Volume 101 — California Reports

The facts are stated in the opinions reported in 71 Cal. 513, and in 87 Cal. 104, and in the opinion of the court in the present case.

<p>Chattel Mortgage—Furniture of Lodging-House—Purchase Price— Pleading—Ambiguity.—A mortgage upon the furniture and upholstery of a lodging-house is valid as between the parties to it, regardless of whether or not it is given for the purpose of securing the purchase price of the property therein described; and a demurrer to a complaint, in an action to foreclose the mortgage, on the ground that the complaint is ambiguous in that it fails to show that the mortgage was given to secure the payment of the purchase price of the property is properly overruled.</p>

The facts are stated in the opinion of the court upon the former appeal (79 Cal. 540) and in the opinion rendered upon the present appeal.

<p>Certiorari—Opening and Extension of Street—Assessment—District Legislation.—The proceedings of the board of supervisors of the city and county of San Erancisco, under the statute of March 6, 1889 (Stats. 1889, p. 70), in passing a resolution of intention to open and extend Market street to the Pacific ocean, and in declaring the exterior boundaries of the district to be affected thereby, are legislative in character, and certiorari will not lie to review them.</p> <p>Id.—Legislative Functions Not Reviewable.—A writ of review or certiorari will not lie to review the action of an inferior tribunal or board in the exercise of purely legislative functions which are not judicial in their character.</p> <p>Id.—Notice of Public Work—Constitutional Law.—The notice of public work and its mode of service by posting and publication, required by the statute of March 6, 1889 (Stats. 1889, p. 70), are not violative of any inherent or constitutional right of the persons to be affected thereby, and amount to due process of law.</p> <p>Id.—“Due Process of Law” Defined—Settled Maxims of Law.—The term “ due process of law, ” in its broad sense, signifies such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe.</p> <p>Id.—Sufficiency of Notice—Assessment and Taxation.—In judging what is due process of law, the sufficiency of the notice must be determined in each case from the particular circumstances of the case in hand, respect being had to the cause and object of the taking. In matters of assessment and taxation the same character of notice is not required as in ordinary actions in a court of justice.</p> <p>Id.—Personal Service of Process.—In matters of taxation and assessment, the state is not bound to accord personal service of process upon the citizen.</p> <p>Id.—Eminent Domain—Legislative Question—Power of Court.—The determination as to whether or not the right of eminent domain shall be exercised, and as to what lands are necessary to be taken in the exercise of that right, is a political and legislative question, and not a judicial one. If the use is a public use, the power of the court is confined to seeing that the burdens cast upon the citizen are in conformity with the methods prescribed by the legislature, and that those methods are not in conflict with the fundamental rights of the people.</p> <p>Id.—Order of Supervisors Condemning Land—Judicial Action—Excess of Jurisdiction.—Order No. 2319 of the board of supervisors of the city and county of San Francisco, purporting to open and extend Market street to the ocean, and declaring that all the land within its exterior boundaries, as extended, “is hereby condemned, appropriated, acquired, set apart, and taken for public use,” is judicial in its nature in so far as it purports to condemn the land described, and to that extent is in excess of the jurisdiction of the board.</p> <p>Id.—Distinction Between Legislative and Judicial Act.—A legislative act is one which predetermines what the law shall be for the regulation of future cases falling under its provisions, while a judicial act is a determination of what the law is in relation to some existing thing done or happened. Whenever an act determines a question of right or obligation or of property as the foundation upon which it proceeds, such an act is to that extent judicial.</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 Santa Barbara 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 Tulare County, and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Water Bights—Appropriation—Tapping Pond op Prior Appropriator for Surplus Water—Injunction.—A prior appropriator of the water of a stream, who constructs a dam across the bed of the stream for the purpose of raising its surface to a level which will cause it to flow into his ditch, does not thereby acquire such an exclusive right in the bed and banks of the stream, as far as the slack water extends above his dam, in the form of a pond or pool, that he can enjoin a subsequent appropriator of the surplus water from tapping the stream and diverting the surplus at a point above the dam and below the head of the slack water in such pond or pool, if he does not interfere with the free use and enjoyment of the water right or the property of the prior appropriator.</p> <p>Id.-—Power to Drain Ditch.—The subsequent appropriator cannot be enjoined from appropriating the surplus water at a point above plaintiff’s dam merely because he thereby has the power to drain plaintiff’s ditch or canal, if he disclaims any such intention.</p> <p>Id.—Inconvenience to Prior Appropriator—Damn um Absque Injuria. The prior appropriator is bound to use reasonable care to avoid unnecessary waste of the surplus water appropriated by the subsequent appropriator, at a point above his dam, and the inconvenience caused by the lowering of his head of water by the diversion of the surplus, and by his being compelled to raise the crest of his dam earlier in the season, and to make it tight and efficient so as to prevent waste of surplus water, oftener than he had been accustomed to do, is damnum absque injuria.</p> <p>Id.—Enlargement of Ditch—Prescription—Adverse User—Acquiescence—Estoppel.—Where the rights claimed by subsequent appropriators of water above the dam of a prior appropriator have not been interfered with by the enlargement of the ditch of the prior appropriator, and the box used by the subsequent appropriator in diverting the water to which they were entitled was not closed after such enlargement, the use of the enlarged ditch is not adverse, and no rights' are acquired thereby through the acquiescence of the subsequent appropriators in the use of the enlarged ditch, and no estoppel is thereby raised against them.</p> <p>Id.—Contract Between Appropriators—Measure of Bights.—Water rights held under a contract between prior and subsequent appropriators are to be measured by the terms of the contract, if not modified by acquiescence in adverse user, or the acquisition of a prescriptive right.</p>

<p>Corporations—Subscription to Shares Before Organization—Action for Calls.—A subscription for shares of the capital stock of a corporation, subsequently to be formed, will sustain an action by the company, on its complete incorporation, against the subscribers to recover calls duly made upon the stock.</p> <p>Id.—Executory Contract—Effect of Organization—Acceptance by Corporation.—An agreement for the formation of a corporation and for the taking of a specified number of shares therein by each of the parties to the agreement, as to incorporating, is executory, but when the promoters meet and organize the corporation under the name, for the objects, and with the capital stock and the number of shares as specified in the agreement, and name the parties to the agreement, with the shares subscribed by each, in the articles of incorporation, as subscribers to the capital stock to the extent of the shares agreed to be by them respectively taken, it is an acceptance by the corporation of such parties as stockholders, and they are thereby and thenceforth bound as such.</p> <p>Id.—Validity of Corporations—Stockholders—Signature to Articles Not Executed.—It is not necessary to the validity of the corporation or to the subscribers who agreed to its formation becoming stockholders, that they should all sign the articles of incorporation.</p> <p>Id.—Issuance of Certificates Unnecessary.—To constitute the subscribers to an agreement for the formation of a corporation stockholders of the corporation it is not necessary'that the certificates of stock should have issued to them.</p> <p>Id.—Election of Directors—De Facto Officers—Levy of Assessment.—Where the board of directors of a corporation have been nominally elected, organized as a board of directors, and acted as such, their acts as de facto officers in levying an assessment upon the subscribed capital stock are valid.</p> <p>Id.—Assessment Upon Subscribed Stock—Statutory Form of Notice. When an assessment is properly levied upon the subscribed capital stock of a corporation, the fact that the notice describes the assessment as levied upon the capital stock of the corporation instead of upon the subscribed capital stock, does not render the notice defective, that being the form of notice prescribed by the statute, which the legislature had authority to designate.</p>

<p>Appeal from a judgment of the Superior Court of Humboldt County.</p> <p>The facts are stated in 71 Cal. 513, 79 Cal. 115, 87 Cal. 104, and in the opinion of the court in the present case.</p>

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

<p>Corporations—Fiduciary Relation of Promoter.—A promoter of a corporation who brings about its organization and aids in procuring subscriptions thereto is considered in law as occupying a fiduciary relationship towards the corporation and its stockholders.</p> <p>Id.—Sale of Property to the Company—Duty of Promoter.—A promoter of a corporation or joint stock association may sell property thereto, but it is incumbent upon him, as a person occupying a fiduciary position, to make full and fair disclosure of his interest and position with respect to the property, and- not to make any false representations as to its cost price.</p> <p>Id.—Fraud of Promoter—Election of Remedy.—Transactions in which the promoters of a corporation suppress or misrepresent material facts, or otherwise deceive the corporation, or corruptly control its action, are fraudulent, and the company may elect either to set aside such transaction, or. to recover the promoter’s secret profits.</p> <p>Id.—Fraud Upon Stockholders—Knowledge of Directors—Ratification—Waiver.—Where fraud is practiced upon the stockholders by the promoters of the corporation, knowledge of it by the directors is not knowledge to the stockholders, and the fraud practiced upon the stockholders cannot be ratified or waived by the directors.</p> <p>Id.—Corporation for Purchase and Sale of Lands—Fraud of Promoters—Action by Stockholders.—Where a corporation was organized for the purchase and sale of lands by promoters of the corporation having contracts of purchase and deeds of various parcels of land which were conveyed to the corporation, and the promoters falsely reported to the corporation that they had paid a much larger sum on account of the purchase price of the lands than they had in fact paid, an action will lie at suit of a stockholder, after previous demand upon the corporation to commence the suit and a refusal upon its part to do so, to recover judgment for the difference between the amount actually paid and the amount reported to the corporation, as being the property of the corporation unlawfully withheld by the promoters thereof.</p> <p>Id.—Partial Payments—Deferred Payments.—The fact that partial payments only were made upon the various tracts, and that the deferred payments were secured by mortgage upon the land, is immaterial, and the case stands as though it were a cash transaction throughout.</p> <p>Id.—Variance—Complaint—Findings—Representations as to First Payments—Original Cost Price.—There is no substantial variance between the complaint and the findings, merely upon the ground that the complaint relies for judgment upon false representations as to the amounts of first payments made for the land, and that the findings indicate a recovery upon the theory of false representations as to the original cost price of the property, the fraud practiced by the defendants as confidential agents of the parties complaining being the ground of recovery, and the measure of damages relied upon in the complaint and recognized by the judgment being the same.</p> <p>Id.—Evidence—Admissions of Promoter.—A promoter of the corporation, being an active party to the litigation, his statements and admissions pertaining to the subject matter of the action, wherever and whenever made, are competent evidence against him.</p> <p>Id.—Testimony of Reporter—Unsigned Deposition—Reading From Notes.—Where an attempt was made to take the deposition of the promoter of the corporation who is a party defendant, prior to the trial, but, after the examination was had and his testimony was taken down and transcribed by a phonographic reporter, he either neglected or declined to subscribe to the same, the reporter, though not having a definite and well-defined recollection of the statements so made after having refreshed his recollection as far as possible from the writing, will be allowed to read the contents of the notes to the court.</p> <p>Id.—Accounting—Payment to Perfect Title—Profit.—In an accounting had against a promoter of the corporation he should be credited with a sum paid to perfect the title of one of the tracts sold, and should only be charged with the profit actually realized upon a particular tract.</p>

