Volume 100 — California Reports

<p>Appeal from a judgment of the Superior Court of Tehama County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an injunction order of the Superior Court of .San Bernardino County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of San Bernardino County changing the place of trial of an action.</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.</p> <p>The facts are stated in the opinion.</p>

<p>New Trial—“ Decision Against Law”—Erroneous Conclusions op Law—Appeal.—An error of the trial court in rendering conclusions of law which are not supported by the findings is an error which should be reviewed by a direct appeal from the judgment and is not a “ decision against law” for which a new trial should be granted.</p> <p>Id.—Error op Law Occurring at Trial—Review op Order Granting New Trial.—If an order granting a new trial upon the ground that the “ decision is against law” can be justified upon the ground of error in law occurring during the progress of the trial the order should be affirmed.</p> <p>Id.—Grounds Assigned por Correct Orders Not Material.—The moving party cannot be deprived of his right to a new trial merely because the grounds upon which the order granting it was made are not sound, if he is entitled to it on other grounds appearing in the record upon appeal from such order.</p> <p>Id.—Broker’s Commission—Statute op Erauds—Parol Evidence— Error op Law.—A contract whereby it is agreed that one of the parties shall use his knowledge and influence on behalf of and render his services to the other party to enable the latter to sell or exchange lands, for which the former is to be paid an agreed sum of money as soon as the sale or exchange is effected, is “an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or a commission” within the meaning of section 1624 of the Civil Code, requiring all such contracts to be in writing in order to be valid, and the admission in evidence of such oral contract, against proper objection thereto, in an action to recover for the services, is an error of law justifying an order granting a new trial, though granted upon other grounds not tenable.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sheriff—Mileage —Unsuccessful Search for Criminal.—Under section 9 of the Act of March 5, 1870 (Statutes of 1869-70, p. 159), fixing the fees of the sheriff of Tulare county, that officer is not entitled to recover from the county mileage for the distance traveled in an unsuccessful search for persons charged with the commission of a crime, although the persons are subsequently found and arrested by him upon a second search.</p> <p>Id.—Arrests for Misdemeanor Without Warrants.—Section 9 of the Act of 1870 does not entitle the sheriff to mileage for the distance traveled in going from the county-seat to other towns in which he has made several arrests for misdemeanor without warrants, when he went to the towns where the arrests were made without any knowledge of any crime having been committed by any of the persons arrested.</p> <p>Id.—Fees of Sheriff.—The sheriff is entitled to such fees only as are allowed by law.</p>

<p>Corporations—Mortgage—Excess of President’s Authority—Ratification—Estoppel.—Where the president of a corporation authorized to execute a mortgage, included in the note and mortgage terms and conditions which the corporation bad power to authorize but did not authorize him to insert, and the corporation by its representations and declarations and acts through its directors intentionally led the mortgagees to believe that the president was authorized to insert such terms aud conditions, and received the consideration from the mortgagee and applied the money to its own use, including the payment of a prior mortgage which included similar terms and conditions, and, with full knowledge of such terms and conditions, used the consideration and paid the interest thereon monthly as it became due upon the note and mortgage, such acts of the corporation constitute a ratification of the acts of its president, and an estoppel in pais, precluding the corporation from questioning his authority.</p> <p>Id.—Principal and Agent—Receiving Fruits of Unauthorized Contract—Acquiescence.—Corporations equally with individuals are subject to the rule that where, with full knowledge of all the facts involved, a principal reaps the fruit of an unauthorized contract of his agent, and for some time yields acquiescence to its provisions, he will he deemed to have ratified it, and will be estopped as against one who has fully performed the contract on his part, from repudiating it to the injury of the latter.</p> <p>Id.—Pleading—Denial of Authority—Admission of Ratification.— Where the answer denies the authority of the president of the corporation to execute the mortgage, but does not deny the- facts constituting a ratification of his acts, plaintiffs are entitled to judgment without proof of the president’s original authority.</p> <p>Id.—Ratification by Corporation Concludes Assignee in Insolvency. The assignee in insolvency of a corporation, which has ratified a note and mortgage executed by its president, is concluded by such ratification, where there is no suggestion of fraud, and the creditors whom he represents are not subsequen t purchasers in good faith for valuable consideration.</p> <p>Id.—Pleading by Assignee—Denial Upon Information and Belief— Presumption.—A denial upon information and belief by the assignee of an insolvent corporation, that certain appliances were attached to the-realty, and were fixtures, is insufficient. Such assignee must be presumed to have been in possession of the property, and to have known whether or not the appliances named were so attached, and the denial should be positive in form.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of Stanislaus County denying a petition for letters of administration and granting a petition of another party.</p> <p>The facts are stated in the opinion.</p>

<p>Ejectment—Description oe Land in Judgment—Construction op Exception—Certainty—Appeal.—A judgment entered in September, 1891, in an action to recover the possession of land, which described the land definitely and correctly in other respects, excepting, however, from its effect such parts of the land described “as were sown to grain by the defendant during the fall of 1890 and the winter of 1891 ” must be construed to refer to the winter expiring in 1891, prior to the date of the judgment, and prima facie contains a sufficient description of the land excepted, which can he applied so as to identify the excepted land, and snob judgment cannot be held void for uncertainty upon appeal therefrom.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of Placer County denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Modoc County and from an order denying a motion to vacate and set aside the judgment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Conflicting Evidence—Verdict.—Where the terms of the agreement between the parties are contested at the trial, the verdict of a jury in favor of the plaintiff upon conflicting evidence is conclusive that the agreement was as alleged by him.</p> <p>Id.—Review of Verdict for Damages.—Where the appeal of the defendant is based upon the insufficiency of the evidence to show that the plaintiff had suffered damages to the extent of the verdict found in hia favor, if it cannot be determined from the record upon appeal, what items the jury took into account, in determining the amount of damages. and no exceptions appear to the instructions of the court, the judgment upon the verdict must stand, if there was evidence before the jury of sufficient damages to justify its finding.</p> <p>Id.—Presumption as to Knowledge oe Jury.—In an action to recover damages for the'breach of a contract to harvest grain at a certain rate per acre, where the record upon appeal shows the particulars in which the plaintiff rendered services and incurred expenses in making preparations for the performance of the contract, and that his men and horses and harvesting-machine remained idle for a week by reason of its breach, but does not show any evidence of the value of the services rendered by plaintiff and his men and teams, or the expense to which he was subjected by the breach of the contract, it may be assumed that the jury were familiar with such work, and that they estimated the value of the services and the expenses necessarily incurred from their own knowledge and experience, and if the amount allowed therefor is not excessive the verdict of the jury should not be disturbed.</p> <p>Id.—Province of Jury—Knowledge of Values Not Proven.—Juries are in many cases permitted to exercise their individual judgment as to values upon subjects presumptively within their own knowledge, which they have acquired through experience or observation, and the objection that no evidence was presented before them upon such subjects is insufficient to defeat their verdict.</p> <p>Breach of Contract—Measure of Damages. —When a contract of employment is wrongfully terminated by the employer the measure of damages sustained by the employee includes the outlay necessarily incurred in preparing to perform the contract, and while engaged in its performance, and any additional expense to which he is subject after termination of the employment, growing out of his preparations for the work, or resulting from his enforced idleness, and the reasonable value of his own services and of the use of his property and a portion of the profits which he would have made under the contract.</p> <p>Id.—Determination of Profits.—The amount of profits to be allowed when the contract is not completed must be determined by the jury according to the, circumstances of the case, and the subject matter of the contract, varying with the time required for its completion.</p> <p>Evidence—Waiver of Motion to Strike Out—Acquiescence.—Where testimony is received, subject to be afterwards struck out on motion, if no such motion is made the party objecting must be deemed to have acquiesced in the evidence remaining before the jury.</p>

<p>Appeals from judgments of the Superior Court of Fresno County.</p> <p>The facts are stated in the opinion of the court.</p>

Hearing in the Supreme Court upon an alternative writ of prohibition issued to the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

