Volume 103 — California Reports

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

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

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court and in the opinion reported in 80 Cal. 806.</p>

Petition in the Supreme Court for a writ of prohibition to the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

<p>Foreclosure of Mechanic’s Lien.—Parties—Trial as to Owner Without Objection—Judgment.—In an action to foreclose a mechanic’s lien against the owner of the building, where the contractors and several fictitious persons were named as defendants, but were not served and did not appear, and no objection was made ,to proceeding with the trial of the cause, the court is authorized under section 579 of the Code of Civil Procedure to render judgment against the owner, without determining the liability of the other defendants.</p> <p>Id.—Notice of Lien—Terms of Payment.—Where the claim of lien filed in the recorder’s office stated that the terms, time given, and condition of the contract, were “cash on completion of contract,” the statement of the terms is sufficient.</p> <p>Id.—Defense Not Pleaded—Guaranty of Contract—Breach by Con- ‘ tractors.—Where the answer of the owner does not plead as a defense that the plaintiffs had guaranteed the performance of the contract, and that the contractors did not complete the work agreed, and that the work performed was badly done, the owner cannot avail himself of such defense upon appeal, notwithstanding evidence given on his part . tending to prove it.</p>

<p>Vendor and Purchaser—Sale op Land—Fraudulent Representations • —Rescission.—Upon a contract for the sale of land, where the statements of the vendor constituted all the knowledge possessed by the purchaser as to the subject matter of the sale, and such representations are false in material respects, the purchaser, acting promptly, may rescind the contract of purchase.</p> <p>Id.—Misrepresentations as to Character op Land—Conflicting Evidence—Review Upon Appeal.—Where the evidence is conflicting as to whether the misrepresentations of the vendor as to the character of the land purchased were material, or were mere matters of opinion, but there is testimony tending to show that there were positive assertions as to the character of the land, and its suitableness for cultivation, and for a fruit ranch, which were not mere matters of opinion, a finding in favor of the plaintiff, in an action to rescind the contract, cannot be disturbed upon appeal.</p> <p>Id.—Knowledge of Vendor When Immaterial.—Where the statements of the vendor constitute all the knowledge possessed by the purchaser as to the subject matter of the sale, it is immaterial that the vendor had not personally seen the land, or did not know that what he stated was untrue, or that he believed it to be true.</p> <p>Id.—Actual Fraud—False Statements Not Known To Be True.—It is actual fraud for a vendor to state as true that which he does not know to be true, intending that the purchaser should act upon it, and to enter into the contract knowing that the purchaser did so in reliance upon his statements, he not having other means of knowledge.</p> <p>Motion for New Trial—Discretion—Appeal.—A motion for a new trial is addressed to the sound discretion of the trial court, and that discretion will not be interfered with unless the appellate court can see that there has been an abuse of it.</p>

<p>Landlord and Tenant—Action for Rent—Pleading—Demand and Nonpayment—Demurrer—Waiver of Objection.—An objection to a complaint for rent alleged to be due upon an indenture of lease, upon the ground that the complaint does not sufficiently aver demand and nonpayment, is waived by failure to demur especially thereto, and cannot be urged upon general demurrer.</p> <p>Id.—Action by Agent in His Own Name—Defenses.—Where an agent sues in his own name, the defendant may avail himself of all defenses which would be good as against either the principal or agent.</p> <p>Id.—Defense of Setoff—Liability of Coterminous Owner for Division Pence—Implied Contract.—The liability of one coterminous owner to the other, under section 841 of the Civil Code, for one-half the value of a division fence built by the latter, which the former uses as a part of his inclosure, is not a statutory liability, but is rather a liability upon an implied contract, and may properly be set up as a defense by way of setoff to an action on behalf of the former, for rent due from the latter.</p>

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

<p>Action For Deceit — Breach ob Warranty — Instructions—Caveat Emptor.—In an action to recover damages for deceit and fraudulent representations upon a sale of horses, and for a breach of warranty as to their soundness, instructions enunciating the law as to the doctrine of caveat emptor are inapplicable to the case, and are properly refused.</p> <p>Appeal—Review of Instructions.—Where the court, upon its own motion, instructed the jury upon the issues made in the case it is not error to refuse instructions asked which were covered by those given; and, where no objection or exception was made to the instructions given, they are not the subject of review.</p> <p>Pleadings—Admissions.—A fact alleged in the complaint, and not denied by the answer, becomes an admitted fact in the case.</p>

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

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

<p>Appeal—Service op Notice—Adverse Parties—Dismissal.—A notice of appeal must be served on every adverse party interested in the judgment, and who would be affected by its reversal, and if not so served, the appeal must be dismissed.</p> <p>Id.—Foreclosure op Mechanics’ Liens—Parties—Appeal by Owner— Contractor an Adverse Party.—In an action to foreclose mechanics’ liens, where judgment was rendered for the sale of the property, and that a judgment for the deficiency be docketed against the contractor, if the owner of the building appeals from the judgment, the contractor is an adverse party, who would be affected by its reversal, and must be served with the notice of appeal.</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 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 the City and County of San Francisco, and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

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

<p>Ejectment — Priority of Possession. — Prior possession is ■ sufficient ground for the maintenance of an action of ejectment against a naked trespasser.</p> <p>Id. —Prescriptive Right of Plaintiff—Payment of Taxes—Unnecessary Proof.—The provision of section 325 of the Code of Civil Procedure relating to the payment of taxes by one claiming title to land by adverse possession applies only to a case in which there is a contest between the holder of the legal title and a party claiming possession for five years adversely to such legal title, and does not apply to a case where a plaintiff in an action of ejectment is simply protecting his post, -'ssion against one who entered thereon without right or title.</p>

<p>New Trial—Decision Against Law—Conclusions of Law From Facts Found—Reversal of Order.—The trial court is not authorized to grant a new trial upon the ground that the conclusions, from the facts found, are a decision against law, and an order granting a new trial upon that ground will be reversed upon appeal.</p> <p>Mechanics’ Liens—Claims Not Filed in Time—Finding—Conclusion of Law.—A statement among the conclusions of law that as a conclusion from the preceding findings of fact “the liens of the plaintiffs and each of them were not filed within the time required by law” is a conclusion of law, and not a finding of fact.</p>