<p>Attachment—Dissolution—Residence of Defendants—Conflicting Evidence.—An order dissolving an attachment against the defendants as nonresidents will be affirmed where the affidavits used on the motion conflict as to where their legal residence was at the date of the attachment, and it appears that they were then actually engaged in the state in professional work, and were served personally in the state with summons.</p> <p>Id.—Actual Residence—Domicile.—The residence referred to by the-attachment law is an actual, as contradistinguished from a constructive, or legal, residence or domicile.</p>

<p>Water Rights—Appropriation—Compliance With Civil Code.—Where there has heen an actual appropriation and nse of water, a right to it is acquired regardless of compliance with the provisions of the Civil Code for the acquisition of water rights.</p> <p>Id.—Diversion op Water—Damages—Injunction—Pleading—Joinder of Causes.—An action to recover damages for the diversion and pollution of a stream of water to the injury of a prior appropriator, may be properly joined with a cause of action to obtain an injunction restraining its further diversion and pollution.</p> <p>Id.—Herding and Watering Sheep Upon Stream—Improper Evidence. Where one has appropriated and used the water of a stream for more than ten years before the defendant interfered with it, and complained only of interference during the month previous to the.commencement of the action, evidence upon the question whether the defendant herded and watered sheep upon the stream for a period of seven years prior thereto, is immaterial and incompetent.</p>

<p>Petition for a writ of habeas corpus.</p> <p>The facts are stated in the opinion of the court.</p>

Motion to dismiss art appeal from an order or decree of the Superior Court of Tehama County requiring the defendant to pay the plaintiff permanent alimony. The facts are stated in the opinion of the court.

<p>Negligence—Damages—Province of Jury—Excessive Verdict.—In actions for negligence, the law does not attempt to fix any precise rules for ascertaining what is a just compensation, but from the necessity of the case, leaves the assessment of the damages to the good sense and judgment of the jury, whose province it is to make the assessment; and their verdict, though subject to review, will not be disturbed merely upon the ground that the damages are excessive, nor because the opinion of the court differs from that of the jury, unless it appears that the excess was given under the influence of passion or prejudice.</p> <p>Id.—Order Granting a New Trial—Discretion.—The appellate court in reviewing the action of the court below, in granting a new trial for damages appearing to have been given under the influence of passion or prejudice, will not reverse the order merely because it differs from the trial court as to what would have been just compensation, unless the difference of opinion is such as to justify the conclusion that the court abused its discretion.</p> <p>Id.—Defective Machinery—Assumption of Risk—Knowledge of Employee.—In order to constitute an asumption of the risk of defective machinery by an employee, such as to bar a recovery for personal injuries received therefrom, it is not only necessary that the employee should know of the defects in the machinery, but the danger arising from the defects must also be known or reasonably apprehended by him.</p>

The facts are stated in the opinion. The conversation of the secretary with the plaintiff as to the time to answer in the case is no ground for opening the default. (De Armond v. Preacher’s Aid Soc., 94 Ind. 59; Walker v. Shreve, 87 111. 474; Elliott v. Shaw, 16 Cal. 377; Smith v. Watson, 28 Iowa, 218.) The granting of an order setting aside the default was in the discretion of the court, and will not be disturbed upon appeal except for gross abuse.

The facts are stated in the opinion. The bond purports to be the joint bond of Mead as principal, and appellants and others as sureties, but not having been executed by the principal, it is void. Eo recovery can be had on a bond purporting to be the joint bond of the principal and sureties, but signed by the latter only.

<p>Constitutional Law—Creation of Levee District—Unconstitutional Statute.—Section 21 of the act of March 25, 1868, providing for the creation of a levee district upon petition of persons in possession of more than one-half of the acres of any specified portion of the county, without vote of the people, without notice, and without opportunity for protest, no discretion being vested in the board of supervisors to reject the petition, or to change the proposed boundaries, is unconstitutional.</p> <p>Id.—Corporation De Facto—Collateral Attack.—A levee district formed under an unconstitutional act has no rights, and is not entitled to be protected against collateral attack as a corporation de facto.</p> <p>Id.—Validity of Bonds—Waiver—Estoppel—-Mandamus.—The board of reclamation fund commissioners of a levee district have not waived objection to the validity of the organization of the district under an unconstitutional act, and are not estopped from disputing the validity ' of its bonds, by retaining the benefit derived from the proceeds of their sale, and by the payment of interest upon them for several years; and a holder of bonds of such district which were issued and sold for the purpose of securing funds to carry on improvements in such levee district, is not entitled to a mandamus requiring the board of fund commissioners to levy a tax to pay the principal and interest of the bonds.</p>

<p>Application for writ of prohibition of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

B. 0. Heb-bard, judge of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

The facts are stated in the opinion. The judgment should be reversed, as the statute of limitations was a bar to the action. (Palmer v. Shaw, 16 Cal. 93; see Tynan v. Walker, 35 Cal. 634.) The action being founded upon two instruments in writing executed out of the state, the statutory bar of two years presumptively applies, and the burden rests on plaintiff to repel this presumption. (Bass v. Berry, 51 Cal. 264.) Statutes of limitations are to be strictly construed.

Motion to dismiss an appeal from a judgment of the. Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

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

The facts are stated in the opinion. The court erred in denying plaintiff’s motion for a continuance, and such denial was an abuse of discretion. The discretion confided to the court is a legal discretion to be exercised not capriciously or arbitrarily, but by fixed legal principles, and in a manner to subserve and not to defeat the ends of substantial justice.

<p>Highways—Alteration of Line of Road—Order Vacating Portion— Power of Supervisors.—Where a petition for the establishment of a new line of road, and the vacation of a portion of an old road about two miles in length, was signed by the required number of qualified persons, and the description of the road sought to be established and the one to be vacated was definite, and did not show that they were disconnected matters which ought not to be or could not be joined in the same proceeding, and the surveys and descriptions of the new road and the old road show that the new road is but an alteration of the old, making a portion of the old road unnecessary, and that the divergence is in no place considerable, the board of supervisors have jurisdiction to make an order for laying out and establishing the new road and vacating part of the old road.</p> <p>Id.—Judicial Functions op Board—Collateral Attack—Review op Judgment.—As to all facts tending to show whether the power of the board ought or ought not to be exercised, either by granting or denying the petition in whole or in part, the board exercises judicial functions, and its judgments are final, and cannot be attacked collaterally, but may be reviewed upon certiorari, where the jurisdiction of the board has been exceeded.</p> <p>Id.—Constitutional Law—Compensation to Abutting Owners—Vacation op Road.—The rights of abutting owners upon a public road which has not been dedicated by the owners of the land, and in respect to which there are no contract rights, or trust obligation of the public, are not such property as under the constitution must be paid for upon vacation of the public road, and the provisions of the Political Code conferring power upon the board of supervisors to vacate public roads are not unconstitutional, because not authorizing the board to assess the damages caused thereby to abutting owners, nor to provide for compensation to them.</p> <p>Id.—Easement for Benefit op Public—Abutters Subject to Statutory Provisions.—The creation of highways by use, or under the statute, creates an easement for the benefit of the public for such time only as the public necessities and convenience may require, and creates no covenant or obligation in favor of an abutter that it shall always exist; and an abutter must be held to have acquired and improved his property in view of the fact, that the statutes which provide for the establishment and maintenance of highways also provide for vacating the same.</p> <p>Id.—Cessation op Public Use.—The public use ceases upon vacation of the highway, and an injury to an abutting owner consequent upon such ending of the use cannot be held to be a taking or damaging for a public use, but such injury is damnum absque injuña.</p>

<p>Common Carriers—Delay in Transportation of Goods—Reasonable Time—Pleading—Demurrer.—Where the complaint in an action to recover damages for the alleged failure of a railroad company to transport and deliver to plaintiff five carloads of furniture within a reasonable time is in the usual form employed in common-law actions ex contractu, it is not subject to a general demurrer on the ground that the complaint should have specified what was a reasonable time for the transportation of the goods; and in the absence of a special demurrer directed to that point, the general allegation of a failure to transport and deliver within a reasonable time is sufficient.</p> <p>Id.—Liability of Carrier for Delay—Ordinary Care—Unexpected Storm.—A common carrier is liable for delay in the transportation and delivery of goods only when it is caused by his want of ordinary care and diligence; and where it appears that the delay complained of occurred upon the mountain division of a railroad, and was occasioned by an unexpected storm of unusual severity upon that division, and that the operators of the road used every reasonable effort to keep the line open, the railroad is not responsible for such delay.</p> <p>Id.—Transportation Over Connecting Line.—Where one railroad company accepts freight for a place beyond its route, in the absence of a stipulation that such company shall be responsible beyond the terminus of its line, its liability as a common carrier ceases upon making delivery to the connecting line at the end of its line.</p> <p>Id.—Law of Place of Contract.—The law of the place where the contract of carriage was made governs in determining the liability of the carrier, unless the parties at the time of making it had some other law in view.</p> <p>Id.—Law of Another State—Presumption.—Where a contract for transportation by a railroad company was made in another state, the law of which was not put in evidence, it must be presumed that the law of that state is the same as the law of this state.</p>

<p>Hearing in the Supreme Court upon a writ of habeas torpus.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Prohibition—Supreme Court—New Trial—Rehearing.—A petition for a rehearing, and not a motion for a new trial, is the proper remedy for one desiring a rehearing of an original petition in the supreme court for a writ of prohibition, after a decision has been rendered thereupon.</p> <p>Id.—Constitutional Law—Construction of Code—Original Jurisdiction of Supreme Court.—The constitution of the state and the rule making a judgment rendered in the supreme court final unless a rehearing is granted within thirty days do not make any distinction between cases of appellate, and cases of original, jurisdiction; and the provisions of the Code of Civil Procedure regulating new trials have no application to proceedings instituted in the supreme court in the exercise of its original jurisdiction.</p>

The facts are stated in the opinion. The attorney of a judgment creditor has implied authority to direct the sheriff as to the time and manner of enforcing the execution.