<p>Water Rates—Authority of Supervisors Exclusive—Mayor Without Veto Power.—The power to fix water rates in the City and County of San Francisco is vested solely in the board of supervisors of the city and county, and the mayor has no power to veto an order duly passed by the majority of the board fixing such rates.</p> <p>Id.—Construction of Constitution—“Peremptory Process”—Action of Supervisors.—Sec. 1 of article XIV of the constitution providing for “peremptory process” to compel action of the supervisors fixing water rates should not be construed so as to compel the court to decree that the board of supervisors after having passed an ordinance fixing water rates shall act upon the objections of the mayor, and proceed to fix rates without any certainty that its action will not be again vetoed, and so on indefinitely, or to decree contrary to the principles regulating the writ of mandamus, that the supervisors shall abandon their judgment and make it conform to the opinion of the court or of any other person.</p> <p>Id.—Mandamus May Compel but Not Control Exercise of Discretion.—Mandamus will lie to compel the exercise of discretion; but when discretion has been exercised, will not lie to control the judgment of an officer or tribunal having discretionary or judicial functions.</p> <p>Id.—Judicial Action of Supervisors.—The board of supervisors acts judicially when fixing water rates, and where it has exercised its discretion in fixing the rates it cannot be compelled by mandamus to change its judgment or to take further action thereon.</p> <p>Id.—Statutory Construction—Absurd or Inequitable Results to be Avoided.—A constitutional or statutory provision should be construed according to the intention of the law-making power, and hot so as to lead to absurd or impractical results or to compel a court to decree a thing substantially impossible, or which is in plain violation of fundamental principles of law or equity unless the language absolutely requires such construction.</p> <p>Id.—Grant of Power to Board—Majority to Act.—When a grant of power is made to several persons or to a board consisting of several persons, the power is to be exercised by a majority of those persons, unless otherwise limited by the grant itself.</p> <p>Id.—Veto Power Not Favored.—The veto power is to be recognized only where clearly granted, and is not to be favored by any strained construction.</p>

<p>Criminal Law—Trial—Discharge of Jury for Failure to Agree—Sufficiency of Record—Jeopardy.—Under section 1140 of the Penal Code authorizing the discharge of the jury in a criminal action, after the submission of the cause, “at the expiration of such time as the court may deem proper,” if “it satisfactorily appears that there is no probability that the jury can agree,” it is not necessary, when a jury is discharged for failure to agree, that the record should show that it satisfactorily appeared to the judge that there was no reasonable probability that the jury could agree; and the fact that the record fails to show such fact does not render it sufficient to support the pleas of former jeopardy and former acquittal.</p>

<p>Mining Claims—Ejectment—Evidence—Outstanding Title.—In an action of ejectment to recover the possession of quartz-mining claims, where the answer avers that the premises described in plaintiffs’ complaint are public mineral lands of the United States, and the evidence shows that no part of the land in dispute was within section 35 of the government survey, an offer in evidence by the defendants of a patent from the government to the Central Pacific Railroad Company for the whole of section 35, upon which one-third of plaintiffs’ claims were located, for the purpose of showing an outstanding title thereto, is not relevant to any material issue, and the defendants, could not be injured by its exclusion.</p> <p>Id.—Annual Expenditures—Wrongful Entp.y.--Mining claimants who have made the annual expenditures required by the law of Congress for one year are entitled to the whole of the next succeeding year in which to make the annual expenditures for that year, and adverse claimants cannot lawfully enter upon the claim during such year, and make a valid location of the claim.</p> <p>Id.—New L' nation After 'Wrongful Entry—Prevention of Annual Work.—Where adverse claimants wrongfully entered upon the claims of plaintiffs, and took possession of plaintiffs’ tunnel, posted and recorded a notice of location, and extracted rock and earth under a claim hostile to plaintiffs’ title, and thereafter kept exclusive possession of the claim, the plaintiffs are entitled to recover possession of the claim, regardless of a new location made by the defendants or their grantors after the expiration of the year in which the unlawful entry was made upon the claim, and regardless of the failure of plaintiffs to do annual work thereafter which was prevented by the hostile possession and acts of the defendants.</p> <p>Id.—Pleading—Answer—Cross-complaint—Quieting Title.—In an action of ejectment, a cross-complaint to quiet the title of the defendants is unnecessary, and matter of defendants’ title constituting a defense should not be pleaded as a cross-complaint; and any attempt to make allegations by way of a cross-complaint to quiet title constitutes a mere answer to plaintiffs’ complaint. The character of the pleading is to be determined by the court regardless of what the defendants call their pleading.</p> <p>Id.—Conclusiveness of Verdict—Legal Defense—Amount of Damages. A cross-complaint to quiet title in an action of ejectment presents only a legal, and not an equitable, defense, and the verdict of the jury in such action as to the amount of the damages suffered by the plaintiffs is not advisory but conclusive, except as against the power of the court to grant a new trial. The court cannot disregard the verdict, and make findings inconsistent therewith as to the amount of the damages.</p>

<p>Criminal Law—Charge of Assault to Murder—Conviction of Assault Bar to Charge of Mayhem-ÍForher Conviction—Once in Jeopardy.—A conviction for an assault under an information charging an assault with intent to murder is a bar to a prosecution for mayhem committed during the assault, under a plea of a former conviction and once in jeopardy.</p> <p>Id.—One Offense Part of Another.—Where one offense is a necessary element in and constitutes an essential part of another offense, and both are in fact but one transaction, a conviction or acquittal of one is a bar to the prosecution for the other.</p>

<p>Estates of Decedents—Probate Homestead— Deed From Widow-Tenancy in Common.—A deed from a widow granting all of her individual estate in a tract of land which was the community property of herself and her deceased husband is taken subject to the right of the widow to have the land set apart by the probate court as a homestead for herself and her minor child, and her grantee cannot take as a tenant in common, in such manner as to defeat such right; but the right of such grantee if not defeated is at least suspended during the period of the occupancy of the property as a homestead.</p> <p>Id.—Ejectment—Pleading—Issue as to Cotenancy.—In an action of ejectment against such grantee by the widow and minor child, where the complaint avers title in plaintiffs and ouster by defendant, and the answer denies each and every material allegation of the complaint, and pleads the bar of the statute of limitations, such pleading contests the right of the defendant to possession as a tenant in common with the infant plaintiff.</p> <p>Id.—Denial of Title of Cotenant—Ouster.—The denial of the title of a cotenant in an answer is equivalent to an ouster.</p> <p>Id.—Evidence of Ouster.—Evidence of a demand by the plaintiffs upon the defendant to be let into the possession of the property, and of the refusal of such demand, and the withholding of the possession of the property from the plaintiffs is sufficient evidence to authorize the court to find an ouster.</p> <p>Id.—Validity of Probate Proceedings—Recovery by Infant Heir.— An infant heir, notwithstanding the invalidity of probate proceedings, may recover his interest in the real property and possession thereof, except as against the administrator.</p> <p>Id.—Inventory of Estate—Affidavit of Administratrix—Clerical Error—Homestead.—In an affidavit of an administratrix indorsed upon an appraisement or attached to an inventory, in almost the precise language of section 1449 of the Code of Civil Procedure, the substitution of. the word “decedent” instead of “affiant” in the final sentence, so as to make it read “and of all just claims of the said deceased against the said decedent” instead of against the said “affiant,” is a mere clerical error, which cannot vitiate subsequent proceedings setting apart a homestead.</p> <p>Id.—Object of Affidavit.—The object of requiring such an affidavit is apparently not to give validity to the inventory as such, but to furnish evidence that it contains all the property within the knowledge and possession of the administrator; and the absence of the affidavit cannot vitiate an order setting apart a homestead.</p> <p>Id.—Directory Statute—Time of Filing Inventory.—The clause in the code, requiring the administrator to file an inventory and appraisement within three months after he is appointed, is directory, and does not render the inventory and appraisement invalid when subsequently filed.</p> <p>Id.—Second Inventory.—Where from the discovery of other property, or destruction or loss of part of the property, or from any other cause, a second or further inventory and appraisement is desirable, the court may permit it to be filed, and inform itself thereby of the true condition of the estate.</p> <p>Id.—Setting Apart of Homestead—Procedure—Power of Court.— The code does not point out the steps to be pursued in setting apart a probate homestead, where none has been declared by the husband and wife, or one of them, during the lives of both parties, and in such case the court may adopt any suitable method of procedure conformable to the spirit of the code.</p> <p>Id.—Decree Setting Apart Homestead—Community Property—Duration of Homestead.—A decree setting apart a homestead upon community property for the use of the family of the deceased, consisting of the widow and two minor children, is not erroneous by reason of setting it apart absolutely, and not for a limited period. It is only where a homestead is set apart from the separate property of the deceased, that it is required to be for a limited period.</p> <p>Id.—“Use of the Family.”—Where the petition fora homestead asked that it be set apart for the widow and her two children, which is shown by the record to constitute his family, a decree purporting merely to set apart the homestead for the “use of the family” of the deceased, without mentioning the widow and children in the decree, must he construed as using the term “family,” in the sense of the statute providing for homesteads, to denote the surviving wife and children, and is sufficiently explicit to describe them.</p> <p>Id.—Collateral Attack Upon Decree.—Where proceedings setting apart the homestead in the probate court are collaterally attacked in an action of ejectment, such collateral attack can only avail by showing errors which render the decree absolutely void, and not merely voidable.</p> <p>Id.—Waiver of Homestead—Evidence—Declaration of Homestead by Widow.—The right to a homestead upon the community property which inures to the widow and her children jointly cannot be individually waived by any act of the widow, and evidence that after the death of the husband the widow purchased with her separate funds land upon which she declared a homestead, which was sold under a foreclosure sale, and subsequently redeemed and sold by her before the application for a probate homestead, is not admissible to show a waiver thereof on her part.</p> <p>Id.—Effect of Distribution.—A decree of distribution, entered long after a homestead was set aside by the probate court, can have no bearing upon the action of the court in the homestead matter, or affect the rights of the family to which it is set apart.</p> <p>Id.—Statute of Limitations—Adverse Possession—Entry Under Contract of Sale.—Where the individual grantee of the widow entered under a contract of sale from her, such entry was in subordination to the right of the widow and children to have the land set apart as a probate homestead, and did not become adverse to any of them until the date of the deed from the widow, and an action of ejectment commenced less than five'years after the execution of the deed is not barred by the statute of limitations.</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.</p> <p>The, facts are stated in the opinion of the court.</p>

Motion to dismiss an appeal from an order of the Superior Court of Contra Costa County denying a new trial. The facts are stated in the opinion of the court.