<p>Equity Case—Adoption op Special Verdict—Findings.—Where a special verdict of a jury is adopted in an equity case by the court it takes the place of, and is equivalent to, findings by the court; and in order to show such an adoption it is not necessary that the word “adopt ” should be used, but it is sufficient if it appears in any way.</p> <p>Id.—Motion for Judgment Upon Special Verdict—Incorporation op Verdict in Judgment.—Where, upon the hearing of defendants’ motion for judgment upon a special verdict, an order is made “that judgment be entered in accordance with the verdict of the jury rendered herein,” and all of the special issues submitted to the jury, with their answers or findings thereon, are incorporated in the judgment, together with the general verdict, it sufficiently appears that the court “adopted"the special verdict.</p> <p>Corporations—Action by Stockholder—Simulated Demand and Refusal.—In an action by a stockholder of a corporation, on behalf of himself and other stockholders, against certain other stockholders and an officer of the corporation, for damages for injury to the corporation, and for an accounting, a finding that the demand of the plaintiff upon the corporation to bring the action and its refusal to do so, were simulated, and not in good faith, negatives the right of the plaintiff to maintain the action.</p> <p>Findings—Immaterial Omission.—The failure to find upon a fact in issue in an action, which, if found in favor of the appellant, would not affect the judgment, if error, is not prejudicial.</p>

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

<p>Mechanic’s Lien—Claim of Lien—Statement of Terms of Contract A claim of lien which states that the claimant entered into a contract with the owners of the premises, whereby he was to furnish the labor and materials for the brickwork and foundation and extra work, upon a contract for the brickwork and foundation of a building, for which he was “to receive, upon said completion of said work, the sum of one hundred and sixty-three dollars in United States gold coin for said extra work,” but which does not contain any account of services rendered, and no other statement of the nature of plaintiff’s demand, does not contain a true statement of the terms of the contract as required by section 1187 of the Code of Civil Procedure, and such statement invalidates the lien. .</p> <p>jD,_Variance in Proof as to Contract.—Where the complaint to foreclose the lien alleged, and the claim of lien stated, that the work was done under a contract by which the claimant was employed to do the work at an agreed price, but the evidence of the plaintiff showed that, except as to one small item, there was no agreed price for any of the work, the variance is fatal, and a nonsuit should have been granted.</p> <p>Id.—Substantial Compliance With Statute Essential.—In order to entitle a mechanic or materialman to a lien upon premises for labor performed thereon or materials furnished he must substantially comply with all of the requirements of the statute as to his statement of lien.</p>

<p>Deed—Conveyance of After-acquired Title.—A deed of a title in fee simple absolute, expressly purporting to convey all after-acquired title of the grantor, operates upon all the interest in the property thereafter acquired by him, and causes it to inure to the benefit of the grantor and his heirs.</p> <p>Id.—Record op Deed—Change of County Boundary.—A deed of land situated in a township which was in one county at the time the deed was executed, and acknowledged before a justice of the peace of that township on the day the deed was executed, is properly recorded in another county to which said township was subsequently annexed, if not recorded in the original county in which such township was situated, before its severance therefrom—the deed being properly recorded in the county in which the land was situated at the time of recording.</p> <p>New Trial—Specifications in Statement—Conclusiveness of Finding.—The sufficiency of the evidence to sustain a finding before the court cannot be considered, where there is no specification in the statement on motion for new trial of any deficiency of evidence in respect to that finding.</p>

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

<p>Jurisdiction or Superior Court—Real Action — Enforcement of Vendor’s Lien—Demurrer.—An action to foreclose a vendor’s lien upon premises contracted to be sold is an action for the enforcement of a lien upon real estate, within the provision of section 5 of article VI of the state constitution, requiring such actions to be brought in the county in which the real estate is situated; and a court in which no part of the property is situated is without jurisdiction of such action, and a demurrer to the complaint, upon the ground that the court has no jurisdiction of the subject matter of the action, should be sustained. Id.—Effect of Cross-complaint.—A cross-complaint in such action is a mere dependency of the original complaint, and it falls with the original where the court* has no jurisdiction of the action.</p>

<p>Trial—Interlocutory Judgment—Findings—Completion of Trial-Discretion—Mandamus.-—Where a judge upon the filing of findings of fact and conclusions of law directed counsel to prepare an interlocutory judgment for the purpose of directing a referee to take an account between the parties, the rights of the parties are not finally determined, and the trial is not completed; and the mode of trial and the decision yet to be made are to be determined in the discretion of the trial court, which has the power to set aside the direction to prepare an interlocutory judgment, and to set the cause for trial, and it cannot be compelled by mandamus to enter a judgment and decree upon the findings of fact and conclusions of law.</p>

<p>Trial—Interlocutory Judgment—Findings—Jurisdiction to Set Cause —Prohibition—Remedy by Appeal.—The superior court has jurisdiction to deny a motion to enter an interlocutory judgment upon findings that have been filed, and to grant a motion of the defendants to fix a day for the trial of the cause, and a writ of prohibition will not lie' to restrain the court from proceeding in such trial; but the plaintiffs have a complete and perfect remedy by appeal from the judgment that may be rendered therein.</p>

