory of the demand, and no different contract is stated from that set forth in the claim, the cause of action is upon the claim; and the complaint is not rendered objectionable because of the mere segregation and lumping of certain classes of items not affecting their amount.</p> <p>Id.—Death op Payee—Distribution op Notes to Joint Maher as Heir—Claim against Co-Maker—Contribution not Involved.— Where the notes sought to be enforced were never paid to the original payee, and after his death were distributed to one joint maker as heir of the payee, the only effect of such distribution was merely to extinguish the equitable share of the liability of such joint maker, and he is entitled by sneeession to the rights of the payee, by operation of law, to enforce one-half of the liability upon the notes as a' claim against the estate of the deceased co-maker. No claim for contribution is involved in such case.</p>

<p>Negligence—Action for Death—Order Granting New Trial—Support of Verdict—Discretion—Conflicting Evidence.—In an action by an administrator for the death of his intestate owing to the alleged negligence of the defendant, where the verdict was for the defendant, upon plaintiff’s motion for a new trial for insufficiency of the evidence to support the verdict, it is the duty of the trial judge to exercise his judgment and discretion in reviewing the evidence, and though it is conflicting, to grant a new trial if he does not believe that the verdict is the correct conclusion from all the evidence. This court will not interfere with the order granting a new trial where no abuse of discretion appears.</p> <p>In.—Damages Recoverable.—Where the evidence tends to show that the death resulted from the actionable negligence of the defendant, though the recovery is limited to the value of the pecuniary interest of those entitled to recover damages therefor, yet such value is not a precise sum, but such damages are allowable as, “under all the circumstances, may be just.” It cannot be said as matter of law that a wife and minor children are entitled only to nominal damages for the wrongful death of the husband and father caused by defendant’s negligence, notwithstanding the absence of proof of-important circumstances to be considered by the jury in estimating the pecuniary damages to which the wife as administratrix of her deceased husband would be entitled.</p>

<p>Street Improvement—Presentation op Resolutions to Mayor—Freeholders’ Charter—Statute Inapplicable.—Where the freeholders’ charter of a city does not require resolutions to be presented to the mayor, a resolution of intention to improve a street and the resolution ordering the work done under such charter need not be presented to the mayor for his approval. The act of March 27, 1897, requiring resolutions to be presented to the mayor, has no application to a city working under a freeholders’ charter.</p> <p>Id.—Estimate op Street Work under Vrooman Act.—The Vrooman Act does not appear to require an estimate of street work before passing the resolution of intention unless the municipal board should be desirous of issuing serial bonds for the work, or to place the work in a district.</p> <p>Id.—Posting op Notices—Object and Extent op Requirement.—The object of the statute requiring the street superintendent to post notice of the passage of the resolution of intention “along the line of said contemplated work or improvement ’ ’ is to give the persons interested a chance to know what is intended, so they can appear and state any objections they may have. It is sufficient that the notices are posted as required along the entire line of the contemplated work; but it is not necessary to post any notice in a block not mentioned in the resolution, upon which no work is to be done and no part of which can be assessed for the work proposed.</p> <p>Id.—Separate Parts op Street—Single Contract.—The fact that the work is to be done upon separate parts of the same street, omitting a block therein, does not preclude the letting of the work by a single contract where the work is not of a different character on any part of such street.</p> <p>Id.—Constitutionality op Vrooman Act—Passage op Constitutional Amendment.—The Vrooman Act is constitutional under the amendment of section 19 of article XI, proposed by the legislature in 1883 and properly submitted to the people at the general election in 1884 as constitutional amendment No. 1. The bill proposing that amendment, with its indorsement, shows that it was properly enrolled, authenticated, and deposited with the secretary of state as having been passed by the legislature; and the journal cannot be looked to to rebut or set aside the presumption thus raised that it was properly passed.</p>

<p>Negligence—Injury to Bailway Passenger—Construction of Finding—Damages—Presumption.—In an action for negligence of a railway company causing an injury to plaintiff as a passenger, findings for the plaintiff are to receive such a construction as will support the judgment; and a finding that one thousand dollars will compensate plaintiff for the detriment caused will be construed to mean the amount necessary to compensate the plaintiff upon the presumption that the court, in the proper discharge of its duty, fixed no sum greater than was necessary and proper under the facts before it. The amount so found as compensation for the breach of defendant's duty will be deemed a fixation of the damages allowed for such breach by section 3333 of the Civil Code.</p> <p>Id.—Support op Finding as to Negligence—Preparation op Passenger to Alight—Sudden Jerk—Presumption.—A passenger has a right as the ear is approaching the place of destination to proceed to the door preliminary to alighting; and when, while preparing to alight, the car gave a sudden jerk, without notice, by reason of which he was precipitated to the ground and injured, the law presumes that defendant was not exercising the utmost care and diligence for the safe carriage of the passenger; and as the injury was produced by the carrier in operating the instrumentalities employed in its business, the presumption of negligence follows.</p> <p>Id.—Utmost Care Required op Carrier—Duty op Supervision-— Means op Knowledge.—Whatever may be the rule elsewhere, a carrier of passengers in this state must bestow the utmost care, which involves such constant supervision and observation over and of passengers as will insure to the employees accurate information as to the condition and position of those under the carrier’s charge. Where the means of knowledge in relation thereto exist, the same rule applies as would obtain where actual knowledge exists.</p>