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

The facts are stated in the opinion of the court upon this appeal, and in the opinion rendered upon the former appeal, reported in 91 Cal. 206.

<p>Appeal from a judgment of the Superior Court of Loa Angeles County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Construction of Will—Devise for Life with Power of Disposition— Legacies from Residue—Effect of Trust Deed.—A will directing the payment of all the decedent’s debts and giving to his wife all of the remainder of his property, real, personal and mixed, wherever the same may be situated, “to have, use, and expend as she may seem fit during her lifetime, with full power to sell, transfer, or dispose of the whole, or any portion thereof, as she may deem proper,’’and granting to her “full power to convey a fee-simple title” to any real estate owned by him at the time of his death, or bequeathed to her under the will, and providing that “after the death' of the wife from any money remaining” to his estate certain legacies should be paid, does not confine the wife to the mere use of the property during her lifetime nor limit her to such disposition or change of form of the property as would enable her to better enjoy it, but she has power to dispose of it as she sees fit, and where she has executed a trust deed thereof- no vested interest arises in favor of the subsequent legatees.</p>

<p>Appeal from a judgment of the Superior Court of Modoc County.</p> <p>The facts are stated in the opinion.</p>

<p>Olographic Will—Construction—Probate. —A written document providing that “ this is to serifey that ie levet to mey wife Real and perenal and she to dispose for them as she wis” is properly construed as if it read: This is to certify that I leave to my wife my real and personal property, and she to dispose of them as she wishes, ” and as thus read, • shows a testamentary intent, and such document, if wholly written, . dated and signed by the testator, is entitled to probate as an olographic will.</p> <p>Id.—Informal Will—Testamentary Intent, How Shown.—A will may be informally drawn and may consist of one or more papers. No particular words are necessary to show a testamentary intent, it must appear only that the maker intended by it to dispose of property after his death.</p> <p>Id.—Parol Evidence of Circumstances—Supply of Obviously Omitted Words.—In the construction of a will parol evidence as to the attending circumstances is admissible; and obviously omitted words will always be supplied wherever the word omitted is apparent and no other word will supply the defect.</p> <p>Id. —Evidence—Previous Transfer—Jealous Fears of Wife—Appeal —Harmless Ruling.—In a contest over the probate of such olographic will where it appeared that the testator had, many years previously, transferred certain real and personal property to his wife, and the contestants sought to prove that the wife became intensely jealous of her husband a dozen years or so before his death, and feared that he had transferred or would transfer all of the property to others and leave her destitute, and expressed such fears to her husband, who assured her of the contrary, but could not satisfy her, for the purpose of showing that the instrument was not intended as a will, but merely as a certificate that the husband had “ left ” the property that he had previously transferred to his wife subject to her disposal, a ruling by the court admitting all of this offered evidence as to what had been said and done by her within three or four years before her husband’s death, but excluding all of it relating to earlier dates, is not materially erroneous or prejudicial to the contestants and is not ground for reversal of the judgment .admitting the will to probate, it not appearing that the verdict and judgment could have been different if the court had ruled entirely as asked by the appellant.</p> <p>Id.—Instructions—Natural Rights of Heirs—Burden of Proof as to Intention of Testator—Harmless Ruling.—Where the court, in a contest over the probate of a will, instructed the jury as to the manner in which the estate of the decedent would have been succeeded to and distributed in the absence of a will, and that in determining whether the paper in question was intended by the decedent as his will, they must take into consideration his mental and physical condition at the time the paper was written; who his relatives were and the claims they naturally had upon his bounty; any prior declarations which he may have made going to show his intentions as to the disposition of his property after death; and the circumstance, if it existed, that before the date of the paper he had formed in his mind a settled purpose to dispose of his property in a manner different from what the paper purported to do; and, also, all of the testimony bearing upon the question, including the contents of the paper itself; the action of the court in striking out of an instruction asked by the contestant a clause that “ as to the paper the rule of law is that where an instrument is susceptible of two interpretations, one in favor of natural rights and the other against it, the interpretation favoring natural rights is to be adopted,” and that if the testator had made no will “ the natural rights of his brothers and sisters, and of the children of any deceased brother or sister, would entitle them to a share of his estate, ” and in striking out part of another instruction that the proponent of the will must prove by a preponderance of evidence that the paper was intended as a will, and that in this connection the jury might consider certain specified testimony, is not prejudiciously erroneous.</p>

<p>Judgment Upon Pleadings—Clerical Error in Answer—Denial op Motion.—Where it is evident that the word “ when” as used in one o£ the denials of an answer is a clerical error, and was intended to be “where,” it will be so read; and a motion for judgment upon the pleadings based upon such clerical error, which loses its force by the correction of the error is properly denied.</p> <p>Action Against Sheriff—Selling Property Without Notice—Evidence —Sheriff’s Return—Admission of Falsity—Finding Against Evidence.—A sheriff’s return upon a writ of execution certifying that he sold the property after due notice is only prima facie evidence in his favor in an action against him for selling the property without notice, and the returns may be overcome by only slight evidence aliunde; and when it is not disputed that the sheriff has himself admitted the falsity of the return, a finding that its recitals are true, based upon no other evidence than the return itself, cannot be sustained.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Orange County and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Foreclosure of Mortgage—Rights of Purchaser at Sale—Receiver —Crof Raised by Mortgagor.—Although the purchaser of mortgaged property at a foreclosure sale is entitled to receive from the tenant in possession the rents of the property or the value of the use and occupation from the time of the sale until redemption, still the judgment debtor is entitled to remain in possession of the property until the expiration of the time allowed for redemption, and the purchaser is not entitled to place a receiver in charge of the property during the period of redemption to oust the judgment debtor from the property and take possession of the growing crops.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Negligence—Master and Servant—Neglect of Fellow-Servant— Showing Required.—In an action by the roadmaster of a railroad company, to recover damages for personal injuries caused by a collision resulting from the negligence of an engineer employed by the company, the plaintiff and the engineer being fellow-servants, in order to entitle the plaintiff to recover it is incumbent upon him to show not only that the injury was proximntely caused by the negligence of the engineer, but also that the engineer was incompetent, and that there was negligence upon the part of the railroad company in employing him, or in retaining him in its service, after notice of his incompetency and carelessness in the discharge of his duties.</p> <p>Id.—Fitness of Engineer—Single Rash Act—Verdict Against Evidence.—Evidence that the engineer, several months prior to the collision resulting in the injury, ran a train much more rapidly than schedule time, in daylight, and without accident or injury to any one, and that the proper officers of the railroad company were notified of such fast running of the train in violation of its rules, is not sufficient to sustain a verdict that the railroad company is guilty of negligence in retaining him as an engineer.</p> <p>Id.—Qualification of Servant.—One who by years of faithful service has shown himself trustworthy, vigilant, and competent is not disqualified for further employment, and proved incompetent, careless, or untrustworthy, by a single mistake or act of forgetfulness and omission to exercise the highest degree of caution and presence of mind; nor does a single act of casual neglect, perse, tend to prove the party to be careless and imprudent, and unfit for a position requiring care and prudence.</p> <p>Id.—Formation of Character.—Character is formed and qualities exhibited by a series of acts, and not by a single act.</p>

<p>Contest of Will—Striking Out Written Opposition of Contestant of Will—Proofs of Service.—If the written opposition of the contest of a will is in proper form, and sets forth facts which, if true, establish the invalidity of the asserted will, and an admission of service thereof by the attorneys of the executor who petitioned for the probate of the will is indorsed thereon, it is error for the court to refuse to consider proofs of service of the written opposition upon other parties, upon the ground that they were filed too late, and to strike the written opposition from the files, and to proceed to probate the will, and issue letters testamentary to the executor named therein, without a hearing of the matters alleged in the opposition.</p> <p>Id.—Duty of Court.—There being a full showing as against the executor, at least, that the will was invalid, and that he had no rights in the premises, the court should not have refused to give the contestant an opportunity to prove the averments of the written opposition, although there was not at the Lime appointed for the hearing sufficient proofs of service on the other parties, and the court should have ordered that contestants furnish proper proof of service on other parties who were residents of the county interested in the estate, and that the latter should have proper time in which to demur, or answer to the opposition as provided by the code.</p> <p>Id.—Vacation of Order—Striking Out Opposition—Refusal to Set Aside Probate and Letters—Appeal.—A subsequent order vacating the order striking out the opposition, and giving the contestant certain time to serve the same, is no answer to an appeal from the order admitting the will to probate, and appointing the executor, where the court refused to set aside that order. Contestant had a right to be heard before the will was probated and the executor appointed.</p>