<p>Nuisance—Negligent Construction of Bridge—Liability of Railway Company—Grant—Consolidation of Corporations.—Where a bridge erected by a railway company causes or constitutes a nuisance, a railway corporation which is the grantee of the company erecting the bridge is liable only for knowingly using a structure which is a nuisance, but if the owner of the bridge is a consolidated company of which the company erecting the bridge is a constituent, it is liable for original negligence in the construction of the bridge.</p> <p>Id.—Pleading—Admissions in Verified Answer—Distinct Defenses. An admission or averment in a verified answer, in a separate and distinct defense, as to the fact that the defendant was a consolidated corporation, is not evidence against the defendant upon issues tendered in other defenses contained in the same answer, consisting of denials only.</p> <p>Id.—Licensing Private Nuisance—Deed of Right of Way—Constructed Railroad Bridge.—Where the bridge which was claimed to be a nuisance was constructed at the time of a deed of grant by the owner of the land, across which the bridge was built, conveying a right of way to the railroad company over the land for the main track of the railroad, as the same was then located, constructed, and operated, such grant licensed the maintenance of the road and bridge as constructed, and the railroad company cannot be deprived of the benefit of the grant by any claim on the part of the owner of the land that the bridge constituted a private nuisance.</p>

The facts are stated in the opinion. Attorneys’ fees incurred in defending a suit in which a temporary injunction has issued, and in which the issuance of a perpetual injunction is the only relief sought, are recoverable in a suit upon the undertaking on injunction.

<p>Partnership—Individual Liability or Partnership.—A partner may contract on his own account, and make himself alone liable for property bought for the partnership, if the vendor choose to accept such individual liability.</p> <p>Id.—Counterclaim.—In an individual action by a plaintiff who was a member of a partnership, the defendant may counterclaim the individual liability of the plaintiff for goods sold and delivered for the partnership upon the individual credit of the plaintiff.</p>

<p>New Trial—Order Striking out Statement—Appeal—Dismissal.—An order striking a statement on motion for a new trial from the files is a special order made after judgment, and if the appeal therefrom is not taken within sixty days from its date, it must be dismissed.</p> <p>Id.—Order Repusing to Vacate Appealable Order.—No appeal lies from an order refusing to vacate an appealable order, and such an appeal must be dismissed.</p> <p>Id.—Order Denting New Trial—Absence op Statement.—In the absence of a statement on motion for a new trial the motion is properly denied, and the order denying the motion must be affirmed;</p>

Superior Court of Los Angeles County, and from an order denying a new trial. The facts are stated in the opinion of the court.

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

<p>Appeal from a judgment of the Superior Court of Santa Barbara 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 Los Angeles County, and from an order refusing to set aside a default.</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 of the court.</p>

<p>Foreclosure of Mortgage—Description of Property—Variance Between Complaint and Decree—Certainty.—Where the description of mortgaged premises in the complaint of foreclosure describes the property as “the south quarter of the east half of the north half of the northeast quarter of section 18 ” of a certain township and range, “ containing ten acres of land,” and “ also the six acres of land having the same length east and west, being of uniform width north and south, and lying immediately south of and adjoining the first above-described parcel,” the whole parcel being “eighty rods in length from east to west, and thirty-two rods in width from north to south,” and the description in the decree describes it as “the south ten acres of the northeast quarter of the northeast quarter, and the north six acres of the southeast quarter of the northeast quarter of section 18,” of the same township and range stated in the complaint—the two descriptions describe exactly the same piece of land, and the description in the decree is not void, for uncertainty.</p>

The action was brought originally by Daniel Freeman, as assignee of the Centinela-Inglewood Land Company, against Mrs. Allie Kieffer, to enforce a contract made by said company as vendor with Mrs. Kieffer as vendee, on the seventh day of December, 1887. The complaint was filed May 21, 1891.

<p>Action Upon Note—Pleading—Ownership—Assignment.—Although an allegation in an action upon a note that the “ plaintiff is now the holder and owner of the said promissory note” is not sufficient in itself to show ownership in the plaintiff, yet, where it is also alleged that the note when made was delivered to the payee named therein, and that thereafter such payee for value, and before maturity, assigned the note by indorsing the same in blank on the back thereof, such allegation, taken in connection with the allegation of possession, is sufficient to show the plaintiff’s title.</p> <p>Id.—Effect of Indorsement in Blank. —The effect of indorsement in blank is to make the paper payable to the holder, not as indorsee, hut as hearer.</p> <p>Id.—Purchase From Bona Fide Holder—Pleading—Variance.—Where the complaint avers that the note was indorsed in blank and delivered by the payee to the plaintiff, and the answer denies such delivery, and alleges that the note was indorsed and delivered by the payee to a third party, who is alleged to he the owner of the note, and the evidence shows that the note was indorsed in blank by the payee and delivered to such third party, who, before the maturity thereof, assigned and delivered it to another person, and that the latter, after maturity, sold and transferred it to the plaintiff, and the court finds that the assignor of the plaintiff purchased, received, and paid for the note in good (faith, without notice of the facts pleaded in the answer, as a defense, such evidence and finding are not outside of the issues raised by the pleadings.</p> <p>Id.—Notice of Fraud in Procuring Note—Burden of Proof.—Upon proof, by the defendant, of fraud or illegality iii the inception of the note, the burden is cast upon the indorsee to show that he is an innocent holder, which he may do by showing that he purchased the note before maturity, or from an innocent indorsee for value, in the usual course of business; and when he has done this, unless the evidence shows that the note was taken by plaintiff under circumstances creating the presumption that he knew the facts impeaching its validity, the burden is cast upon the defendant to show that the plaintiff took the instrument with notice of the defendant’s equities.</p> <p>Id.'—Transfer After Maturity—Protection of Holder.—One who takes a note when overdue, from a prior holder who took the note for value before maturity, without notice of any infirmity in it, acquires as good a title as that of the prior holder; though he must show that the prior holder took the note for value before maturity.</p>

<p>Mandamus—Warrant for City Indebtedness—Pleading.—In proceedings for a mandamus to compel the drawing of a warrant by the president and clerk of the board of trustees of a city, an affidavit of the plaintiff, which, in addition to the merely formal parts of the pleading, avers an indebtedness of five hundred (§500) dollars on the part of the city to petitioner for expenses incurred in procuring counsel for the city at its order, and that the board of trustees ordered his bill and written demand therefor paid, and ordered a warrant drawn in his favor for the amount, which the president and clerk refused to draw and countersign, and that there was money in the treasury to pay it, etc., states the essential facts giving to the petitioner a right to the writ, and is sufficient as against a general demurrer.</p> <p>Id.—Denial of Indebtedness—Conclusion of Law.—The denial of indebtedness to the petitioner without denying the facts in regard to the expenses incurred by the petitioner for the city is a denial of a conclusion of law, and is wholly insufficient.</p> <p>Id.—Conclusiveness of Allowance of Claim.—The claim being one which the board of trustees of the city had jurisdiction to hear and determine, its determination is a judicial act, concluding the fact of indebtedness; and whether its decision was right or wrong, its action was binding upon the clerk.</p> <p>Id.—Want of Funds in Treasury—Denial of Information and Belief-Knowledge of Defendant.—The clerk of a municipal corporation of the sixth class is the financial accountant of the city, whose duty it is to keep a correct account of all the moneys in the treasury and the warrants drawn thereon, etc.; and in his answer to an application for a mandamus to compel the drawing of a warrant upon the treasury, an allegation by him, upon information and belief, that there was a want of funds in the treasury to pay the warrant is insufficient, being the allegation of a fact peculiarly within the knowledge of the defendant, which should have been positive in form.</p> <p>Id.—Rescission of Acts of Municipal Corporation.—The legislative department of a municipal corporation may, at any time before the rights of third persons have vested, rescind previous votes and orders, so far as consistent with the laws of its creation and its rules of action, and such rescission may take place at any subsequent meeting.</p> <p>Id.—Rescission of Allowance of Valid Claim.—A valid claim, properly presented to the board of trustees of a municipal corporation and allowed and approved by them, their action being accepted by the claimant, becomes a valid and binding contract, which cannot be rescinded or avoided except for such cause as invalidates other contracts.</p> <p>Id.—Presumption of Acceptance.—When the allowance of a claim by the board of trustees of a city is of the amount asked for by the claimant, and he demands a warrant therefor, he will be presumed to have accepted the action of the board, and thereafter the board could not, without his consent, rescind its action, except for cause which would defeat the claim, treated as a contract.</p> <p>Id.—Interest of City Officer in Contract—Insufficient Defense.—An answer averring, upon information and belief, that the petitioner was a city officer, and interested both directly and indirectly in the present contract, upon which is based the pretended claim referred to in the complaint, without the statement of any facts upon which the conclu'-sion is based, or of the nature of the contract referred to, is insufficient as a defense.</p>

<p>Streets—Dedication—Intention—Acceptance.—A common-law dedication is the setting apart of land for public use, and to constitute it, there must be an intention by the owner clearly indicating by his words or acts to dedicate the land to public use, and an acceptance by the public of the dedication.</p> <p>Id.—Revocation Before Acceptance.—An offer to dedicate land to public use may be revoked by the owner at any time before it has been accepted by the public.</p> <p>Id—Question of Fact—Conflicting Evidence—Appeal. —Dedication is a question of fact to be determined by a jury, or by the court sitting as such, and where the court below has found an offer to dedicate land as a public street, but that the same was never dedicated as a public street, or used or accepted by the public as such, upon testimony involving a substantial conflict, its finding will not be disturbed upon appeal.</p> <p>Id.—Action to Abate Nuisance—Obstruction of Street—Rights of Relator—Agreement—Estoppel.—An action in the name of the people of the state upon the relation of a private person to abate a nuisance alleged to have been committed by the obstruction'of a public street is not brought to vindicate the private rights of the relator, or to secure for him any privilege not enjoyed equally by others; and the question cannot be considered in such action whether the relator had agreed with the defendant to open a public highway upon the line dividing their respective lands, or whether the defendant was estopped from objecting that the line is a public highway, because the relator incurred expense in grading it, and that he will suffer pecuniary injury if the road is not opened.</p> <p>Id.—Rights or Genebal Public.—An action for the obstruction of a street is brought by the people to conserve the rights which the general public have in the street as a highway, and when it fails to prove that it is a highway, the public has no rights to conserve.</p>