<p>Action foe Negligence—Obstruction to Surface Water—Breakage —Injury to Plaintiff’s Land—Support of Findings.—In an action for negligence in maintaining an embankment on defendant’s land to impound water for irrigation, thus stopping surface water, which would naturally flow over plaintiff’s land without injury, a breakage of which was caused by storm water, causing injury to plaintiff’s land, where the court found for plaintiff and that good husbandry did not require that the embankment be maintained, and the evidence, though conflicting, was sufficient to support the findings, they will not be disturbed upon appeal.</p> <p>Id.—Flow of Surface Water—Laws of Nature.—In the case of surface waters having no definite channel of escape, the owner of the land upon which they are found being impotent to rid himself of their presence, the law wisely provides that the laws of nature should be left untrammeled in their disposition.</p> <p>Id.—Object of Embankment—Neglect in Construction—Liability of Defendant.—Whatever proper object the defendant may have had in the embankment, or right to construct it, where it was so negligently constructed as not to provide outlets for storm water, and such neglect was the proximate cause of the injury, the defendant is liable therefor.</p> <p>Id.—Opinion Evidence—Basis Shown.—Assuming an objection to the opinion evidence of the plaintiff, as to the effect of an outlet for water in a certain end of the embankment, was well taken, yet where the answer contained a statement of the physical conditions surrounding the premises, on which the opinion was based, it relieved itself from the .force of the objection.</p> <p>Id.—Obstructions Contributing to Overflow—Issue as to Damages—Evidence without Prejudice.—Evidence as to obstructions contributing to the overflow, which were not within the issue as to damages, was without prejudice where no obstruction but the embankment itself was considered on the question of damages. Id.—Measure of Damages—Costs Necessary to Put Land in Repair.—The cost and expense of restoring the land to its former condition, and the loss sustained from being deprived of its use, were the measure of damages; and it was erroneous to admit evidence as to the costs necessary to put the land in repair. The rule of difference in market value is not invariably applied.</p> <p>Id.—Mistaken Description in Complaint and Findings—Avermentof True Position Admitted.—Where there was a mistaken description of the land in the complaint as to legal subdivisions, as well as in the finding, which would indicate an incorrect position of the lands, yet where their true position is shown by an averment in the complaint, admitted by the answer, no finding is necessary in that regard, and the erroneous particular description may be ignored.</p> <p>Id,—Ineffectual Appeal from Judgment—Dismissal.—Where an attempted appeal from the judgment was not perfected until after the lapse of one year from the rendition of the judgment, it is ineffectual and must be dismissed.</p>

<p>Appeal — Order Granting New Trial — Conflicting Evidence.— Where one of the grounds of the motion for a new trial was insufficiency of the evidence to justify the verdict, and the evidence is substantially conflicting, an order granting a new trial will not be set aside.</p> <p>Id.—Bevibw of Order—Ground Expressed—Appellate Court not Limited.—In reviewing the order granting a new trial this court is not limited to the ground expressed by the trial judge; but the order will be sustained upon any tenable ground assigned.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County and from orders denying a motion to strike out an amendment to the complaint and denying a new trial. Albert G. Burnett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Injunction against Labor Union—Injury to Restaurant Business-—Intimidation of Patrons—Absence of Physical Force—Support of Findings.—-In an action to restrain the members and agents of a labor union from interfering with the plaintiffs business, by intimidation of patrons, findings that they have “interfered with and intimidated” the patrons of plaintiffs restaurant, and have “prevented” them from entering and patronizing the same, and have patrolled the sidewalk for the purpose of “driving customers away” therefrom, do not imply the use of physical force, and they are supported by evidence, which, though conflicting, tends to show conduct, short of physical force, amounting to intimidation of the patrons of plaintiff and to an unwarrantable-interference with the peaceable prosecution of Ms business to plaintiffs peeumary injury.</p> <p>Id.—Rights of Organized Labor;—Labor may organize for mutual benefit and self-protection, and organized labor has the right to effect its objects and purposes by all lawful means, lawfully exercised.</p> <p>Id.—Free Speech—Property Rights—Guaranties of Constitution—• Maxim—Protection of All Classes.-—The right of free speech is guaranteed to all citizens by the constitution; but it also guarantees them the right of acquiring, possessing, and protecting property, and obtaining safety and happiness; and it is a maxim-of jurisprudence prescribed by law that ‘ ‘ one must so use Ms rights as not to infringe upon the rights of another.” These guaranties are equally important to and equally necessary for the protection of all classes of citizens.</p> <p>Id.—Acts Enjoined—Certainty of Judgment.—The court was not required in its judgment to enumerate the particular acts of intimidation enjoined, and where its meaning is plain, and it leaves to the members of the labor union as intelligent, law-abiding citizens to determine what they may safely do without violating its provisions, it is sufficiently certain.</p>