<p>Appeal from a judgment of the Superior Court of Calaveras County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</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.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of Fresno County, dissolving an injunction.</p> <p>The facts are stated in the opinion.</p>

<p>County Government Act—Action fob Money Illegally Paid—Discretion of District Attorney—Mandamus.—Under section 8 of the County Government Act, which empowers the district attorney of a county and makes it his duty to institute suit in the name of the county against any person or persons to whom money has been actually paid under order of the board of supervisors without authority of law, to recover the money so paid and damages for its use, the district attorney is vested with a discretion in determining whether or not, in a particular instance, he should bring an action under that section, which a court cannot control by mandamus.</p> <p>Id.—Fruitless Action of Court—No Power to Supervise Action of District Attorney.—A court will not do a vain or fruitless thing, or undertake by mandamus what cannot be accomplished; and to compel a district attorney against his will and contrary to his judgment merely to commence an action would be an idle thing, in the absence of power to compel Mm to prosecute it properly to final determination.</p>

<p>Appeal from a judgment of the Superior Court of El Dorado County.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Siskiyou County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Dedication of Street—Revocation—Estoppel in Pais.—Where the dedication of a street or part of a street has not been accepted, or the property used by the public, it is purely a question of estoppel in pais whether it can be revoked or not. If no one has acted upon the offer in such a mode as to be injured by the revocation the owner may revoke the dedication, even though it be an actual dedication, and not a mere offer.</p> <p>Id.—Cul de Sac Upon Map of Unimproved Block—Conveyance of Whole Block.—Where a cul de sac has been marked upon a recorded map of a tract surveyed into streets, blocks, and lots, and such cul de sac was established in a block which was entirely unimproved, the owner of the tract had a right to revoke the dedication or offer to dedicate the cul de sac, and a conveyance of the entire block accompanying it by a description making no reference to the cul de sac, or to any alleged street, amounts to a revocation, if the purchaser had no notice of any fact which would have estopped the grantor from revoking.</p> <p>Id.—Effect of Subsequent Maps.—Maps made for the city subsequent to the revocation of the dedication cannot conclude the purchaser of the land or any one claiming under him, the land having become private property before such maps were made.</p>

<p>Water Rights—Appurtenance to Land—Purchase Under MpicroAGE Foreclosure.—A water right acquired by the owner of land under an agreement with a water company relinquishing riparian rights to the water company, and providing that the water company should put a one-inch tap in its mains, from which the owner of the land could draw all the water required for domestic purposes and for irrigation of a portion of the land, which water was furnished in accordance with the terms of the contract and used on the land for more than five years, constitutes an appurtenance to the land, and the right to it, including the flow of water from the main, passed under a conveyance executed in pursuance of a decree foreclosing a mortgage made prior to the agreement with the water company.</p> <p>Id.—Rescission oe Contract—Restitution oe Riparian Rights.—If it be conceded that in consequence of the sale under the foreclosure of the prior mortgage, the water company lost the riparian rights it acquired from the owner of the land, and that it is entitled to rescind the contract for failure of the consideration, it could not effect such rescission without restoring to the purchaser under the foreclosure sale all of the riparian waters which it had in fact diverted from the land under the contract, a¿d it is not enough that such purchaser has the right to sue to recover such riparian waters.</p> <p>Id.—Specific Performance of Contract—Affirmance by Plaintiff— Condition of Relief—Conveyance of Riparian Right.—-An action by a purchaser claiming title under the foreclosure sale to enforce specific performance of the agreement with the water company, is an affirmance of the contract made after the execution of the mortgage between the owner of the land and the water company; but it is proper that the purchaser should be required to convey the riparian right to the water company, as a condition of relief.</p>

<p>Appeal from an order of the Superior Court of San Bernardino County denying a change of venue.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Sonoma County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Homicide—Circumstantial Evidence—Misconduct or Jury—Expression of Public Opinion—Presumption of Influence.—Where the evidence upon a prosecution for murder is mainly circumstantial, and the result depended upon the degree of credit properly attaching to the statements of the witnesses, and upon the exercise of careful discrimination and sound judgment by the jury, and some of the jurors during the trial repeatedly visited a resort of lewd women and profligate men kept by a woman who had lived with the defendant and who was one of his principal witnesses, and there conversed in reference to the case, and subsequently the judge of the court delivered an admonition to the jurors upon their conduct, which was published at length in a newspaper under the head of “ What Does It Mean? ” and the sheriff who was a witness for the prosecution, made remarks to the jury calculated to prevent the jury from disagreeing on account of those visits, it must be presumed that the jury were influenced by a fear of public opinion in convicting the defendant, and a verdict of conviction rendered under such circumstances should not he upheld.</p> <p>Id.—Evidence—Drill of Military Company—Order of Officer—Ill-feeling of Defendant.—Where it appeared that the deceased was a member of a military company, which had been drilling on the night of the homicide, evidence that the defendant had been ordered out of the way by the officer of the company, other than the deceased, when it was engaged in skirmish drill, is not admissible to show ill-feeling by the defendant toward the deceased.</p> <p>Id.—Proof of Commission of Crime by Third Person—Acquittal Immaterial..—Evidence is admissible on the part of a defendant tending to show that another person committed the crime, and the fact that such other person had been tried and acquitted for the same offense does not alter the case. The judgment of acquittal of such third person is not admissible in evidence upon the prosecution of the defendant.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial, and to strike the transcript from the files. The facts are stated in the opinion of the court.

<p>Boundary Line—Location of Destroyed Post—Course and Distance From Starting Point.—Where the boundary lines of a tract of land are described in a survey as commencing at a marked post and running thence west a specified distance to a second marked post, thence south another specified distance to the corner of four sections, and there is no dispute either as to the location of the first marked post or the termination of the west line of the tract at the point where the four sections corner, but the second marked post is destroyed, it should be located by running west the specified distance from the first marked post, and not by running north the specified distance from the corner of the four sections mentioned.</p> <p>Id.—Conflict Between Grant Survey and Government Survey.— Where there is a conflict between the surveyed exterior boundaries of a Mexican grant and a subsequent government survey the grant survey must prevail.</p> <p>Id.—Lost Monument—Course and Distances—Monument at Termination of Line.—Where a monument of a survey has been lost, and cannot be located by oral testimony, the location by monument is valueless, and the course and distance given for its original location is necessarily controlling, and if a west line running south from the lost monument cannot have the course and distance given it without shortening the north line, then, as between the two lines the course of the west line must give way, as terminating at a controlling monument.</p>

<p>Contract—Consideration—Compromise op Litigation—Husband and Wipe.—A compromise agreement between a husband and wife by which they both agree to dismiss pending litigation between them is a sufficient consideration for a note and mortgage given to the wife by the husband, where the agreement remains unrescinded, and there is no pretense of fraud or imposition or that the compromise suits were not brought and defended bona fide.</p> <p>Id.—Compromise op Litigation Favored—Family Settlements.—A promise to compromise a suit brought bona fide on probable cause is a valid consideration for a contract, even though the suit should be held to be unfounded. Not only will such agreements be sustained, in the absence of fraud, but they are highly favored as productive of peace and goodwill in the community, and reducing the expense and persist-ency of litigation, and this is especially so of family settlements, where the courts will not undertake to weigh actual loss or gain, unless there be an imposition.</p>

<p>Vacating Judgment by Default—Discretion of Court—Mistake of Stenographer—Misnomer of Corforation^Dbfendant—Diligence. The court has discretion to grant a motion to set aside a judgment by default, because of a mistake made by the stenographer of the attorney for the defendant, in writing the defendants corporate name in the title to a demurrer, so as to express the name of a different corporation having partly the same name with the defendant, which mistake was not discovered until two or three days after the entry of the default, whereupon the defendant, without laches, moved promptly to have the default set aside.</p> <p>Id.—Affidavit of Merits.—An affidavit of merits upon a motion to set aside a default which states that the affiant is personally familiar with the facts connected with the transactions upon which the action is brought; that he knows of his own knowledge of facts which constitute a full, meritorious and legal defense to the action, and that the defendant has a complete defense thereto, is sufficient.</p> <p>Id.—Affidavit by Counsel.—An affidavit of merits upon a motion to set aside a default is not objectionable on the ground that it is made solely by counsel for the defendant.</p>