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

<p>Assignment of Non-negotiable Paper—Subjection to Equities—Notice of Assignment—Setoff.—The maker of non-negotiable notes which have been assigned by the payee to a third party may set off against them the note of the payee which he has purchased before notice of the assignment of the notes executed by him.</p> <p>Id.—Construction of Code.—Section 1459 of the Civil Code, which makes an assignment of non-negotiable paper subject to all equities and defenses existing in favor of the maker at the time of the indorsement, is not restrictive, and must be construed in connection with section 368 of the Code of Civil Procedure, which declares that “ the action by the assignee is without prejudice to any setoff or other defense existing at the time of or before notice of the assignment.” These two sections are not contradictory, and the rule of construction, that the expression of one thing is the exclusion of another, does not apply to the former section when considered in connection with the latter, which became law at the same moment.</p> <p>Id.— Setoff—Independent Contract—Recoupment—Counterclaim.—■ “Setoff” differs from “ recoupment” in that it is more properly applicable to demands independent in their nature and origin, while recoupment implies a cutting down of a demand by deductions arising out of the same transaction; and “ counterclaim” as used in the code includes both recoupment and setoff.</p> <p>Id.—Maturity of Setoff After Notice of Assignment.—A note may be claimed as a setoff though not due at the time the defendant received notice of the assignment of his notes to the plaintiff, if it became mature before the commencement of the action by the plaintiff.</p> <p>Id.—Rights oe Debtor—Counterclaim. — A debtor may fortify himself against the coming suit of his creditor by the purchase of any cross demands, which may be counterclaimed when that suit shall come, and between them an assignee has no standing until he shall have given notice of the assignment.</p>

<p>Promissory Note—Option of Holder—Election—Reasonable Time.— Where a note*gives to the holder an option either to claim compound interest upon interest not paid when due, or to claim the whole amount of principal and interest as immediately due and payable, without notice, the holder of the note has a reasonable time after a default in payment of interest in which to make his election, and it cannot be held as a matter of law that fifty-nine days is an unreasonable time within which to make the election.</p> <p>Id.—Pleading—Time of Election.—Where the complaint avers that on the failure of the defendants to pay the installment of interest when it became due, by the terms of the note, the plaintiffs elected to declare and did declare the principal sum and the interest thereon due and payable, it is a sufficient averment of election at the time the interest became due.</p> <p>Id.—Claim of Compound Interest.—The fact that the complaint claims compound interest after the date of the alleged election does not make the complaint liable to assault upon general or special demurrer, and is immaterial, if in fact judgment was not rendered for such compound interest.</p>

<p>Contracts—Restraint of Trade—Sale of Goodwill.—Upon the sale of the goodwill of a retail butcher business, a contract not to engage in such business within a radius of five miles from the city where it was carried on, within a period of three years, must be construed as prohibiting such business for the protection of the purchaser in the enjoyment of the business purchased within the space and time limited, and is a valid contract for his protection while so doing.</p> <p>Id.—Validity of Contracts—Legality.—The contracts declared void as in restraint of trade by section 1673 of the Civil Code are not declared unlawful; and where the contract made is not against public policy, and would have been valid at common law, it is not illegal.</p> <p>Id.—Construction of Contract—Statute Part of Contract—Presumption.—The contracting parties are presumed to have had in view the statute upon the subject, and it must be held to enter into and become a part of their contract upon that subject, if the contract can be so construed.</p> <p>ID.—Limitation as to Time.—Whatever difficulty there may be in limiting as to space a contract in restraint of trade, where there is no restriction, it may be limited as to time, so as to be enforced to the extent to which it is limited by the statute, for the protection of the purchaser while engaged in the business within the limited territory.</p> <p>Id.—Damages—Injunction.—Where the contract in restraint of trade is valid, and the complaint states a breach of it, the plaintiff is entitled to an injunction to prevent its violation, even if only nominal damages can be proven.</p>

<p>Appeal from a judgment of the Superior Court of Modoc County.</p> <p>The facts are stated in the opinion of the court. Goodwin & Goodwin, for Appellant.</p>

<p>Banking Corporations—Neglect to File and Publish Statements— Repeal op Statute—Release op Error.—In an action by a banking corporation, where one of the defenses set forth in the answer was the failure of the plaintiff to file and publish the statements required by the act of April 1, 1876, and such defense was established at the trial, error in rendering a judgment for the plaintiff was released by the repeal of that act subsequent to the taking of an appeal from the judgment, and the judgment must be affirmed.</p> <p>Id.—Province op Appellate Court—Facts Arising After Appeal— Repeal op Penal Statute—Jurisdiction.—The ordinary rule that the province of an appellate court is to review the judgment of the inferior court as of the time when it was rendered is not inflexible; but matters arising subsequent to an appeal affecting the judgment appealed from will be considered by the appellate court, and in actions of a penal character depending upon a statute, the repeal of the statute pending the appeal will deprive the appellate court of power to render a judgment by which the penalty may be enforced.</p> <p>Id.—Change op Law Pending Appeal.—If a case is appealed, and, pending the appeal, the law is changed the appellate court must dispose of the case under the law in force when its decision is rendered.</p> <p>Id.—Prohibition op Action—Remission op Penalty—Power op'Legislature.—The provision of the act of April l, 1876, prohibiting banking corporations from maintaining any action in the courts of this state, without previous compliance with the requirements of the act, was in the nature of a penalty, which it was competent for the legislature to remit at any time.</p>

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

<p>Appeal from a judgment of the Superior Court of Los Angeles County.</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 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 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 of the court.</p>

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

<p>Estates of Deceased Persons—Removal of Trustees—Equity Jurisdiction—Citation in Probate Proceeding—Waiver of Objection.— I A petition filed in the superior court after the final distribution of the I estate of a decedent, asking for an accounting and removal of trustees, to whom the residue of the estate had been distributed, and alleging their mismanagement of the estate, and their failure to report or account, will be regarded as a bill in equity addressed to the equitable power of the superior court, and the objection that the petition was entitled “in the matter of the estate” of the decedent, and that the trustees were brought in by citation from the probate division of the superior court, is waived by their appearance and answer without objection to the form of the petition, and cannot be urged upon appeal for the first time.</p> <p>Id—Accountability of Trustee—Mingling of Trust Funds—Compound Interest.—A trustee of an estate who has mingled the trust funds with funds of a partnership of which he was a member, which latter funds earned about eleven per cent per annum net, and who is guilty of gross negligence in the management of the estate, is properly chargeable with interest upon the trust funds at the rate of ten per cent per annum, compounded annually up to the time of the settlement of his accounts; but it is error for the court to make such charge continue “so long as he shall remain in office” as a trustee. It must be presumed that in future the appellant will faithfully discharge the duties of his office.</p> <p>Id.—Violation of Trust—Rights of Beneficiary.—Where a trustee, in manifest violation of his trust, has applied the trust funds to his own benefit and profit in trade, a court of equity will apply the rule of annual or semi-annual rests, if it will be most for the benefit of the cestui que tnist. The true rule in equity in such cases is to take care that all the gain shall go to the cestui que trust.</p> <p>Id.—Accounting—Necessity of Expenditure—Burden of Proof.—In' the settlement of the account of the trustee of an estate, the burden of proving an expenditure to have been necessary is upon the trustee.</p> <p>Id.—Compensation to Trustees—Gross Negligence.—Compensation to trustees is allowed only to faithful stewards for their care, trouble, and responsibility in the management of the estate, and compensation is properly refused where the trustee is guilty of gross negligence in the management of the estate, and the fact that the will itself provides for compensation is immaterial.</p>

<p>Mining Claims—Location of Cross Ledge. —A subsequent location of a gold-bearing quartz lode crossing the claim of a prior locator of another lode confers no right upon the subsequent locator to any portion of the cross lode, which lies within the boundaries of the first location.</p> <p>Id.—Construction of Revised Statutes.—Section 2322 of the Revised Statutes of the United States, giving to locators of quartz claims “the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically,” is not overcome or repealed, or in any way rendered nugatory by section 2336 regulating the intersection of two or more claims, which applies only to intersections consistent with all the provisions of section 2322.</p> <p>Id.—Construction of Conflicting Sections.-—The rule of construction that, as between conflicting sections of the same statute, the last in order of arrangement will control, is to be invoked only as a last resort, and where the conflict is so sharp and complete as to leave no possible room for giving both effect; it cannot be applied where the provisions are capable of reconciliation.</p>

<p>Arbitration—Power of Attorney.—A power of attorney to purchase lands for a corporation does not authorize the submission to arbitration of the matter of fixing the price to be paid for the land.</p> <p>Id.—Delegation of Authority by Agent.—An agent cannot delegate his authority to another unless he is especially authorized to do so.</p> <p>Id.—Power of Substitution.—A power of substitution and revocation contained in a power of attorney only authorizes the agent to substitute another to take his place and perform his duties as agent for the principal, and does not authorize him to substitute the judgment of another for his judgment while acting as agent.</p> <p>Id.—Contract—Certainty.—Ho action will lie to enforce the performance o£ a contract, or to recover damages for its breach, unless it be complete and certain as to price, as well as to subject matter and parties.</p>

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

<p>Criminal Law—Felony—Bail Bond—Forfeiture—Continuance of Examination. —The condition of a hail bond given upon an arrest for felony to appear for examination before a justice’s court is substantially that the defendant will hold himself amenable to the orders of the court, and when the court considers a demurrer to the complaint at the hour set for the examination the further hearing of the demurrer is in effect a continuance of the examination until the argument of the demurrer is concluded; and the bail bond cannot be forfeited for failure of the defendant to present himself until the demurrer is disposed of, or a further order of the court made.</p>

<p>Will—Selection of Attorney by Testator—Power of Executrix.—A provision in a will selecting an attorney named therein as attorney of the estate of the testator, and directing the executrix to consult and employ him in all matters pertaining to the distribution of the estate and the requirements of the will, does not constitute a selection of an attorney which is binding upon the executrix, but is simply an advisory provision which she may disregard if she chooses to do so, by the employment of other attorneys.</p> <p>Id.—Construction of Will—Coexecutors.—The direction in the will to the executrix to consult and employ the attorney named therein in all matters pertaining to the distribution of the estate does not entitle the</p> <p>attorney to be appointed as coexecutor with the executrix, it appearing from the whole tenor of the will that the intention of the testatrix was simply to make him the attorney and counselor of the executrix, and not to commit to him the administration of the estate.</p>