<p>Vendor and Purchaser—Contract for Perfect Title—Agreement for Building Restrictions—Encumbrances—Personal Covenant —Enforcement in Equity.—Under a contract for the sale of land calling for a perfect title, a recorded agreement imposing building restrictions upon the land shows an encumbrance upon the title, and even if the covenant be a personal one, though assuming to bind all representatives, yet being such .as a court of equity might enforce against purchasers with notice, the purchaser was justified in declining to accept the title.</p> <p>Id.—Title to be Deducible of Record—Rights of Purchaser.— Under a contract for a perfect title, the purchaser is entitled to one which is fairly deducible of record, free from all reasonable doubt and exposure to litigation; and he is not required to make investigation as to facts aliunde that may affect the title, not disclosed by the abstract, furnished by the vendor, or actually known to the purchaser.</p>

<p>The facts are stated in the opinion of the court</p>

<p>Action upon Note—Equitable Defense—Sufficiency of Findings— Omission—Presumption.—In an action upon a note where all other issues were sufficiently covered by the findings, the omission to find upon an equitable defense pleaded in the answer will not have the effect to invalidate the judgment for the plaintiff where it does not appear by the statement or bill of exceptions that evidence was submitted in relation to such issue; but it must be presumed in such case that there was no evidence to support it.</p> <p>Id.—Excess in Amount Found Due—Collateral Security—Principal Debt—Modification of Judgment.—Where it appears that the note in suit was given as collateral security, the amount recoverable thereupon cannot exceed the principal debt; and where the findings show an excess in the amount found due above that debt, that judgment must be modified accordingly.</p>

MOTION to dismiss appeal from a judgment of the Superior Court of the City and County of San Francisco. J. CB. Hebbard, Judge. The facts are stated in the opinion of the court.

<p>Action against Foreign Corporation-—Statute of Limitations—Failure to Designate Agent.-—Under the act of 1872, and the act of 1899 amendatory thereof, a foreign corporation doing business in this state which fails to file with the secretary of state its designation of some person residing in the county of its principal place of business upon whom process shall be served cannot defend an action on the ground that it is barred by the statute of limitations.</p> <p>Id.—Plea of Statute—Admission of Pleadings—Burden of Proof. —Where it was admitted by the pleadings that defendant is a foreign corporation, and it pleaded the statute of limitations, the plea being deemed controverted by section 462 of the Code of Civil Procedure, the burden is upon the defendant in order to avail itself of the defense to show that it had complied with the statute by filing the required designation with the secretary of state.</p> <p>Id.—Designation Pending Suit—Protection of Statute—Time of Running.—Where the foreign corporation designated an agent pending suit, such designation is only prospective from its date as to the protection of the statute of limitations, and it cannot avail itself of any defense as to the running of the statute prior thereto.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court.</p>

<p>Action upon Sheriff’s Bond—F'alse Return of Sale—Gravamen— Neglect of Duty—Unofficial Statements not Included in Return.—In an action upon a sheriff’s bond for damages incurred by a false return of an order of sale, the gravament of the action is the neglect of the sheriff to perform an official duty. Any statement or omission in his return not required by his official duty to be stated is no part of his return, and cannot constitute a neglect or breach of duty.</p> <p>Id.—Sale under Foreclosure—Satisfaction of Judgment—Extra-Official False Statement.—Upon a sale under foreclosure it is no part of the duty of the sheriff to state in his report whether the proceeds are insufficient to make the payments directed or the amount of any deficiency; and an extra-official false statement that the order of sale and decree of foreclosure were fully satisfied, made in the report and indorsed upon the order, does not render him liable.</p> <p>Id.—Judgment Creditor not Concluded—Amount of Deficiency.— The judgment creditor is not concluded by such report from having the deficiency computed and docketed against his judgment debtor after the sheriff’s return of the writ.</p> <p>Id.—Duty of Clerk—Request of Party Interested.—It is not the duty of the clerk to ascertain and docket the deficiency without any request so to do from the party interested therein.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco settling the final accounts of executors. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>The facts are stated in the opinion of the court</p>

<p>The facts are stated in the opinion of the court.</p>