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

<p>Justice’s Court—Jurisdiction—Title of Real Property—Contract to Locate Homestead Claimant.—A complaint in the justice’s court to recover the sum of one hundred dollars, paid upon a contract to locate the plaintiff on certain government land, not to exceed one hundred and sixty acres, allowed by the homestead law, for failure of the defendant to fulfill the contract, does not necessarily involve the title or possession of real property, and could only involve it upon evidence showing a question as to whether the land pointed out was in the possession of some other person.</p> <p>Id.—Answer of Defendant—Contingent Question as to Realty.— An answer that the defendant is informed and believes that the plaintiff claims that the lands were not vacant government lands, but that they were in the possession of some other person, and that defendant alleges the contrary, and that, in consequence thereof, the determination of the action involves the title and possession of real property, does not show that the title or possession of real property is necessarily involved, but only that it may become involved upon the happening of certain contingent events which may appear in proof.</p> <p>Id.—Jurisdiction of Justice—Duty to Transfer Cause.—Where the pleadings do not show upon their face that the title or possession of property is necessarily involved, but only that it may contingently become involved, the justice of the peace has jurisdiction to try the cause and to render a final judgment, unless it appears that the predicted contingent events actually occur on the trial, and if they occur during the trial, it is the duty of the justice to decline to hear evidence touching the question of possession, and to certify the case to the superior court.</p> <p>ID,—Statement Upon Appeal.—Where the pleadings do not show that the right of possession of real property was or became involved on the trial in the jnstice’s court, if it did in fact become involved, and the justice’s court refused to determine the cause, the only way to bring the case before the appellate court is by a statement on appeal according to section 975 of the Code of Civil Procedure.</p> <p>Id.—Appeal Upon Questions of Law and Fact—Duty of Superior Court—Trial De Novo.—Where an appeal is taken upon questions of law and fact, without a statement of the case or any thing in the record to show that the justice’s court exceeded its jurisdiction, it is not the duty of the superior court to reverse the judgment of the justice’s court, and remand the cause with instruction to certify a transcript thereof back to the superior court, but it is proper for it to try the cause de novo.</p> <p>Id,—Original Jurisdiction of Superior Court—Real Property— Appeal from Justice’s Court.—The superior court has original jurisdiction of all questions pertaining to the title or possession of real property, and having jurisdiction of the parties upon the appeal from the justice’s court, may properly try an issue as to the possession and right of possession of land.</p> <p>Id.—Appeal to Supreme Court—Real Property Incidentally Involved.—The fact that jurisdiction to inquire into the possession and right of possession of the land upon which the defendant agreed to locate the plaintiff was only incidentally involved, and that that question arose upon the trial of the cause in the superior court, does not prevent the supreme court from entertaining jurisdiction upon appeal from the judgment of the superior court, where it appears that the superior court' must have decided the question when raised in order to determine the cause.</p> <p>Id.—Rejection of Evidence—Admission—Harmless Error.—The rejection of evidence of an admission of plaintiff made in a letter, which would have added nothing to the plaintiff’s testimony and admissions already made on the trial, without evidence to the contrary, is a harmless error.</p> <p>Id.—Finding—Vacant Land.—A finding that the defendant did not offer to locate the plaintiff on any vacant, unoccupied government land, involves a finding that no land upon which defendant located the plaintiff was vacant.</p>

<p>Contract for Construction of Seawall—Furnishing of Materials —Estimates of Engineer.—Where the board of harbor commissioners contracted for the construction of a seawall of a definite length, for which they agreed to pay a fixed price per ton for stone, and a fixed price per cubic yard for the earth used for the construction of it, the fact that estimates of the quantities required for the work, aa made by the engineer, are stated in the notice, bid, and specifications, does not require that they buy or pay for a fixed and definite number of tons and cubic yards of the materials so estimated, regardless of whether used in the work or not, but they are only under obligation to pay for the materials actually used in the work.</p> <p>Id.—Extent of Error in Estimate Immaterial.—The extent of error in the estimate of the quantity of stone required is immaterial, and cannot affect the construction to be given to the contract for the work, which the contractor was bound to fulfill, whether it required more or less than the quantity of materials estimated.</p>

<p>Estates of Deceased Persons—Claims—Sufficiency of Affidavit.—The use of the word “affiant,” instead of “ claimant,"in an affidavit attached to a claim presented to an executor, does not render the claim defective, where it appears from the affidavit that the same person was claimant and affiant.</p> <p>Id.—Action Upon Claim—Presentation of Second Claim—Estoppel,— A claimant is not estopped from asserting any rights under a claim against the estate which is sued upon, by reason of the fact, that, prior to its presentation, another verified claim showing the indebtedness to be of a less amount was presented for allowance, where it appears that such prior claim was not approved, and that its contents were not read to, nor seen by, the plaintiff, and that such prior claim was largely incorrect.</p> <p>Id.—Evidence—Objection to Account Book Not Set Out in Record-Presumption Upon Appeal.—An objection to the introduction in evidence of an account book, where no part of the contents of the book, or of the evidence in relation to it, is set out in the record, cannot be considered upon appeal, and it must be presumed that the ruling of the court in regard to it was correct.</p> <p>Id.—Competency of Witness—Interest in Result.—The fact that a witness is personally interested in sustaining the alleged claim of plaintiff against the defendant is not a ground of objection to the competency of the witness, and should only be considered in determining what weight should be given to his testimony.</p> <p>Nonsuit—Motion Properly Overruled.—A motion for a nonsuit is properly overruled where there is evidence tending to justify a decision in favor of the plaintiff.</p>

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

<p>Appeal from 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, and in the opinion reported in 87 Cal. 49.</p>

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

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

<p>Finding—Review op Evidence Upon Appeal.—A mere doubt aa to ■ whether a finding is justified by the evidence will not authorize the appellate court to set aside the finding.</p> <p>Id.—Constructive Trust—Statute op Frauds—Verbal Agreement por Joint Purchase op Lands.—Where one who has agreed in his own name, in writing, to purchase lands, has also made a verbal agreement with another that he should pay one-half of the purchase price on or before the expiration of the time allowed for the examination of the title, and should become equally interested in the purchase, if the latter does not advance one-half of the purchase money at the time agreed, and the former is compelled to pay the whole amount of the purchase money under the contract of purchase, the latter cannot, upon a subsequent tender of one-half the purchase money, enforce a constructive trust in one-half of the land purchased, as against a plea of the statute of frauds.</p> <p>Id.—Confidential Relation—Business Contract—Trust Not Arising Under Verbal Agreement..—Where there is no relation of trust or confidence between contracting parties other than that which is manifested in all business affairs, in which the honor or ability of the party is relied upon for performance, no trust arises under a verbal agreement in respect to the purchase of lands, if there is no fraud, undue influence, nor other wrongful act, nor any accident or mistake connected with the agreement.</p> <p>Evidence—Exclusion op Question—Materiality—Offer of Proof— Harmless Ruling.—Where a question is asked, the answer to which would apparently not be material, counsel should state the fact expected to be proven, and make an offer to prove it by the witness; and, in the absence of such statement showing the materiality of the question, the ruling will not be considered prejudicial upomappeal.</p> <p>Id.—Value of Property, When Material.—Evidence of the value of the property at the time of the purchase is not material or admissible in an action to enforce a trust in one-half of the property purchased, and cannot in any way affect the validity of a verbal agreement upon which recovery is sought.</p>

<p>Contract fob Sale of Cigars—Samples—Inferior Quality—Abrogation of Contract—Liability of Purchaser.—Where a contract for the sale of cigars specified the brands to be furnished, which were to correspond to samples, and provided for a release from the agreement upon paying a specified sum, or such part thereof as may remain unpaid at the time of so electing to discontinue such purchases, the fact that the sellers had furnished cigars which did not come up to the samples which the ¡purchasers had taken and paid for does not justify the purchasers in abrogating the contract, and in declining to buy goods according to the contract; and if they decline to take any further goods, and notify the sellers that they will receive no more, the sellers have a right to recover, the unpaid balance of the sum specified by the contract.</p> <p>Id.—Instructions—Contradictory Charge—Errors Not Cured.— Where the oral charge of the court was confusing and contradictory, errors in giving instructions asked for by the respondents, and refusing instructions asked for by the appellants which correctly state the law, are not cured by such confusing and contradictory statements.</p>