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

<p>Pueblo Lands—Public Trust—Adverse Possession.—Land acquired from the United States by a city as successor to a former pueblo, held in trust for the general public for a specific public use, as a park, or for a street, or for public buildings, cannot be alienated, and the title of the public thereto cannot be lost by a possession adverse to the city.</p> <p>Id.—House Lots—Power of Alienation—Prescription.—In the case of pueblo lands, such as house lots, the legal title of which is vested in the city, and which may be alienated by it, the title of the city thereto may be lost by adverse possession for the period of time required to acquire a prescriptive title under the statute of limitations.</p> <p>Id.—Findings—Presumption—Support of Judgment.—Where the findings in an action to determine an adverse claim to land state facts showing a prescriptive title in the plaintiffs, and also that the land in controversy was patented by the United States to the city defendant as the pueblo lands of the defendant, “in trust for municipal purposes,” without stating that the land in controversy was held by the defendant in trust for a specified public use, it must be presumed in favor of the judgment that the land was a house lot which the pueblo was authorized to convey, and the findings are sufficient to support a judgment for the plaintiffs.</p> <p>Id.—Conflict in Findings—Liberal Construction.—Findings are to be liberally construed in support of judgment, and, if possible, are to be reconciled so as to prevent a conflict upon material points, and, unless the conflict is clear, and the findings are incapable of being harmoniously construed, a judgment will not be reversed upon the ground of the conflict in the findings.</p>

<p>Adverse Possession— Payment oe Taxes—Burden oe Proof.—When the plaintiff in an action of ejectment proves a paper title his case is made out, and if the defendant relies upon adverse possession under the statute of limitations he must prove either that no taxes were levied or assessed upon the land, or that he paid all taxes which were levied and assessed thereon.</p> <p>Id.—Finding Against Evidence.—A finding that the property in controversy was not assessed for taxes, for a specified year, is against the evidence, where it appears that the land assessed by boundaries necessarily included the land in controversy, although there is no evidence that the tract claimed by the defendant was assessed by any separate or specified description in that year.</p> <p>Id.—Description of Land—Quantity—Boundaries.—Where the whole of a ranch is assessed, the quantity of 'land expressed in acres is mere description, and does not control the more certain description by boundaries, but must yield to boundaries where they do not agree.</p> <p>Id.—Payment of Taxes by Owner—Presumption.—The payment of taxes by the record owner adds nothing to his title, but it excludes any presumption that it was assessed to, or paid by, the adverse possessor.</p> <p>Id.—Lease to Possessor—Admission—Adverse Possession.—Where the owner of land accepts a lease from another it does not destroy his title to the land; but where the lessee is in possession without title it is an • admission of the fact, and may be used as evidence tending to show that he did not claim to hold the land adversely to the party from whom he accepted the lease.</p> <p>Id.—Parol Gift—Adverse Possession.—A parol gift of land from the mortgagor, though invalid as against the mortgagee, is a sufficient basis for the acquisition of a right by adverse possession.</p>

<p>Deed—Execution—Signature of Grantor—Agency—Ratification.— The requirement of section 1091 of the Civil Code that a grant of real property shall be subscribed by the grantor in order that the title may be transferred thereby does not render it necessary that his signature shall be affixed by himself, but it may he affixed by another, if done in his presence and by his direction, or he may adopt and ratify a signature made by another without previous authority.</p> <p>3d. —Acknowledgment of Grantor—Estoppel. —Where a person named in a grant of real property appears in person before a notary and acknowledges a signature attached thereto as his own he is estopped from afterwards denying his declaration, as well as his signature, against any one who, without any other notice or knowledge than is conveyed by the deed, parts with his property on the strength thereof.</p> <p>Id.—Mistake of Married Woman—Opportunity for Examination— Bona Eide Purchaser.—Where a married woman acknowledges a signature to a deed as her own signature, under the mistaken belief that the instrument was a lease which she had signed, and it appears that the instrument was handed to her by the notary for her examination, and that she had every opportunity for determining its nature, her ae-' knowledgment of the execution and validity of the deed estops her from questioning that fact as against a subsequent mortgagee of the grantee, who is without notice or knowledge other than that conveyed by the deed.</p> <p>Id.—Deed Voidable for Fraud, Not Void.—When a man knows that he is conveying or doing something with his estate, hut does not ask what is the precise effect of the deed, because he is told that it is a mere form, and has such confidence in his solicitor as to execute the deed in ignorance, the deed so executed, although it may be voidable upon the ground of fraud, is not a void deed.</p> <p>Id.—Suffering of Innocent Persons—Maxims.—Where one of two innocent persons must suffer by the act of a third he by whose negligence it happened must he the sufferer.</p>

The facts are stated in the opinion of the court. In this case the damages found are not so great as to indicate that the jury acted under the influence of passion or prejudice, and therefore the court should not have disturbed the verdict. The order appealed from invades the province of the jury. (Taylor v. California Stage Co., 6 Cal. 228; Aldrich v. Palmer, 24 Cal. 516; Bod-well v. Osgood, 3 Pick. 379; 15 Am.

The facts are stated in the opinion. The debts, liabilities, and obligations of a partnership are joint, and not joint and several. (Civ. Code, sec. 2442; Northern Ins. Go. v. Potter, 63 Cal. 157; Gray v. Palmer, 9 Cal. 616; 17 Am. & Eng.

The facts are stated in the opinion of the court. The partners were tenants at will of Groome. (Coke on Littleton, 566; Gould v. Thompson, 45 Mass. 222; Civ. Code, sec. 789.) The tenancy was terminated by the death of Groome. (Taylor’s Landlord and Tenant, sec. 62; Robie v. Smith, 21 Me. 114.) The tenancy was terminated by defendant’s adverse claim on behalf of his firm.

<p>New Trial—Unexplained Delay in Presenting Statement for Settlement—Appeal.—An unexplained delay of seven months in presenting a statement on motion for a new trial to the trial judge for settlement is fatal, and a settled statement showing the fact of such delay, without explanation, and an objection to its settlement on that ground, mus* be disregarded upon the hearing of an appeal from the order denying a new trial.</p> <p>Id.—Appellant Must Incorporate Excuse for Delay.—Where the settlement of a statement or bill of exceptions is objected to on the ground that it is too late, it becomes the duty of the appellant to incorporate in the bill or statement the matter, if any, going to excuse his apparent delay, and in case this is not done the bill of exceptions or statement will not be considered upon appeal.</p> <p>Id.—Mandatory Statute.—If a statute absolutely fixes the time within which an act must be done, it is peremptory, and the act cannot be done at any other time unless, during the existence of the prescribed time, it has been extended by an order made for that purpose under authority of law.</p>

The facts are stated in the opinion of the court. The court erred in allowing a judgment on the pleadings, as there being a conflict between the written and printed matter in the note and mortgage, the allegations of the answer tendered an issue as to the maturity of the note and mortgage. (Code Civ. Proe., sec. 1862; Civ.

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

The facts are stated in the opinion of the court. The action of the council in letting the contract to the new company, which put in a higher bid than the old one, justifies the court, as a court of equity, in setting aside the contract. (In re Anderson, 109 N. Y. 554; Nelson v. Mayor etc., 131 N. Y. 4; Cook v. City of Racine, 2 Wis. 456; McCord v. Pike, 121 111. 288.) The city council was not bound to advertise for bids. (See City Charter of San Jose; Pol.

<p>NON-NEGOTIABLE NOTE—CONTINGENT PeOVISION FOE AtTOBNEy’e FEES.— A promissory note payable to the order of the payee is rendered nonnegotiable by a contingent provision contained therein for the payment of attorney’s fees in case of suit.</p> <p>Id.—Liability of Immediate Indoesee.—In respect to the immediate indorsee of the payee of a non-negotiable promissory note, the indorsement will ordinarily create the same liabilities and obligations as the indorsement of a negotiable note.</p> <p>Id.—Demand and Notice.—Demand and notice ought to be required in order to charge such immediate indorser, where the words written over the blank indorsement show that the signature was considered and treated by the indorsee as if it were an indorsement of negotiable paper.</p> <p>Id.—Pbesentment of Note.—A note not payable at any particular place is payable and should be presented for payment at the residence or place of business of the maker, or wherever he may be found, at the option of the presenter.</p> <p>Id.—Excuse Fob Presentment. —It,is only where the maker has no place of business or residence within the state, or where his residence or place of business cannot be ascertained with reasonable diligence, that presentment for payment is excused.</p> <p>Id.—Diligence Requibed—Place of Pbesentment—Date of Note.— Merely looking for the payor at the place where the instrument is dated is not of itself due diligence, but presentment must be shown to have been made at the person’s last known place of residence or business; and, if his removal from the place of date, and his acquisition of a new domicile in the same state, was previously known to the indorsee, demand must be made at his new place of residence.</p> <p>Id.—Insufficient Pleading—Knowledge of Maker’s Residence.—A complaint seeking to charge an indorser by notice of protest, which shows upon the face of the pleading that the note was not in fact presented at • maturity to the maker, but seeks to excuse presentment merely upon the ground that the maker could not be found in the place at which the note was dated, and states no facts respecting the knowledge of the indorsees, or their agents, as to the actual place of residence or business of the maker of the note, and not alleging what was such last known place of residence or business, or that an inquiry or presentment was made thereat, is insufficient to charge the indorser.</p> <p>Id.—Averment of Due Protest—Presumption.—The allegation “that thereupon the note was duly protested for nonpayment,” directly coupled with previous allegations showing nonpayment of the note to the maker, cannot be presumed to imply a presentment in fact, or to imply any other excuse for not presenting it to the maker than that previously alleged.</p> <p>Id.—Pledge ofNon-negotiable Paper-—Title—Effect of Indorsement. A mere indorsement of non-negotiable paper by way of pledge cannot operate as an assignment of the general title, so long as the pledge subsists, and must be restricted in effect to an authority from the pledgor to the pledgee, to enforce the obligation in his own name as trustee and agent for the pledgor, and to apply the proceeds in payment of the debt secured, accounting to the pledgor for any surplus collected; and the indorser of such paper by way of pledge is not chargeable as an indorser of negotiable paper.</p> <p>Id.—Transfer of Pledged Note—Satisfaction—Election of Pledgor. The lien of a pledge is dependent upon possession; and where the pledgee transfers a note held in pledge as collateral security he must be deemed, at the election of the pledgor, to have taken it at its face value, in satisfaction of the debt for which it was pledged to him, and may be regarded as having pledged to his assignee his own personal responsibility, and not that of his pledgor; and no subsequent reassignment of such paper to himself will restore to him his original rights.</p> <p>Id.—Contract to Pay Interest When Collected—Application of Proceeds of Sale.—Where the indorsees of a note and mortgage .agreed to pay the indorser an amount of interest due and unpaid upon the mortgage, and compound interest thereon, “ when the same should be collected on the note and mortgage,” the proceeds of sale of the mortgaged property, after payment of costs and expenses of sale, should be first applied to the payment of such interest and compound interest to the indorser, in preference to any payment to the indorsees.</p>

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

<p>Appeal from an order of the Superior Court of Fresno County denying a motion for change of place of trial.</p> <p>The facts are stated in the opinion of the court.</p>

The facts are stated in the opinion of the court. The burden of proof was not upon defendants to show that they had represented their claim in 1890. It devolved upon plaintiffs to show that they had not. Each party must prove his own affirmative allegations. (Code ■ Civ. Proc., sec. 1869.) Defendants showed a valid location made prior to the attempted relocation of plaintiffs.