<p>Estates of Decedents—Duty of Husband to Pay Expenses of Last Illness of Wife—Account of Wife’s Administrator.—It is the duty of a husband to pay the expenses incurred for medical services for his wife during her last illness, if he is able to do so, and the allowance of such expenses against her estate in the account of her administrator is improper.</p> <p>Id.—Funeral Expenses—Monument Over Wife’s Grave.—It is the duty of a husband to bury his deceased wife in a decent manner and defray the necessary funeral expenses, and place some mark of identification over her grave; yet if the husband be poor, and the deceased leaves a considerable estate, it is proper for the court to fix a reasonable amount to be allowed out of her estate toward funeral expenses and a suitable monument. The amount allowed therefor should be governed by the custom of people of like rank and condition in society, a distinction being made between solvent and insolvent estates.</p> <p>Id.—Family Allowance—Voucher—Presumption Upon Appeal.—An item in the account of an administrator for payment of a family allowance in one sum cannot be disturbed upon appeal merely from the absence of a voucher, which may be owing to an order of court, authorizing payment of the amounts named, in which case no voucher is required. Error must be shown, and cannot be presumed.</p>

<p>Appeal from a judgment of the Superior Court of San Bernardino County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County, and. from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

Application to the Supreme Court for a writ of prohibition to the Superior Court of Los Angeles County. On the 27th of October, 1893, an opinion was rendered in this matter directing the issuance of a writ of prohibition. Subsequently a petition for a rehearing was filed, on which application the following opinion was rendered. The facts are stated in the opinion of the court.

<p>Criminal Law—Trial—Disagreement of Jurors—Prejudicial Statement of Judge.—The action of the judge of the trial court in a criminal prosecution, in stating in answer to a statement of a juror that the jurors were unable to agree, that “in view of the testimony in this case the court is utterly at a loss to know why twelve honest men cannot agree in this case,” without advising an acquittal, would probably give the jury to understand that the judge believed the defendant guilty, and that such ought to be their verd'ct, and is prejudicial error.</p> <p>Id.—Error Not Cured.—Such error is not cured by the fact that in a subsequent part of the charge to the jury the judge informed them that they were the sole judges of fact and of the credibility of witnesses, and that the court had no right to trench upon their province in this respect.</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.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Pleading—Misjoinder of Causes of Action—Injuries to Person and Property.—A cause of action for an injury .to the person is improperly united with a separate cause of action for a subsequent injury to his property, and a demurrer thereto, on the ground that several causes are improperly united, should be sustained.</p> <p>Id.—Improper Overruling of Demurrer— Objection Not Waived by Answer.—An objection that two causes of action are improperly united in a complaint, when properly taken by demurrer, is not waived by subsequently answering the complaint and going to trial upon the merits.</p> <p>Id.—Appeal—Presumption of Injury from Error.—A judgment rendered upon a complaint after a demurrer thereto has been improperly overruled must be reversed upon appeal unless it clearly appears that no injury to the defendant resulted therefrom. Injury will be presumed from the error, and it is incumbent upon the respondent to make it appear to the contrary.</p>

Appeal- from a judgment of the Superior Court of Napa County, and from an order denying a new trial. The facts are stated in the opinion of the court.

<p>Appeal from orders of the Superior Court of the City and County of San Francisco granting and refusing petitions for letters of administration.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Fresno County.</p> <p>The facts are stated in the opinion.</p>

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

On March 5,1890, Gave J. Gouts, one of the heirs-at-law of the decedent, having an allowed claim against the executrix of the will of the decedent, filed a petition for an order requiring the executrix to sell so much of the real estate as should be necessary to pay his claim, alleging that there was no personal property from which it could be paid.

<p>Estates of Deceased Persons—Decree of Distribution—Lien of Ad. ministrator.—A decree of distribution which provides for the distribution of the property “subject to the claim of the administrator” for a sum named, is in effect a declaration that the property is charged with the payment of the sum named, and creates a lien therefor on the property by operation of law.</p> <p>Id.—Power of Court to Charge Estate With Pees of Administrator.— The probate court has the right and power to charge the property of an estate with the payment of administrator’s fees.</p> <p>Id.—Administrator’s Lien Against Heirs of Deceased Heir.—Where the sole heir of the estate of a decedent dies before the estate is settled, and administration is separately had upon his estate, and the same administrator is appointed to settle each of the estates, the heirs of the deceased heir take the estate distributed to them not only subject to a lien in favor of the administrator charged thereupon for his fees in settlement of the estate of the deceased heir, but also take it subject to a lien charged by the court upon the estate of the original decedent in favor of the administrator.</p> <p>Id.—Conclusiveness of Decree—Adverse Claim of Administrator.— The last decree of distribution to the heirs of the deceased heir does not conclude the rights of the administrator of the first estate as an adverse claimant of a lien thereupon.</p>

<p>Agistor's Lien, How Created.—In order that the agistor’s lien given by section 3051 of the Civil Code may attach it is essential that the animal be placed with the agistor by its owner, or some one having authority from him.</p> <p>Id.—Conditional Sale oe Horse—Deposit in Livery Stable by Possessor—Title in Seller.—No lien is created in favor of a livery stable keeper for the feeding of a horse left with him by one having possession thereof under a conditional sale, by the terms of which the title is retained in the seller until the payment of the purchase price, upon failure to pay which the horse is to be returned to the seller without cost or expense.</p>

<p>Appeal from a judgment of the Superior Court of Sonoma County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Probate Homestead—Conveyance by Widow—Estoppel.—Where the will of a decedent gave to the widow a cash legacy, but no further interest in the estate, a conveyance by her of all her interest in the estate both as legatee under the will and as an heir at law in case the will should be set aside conveys no interest in the land if the will is not set aside, and does not estop her from claiming a probate homestead, the right to which does not constitute any interest in the land.</p> <p>Id.—Construction of Conveyance.—A conveyance is to be construed in ■ view of all the facts, and general language in the first part of the instrument is limited and qualified by subsequent terms designed solely to define what interest is possessed and granted.</p>

<p>Contract—Presumption op Consideration op Written Instrument— Pleading.—A complaint which alleges that a corporation defendant executed a contract in writing whereby it promised and agreed to pay the plaintiff on a given date a certain sum of money, states facts from which the law presumes a consideration, and the failure specially to allege a consideration for the written contract is not ground of demurrer, though the contract is not set out in Tunc verba.</p> <p>Id.—Presumption op Law.—Presumptions of law need not be averred in a complaint.</p> <p>Id.—Matter op Inducement—Ambiguity.—Matter of inducement leading up to the written contract upon which the cause of action is based does not render the complaint ambiguous, uncertain, or unintelligible.</p> <p>Id.—Redundant Allegations.—That a complaint alleges facts which are redundant is not a cause for demurrer. The proper remedy in such a case is a motion to strike out.</p>

<p>Eminent Domain-—Condemning Land for Public Street—Evidence— Price Paid for Other Land—Report of Commissioners.—In proceedings for the condemnation of land for a public street, a report of the commissioners showing what they had paid for other land in the vicinity by agreement is not admissible in evidence for the purpose of showing the market value of the land sought to be condemned. What the party condemning has paid for other property is incompetent evidence.</p> <p>Id.—Effect of Cross-Examination.-—Though the report of the commissioners may be properly brought before the court on cross-examination, for the purpose of testing the evidence of the commissioners on the question of market value, it is not competent to admit it or consider it as affirmative evidence on the question of value.</p>

<p>Appeal from a judgment of the Superior Court of Kern County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>County Treasurer—Receipt to Auditor—License Taxes—Sworn Statement—Estoppel.—Where a county treasurer, in compliance with the requirements of section 80 of the County Government Act, made entries in his books charging himself, as treasurer, with a certain sum of money as having been received from a license tax collector on account of license taxes, and delivered a receipt to the auditor showing that he had received the money from the collector, and on the first Monday of each month thereafter during his term made his sworn statement to the auditor that this amount of money was in his hands, as county treasurer, he is estopped from questioning his receipt, and will not be permitted to exonerate himself from liability to the county by showing that the sworn statements were false, and that instead of requiring the collector to pay the money into the treasury, he had taken his individual promise to pay it at a subsequent date; and he and his sureties are liable to the county for the loss of the money.</p>