<p>Criminal Law—Jurisdiction of Offense—Creation of New County— Dismissal of Prosecution in Old County—Jeopardy.—A newly-created county has jurisdiction of a defendant charged with the commission of an offense prior to the creation of the new county, and upon territory within its boundary lines; and the fact that at the date of the creation of the new county a prosecution for the offense was pending against him in the old county is no bar to a prosecution in the new county, where the former prosecution was dismissed prior to the commencement of the prosecution in the new county, and no jeopardy had attached prior to the dismissal.</p> <p>Id.—New Trial—Reading of Newspaper Article in Jury-room.— Where, upon a motion for a new trial in a criminal case, it is shown by the evidence of the officer in charge of the jury that the jurors, after retiring to deliberate upon their verdict, read an article in a local newspaper containing a report of the evidence in the case, including certain evidence which the court had ruled to be inadmissible, and also containing intimations that two of the jurors had been corrupted, and no contrary showing is made by affidavits of the jurors, or otherwise, a new trial should be granted.</p> <p>Id.—Influence of Jurors—Presumption—Misconduct of Jury.—The reading by the jurors in a criminal case of a newspaper article published during the pendency of the trial, which states that “It is currently reported on the streets that the jury will fail to bring in a verdict, and that two men will hang the jury; it is also believed that the two men are known, and that the whereabouts of ‘Colonel Mazuma’ are also known,” will be presumed to have influenced the jurors, and a new trial should be granted for misconduct of the jury in reading the article.</p>

<p>Appeal from an order of the Superior Court of Santa Clara County sustaining a demurrer to an indictment.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from orders of the Superior Court of the City and County of San Francisco refusing to set aside a judgment by default, and denying a motion to recall and quash an execution.</p> <p>’The facts are stated in the opinion of the court.</p>

<p>Negligence—Unprotected Excavation in Sidewalk—Violation of Ordinance—Independent Contractor.—Where the making and maintenance of an excavation in a sidewalk is unlawful, for want of compliance with an ordinance of the city on the subject, the owner of the premises cannot relieve himself of the duty of complying with the ordinance by shifting it on to an independent contractor.'</p> <p>Id.—Liability for Nuisance.—An unprotected excavation in the sidewalk of a populous street in the city is so dangerous a pitfall as to be in the nature of a nuisance; and he who causes it to be done, knowing beforehand its nature and character, cannot escape liability to one who innocently falls into it, upon the ground that he let out the job of creating the nuisance to an independent contractor.</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>Mexican Grant—Tide Lands—Don clusiveness of Patent—Control of Decree.—Where a decree of confirmation under a Mexican grant followed the language of the grant bounding the land upon the bay of San Francisco, and the survey and the patent extended beyond the line of extraordinary high tide, and to ordinary high tide, so as to include tide lands claimed by the defendants under patents from the state, the survey and patent will control as to the land granted by the United States, and entitle a plaintiff claiming under that patent issued to the confirmees of the grant to recover the tide lands in controversy.</p> <p>Id.—Evidence—Delivery of Juridical Possession—Contradiction of Patent.—Evidence of delivery of juridical possession is not admissible to control the effect of the patent of the United States confirming a Mexican grant.</p> <p>Id.—Void Approval of Survey.—The district court had no jurisdiction to affirm a survey of a Mexican grant which was approved by the surveyor general before the passage of the act of June 14, 1860.</p> <p>Id.—Statute of Limitations.—The statute of limitations does not begin to run against the confirmee of a Mexican grant until the patent has been issued.</p>

<p>Authority to Close Up Public Highway.—The authority to close up and alter public highways outside of municipalities is conferred upon the board of supervisors of the several counties of the state, and can only be exercised through the instrumentalities and in the mode prescribed by law.</p> <p>Id.—Power of Board of Prison Directors—Escape of Prisoners— Ownership by State.—No power is given either by our constitution or laws to the board of prison directors to abolish public highways, and they cannot interdict public travel thereon, or interfere therewith by gates and obstructions, upon the ground that the highway may afford opportunities to facilitate the escape of prisoners; and the fact that the state owns the piece of land over which the public highway extends does not authorize it to divest the easement of the public.</p> <p>Id.—Dedication of Highway—Acceptance by Public.—Where the owner of land has dedicated a road as a public highway, and the dedication has been accepted by the public or constituted authorities of the county, the dedication is complete.</p> <p>Id.—Intent to Dedicate—Implication Prom Acts.—The question of intent to make a common-law dedication of land for a public highway is paramount, but the dedication may be express or implied, and if the donor’s acts are such as indicate an intention to appropriate the land to the public use, upon acceptance by the public the dedication becomes complete.</p> <p>Id.—Evidence of Intent and Acceptance—Petition of Owner for Highway—Insufficient Statutory Proceeding—Public Uses.—A petition by the owner of land to the board of supervisors to declare a road over his land a highway, is evidence of an intent on his part to dedicate it to the public use; and when the board of supervisors did so declare it, although the proceeding was not accompanied by all the forms required by the statute to constitute it a highway, in a statutory sense, its action is evidence of an acceptance by the board for the public use as such highway; which evidence, coupled with its use for a highway, and its improvement as such by public authority, is ample to support such an acceptance.</p> <p>Id.—Width of Highway, When Immaterial.—In case of encroachment upon a highway, where the simple question is whether it is in fact a highway, no question is involved as to its width, and an objection that it is not shown to have a specified width is without force.</p> <p>Id.—Boundaries of Road—User—Presumption—Discretion of Officers.—Where the right of the public is acquired by user the boundaries of the road are generally ascertained by user; but where there is a statute fixing the width of all highways a dedication will be presumed to be of the width fixed by the statute, and where a discretion is given to officers to determine the width of a highway such discretion will not be interfered with, except in cases of fraud or oppression.</p> <p>Id.—Acquisition of Land by State—Easement of Highway—Merger. Upon acquisition of land by the state over which a highway has been located the easement of the highway is not merged in the estate which the state has acquired to the land.</p> <p>Id.—Easement Held in Trust.—The easement which may be held by the state in any highway is held as the representative of the people, and in trust, to enable the people to pass and; repass at will, and is not held in the same right as the title of the state to lands which it has purchased.</p> <p>Ip.—Title of State to Highways—Legislative Control—Vacation of Highway.—In strictness all public highways belong to the state, which holds them for public use subject to legislative control, and the statute which provides that a road shall not be vacated or cease to be a highway until so ordered by the board of supervisors is binding upon the state as well as upon individuals.</p> <p>Costs—Review Upon Appeal.—The question of costs cannot be considered upon appeal where the record fails to show any objection to costs, and there is no bill of exceptions showing any ruling upon the question; nor where the judgment does not include costs, although the court below found, as a conclusion of law, that the defendants were entitled to it.</p>