The facts are stated in the opinion of the court. The defendant was not legally committed, as the name of the person assaulted was omitted from the commitment. {Ex parte Keil, 85 Cal. 310; Ex parte Branigan, 19 Gal. 136; Ex parte Bull, 42 Cal. 199.) The defendant was never examined on the charge of which he was convicted, as he was charged with assault on George Magin, and convicted of an assault on George Massino.

<p>Partnership—Bill Drawn by Partner Upon Firm—Notice of Dishonor—Demand.—In case of a bill drawn by a partner upon the firm or upon a partnership fund in the hands of another partner, notice of dishonor is not required; and if the drawer is a debtor, and the bill so drawn is for his accommodation, failure to make due demand will not release him, but he may recoup for any damage he may have suffered by failure to make a demand.</p> <p>Id.—Recourse of Drawer Against Partnership—Demand and Notice. Where one of three partners has agreed to advance money to pay all bills drawn by another partner upon a third partner, the drawer having recourse against the partner who had agreed to pay the bills so drawn, and the drawer having no other interest in the partnership venture except a contingent interest in its success after the advances were repaid, and not being personally liable to repay them, the drawer cannot be considered as a debtor, and is entitled to demand and notice.</p> <p>Id.—Excuse of Demand—Promise of Drawer Before Maturity.—Where the drawer, three weeks before the maturity of the bills, informs the holder that the drawee could not pay, but that he would pay the bills, such promise not having been made ten days before the maturity of the bills, as provided by section 3156 of the Civil Code, will not excuse presentment to the drawee and notice to the drawer.</p>

The facts are stated in the opinion of the court. The court erred in instructing the jury that the defendants were liable on the bond for all the moneys collected by their principal, and not turned over to the company prior to the date of the execution of the bond. This would give the bond a retrospective operation which the law does not sanction.

The facts are stated in the opinion of the court. A banking corporation cannot purchase stock in other corporations unless expressly authorized by its charter or by law to do so. (First Nat. Bank v. National Bank of Baltimore, 92 U. S. 122; Mutual Sav. Bank etc. Assn. v. Wilcox, 24 Conn. 153, 159; Weckler v. First Nat.

<p>Partnership—Contract With Individual Partners—Purchase op Lumber—Distinct Partnership—Assignment—Novation.—Where a partnership in the business of manufacturing and selling lumber made a contract with two of its members for the purchase of lumber who constituted a distinct copartnership, from which one of the partners withdrew, and into which from time to time third parties became interested under assignments of the purchasing contract, one of the original partners retaining an interest in the purchasing contract during all transactions under it, the mere fact that the lumber was delivered to and paid for by the new partnership as constituted of different members at the time of the delivery and payments made, without the consent of the original partnership to any release of liability upon the part of the partners to whom the purchasing contract was made, or to accept the new partners in the purchasing contract in their stead for any part of the obligation, does not establish a novation of the purchasing contract, and one of the partners with whom it was originally made is individually liable for all indebtedness due to the original partnership upon the purchase of lumber under the contract, by the new partnership.</p> <p>Id.—Action to Dissolve Partnership—Accounting—Parties.—In an action to dissolve the original partnership, and to enforce the liability of one of its members for a balance due upon the purchasing contract, the strangers who became members of the new firm, under the assignment of the purchasing contract, are not necessary parties to the accounting.</p> <p>Id.—Purchase of Logs From Third Persons.—Where logs were purchased by the new partnership from third persons, and sawed in the mill belonging to the original partnership, it is error for the original partnership to charge a copartner interested in the purchasing contract, the contract price for such lumber, and his liability is limited to payment for the use of the mill in sawing the logs at the rate chargeable for sawing only.</p> <p>Id.—Lumber Partnership.—An association of persons for the purpose of carrying on business together and dividing the profits between them, and engaged in the manufacture and sale of lumber, under the name of the “ Sugar Pine Mill and Lumber Co.,” is a partnership.</p>

<p>Verdict—Resort to Chance—Affidavit of Juror Not Conclusive— Conflicting Evidence—Appeal.—An affidavit by a juryman that the verdict was arrived at by resorting to the determination of chance, and that he was induced to assent thereto in that manner, is not conclusive upon the trial court, and where the court finds upon conflicting evidence, both oral and by affidavit, that the verdict was not a chance verdict its action will not be interfered with upon appeal.</p>

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

The facts are stated in the opinion of the court. A party desiring to purchase state land must strictly conform to the statute under which his application is made, and establish the facts stated in his affidavit to purchase the land, or his application is invalid. (Hildebrand v. Stewart, 41 Cal. 387; Woods v. Sawtelle, 46 Cal. 389; Pol.

<p>Deeds—Recitals—Estoppel.—Particular recitals in a deed are binding upon parties and privies, and this doctrine applies to the authorized acts of a corporation; but it is essential to an estoppel by deed that the deed itself should be a valid instrument, and if void, though under seal, it does not work an estoppel at law or in equity.</p> <p>Id.—Recitals of Authority—Conveyance of Pueblo Lands.—Where a conveyance of the pueblo lands of the city of San Diego recited that the qualified electors of the city, held and elected for that purpose, directed, authorized, and empowered the trustees to sell the land in question, and that the board of trustees duly assembled, and acting as such, by resolution, prescribed the terms and conditions upon which sales would be made, the recitals of authority, when coupled with the law, are sufficient evidence to bind the parties, and to show that title passed by the deed, provided it was properly executed.</p> <p>Id.—Execution of Deed by City Tbustees—Absence of Cobpobate Seal —Oubative Act.—A deed of pueblo lands, executed by the trustees of the city of San Diego, in 1869, who purported to act for and in the name of the city, except that they signed their names as trustees, and affixed their private seals opposite their names, without any corporate seal, was validated by the act of February 7, 1874, validating conveyances from the city of San Diego which had no corporate seal.</p> <p>Id.—Constitutional Law—Validity of Oubative Act.—The curative act of February 7, 1874, validating conveyances from the city of San Diego which had no corporate seal, and giving them the same effect and validity as if a corporate seal of the city had been regularly provided and properly affixed, is constitutional, and operative in all cases where no vested rights in third parties accrued between the execution of the instrument and the passage of the curative act.</p> <p>Id.—Tenancy in Common—Title of City.—Where a city conveys an undivided one-half of a pueblo lot, and on the next day conveys the entire west one-half of the same lot to another grantee, such latter conveyance does not affect the title of the city as a tenant in common to an undivided one-half of the east half of the lot.</p> <p>Id.—Pabtition of Land—Ratification—Sale of Specific Tbact.—A sale by a tenant in common by specific bounds of a portion of the land held in common does not of itself effect a partition of the land, and is not binding upon a cotenant unless ratified by him.</p> <p>Id.—Estoppel.—Estoppels must be mutual; and where it does not appear that the first grantee of the city, or his successors to an undivided half of the pueblo lot, do not still hold an undivided interest in the west half of the lot, the city cannot be estopped from claiming its original undivided interest in the east half thereof by reason of the conveyance of the west half of the lot as a specific tract to a subsequent grantee.</p>

<p>Mortgage—Foreclosure—Separate Property of Wife—Evidence-Contradictory Certificate of Acknowledgment—Delivery.—In an action to foreclose a mortgage upon the separate property of a wife, executed by the husband and wife at a time when the acknowledgment of the wife was essential to the validity of the mortgage, it is error for the trial court to refuse to allow the wife to prove that she never in fact appeared before the notary certifying to the acknowledgment attached to the mortgage, and that she did not acknowledge the mortgage or know any thing about its delivery to the mortgagees.</p> <p>Id.—Certificate of Acknowledgment Not Conclusive—Parol Evidence—Fabrication.—A certificate of acknowledgment is not conclusive evidence of the fact of acknowledgment, but it may be impeached by parol evidence that the person named therein never in fact appeared before the officers certifying to the acknowledgment. In such a case the act of the officer is wholly void, and the certificate is nothing but a fabrication.</p> <p>Id.—Knowledge oe Mortgagee—Protection oe Bona Fide Purchaser. It is only where the wife in fact appears before the officer that his certificate imports verity in favor of bona fide purchasers without knowledge of irregularity; but where she does not in fact so appear it is not necessary for the wife to show or offer to show fraud or bad faith upon the part of the mortgagee, or that he had notice of the falsity of the certificate. The failure of the mortgagee to ascertain that the mortgage was never in fact executed by the wife cannot be allowed to defeat the rights of the wife to her property if she was without fault.</p> <p>Id.—Execution oe Written Instrument—Delivery.—The word “execute, ” when applied to a written instrument, unless the context indicates that it was used in a narrower sense, imports the delivery of the instrument.</p> <p>Id.—Pleading—Denial oe Execution—Issue as to Delivery.—Where a complaint in a foreclosure suit alleges that the defendants did “ execute under their hands and seals and deliver ” the mortgage, an answer of one of the defendants denying that she executed the mortgage referred to is sufficient to put in issue the fact of the delivery and every other fact necessary to its execution, although there is no specific denial of the delivery alleged.</p> <p>Id.—Waiver oe Objection.—Where no specific objection was made to ■ the admission of evidence that the wife had never in fact acknowledged the execution of the mortgage, nor known of its delivery, upon the ground that her answer admitted the fact of delivery, such objection is waived.</p> <p>Id.—Evidence—Objection For First Time Upon Appeal.—Where evidence is objected to as incompetent, irrelevant, and immaterial, upon a particular ground, a contention that it was inadmissible for another reason cannot be raised for the first time upon appeal.</p>

<p>Writ of Review—Additional Finding of Superior Court—Excess of Jurisdiction—Remedy Upon Appeal.—A proceeding in the supreme court upon a writ of review to annul an order and additional finding of the superior court on the ground that the latter court was at the time without jurisdiction to make such order and finding, because the cause in which it was made was then pending in the supreme court on appeal, will be dismissed, as the petitioners have a plain, speedy, and adequate remedy in due course of law, when the additional finding is presented in the supreme court as a part of the record on appeal. If the superior court was without authority to make the finding complained of, such finding will be entirely disregarded as a part of the record on appeal.</p>

<p>Criminal Law—Impaneling Jury.—A defendant accused of crime has the right to have in the jury-box, before the impaneling a jury begins, all the names of the jurors from which are to be drawn the jury by which he is to be tried.</p> <p>Id.—Right op Peremptory Challenge.—The right of peremptory challenge is one of the chief safeguards of a defendant against an unjust conviction, and courts ought to permit the freest exercise of this right, within the limits fixed by the legislature.</p> <p>Id.—Jury-Box—Restoration op Names op Jurors—Discharge op Panel —New Impanelment.—Where a jury has been partially impaneled while another jury was engaged in deliberating upon its verdict, which is discharged before the impanelment of the new jury is complete, it becomes the duty of the clerk to restore their names to the jury-box, and when the attention of the court is drawn to the fact it should grant the motion of the defendant to discharge those jurors who had already been sworn, and to impanel the jury anew, and its failure to do so is a prejudicial error.</p>

The facts are stated in the opinion. The action of claim and delivery is proper under section 3051 of the Civil Code, even when there has been a conversion or other wrongful act amounting to a conversion on the part of the defendant. (Rogers v. Huie, 2 Cal. 571; 56 Am. Dec. 363.) If a lien be claimed by defendant the same can be adjusted in an action of claim and delivery, and thus put an end to litigation.