<p>Pleading—Amendment oe Complaint—Waiver oe Error.—Where an amended complaint is filed after the action of the court in striking out portions of the original complaint, the error, if any, in the order striking out, is thereby waived.</p> <p>Id.—Amended Complaint—Superseding Original.—An original complaint is superseded by the amended, and thenceforth fills no office as a pleading, except as evidence of the date at which suit is brought and for a few other purposes.</p> <p>Id.—Homestead Upon Community Property—Succession.—A homestead declared upon community property becomes, upon the death of the husband, the sole property of the surviving wife, and the heirs at law of the deceased husband acquire no interest in it by succession.</p> <p>Id.—Mortgage Upon Homestead—Personal Contract of Mortgagee Wit'S Wife and Children—Defense to Foreclosure.—Where the mortgagee of community property upon which a homestead has been declared induces the wife to unite in the execution of the mortgage, by a promise that in the event of any action to foreclose and sell the mortgaged premises, he would set apart and convey to the wife and her children a quantity of land of a specified value, to he secured and conveyed as a homestead for their benefit either out of the mortgaged premises or elsewhere in a specified locality, without incorporating the agreement in the mortgage, such promise is personal to the wife and her children, and creates no lien in their favor upon the mortgaged premises, and constitutes no defense to an action to foreclose the mortgage, hut gives only a right of action at law for its breach.</p> <p>Id.—Parties to Foreclosure.—Heirs at law of the mortgagor are not necessary parties to an action to foreclose a mortgage.</p> <p>Id.—Fraud—Relief Against Decree.—To entitle the defendant to relief against a decree on the ground/>f fraud it must appear that he had a good defense on the merits, and that such defense had been lost to him without fault on his part.</p> <p>Id.—Vacation of Foreclosure Decree—Representations by Mortgagee to Widow and Children.—Representations by such mortgagee, made to the administrator of the deceased husband and to the attorneys appointed to represent the children, that there was no defense to the action to foreclose the mortgage, whereby they were prevented from setting up the agreement in the foreclosure proceeding, do not constitute fraud upon the part of the mortgagee, and do not entitle the children to set aside the foreclosure decree.</p> <p>Id.—Bill to Redeem.—The title to the homestead having vested in the mother upon the death of the father, no equity of redemption vested in the children, and they cannot maintain a hill to redeem from the mortgagee after he has obtained title under the foreclosure sale.</p> <p>Id.—Statutory Bar of Redemption.—The statutory right to redeem from a foreclosure sale possessed by parties to the action is restricted to the six months provided by the statute; and the provisions of section 346 of the Code of Civil Procedure, allowing an action to redeem from a mortgage, unless there has ueen an adverse possession for five years, applies only to cases where there has been no foreclosure of the mortgage and equity of redemption; and no such right remains after the expiration of the six months from the sale under foreclosure, except where some fraud has intervened rendering the decree and sales voidable.</p>

<p>Negligence—Liability of Telegraph Company—Speculative Damages —Pleading.—A complaint in an action against a telegraph company alleging that through the gross neglect of the defendant in wrongfully addressing a telegram, causing a delay in its delivery, the plaintiff was prevented from receiving an appointment as deputy city assessor, at a specified monthly salary, which he would have received if the message had been promptly delivered, and that he had sustained damage to the amount of five months’ salary, for which judgment is prayed, is subject to a general demurrer upon the ground that the damages are too speculative and uncertain to be recovered.</p> <p>Id.—Measure of Damages—Uncertainty.—Damages, or compensation, must be measured by the loss sustained, and where that loss cannot be ascertained, damages cannot be recovered.</p> <p>Id.—Appointment of Deputy—Term During Pleasure of Officer.— A deputy is appointed to hold during the pleasure of the officer appointing him, and an appointment as deputy does not imply a contract for . his employment for any length of time, it being possible that he might receive the appointment and be discharged the same day, either for cause or without cause.</p> <p>Id.—Nominal Damages—Maxim, De Minimis—Costs.—The fact that the plaintiff might be entitled to nominal damages for the negligence of the defendant does not make a judgment sustaining a general demurrer to the complaint erroneous, as nominal damages would not entitle the plaintiff to costs, and under the maxim, de minimis non curat lex, no question of permanent right exists between the parties, to be settled by a trial, and the demurrer is properly sustained.</p>

<p>Criminal Law—Trial—Misconduct of Prosecuting Attorney—Improper Questions to Prejudice Jury—Where the prosecuting attorney in a criminal action asks a defendant questions which he knows to be wholly inadmissible and wrong, without the expectation of answers, the clear purpose of which is to prejudice the jury against the defendant in a vital matter by the mere asking of the question, a judgment against the defendant will be reversed, although objections to the questions were sustained, unless it appears that the questions could not have influenced the verdict.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County, and'from an order denying a new trial.</p> <p>.The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Attempt to Commit Burglary—Intent—Larceny— Robbery—Instruction. —Upon the trial of a defendant charged -with the crime of an attempt to commit burglary in that he feloniously entered a house with intent to commit larceny, it is not error for the court to refuse to give an instruction to the jury requested by the defendant, to the effect that if he attempted to enter the house forcibly with the intention of forcibly taking personal property from the immediate presence or possession of the occupant and against his will, and by means of force or fear, he ¡could not be convicted of the crime charged. If the defendant had the intent to commit robbery, that intent included all the elements of an intent to commit larceny.</p> <p>Id.—Cross-examination or Defendant—Impeachment—Conviction of Felony.—A defendant in a criminal action who offers himself as a witness may be asked on cross-examination, for the purpose of impeaching him, if he bad not been previously convicted of a felony, and the fact that the information charges such previous conviction, which the defendant, by his plea, confesses, does not render the cross-examination improper.</p> <p>Id.—Review of Evidence—Specification of Insufficiency.—Although it is not necessary for the appellant in a criminal proceeding to state the particulars in which the evidence is insufficient to sustain the verdict, yet it must appear somewhere in the record that the point of the insufficiency of the evidence was made in the court below in order to entitle the appellant to raise the point upon appeal.</p> <p>Id.—Judgment Roll—Notice of Motion for New Trial.—A notice of motion for a new trial is no part of the judgment-roll, and can he made part of the record only by a hill of exceptions.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion.</p>

<p>Divorce—Alimony Pendente Lite—Order for Past Expenses.—Section 137 of the Oivil Code, which provides that while an action for divorce is pending the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to prosecute or defend the action, empowers the court to grant an allowance only as to expenses necessary to be incurred in the future prosecution or defense of the action, and does not authorize it to make an allowance for the payment of past expenses, except where the payment is necessary to be made in order to enable the wife to further prosecute or defend the action.</p> <p>Id.—Expenses Paid from Money Borrowed by Wife.—Where the expenses of a divorce action have been incurred and paid by the wife with money borrowed by her entirely upon the strength of her own credit, they cannot be made the basis of an order granting an allowance therefor and compelling the husband to pay them.</p>

The complaint filed in the superior court is entitled “ A bill of equity to enforce the performance of a special trust, and for the accounting of the trust estate by the trustees thereof, and for other purposes.” The action was brought by the plaintiffs, as nephews and nieces of William Walkerly, deceased, and the complaint sets forth a will of the deceased, which devises the residue of the estate to the persons named as executors of the will, in trust to manage the same and…

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

<p>Private Way—Easement—Prescription.—A private right of way over laud is an easement, and an interest in the land which may be acquired by prescription.</p> <p>Id.—Infants Barred by Prescription Against Trustee.—A prescriptive right to a right of way may be acquired as against infants, where their property is in the hands of a trustee, if he fail to bring an action to recover the estate within the statutory period.</p> <p>Id.—Statute of Limitations—Trust Estate.—The rule that the statute of limitations does not bar a trust estate holds only between cestui que trust and the trustee, and not as between the cestui que trust and trustee on one side and strangers on the other; and when a trustee is barred by the statute of limitations, the cestui que trust is likewise barred, even though an infant.</p>

<p>Service of Summons—Time Limited—Construction of Code—Reasonable Diligence.—Subdivision 7 of section 581 of the Code of Civil Procedure, which provides that an action shall be dismissed “ unless summons shall have been issued within one year and served and return thereon made within three years after the commencement of said action,” does not limit the time for service of the summons to one year after the commencement of the action, but fixes the extreme limit of time both for the service of summons and the return of summons at three years; but the question as to whether there has been reasonable diligence in making the service within the time limited is left an open one to be considered and decided by the court upon the facts of each particular case</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a motion for a new trial.</p> <p>The facts are stated in the opinion.</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.</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.</p> <p>The facts are stated in the opinion.</p>

<p>Office and Officer—Vacancy—Absence From State—Appointing Power. —Under Section 996 of the Political Code, which provides that an office becomes vacant upon the happening of certain specified events before the expiration of the term, one of which is the absence of the officer from the state for a period of more than sixty days, without permission of the legislature, the absence of an officer for such a period effects a vacancy ipso facto, which the appointing power has the right to fill upon satisfactory evidence of the absence, without the institution of legal proceedings, though the incumbent is not thereby concluded as to the fact of the occurrence of such event.</p> <p>Id.—Quo Warranto—Ouster of Deputies of Absent Treasurer-Absence from Sickness.—In an action in the nature of a quo warranto information against a county treasurer and his deputies on the relation of one claiming the office of treasurer by virtue of an appointment, where the complaint alleged that the treasurer had been absent from the state for a period of over sixty days without the consent of the legislature or the board of supervisors, .by reason of which the office became vacant, whereupon the relator was appointed as county treasurer, and that the former treasurer was still absent from the state, and the answer of his deputies admitted his absence, alleging that it was caused through sickness, a judgment in favor of the relator as against the deputies is proper.</p> <p>Id.—Cause of Absence Immaterial.—The fact that the absence of the treasurer from the state was necessary to his health and that its continuance beyond the sixty day limit was inevitable by reason of his sickness, is immaterial, as absence from the state without the consent of the legislature or board of supervisors for over sixty days absolutely effects a vacancy in the office regardless of the cause.</p> <p>Id.—Qualification of Relator—Approval of Bond—Demurrer.—The question whether the official bond of the relator has been properly approved cannot be raised by general demurrer of the deputies of the former treasurer to an information in the nature of a quo warranto, alleging the absence of their principal from the state for more than sixty days. The judgment ousting the deputies does not depend upon the relator’s right to the office.</p>

Application to the Supreme Court for a writ of review to the Superior Court of San Diego County. The facts are stated in the opinion of the court.