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

<p>Public Nuisance—Pollution of Waters of Greek—Special Injury to Plaintiff.—A plaintiff specially injured by acts of the defendant which constitute a public nuisance, consisting of the pollution of the waters of a stream by offal of a slaughter-house, may maintain an action to enjoin and abate the nuisance.</p> <p>Lapse of Time.—Prescriptive Bight__No lapse of time can legalize a public nuisance amounting to an actual obstruction of public right, and a prescriptive right cannot be maintained against a public nuisance where the action is brought by a private party who has suffered special injury in consequence thereof.</p>

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

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

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

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

<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>Action by Administratrix—Recovery of’Costs—Execution—Construction of Code.-—Sections 1031 and 1509 of the Code of Civil Procedure are'not in necessary conflict, and where a judgment is rendered against the plaintiff as administratrix for costs, but such costs are not by the, judgment made chargeable only upon "the estate,’ as they might have been under section 1031, the plaintiff, under section 1509, is individually liable’ for the costs, and the defendant is entitled to an execution against the plaintiff personally.</p>

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

<p>Negligence—Conflicting Evidence—Review Upon Appeal.—Although the evidence appearing in a transcript upon appeal may seem to preponderate in favor of the appellant upon the issues as to negligence, yet if there is enough evidence in favor of the respondent to create a substantial conflict the finding cannot be disturbed.</p> <p>Id.—Negligence of Fellow-servant—Injury to Servant From Open Hatchway—Neglect of Duty by Mate of Vessel.—The mate of a vessel engaged in carrying passengers and freight between San Francisco and Northern Pacific ports, and a servant employed in the steward’s department of the vessel are fellow-servants employed by the same employer in the same general business, and the owner of the vessel is not responsible for any injury caused to such servant by falling down an open hatchway which the mate had neglected to guard while taking in cargo.</p>

Appeal by an insolvent debtor from an order of the Superior Court of Siskiyou County refusing to set apart to him certain real property as a homestead. The facts are stated in the opinion.

<p>Action Fob Death—Negligence oe Fellow-servant—Employment of Intemperate Engineer—Sobriety at Time of Injury.—Where the death of an employee was caused by the negligence of an engineer, a fellow-servant, who, it was alleged, was addicted to the habit of drinking intoxicating liquors, and that the defendants were negligent in retaining him in their employ by reason of being chargeable with knowledge of this habit, no recovery therefor can be had without proof that the engineer was intoxicated at the time of the accident, or that the injury was in some respects the result of intemperate habits.</p> <p>Id.—Estates of Deceased Persons—Marriage of Administratrix— Cessation of Authority.—The marriage of an administratrix does not at once deprive her of the power to act, but is merely ground for a proceeding for her suspension and removal, and she is not thereby hindered from continuing to prosecute an action for the death of the decedent.</p>

<p>Action Upon Judgment Rendered in Another State—Collateral Impeachment—Want op Jurisdiction.—In an action upon a judgment rendered in another state, it is competent collaterally to impeach the judgment by extrinsic evidence, showing want of jurisdiction in the court pronouncing the judgment, notwithstanding a recital in the record of the judgment of the existence of jurisdictional facts.</p> <p>Id.—Service op Summons.—In an action upon such judgment, it may be proven that no summons was served upon the defendant in the action in which the judgment sued upon was rendered.</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, and in 95 Cal. 334-37.</p>

■. Appeal from a judgment of the Superior Court of Orange County denying a motion for a new trial, and striking out and disregarding plaintiff’s specifications. The facts are stated in the opinion of the court.

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

<p>Deed—Sale Under Power—Recital of Consideration—Prima Facie Evidence.—The production of a power of attorney authorizing the sale and conveyance of property, and a deed executed by the attorney purporting to be a grant, bargain, and sale deed, reciting a consideration, makes a prima facie case sufficient to support a verdict in favor of the grantee, against the heirs of the grantor, in the absence of evidence to overcome it.</p> <p>Id.—Purchase by Attorney in Fact—Gift to Grantee—Finding of Sale—Delivery of Déed by Grantor—Ratification. — Evidence showing that the purchase was made by the attorney in fact from the • grantor, and that the deed was made to the grantee, the son of the attorney in fact, as a gift from his father, the father having paid the purchase money by the extinction of indebtedness from the grantor to himself, and that the grantor personally delivered a deed executed by the attorney in fact to the grantee, is sufficient to justify a jury in finding that there was a sale to the grantee for a consideration; and the act of the attorney in fact, in executing the deed, was ratified by the principal, by his personal delivery of the deed.</p> <p>Id.—Evidence—Canceled Notes—Payment.—The notes from the grantor to the attorney in fact, with indorsements thereon, showing a payment, coinciding with the date of the deed, are admissible in evidence in connection with testimony that the grantor owed the attorney in fact money on notes, and that the deeds were in payment.</p>

<p>Non-negotiable Note—Stipulation Fob Attorney’s Fee.—A note containing a stipulation for an attorney’s fee, in case of suit thereon, is not negotiable.</p> <p>Id .—Definition of Promissory Note—Contingent Additions.—A promissory note is a written engagement to pay absolutely and unconditionally a certain sum of money, whether the note be negotiable or non-negotiable; and an instrument is not a promissory note when there are contingent additions thereto.</p> <p>Id.—Indorsement in Blank—Liability of Indorser to Second Indorsee.—When the payee of a non-negotiable note, having a stipulation for an attorney’s fee, in case of suit, transfers the same by simply indorsing it in blank, he does not become liable as an indorser to the indorsee of his indorsee.</p> <p>Id.—Conditional Guaranty.—Independently of statute law there is no custom or rule of law which can add a conditional guaranty of payment to the assignment in blank of a non-negotiable note.</p>