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

<p>Partnership—Employment op Attorneys—Death op Partner—Election op Client.—The employment of a firm of attorneys to conduct a litigation is so far for the personal services of all, that upon the death of one member of the firm the client may elect to consider the employment as terminated; but the option to declare the contract terminated for such a cause is with the client, and, if he does not do so, but is willing to intrust the survivor with the further management of the litigation in which the firm was employed, the survivor is bound to complete the unfinished contract for the benefit of the partnership, without compensation, unless otherwise agreed between the partners,</p> <p>Id.—Duty of Surviving Partner—Executory Contracts—Compensation.—A surviving partner must complete all executory contracts of the firm which remain in force after the death of a partner, and must settle the business of the partnership without charge against the partnership for his personal services.</p> <p>Id.—New Contract—Modification—Eights of Deceased Partner.— A surviving partner cannot extinguish a contract belonging to the partnership by the substitution of a new contract relating to the same subject matter, in the profits of 'which he alone is to participate; and in settling the accounts of the partnership, a court of equity will allow the representatives of the deceased partner an equitable participation in the profits realized from the new or substituted contract, which will be regarded, so far as concerns the partnership, as only a modification of the former contract.</p> <p>Id.—Partnership Between Attorneys—Eights of Survivor—Good Will—Contingent Ebb—Assets of Partnership.—When a partnership between attorneys at law is dissolved by the death of one partner, the survivor is entitled to his own future earnings and is not required to make an allowance in the settlement of the partnership for the goodwill of the partnership, or for the profits of future business intrusted to him by former clients of the firm; hut a contract for a contingent fee in an action which a client of the firm permits the surviving partner to complete, must be viewed by a court of equity as an asset of the partnership.</p> <p>Id.—Increased Compensation of Surviving Partner—Modified Contract—Share of Deceased Partner.—Where the contract for such contingent fee is modified after the death of the deceased partner, so as to relieve the clients from some of its burdens, in consideration of which the surviving partner is to receive an increased compensation in the event of final success, the estate of the deceased partner is entitled to share in the contingent fee to the extent given by the contract in its original form, and the surviving partner will be permitted to retain the increased compensation given in the modified contract, by reason of the increased personal risk which he assumed.</p> <p>Id.—Allowance for Expenses—Costs Assumed by Surviving Partner. Where the surviving attorney has paid a sum to third parties for attorney’s fees in the prosecution of the action in which the contingent fee was recovered, the partnership is properly chargeable with its proportion of the sum thus paid; but the surviving partner is personally chargeable with the costs of litigation assumed by him, in consideration of which he becomes entitled to retain the increased compensation given by the modified contract.</p> <p>Id.—Action by Widow of Deceased Partner.—The surviving partner may be made accountable for the share of the estate of the deceased partner in the contingent fee after it has been collected, at the suit of the widow of the deceased partner, where no other action for the same cause has been brought by the executor or administrator, and it appears that the widow is entitled to the entire estate of her deceased husband.</p>

<p>Husband and Wife—Community Property—Conveyance to Wife—Presumption.—A deed of bargain and sale to a married woman, executed prior to the amendment of 1889 to section ] 64 of the Civil Code, must be presumed to have been paid for from the community funds, and to have vested the title in the marital community, subject to the absolute disposition of the husband, in the absence of rebutting proof that it was purchased with money belonging to the separate estate of the wife.</p> <p>Id.—Property Taken in Name of Wife—Notice to Purchaser.—The fact that the property was taken in the name of the wife alone does not of itself give a purchaser notice of a separate claim or right of the wife to the property, where the deed does not show upon its face any intention on the part of the husband to have the property conveyed to her as her separate estate.</p> <p>Id,—Conveyance From Wife.—All parties purchasing real estate standing in the name of a wife, where the deed presumptively or in fact was given for a money consideration, during coverture, do so at their peril.</p> <p>Id.—Construction of Code—Amendment Not Retroactive.—The amendment of 1889 to section 164 of the Civil Code is not retroactive in its effect.</p> <p>Id.—Swamp-Land Assessment—Sale of Land Under Foreclosure.—The sale of land under a decree foreclosing a swamp-land assessment lien against the wife, to whom a grant, bargain, and sale deed was made in the year 1880, cannot affect the title of the husband, and such assessment in the name of the wife is void.</p> <p>Id.—Taxation—Proceedings In Invitum.—The provisions of statutes upon the subject of taxation for the assessment of property are in invitum, and must he strictly followed to divest title.</p> <p>Id.—Name cm Party Assessed.—Where a swamp-land assessment named a person as the owner, no liability is created against anybody else, and none against the person named, unless such person is the owner of the property.</p> <p>Id.—Void Assessment.—A swamp-land assessment to a party named and to unknown owners is void.</p>

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

<p>Judgment—Validity—Judgment-roll.—A judgment is void upon its face only when that fact is made apparent hy an inspection of the judgment-roll.</p> <p>Id.—Affidavit and Order for Publication.—The affidavit and order for publication of summons required by section 412 of the Code of Civil Procedure constitute no part of the judgment-roll, and their absence does not show the invalidity of the judgment in the light of the judgment-roll.</p> <p>Id.—Affidavit of Publication of Summons by “Publisher”—Presumption.—The affidavit of publication of summons is part of the judgment-roll; but it is not insufficient merely because made by the “publisher” and not by the “printer or foreman or principal clerk” as required by the terms of section 415 of the Code of Civil Procedure. The “publisher” of the paper is presumed to be its “printer” in the absence of a showing to the contrary.</p> <p>Id.—Vacation oe Judgment—Limitation oe Time.—A judgment void upon its face may be vacated at any time upon motion; and a judgment in fact void for want of jurisdiction over the person of the defendant, where its invalidity does not appear from the judgment-roll, may be vacated upon motion within a reasonable time after its entry, and at least within the time limited by section 473 of the Code of Oivil Procedure. What is the extreme limit of time allowed for such motion, not decided.</p> <p>Id.—Equitable Remedy—Foreclosure oe Certificate oe Purchase oe State Lands—Rights oe Third Parties.—A judgment foreclosing a certificate of purchase of state lands should not be set aside on motion of a corporation, to whom the lands embraced in the certificate had been transferred prior to the commencement of the action, after the lapse of twelve years from the date of the judgment, during which time the conveyance to the corporation had not been recorded, nor the register of the state land office notified thereof, where it appears that five years previous to the motion the state had sold part of the lands to a third party, who had conveyed the same to persons in actual possession, under recorded deeds, who had expended a large sum upon the property without knowledge or notice of any claim of the corporation, and the fact is controverted as to whether the corporation had knowledge or notice of their possession and improvements; but, under these circumstances, the corporation should be left to its remedy by an equitable action.</p>

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

Petition in the Supreme Court for writ of mandamus to the judge of the Superior Court of San Diego County. The facts are stated in the opinion.

The facts are stated in the opinion of the court. The court erred in allowing the witness Ashmead to testify as to whether it was possible for a person sitting in the position Mrs. Healy was in to stand the force of the jars and still retain her seat upon the cars, as it called for the opinion of the witness, and for a like reason it was error for the court to allow testimony of the witness that he thought the car was too narrow for the track.

<p>Writ of Review—Demurrer—Practice—Rule of Supreme Court.— The manifest object of rule 26 of this court, providing that if the return to an alternative writ be by demurrer alone, the writ will be ordered to issue without further leave to answer, is applicable to petitions for a writ of review as fully as those for the other original writs referred to in the rule, it being intended to enable the parties to obtain a decision upon the sufficiency of the order or judgment sought to be annulled, without incurring the expense or delay of a return to the writ.</p> <p>Id.—Judgment After Return of Writ.—If a demurrer to a petition for a writ of review is overruled, the subsequent issuance of the writ and the judgment to be rendered after its return will be merely formal, and in accordance with the decision upon the demurrer, unless it appears that the record returned is different from that set forth in the petition.</p>

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

<p>Judgment—Jurisdiction of Person—Absence of Proof—Presumption. A domestic judgment of a superior court, both of the parties to which are residents within the state, must be presumed to have been rendered with jurisdiction over the person of the defendant, when the same ig offered in evidence in another proceeding, although there is no proof of service of summons or appearance on the part of the defendant, and although the judgment is itself silent concerning the jurisdiction over the person of the defendant.</p> <p>Id.—Determination of Jurisdiction—Presumption of Evidence—Silence of Record.—The jurisdiction does not exist by virtue of the mere decision of the court that it has jurisdiction, but the presumption of jurisdiction exists, because the court is authorized to determine the ^ question of jurisdiction in the same mode as any other question of fact upon which its judgment is to rest, and its decision thereon is presumed to have been made upon evidence sufficient to sustain it; and this presumption does not depend upon the existence of any record of the decision, hut the necessity for the presumption arises only when the record is silent.</p> <p>Id.—Judgment Annulling Marriage—Insanity of Wife—Evidence.— A judgment annulling a marriage upon the ground of the fraud of the wife in concealing the fact that she was insane at the time of the marriage is competent evidence of the annulment of the marriage in favor of a widow of the deceased husband claiming under a subsequent marriage, upon her application for letters of administration upon bis estate, although there are no recitals in the judgment or in any part of the record of any service of summons on the insane wife, nor any appearance in her behalf in the action in which the judgment was rendered.</p> <p>Id.—Void Marriage—Second Marriage Before Decree of Annulment.—A decree annulling a marriage is a judicial determination of the status of the parties, and does not render the marriage void, but simply declares that it had been void from the beginning, except so far as necessary to protect the civil rights acquired by others in reliance upon its apparent validity; and the fact that the judgment annulling the marriage was not entered until after a marriage of the plaintiff with another woman does not invalidate such marriage.</p>