<p>Pleading—General Demurrer.—Upon a general demurrer to a complaint, an objection going only to a part of the cause of action cannot be sustained.</p> <p>Estates of Deceased Persons—Action Upon Contract With Decedent— Performance in Foreign Country.—The fact that services to be performed under a contract made with a deceased person in his lifetime, were to be performed, or were performed in a foreign country, does not affect the right of the person rendering the services to maintain an action thereon in the courts of this state.</p> <p>Id.—Liability of Personal Representative of Decedent.—Where the contract of the deceased is of an executory nature, and his personal representative can fairly and sufficiently execute all the deceased could have done, he may do so and enforce the contract, and is bound to complete the contract, and if he does not, may be made to pay damages out of the estate.</p> <p>Id.—Presentation of Claim—Pleading—Demurrer.—A complaint upon a claim against the estate of a decedent is not demurrable for not alleging that the plaintiff presented his claim to the administrator within the time limited in the notice to creditors, if it does not show upon its face that it was not so presented, or that it was presented at a date after the time limited in the notice.</p> <p>Id.—Presentation of Claim Before Notice.—A claim may be presented before the notice to creditors is published, and such presentation is good.</p> <p>Id__Statute of Frauds—Pleading—Presumption.'—Where a contract is required to be in writing it is not necessary to allege in a pleading that it was in writing. If necessary to its validity, it will be presumed that it was in writing, and the bar of the statute must be pleaded in defense, unless the complaint shows upon its face that the contract is void under the statute.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Constitutional Law—Municipal Corporation—Freeholder’s Charter —Amendment—General Laws.-—The provision of section 8 of article XI of the constitution, relating to the framing of a freeholder’s charter by a city of sufficient population, which declares that the charter may be amended “ at intervals of not less than two years, by proposals therefor submitted by the legislative authority of the city to the qualified electors thereof,” etc., relates only to amendments made by and at the instance of the officers and electors of the city, and does not inhibit the amendment or change of its charter within the two years under general laws.</p> <p>Id.—Act for Changing Boundaries of Cities Constitutional.—The Act of March 19, 1SS9, providing for changing of the boundaries of cities, and the exclusion of territory therefrom, is a general law, and is constitutional.</p> <p>Id.—City of San Diego—Exclusion of Coronado Beach.—The Act of March 19, 1889, providing for changing the boundaries of cities and the exclusion of territory therefrom, applies to the city of San Diego, and empowered it to change its boundaries and exclude therefrom the territory known as “Coronado Beach.”</p>

<p>Appeal—Order Refusing to Vacate Appealable Order.—No appeal lies from an order refusing to vacate an appealable order.</p> <p>Id.—Order Striking Out New Trial Statement—Refusal to Vacate— Dismissal of Appeal.—An order striking a statement on motion for a new trial from the files is an appealable order, and an order refusing to vacate such order is therefore not appealable, and an appeal therefrom will be dismissed.</p> <p>New Trial—Denial of Motion After Striking Out Statement.—Where a statement on motion for a new trial is stricken from the files, the motion for a new trial is properly denied.</p> <p>Id.—Notice of Intention Not Filed in Time.—Where a notice of intention to move for a new trial is not filed with the clerk within the time allowed by law, the motion for a new trial is properly denied, although the notice has been served upon the adverse party within due time.</p>

<p>Estates of Deceased Persons—Action by Executor to Set Aside Assignment of Pass Book—Equity—Jury Trial.—A complaint by the executor of a decedent which alleges that the decedent assigned his hank book to the defendant shortly before he died; that at the time of the assignment, if the same was ever in fact executed, he had been stricken with paralysis, was weak in body and mind, and mentally unsound and incompetent; that he lodged and hoarded at the house of the defendant, was subject to and under her influence, direction, and control, and that she fraudulently and by duress, menace, and undue influence induced and procured the deceased, in his enfeebled condition, to execute the assignment, and which prays for a judgment that the assignment be declared null and void, and set aside; that the assignment was not made by the decedent, and that the moneys be declared the property of the estate of the decedent, and that plaintiff have judgment therefor, states a case of equitable cognizance, which the plaintiff is not entitled to have tried by a jury.</p> <p>Id.—Evidence—Mental Sanity—Opinion of “Intimate Acquaintance”—Discretion.—The question as to whether or not a witness is an “intimate acquaintance,” within the meaning of section 1870 of the Code of Civil Procedure, which allows an intimate acquaintance to give his opinion respecting the mental sanity of a person, is addressed very largely to the discretion of the trial court, and its ruling will not be disturbed upon appeal, if the conclusion reached is one which can he reasonably entertained consistently with the idea of intimacy.</p> <p>Id.—Testimony of Physician as to Sanity of Patient—Waiver of Objection to Competency—Motion to Strike Out.—Where the physician who attended the decedent was put upon the stand by the plaintiff to describe his ailments, and testified, upon cross-examination, as to his mental status, and that he was thoroughly rational and competent, without, objection taken to such cross-examination, all objection on the part of the plaintiff to the competency of his evidence is waived, and it cannot be struck out on plaintiff’s motion without the consent of the defendants.</p> <p>Id.—Estoppel of Party Calling Witness.—A party to an action who introduces testimony which, in the face of an objection, would be incompetent cannot, upon discovering that it militates against him, strike it out without the consent of the opposite party.</p> <p>Id.—Seasonable Objection to Testimony of Physician.—The party claiming the benefit of the statute excluding the testimony of a physician as incompetent to testify under subdivision 4 of section 1881 of the Code of Civil Procedure must seasonably exercise the privilege by objecting to the evidence at the time it is offered.</p> <p>Id.—Opinion of Physician—Qualification of Expert.—Where a physician, called as a witness for the defendants in an action in which the mental soundness of a decedent was in issue, testified without objection to his competency that he had been in practice for seventeen years, and had been the attending physician of the decedent for a period of almost a year prior to his death, attending him at times as often as two or three times a day, and it appeared that he had also been called as an expert witness for the plaintiff, his testimony that in his opinion the decedent was of sound mind during all of the time he had acted as his attending physician is not subject to the objection that he was not proven tobe an expert.</p> <p>Appeal—Specification of Ep.ror Hot Pointed Out in Brief.—Where an appellant merely says in his brief that he does not waive certain errors assigned in the record, and asks the appellate court to examine them, as set forth in the specification of errors, without any direction as to where they are to be found in a voluminous record, the appellate court will treat them as unimportant.</p>

<p>Appeal from a judgment of the Superior Court of Sonoma County.</p> <p>The facts are stated in the opinion.</p>

<p>Negligence—Pleading—General Allegations. — A general allegation of negligence upon the part of the defendant is sufficient in an action to recover damages resulting from the alleged negligence of the defendant.</p> <p>Id.—Negligence an Ultimate Pact.—Negligence is an ultimate fact and not a conclusion of law.</p> <p>Id.—Contributory Negligence—Complaint.—It is not incumbent upon the plaintiff in an action for damages for negligence to allege a want of contributory negligence.</p>