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

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

<p>Estates of Deceased Persons—Expenses of Deceased Administrator— Accounting in Equity—Allowance For Attorney’s Fee—Interest.—An allowance made for the services of an attorney for a deceased administrator, in a suit in equity, for an accounting between the administrator de bonis non and the deceased administrator, is in favor of the deceased administrator, and though it is for the use and benefit of the attorney, is not a judgment or claim in his favor which hears interest.</p>

<p>Insolvency—Concealment of Property—Examination of Insolvent— Self-crimination—Contempt—Habeas Corpus.—An insolvent debtor charged with having concealed, smuggled, conveyed away, and disposed of property which should have been turned over to his assignee for the benefit of his creditors, cannot be compelled, upon examination before the superior court, to answer questions tending to criminate himself under section 154 of the Penal Code, and if the superior court commits him for contempt for refusing to answer questions concerning the fraudulent disposal of his property, the imprisonment is illegal, and he must be discharged upon a writ of habeas corpus.</p> <p>In,—Construction of Constitution—Crimination of Witness.—The provision of section 13 of article I of the constitution, that no person can be compelled in a criminal case to be a witness against himself, does not make it necessary that the examination should be attempted in a criminal prosecution against the witness, or that such prosecution should have been commenced and actually pending; but it is sufficient to bring a person within th$ immunity of the provision, that there is a law creating the offense under which the witness may be prosecuted, and which does not secure him against use in a criminal prosecution of the evidence that he may give, and in such case he cannot be compelled to answer in any collateral proceeding as to acts," constituting such offense.</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>Pre-emption—Transfer by Pre-emptor After Proof and Payment.— Although a pre-emptor cannot transfer the right of pre-emption before final proof and payment for the land, he may, after final proof and payment of the purchase price, make a valid transfer of all of his rights.</p> <p>Id,—Subsequent Issuance of Certificate and Payment.—After the. pre-emptor has paid the purchase price and made his final proof, the law demands no further act from him, and it is the duty of the government to issue a certificate of purchase and the patent based thereon; and the fact that the transfer of his rights is made before the issuance of his certificate of purchase will not invalidate the transfer.</p> <p>Id.—Bargain and Sale Deed From Husband to Wife—After-acquired Title.—Where a husband, as a pre-emptor of land, executed and delivered to his wife a bargain and sale deed of the land, after final proof and payment for the land, and before the issuance of a certificate of purchase, such deed conveys all after-acquired title, including the right acquired by the certificate of purchase, and the perfect title acquired by the issuance of the patent, as against a subsequent transfer from the husband to another person made after patent obtained.</p> <p>Id.—Findings—Omission—Statute of Limitations Pleaded by Respondent.—The failure of the court to find upon a plea of the statute of limitations set up by the respondent is entirely immaterial to the appellant.</p>

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

<p>Mortgage—Provision For Taxes on Interest or Mortgagee—Constitutional Penalty.—A provision in a mortgage attempting to authorize the mortgagee, in the event of a foreclosure, to include in the judgment the amount of taxes paid by him on his interest as mortgagee, falls within the penalty of section 5 of article XIII of the constitution, and prevents him from recovering either the taxes or any interest on the note to secure which the mortgage was given, but not the principal sum secured by the mortgage.</p>

<p>Change op Place op Trial—Convenience op Witnesses—Discretion— Appeal.—Applications for a change of the place of trial, for the convenience of witnesses, are addressed to the sound legal discretion of the trial court, and its action cannot be disturbed upon appeal, unless it clearly appears that there was an abuse of that discretion.</p> <p>Id.—Stipulation Admitting Pacts to Be Proved—Counter-affidavits—Denial op Motion.—Where the plaintiff files affidavits showing that the convenience of witnesses in support of the complaint require? a change of the place of trial, if the defendant files a stipulation admitting that all the facts alleged in the complaint are true, and thus obviates the necessity of proving them, no counter-affi davits are necessary, and the court does not abuse its discretion in denying the motion.</p>

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

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

<p>Infancy—Validity of Judgment—Guardian Ad Litem.—A judgment against an infant in an action in which no guardian ad litem has been appointed is not for that reason void.</p> <p>Id.—Appearance by Attorney.—A judgment rendered against an infant in an action in which he has appeared by an attorney will be upheld as fully as though he had appeared in person.</p> <p>Id.—Authority of Attorney—Presumption—Ratification—Waiver of Objection.—The appearance by an attorney in behalf of an infant will be presumed to have been authorized by him, so far as the direction and consent of the infant can give authority; and if, after reaching majority, instead of repudiating such appearance he treats the judgment as having been regularly entered, and makes no objection upon the ground of illegality or want of jurisdiction, he waives his right thereafter to make such objection.</p> <p>Id.—Motion For a New Trial and Appeal—Confirmation of Judgment—Estoppel.—A judgment against an infant in an action in which he has appeared by attorney will he considered as confirmed, if, after he comes of age, he takes any action in reference thereto which is consistent only with assuming its validity; and if he thereafter moves the court for a new trial, and, failing therein, appeals to the supreme court from the order and judgment, he cannot, after.the affirmance of the judgment, maintain a motion to set aside the findings and judgment, and to strike out the answer filed in his behalf, upon the ground of his infancy at the time the answer was filed and the trial had, and for the want of authority in the attorney to appear in his behalf.</p> <p>Id.—Submission of Person to Jurisdiction of Court.—If a defendant, though not served with process, seeks such relief at the hands of the court as is consistent only with the hypothesis that the court has jurisdiction of the cause and of his person, he thereby submits himself to the jurisdiction of the court, and is bound by its action as fully as if he had been regularly served with process.</p>

<p>Classification of Counties—Creation of New County—Reclassification—Delegation of Power to Supervisors—Constitutional Law.—Section 235 of the County Government Act, which provides that when the population of an existing county shall have been reduced, by reason of the creation of any new county from the territory thereof, below the class and rank first assumed under that act, it should be the duty of the board of supervisors of such county to designate by order the class to which such county has been reduced by reason thereof, is not in conflict with section 5 of article XI of the constitution, which requires the legislature to classify the counties by population, and does not delegate to the board of supervisors the power to classify counties; but simply in effect authorizes them to find out and determine, as a fact, Dow many people are left within the boundaries of the old county after the new county is created, and when this fact is found, which is not a legislative act, the classification follows as declared by the statute.</p> <p>Id.—Local or Special Legislation.—Section 235 of the County Government Act is not a local or special law, in conflict with section 25 of article IV of the constitution; but applies to every existing county of the state whose class is changed by having a portion of its territory detached and put in a new county.</p> <p>Id.—Power of Supervisors—Determining Population—Federal Census—Construction of County Government Act.—The board of supervisors, in determining what is the population of a county, out of the territory of which a new county has been organized, is not limited to an inquiry as to what was the population within its present boundaries as shown by the last federal census, notwithstanding sections J 0 and 162 of the County Government Act make the census of 1890 controlling as to the classification of the several counties of the state as they then existed; and the language of section 235, in which no reference is made to the census, is to be construed as intentionally requiring the board to determine the population of the county as it existed at the time of the creation of the new county, and not its population as ascertained by the federal census.</p>