<p>Sale of Wheat in Warehouse—Bailment—Conflicting Evidence.— Where the owners of a warehouse stored wheat of others, and also conducted the business of buying and selling wheat, a verdict in favor of a bona fide purchaser of wheat from the warehouseman will not be disturbed where the evidence is conflicting as to whether the wheat had been merely stored with them, by the plaintiff, or had been sold by him to the warehousemen.</p> <p>Evidence—Impeachment of Witness—Conviction of Perjury—Reversal of Judgment—Refusal of Instruction.—Where a witness on cross-examination testified that he had once been tried and found guilty of perjury, before a jury, and it was subsequently proven that the conviction was reversed upon appeal, and the charge was thereafter dismissed, the refusal of the court to give an instruction that “a judgment of conviction which has been reversed is a mere nullity, and has no vitality for any purpose, ” is not good ground for granting a new trial, though such instruction might well have been given.</p> <p>Id.—Presumption—Intelligence of Jury—Absence of Erroneous Instruction.-—Jurors may be assumed to have ordinary intelligence and good sense; and neglect to instruct them on a commonplace matter is not ground for reversal, when no erroneous instruction has been given.</p>

The facts are stated in the opinion. As there are no known heirs the public administrator has an interest in the estate, and may prosecute any proceeding to determine the intestacy of the deceased and obtain possession of the estate. (Pol. Code, sec. 41; Code Civ! Proo., secs. 1726, 1728, 1731-33, 1737; People v. Roach, 76 Cal. 298.) As the sole legatee and devisee died in the lifetime of the testator the legacy and devise failed or lapsed. (Civ.

The facts are stated in the opinion. ICnott was the agept of the defendant, authorized to act as such by precedent authority. (Civ. Code, secs. 2295-2303, 2308.) Not only was he an agent by precedent authority, but his acts as such were ratified and adopted by the defendant. Even if his acts were without authority, their subsequent ratification bound the defendant from the inception of the transaction.

Obiginal proceeding in the Supreme Court for the disbarment of an attorney at law. The facts are stated in the opinion of the court.

The policies referred to in the opinion were procured from E. J. Griffith, the husband of the plaintiff, on or about the 1st of June, 1889, by J. D. Mouser, as a soliciting agent for the state agents of the New York Life Insurance Company, under an agreement that Griffith should deliver to said J. D. Mouser his two certain promissory notes for the sum of $449 each, payable six months after date, for the first annual premium for the insurance, amounting in the aggregate to…

<p>Appeal from a judgment of the Superior Court of Fresno 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—Trial—Bribery or Witness—Investigation by Court. If the circumstances pending a criminal trial are such as to impress the court with a suspicion that a witness has heen tampered with or bribed by the attorney for the defendant, the investigation of the matter should be conducted in the absence of the jury in order that the jurors might not be influenced in their verdict by any developments arising from such investigation.</p> <p>Id.—Remarks in Presence or Jury-—Exception.—An objection to remarks made by the trial court in the presence of the jury, touching the conduct of appellant’s attorney in regard to the bribery of a witness, will not be considered upon appeal where no exception was noted to the course pursued by the court.</p> <p>Id.—Possession or Stolen Property Unexplained—Burglary.—The mere possession of stolen property unexplained by the defendant, though not sufficient to justify a conviction, is a circumstance tending to show guilt, and the accused is bound to explain the possession in order to remove the effect of it as a circumstance to be considered in connection with other suspicious facts if the evidence discloses any such.</p> <p>Id.—Inappropriate Expression—Instruction.—The words “a circumstance tending to show guilt ” would be a more appropriate expression than the phrase “a guilty circumstance” as applied to the possession of stolen property, yet their manifest meaning is the same, and the use of the latter expression in an instruction is not ground for a reversal of a judgment of conviction.</p> <p>Id.—Appropriateness of Instruction—Possession of Property—Conflict of Evidence.—Where there is direct evidence to the effect that the defendant was in possession of the property stolen from the house burglarized at about the time the burglary was committed, the mere fact that this evidence was contradicted by the defendant or other witness, cannot defeat the right of the people to have an instruction bearing upon the question of the possession of stolen property given to the jury.</p>

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

Application to the Supreme Court for a writ of mandamus to the judge of the Superior Court of Lassen County. The facts are stated in the opinion.

<p>Appeal from, a judgment of the Superior Court of Solano County.</p> <p>The facts are stated in the opinion.</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>The order of the court that due notice be given to the heirs was equivalent to an express direction that notice should be given by publication and by mailing as required by the code. (MeCrea v. Raraszthy, 51 Cal. 146; See Code Civ. Proc., secs. 1303, 1304.) There was no publication by the clerk in which November 7,1885, was named as the day on which said matter would be heard. The publication of the so-called notice of continuance signed by Ira Hill Reed as attorney is no official publication, and is no notice whatsoever. (People v. Bailhache, 52 Cal. 310; People v. Williams, 64 Cal. 92.) The notice was not in compliance with the statute or the order of the judge and is wholly insufficient to confer jurisdiction. {Randolph v. Bayue, 44 Cal. 370; Williams v. Sacramento County, 58 Cal. 237.)' When the statute requires that certain persons shall be notified, such provisions must be complied with in order to give the court jurisdiction. {Randolph v. Bayue, 44 Cal. 370.) Proceedings in probate courts are not according to the course of the common law, and the jurisdiction is special and limited in dealing with estates of decedents. {3 Itedfield on Wills, * 58, 59; Smith v. Rice, 11 Mass. 507; Smithy. Westerfield, 88 Cal. 376.) It is a well-settled principle that where the jurisdiction is special and limited all presumption as to regularity ceases, and the burden of establishing the jurisdiction is thrown upon the party who invokes the benefit of its decree or judgment. (Freeman on Judgments, 128, sec. 127; Jordan y. Qiblin, 12 Cal. 100; Freeman Upon Void Judicial Sales, sec. 5.) The service upon the minor heir was in.sufficient, as the attempted personal service was made by the party asking for letters testamentary, who was disqualified from serving the notice. (Code Civ. Proc., secs. 410, 1713.) The service being insufficient, the subsequent decree can be collaterally attacked. {Lyons v. Cunningham, 66 Cal. 42; Maynard v. MacCrellish, 57 Cal. 355; Hoiuard v. Galloway, 60 Cal. 10; Weil y. Bent, ■60 Cal. 603.) The notice for publication issued by the ■clerk named October 24th as the day of hearing. This notice could not be changed after its issuance and its publication. {McMinn v. Wheelan, 27 Cal. 313.) Even if the wife took a beneficial interest under the will she was entitled to one-half of the community property. {In re Gwin, 77 Cal. 314; In re Gilmore, 81 Cal. 240.) The decree of distribution does not conclude one who claims property by title adverse to the estate; that is, one who claims in community right. {In re Rowland, 74 Cal. 523.) The plaintiff here claims the undivided interest named as surviving wife of the community. Her undivided interest and ownership could not be determined ■or concluded upon a proceeding for distribution. {Mc-Leran v. Benton, 31 Cal. 30; King y. La Grange, 50 Cal. 332; Estate of Roland, 74 Cal. 520.) Upon the death of the husband the wife became tenant in common with the child in the community property, with the title and right of entry, and could maintain ejectment for the •whole property as against an intruder, or action to quiet title, as against cotenant, or any other person holding and claiming adversely. {McLeran y. Benton, 31 Cal. 30.)</p> <p>The probate of the will and the proceedings in the administration of the estate were regular and valid. (See Code Civ. Proc., secs. 1303-06, 1963.) By reason of the decree of distribution distributing all the property of the estate to the defendant minor, and by reason of the plaintiff accepting her share and benefit of the estate by the same decree, she is estopped from claiming the property in controversy to be community property. (Noe v. Splivalo, 54 Cal. 207; Morrison v. Bowman, 29 Cal. 337; see, also, page 350; Estate of Barton, 55 Cal. 87; Estate of Stewart, 74 Cal. 101.) Plaintiff, having accepted, under the will, a legacy, as well as a monthly allowance, she is estopped from asserting that the judgment or proceedings probating the will by which she obtained this money and benefits is illegal or void. (Simson v. Eckstein, 22 Cal. 580; Palmerton v. Hoop, 131 Ind. 23; Lewis v. Lichty, 3 Wash. 213; MeClenahan v. West, 100 Mo. 309; Denver City etc. Water Co. v. Middaugh, 12 Col. 434; Brewer v. Nash, 17 R. I. 793; Bigelow on Estoppel, 3d ed., 571-75; 7 Am. & Eng. Ency. of Law, 22; Kile v. Town of Yellowhead, 80 111. 208; Bell v. Craig, 52 Ala. 215; Felch v. Gilman, 22 Yt. 39; Robertson v. Bradford, 73 Ala. 116; Hitchcock v. Railroad Co., 25 Conn. 516; Walker v. Mulvean, 76 111. 18; Penn v. Heisy, 19 111. 295; Pursley v. Hays, 17 Iowa, 310; Bumb v. Card, 107 Ind. 577; Webster v. Bebinger, 70 Ind. 14; Sherman v. McKeon, 38 1ST. Y. 266; Poolv. Breese, 114111. 594; Sewall v. Herbet, 37 La. Ann. 155; Sutton’s Appeal, 112 Pa. St. 598; Ellis v. White, 61 Iowa, 644; Robinson v. Jones, 68 Miss. 794; In re Torfler’& Estate, 23 1ST. Y. S. Rep. 135.)</p>

The facts are stated in the'opinion. The plaintiff held the mines in trust, and used his position as trustee to make profits out of the defendants. This was in violation of his trust and contrary to law. (Perry on Trusts, sec. 427-83; Civ. Code, secs. 2228, 2229, 2234.) The plaintiff having accepted the trust, entered into the possession of the mines, and received the profits, the law will not allow him to dispute its validity, particularly for his own benefit.

The facts are stated in the opinion of the court. Where real property is purchased and the conveyance of the legal title is taken in the name of one person, while the consideration is paid by another, a trust arises in favor of the person paying the purchase price, and the holder of the legal title becomes a trustee for him. (Civ. Code, sec. 853; 2 Pomeroy’s Equity Jurisprudence, sec. 1037, and cases.) The facts out of which the trust arises may be proved by parol.