<p>Estates of Decedents—Family Allowance—Construction oe Order. An order granting a family allowance, made prior to the return of the inventory of the estate, giving the widow of the decedent a monthly allowance “until said inventory is returned, or until the further order of this court, ” when construed in- connection with sections 1464 and 1466 of the Code of Civil Procedure, means that the allowance thereby given shall terminate upon the return of the inventory, or before that time if the court shall so order, and the allowance does not continue beyond the date of the return of the inventory.</p> <p>Id.—Return of Inventory.—An inventory of an estate is returned within the meaning of the law when it has been completed by the appraisers and presented to the court or judge for information and as a basis for some judicial action to be taken in the proceeding for the settlement of the estate to which it relates.</p> <p>Id.—Filing of Inventory.—Though the filing of an inventory with the clerk would constitute its return, such filing is not an indispensable step which must be taken to constitute the return.</p> <p>Id. —Presentation to Judge at Residence—Order Compensating Appraisers.—The fact that an inventory of an estate is presented to the judge of the court at his residence, and an order fixing the compensation of the appraisers is there signed, does not affect the sufficiency of the return of the inventory, the order being one that the judge had a right to make at chambers.</p> <p>Id.—Judge’s Chambers Coextensive With Jurisdiction of Court.—A judge’s chambers are not confined to the place for the usual transaction of judicial business not required to be done in open court, but chamber business may be done wherever the judge may be found within the proper jurisdiction of the court.</p> <p>Id.—Completion of Inventory—Affidavit.—An inventory of an estate is completed when the work of the appraisers has been concluded and the instrument showing the result of their labors has been signed and delivered by them. The affidavit by the executor or administrator required by section 1449 of the Code of Civil Procedure to be annexed to the inventory is not essential to give it a legal existence.</p> <p>Id.—Family Allowance—Mandatory Statute—Financial Ability of Widow Immaterial.—Section 1466 of the Code of Civil Procedure, which declares that if the property set apart for the use of the widow and minor children of a decedent is insufficient for their support, the court must make a reasonable allowance out of the estate, is mandatory, and requires the court to make such an allowance as shall be necessary for the support of the family during the settlement of the estate, regardless of the widow’s financial ability to support herself without aid from the estate.</p> <p>Id.-—Discretion of Probate Court.—The amount to be granted to a widow of a decedent for the support of herself and minor children is within the discretion of the probate court, and its action in making the allowance will not be disturbed upon appeal unless an abuse of discretion is clearly shown.</p> <p>Id.—Extent of Allowance.—The probate court, in fixing the amount of a family allowance, is not restricted to a bare support of the widow, but regard should be had to the mode in which she had lived during the lifetime of her husband. The allowance should be sufficient to provide all the necessaries of life, which includes all that is reasonable and proper for use in the home and in social intercourse, in view of the condition and value of the estate and the station and surroundings of the family.</p>

<p>Appeal from an order of the Superior Court of San Mateo County, settling an executor’s accounts.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of San Mateo County, settling an executor's accounts.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of San Diego County.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal by Successful Party—Relief Not Prayed for—Intendments in Support of Judgment.—Upon an appeal from a judgment upon the judgment-roll alone without a bill of exceptions, where it appears that the party appealing was granted all the relief he asked, his contention that he was entitled to other relief consistent with the case made by his pleadings and embraced within the issues cannot be considered, every intendment being in favor of the regularity of the judgment.</p> <p>Mortgage—Growing Crops—Rights of Subsequent Mortgagee of Crops—Segregation.—A mortgage purporting to convey the land with the “rents, issues, and profits thereof” covers not only the land, but the growing crops as well, and gives the mortgagee the abstract right, upon foreclosure, to have the entire property sold; yet as between the mortgagee and a subsequent mortgagee of the crops alone it is proper for the court, at the request of the latter, to segregate the crops in order that the surplus, if any, after satisfying the sum secured by the prior mortgage, may be applied to the extinguishment of the subsequent mortgage.</p>

<p>Insolvency—Preference of Creditors—Fraudulent Conveyance.—A transfer of property by an insolvent debtor, made and accepted for the purpose of preferring a portion of his creditors, is unassailable, subject only to the right of an assignee in insolvency to set aside the transfer if made within one month before the commencement of insolvency proceedings, and cannot be set aside at the suit of a judgment creditor of the insolvent as a conveyance in fraud of other creditors.</p> <p>Tu.—Conveyance Upon Long Credit.—The fact that a conveyance by an insolvent debtor for the purpose of preferring certain creditors is not ■ made directly to the creditors, and is not made for money in hand, but in consideration of the notes of the purchaser, does not invalidate the transfer.</p> <p>Id.—Application of Notes by Grantor—Cood Faith of Purchaser.— Where the purchaser to whom an insolvent debtor has conveyed his property for the purpose of preferring some of his creditors believes at the time of the sale that his notes given for the property are to be used in payment of the claims of the creditors to be preferred, the fact that some of them are not so applied by the grantor does not render the conveyance fraudulent or invalid as against the creditors of the grantor; and the conveyance cannot he set aside for any fraud of the grantor upon his creditors in which the grantee did not participate.</p> <p>Appeal—Review of Conflicting Evidence—Depositions.—Where the evidence upon a question of fact is conflicting, a finding of the trial court thereon will not he disturbed upon appeal, even though the evidence consists of depositions.</p>

<p>Action Against Nonbesident—Jurisdiction of Person—Judgment in Rem.—In an action against a nonresident for the recovery of money, when there has been no personal service of process on the defendant within tho state in which the action is pending, and no appearance therein by him, no judgment can be given, other than one in the nature of or having the effect of a judgment in rem, against such property of the nonresident as may have been specifically attached in the action.</p> <p>Attachment—Equitable Interest of Grantor of Trust Deed.—The right of a grantor under a trust deed to a reconveyance upon the payment of the indebtedness secured by the deed, or in case of default in its payment and a sale thereunder, to any surplus of the proceeds remaining after satisfaction of the debt so secured, constitutes an equitable interest in the land, which is subject to the lien of an attachment levied upon the land.</p> <p>Id.—Equity of Redemption—Lien of Attachment Upon Surplus.—If before the sale of an equity of redemption, either under a decree of foreclosure or under a power, a valid attachment is levied upon the equity of redemption, tho attachment is a lien upon the surplus proceeds, which are thereby subject to be applied upon execution to the satisfaction of a judgment in favor of the attaching creditor in the action in which the attachment is issued.</p> <p>Fraudulent Conveyance—Statute of Limitations—Rights of Creditor—Discovery of Fraud.—The statute of limitations does not begin to run against an action by a creditor to subject property fraudulently conveyed by the debtor, or the proceeds thereof, to the payment of an indebtedness due the creditor, until he has secured a judgment against the debtor upon which an execution may he issued; nor even then, if the creditor has not discovered the facts constituting the fraud.</p> <p>Id,—Foreign Judgment Creditor—Suit in This State.—One who obtains a judgment in another state is not a judgment creditor in this state within the meaning of the rule which permits only judgment creditors to attack a conveyance made by the judgment debtor to defraud his creditors. The obligation created by the foreign judgment is one which cannot he enforced in this state without suit, and until a judgment is recovered upon it here, the person obtaining the foreign judgment occupies only the position of a creditor at large without any right to subject any specific property of his debtor within this state to the satisfaction of the obligation created by the foreign judgment.</p> <p>Judgment—Res Adjudicata—Plea in Bar—Pendency of Action— Time for Appeal.—Where the time for appeal from a judgment has not expired, the action is still pending although no appeal has been taken therefrom, and the judgment cannot be pleaded in bar to a cause of action involving the same matters alleged in a cross-complaint in another action.</p> <p>Id.—Ground of Continuance—Dismissal Notwithstanding Cross-complaint.—Though the former judgment cannot be pleaded in bar to another action or cross-complaint for the same cause while the former action is pending, yet the pendency of the action is good ground for a continuance of the later action until the former action is finally determined, and would he good ground for dismissal of the later action in which a cross-complaint is filed upon the same cause of action.</p>

<p>Beal Estate Brokers—Bight to Commissions.—The contract of real estate brokers appointed sole agents to negotiate a sale during a limited period, is completed and their commissions earned when they produce a purchaser ready, willing, and able to purchase upon the terms stated in the contract, within the time limited.</p> <p>Id.—Check for First Payment—Tender—Waiver.—The fact that on a day previous to the expiration of the time limited the purchaser obtained by the brokers offered his check to the vendor for the first payment of the purchase money, and that such check was declined as not equivalent to the money, is immaterial, where it appears that on the subsequent day, and before the expiration of the time limited, he attempted to pay the cash to the vendor, but was prevented by failure to secure a personal audience with the vendor, who waived the tender by eluding it, and selling the land on that day to another purchaser.</p> <p>Id.—Offer of Brokers to Waive Claims Under Contract—Consideration-—Fulfillment of Conditions—Satisfaction of Vendors.—A voluntary offer of the brokers, without consideration, to waive all claims under their contract, if they could not satisfy the vendors at a time previous to the time limited by the contract, that they would make a sale, accompanied by a statement that they could not release them from the contract, does not operate as a waiver, ipso facto, upon failure of the condition, or alter the rights of the parties under the contract, there being no element of estoppel in the case; and where at such time evidence was adduced sufficient to convince a fair man of ordinary understanding, who was honestly willing to be convinced, that the brokers had fulfilled their self-imposed conditions, it must be held that the vendor was so convinced.</p>

<p>Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.</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 motion for a new trial.</p> <p>The facts are stated in the opinion of the court.</p>