<p>Change op Plage op Trial—Disqualification op Judge—Bias.—The only ground, for a change of the place of trial of an action which has any relation to the judge of a court of record is the disqualification of the judge from acting, for some one of the reasons specified in section 130 of the Code of Civil Procedure, and bias or prejudice on the part of the judge is not ground for a change of the place of the trial.</p> <p>Id.—Immaterial Affidavit—Contempt of Court.—An affidavit for the change of the place of trial, setting forth bias or prejudice on the part of the judge, is irrelevant and immaterial, and can form no excuse or justification for language and statements used in the affidavit constituting disorderly, contemptuous, and insolent behavior toward the judge of the court while holding the court; and such behavior may be punished as a contempt of court.</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>Order of Evidence—Discretion.—The mere order in which evidence may be introduced is very much in the discretion of the court, and will not be interfered with by the appellate court, except in cases o£ abuse of discretion.</p> <p>Id.—Admission of Declaration of Agent Before Proof of Agency— Harmless Ruling.—Notwithstanding the provision of section 1870 of the Code of Civil Procedure, which permits the acts and declarations of agents to be proved “ after proof of agency,"yet the admission of the declaration of an agent before proof of the agency, upon condition that the proof of agency is afterwards to be supplied, is not injury which is ground of reversal, if the proof of agency is thereafter supplied.</p> <p>Id.—Husband and'Wife—Acts and Declarations of Husband—Proof of Authority.—The action of the court in admitting evidence of what a husband did and said while ostensibly transacting certain business for his wife, before proof of his authority to transact such business, upon the express condition that it should not be considered unless the authority of the husband should thereafter be proved, is not prejudicial error, where the husband’s authority is afterwards satisfactorily proved.</p>

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

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

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

<p>Sale of Fruit-trees to be Planted—Breach of Warranty of Quality—Time of Fruit-bearing—Measure of Damages.—Upon a sale of nursery fruit trees to be planted, which were warranted to be of certain specified varieties, and in the proportions ordered, many of which were first discovered to be of a different and inferior variety from either of those ordered, and of a kind which the purchaser did not desire, about two years after they had been planted and cultivated, when they began to bear fruit, the detriment caused by the breach of the warranty is the excess of the value which the trees would have had at the time when the trees first bore fruit, if the warranty had been complied with, over their actual value at that time.</p> <p>Id.—Construction of Code—Breach of Warranty—Time to Which Warranty Refers—Discovery of Breach.—In section 3313 of the Civil Code, which provides that “the detriment caused by the breach of the warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time,” the time to which the warranty of quality, in the sense of this section, refers, is not necessarily the time of the completion of the sale by delivery of the property, nor the time of the breach of the warranty, but is the time when the breach is discovered, or with ordinary care and attention might be discovered, by the purchaser.</p> <p>Id.—Fruit-trees Part of Land—Evidence—Value of Land.—Growing fruit-trees are a part of the land, and probably of no value when severed from it; and evidence of the value of the land is admissible in an action for breach of warranty of quality of such trees, and it is proper to prove how much the different kinds of trees added to the value of the land.</p> <p>Id.—Measure of Damages—Difference in Value of Land.—The difference between the value added to the land by the trees delivered and the value that would have been added if the trees ordered had been planted instead of those delivered is the measure of plaintiff’s damages according to section 3313 of the_ Civil Code.</p>

<p>Water Rights—Appropriation of Spring—Insufficient Notice.—A notice posted at a spring, which does not conform to the requirements of section 1415 of the Civil Code, does not confer any rights upon the person posting the notice as an appropriator of the water.</p> <p>Id.—Possession of Spring.—The posting of an insufficient notice at a spring, and an excavation in it for the purpose of marking the place of intended diversion, and the subsequent purchase of pipe, and causing it to be hauled to a point several hundred feet distant from the spring, do not tend to establish a possession of the spring or of the land on which it was located.</p> <p>Id.—Possessory Claim of Land Including Spring.—The location by another person upon the land where the spring was situated, and the taking possession thereof, and building a dwelling-house thereon, and filing an affidavit in conformity with the requirements of the Possessory Act of April 20, 1852, entitled the possessor to prevent the subsequent diversion of the water under the attempted location of the appropriator.</p> <p>Id.—Protection of Water Rights—Construction of Revised Statutes.—Section 2339 of the Revised Statutes of the United States, which provides for protecting such rights to the use of water as may have vested and accrued by priority of possession, and as are recognized by the local customs, laws, and decisions of courts, does not confer the right to enter upon lands in the possession of another for the purpose of securing the water thereon, or completing an intended diversion of water, even though the person seeking so to enter had at some previous time manifested his intention to secure a water right thereon.</p>

<p>Criminal Law—Subornation of Perjury—Information.—An information seeking to charge a defendant with subornation of perjury must state all the essential elements constituting the crime of perjury, and an information falling short of this requirement does not state a public offense.</p> <p>Id.—Materiality of Issue.—It is necessary in such information not only to show that the issue upon which the false testimony was given was material, but also to show that the evidence of the suborned witness was material to that issue, either by direct averment, or by stating evidence given by the witness, which the court can judicially see was material.</p> <p>Id.—Oath Must Be Willfully False—Knowledge of Suborner.—An information for subornation of perjury merely charging that the witness did falsely and contrary to her oath give certain alleged false testimony, but not alleging that the witness willfully or knowingly swore to what was false, does not charge perjury; and it is essential that the indictment should not only aver that the statements made by the witness were false in fact, and that he knew them to be false, but should also aver that the party procuring him to make those statements knew that they would be intentionally and willfully false on the part of the witness.</p> <p>Id.—Substantial Defects in Information—Waiver—Arrest of Judgment.—Substantial defects in an information are not waived by failure to demur, and are ground for a motion in arrest of judgment.</p>

<p>Appeal from an order of the City and County of San Francisco denying letters of administration to the public administrator and granting them to the guardian of the heir of decedent.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Dedication of Alley—Extent Designated by Fences—Rights of Purchasers—Presumption.—Where the owner of land lays off an alley through or extending into the land, and designates its boundaries and extent by substantial fences, and conveys lots bordering thereon, with an express grant of a right of way for egress and ingress through it, the rights of the purchasers will be presumed to extend to the limits of the alley thus designated.</p> <p>Id.—Length of Alley—Conflict of Evidf.nce.—Where the complaint alleges and the court finds that the alley dedicated extends along the entire rear or south line of plaintiff’s lot, and there is a substantial conflict in the evidence as to whether the alley extended only from the street to the rear of the lot, or extended across the entire rear of the lot, and there is evidence sufficient to show that the alley in rear of the lot was fenced on the south side of the lot by the original owner of the land, and had been used as a passageway by the persons living along it, the finding will not be disturbed, although the testimony in the case is more than usually indefinite and unsatisfactory as to dates.</p> <p>Id.—Easement Appurtenant to Estate.—If an easement becomes appurtenant to an estate it follows every part of the estate into whosever hands the same may come by purchase or descent.</p> <p>Id.—Right of Way—Sale in Separate Parcels.—Where the owner of land to which a right of way is appurtenant sells or devises it in separate parcels to different persons each of such persons acquires a right of way as appurtenant to his particular part of the land.</p> <p>Id.—Deed of Easement—Nonuser—Prescription.—Where an easement is acquired by deed no length of time of mere nonuser ■ will operate to impair or defeat the right; and nothing short of a use by the owner adverse to the enjoyment of the easement, for the space of time requisite to create a prescriptive right, will restore the right granted.</p> <p>Id.—Motives of Grantor Immaterial—Conveyance of Existing Right of Way.—Where an alley was constructed across the rear of a number of lots by the owner it is immaterial whether it was laid out by the owner for the benefit of parties who should thereafter purchase lots bordering upon it or not, but having constructed it, and conveyed the abutting lots with a right of way through the alley, the right conveyed must be construed in favor of each grantee, to extend in the rear of the lot granted, as an existing fact, and such grantee may prevent the obstruction of the alley in the rear of his lot.</p>

<p>Mortgage—Assumption of Mortgage Debt by Grantee of Mortgagor —Liability to Mortgagee for Deficiency.—An agreement by the grantee of a mortgagor to pay and discharge the mortgage debt upon the granted premises renders the grantee liable therefor to the mortgagee, and upon foreclosure of the mortgage judgment may be rendered against such grantee, as well as against the mortgagor, for any deficiency.</p> <p>Id.—Principal and Surety—Rights of Creditor.—By the assumption of a mortgage debt by the grantee, as between him and his grantor, the grantee becomes primarily liable as principal debtor, and the grantor becomes his surety, and the mortgagee, as creditor, is entitled to the benefit of the security or collateral obligation given by the grantee, as principal debtor, to the grantor, as surety, for the payment of the debt.</p> <p>Id.—Acceptance of Deed by Grantee—Conflict of Evidence.—Where there is a conflict of evidence as to whether a deed assuming the payment of a mortgage was accepted by one of the grantees, the finding of the court is not open to review upon appeal.</p> <p>Id.-—Reconveyance to Mortgagor —Nondelivery—Continuance os Obligation to Discharge Mortgage Debt.—Where a deed of receñveyance to the mortgagor by grantees who have assumed the mortgage debt was not delivered to, or accepted by, the mortgagor, the grantees are not released from their obligation to discharge the mortgage debt, and the mortgagee is entitled to avail himself of their obligation for the purpose of obtaining satisfaction of the debt created by the mortgagor.</p>

<p>Slander—Actionable Words—Charge of Arson—Setting Fire to Yard.—Words charging the plaintiff with having set fire to a yard, in which stood the warehouse of a wood and coal company, charge the crime of arson, and are actionable per se.</p> <p>Id.—Yard Appurtenant to Warehouse—“Building.”—The yard in which the warehouse of the wood and coal company is alleged to have been set on fire should he regarded prima facie, as “appurtenant to, or connected with,” the warehouse, and, therefore, within the definition of the word “building” given in section 448 of the Penal Code, the setting on fire of which is declared to be arson.</p> <p>Id.—Charge of Setting Fire to Warehouse—Pleading—Innuendo.— Where the complaint alleges that a warehouse in a yard was set on fire, and charges the defendant with having said in the presence of others that “Clugston set the fire,” these words import that Clugston set fire to the warehouse, and must have been so understood by those to whom the words were spoken, and no innuendo is necessary to show the meaning.</p> <p>Id.—Consistency of Distinct Charges.—The fact that the defendant had said to others at a previous date that the plaintiff set fire to the yard is not inconsistent with the charge of setting fire to the warehouse, which was in the yard.</p> <p>Id.—Pleading—Destruction of Warehouse.—It is not necessary upon a charge of slander, falsely accusing the plaintiff of setting fire to a warehouse, to allege that the warehouse was consumed or destroyed by the fire.</p> <p>Id.—Pleading.—Where distinct causes of action, upon a charge of slander, are not separately stated, or not stated with sufficient certainty, these defects are waived by a general demurrer.</p> <p>Id.—Truth of Charge—Mitigating Circumstances—Burden of Proof. Where the words spoken are actionable per se, and the speaking of them is not denied, but the answer alleges that they were true, and sets up mitigating circumstances, no proof is required on the part of the plaintiff to make out his case; but the law presumes that the words were both false and malicious, and the burden of proving their truth, or any facts tending to mitigate the damages is on the defendant. .</p> <p>Id.—Belief of Truth of Charge—Absence of Malice—Measure of Damages. —Where the words spoken were untrue, but were spoken without actual malice on the part of the defendant, but in good faith, believing them to be true, the verdict of the jury should be confined to the actual damage sustained by the plaintiff.</p>

<p>Vacation of Judgment—Time of Motion—Want of Jurisdiction of Person.—A judgment which is void upon its face, and which requires only an inspection of the judgment-roll to show its invalidity, will he set aside on motion by the court rendering it at any time after its entry; hut if it is not void upon its face, and its invalidity does not appear from the judgment-roll, it cannot he set aside upon motion for want of jurisdiction over the person of the defendant, unless the motion is made within a reasonable time after its entry, not exceeding the limit fixed by section 473 of the Code of Civil Procedure.</p> <p>Id.—Validity • of Judgment—Judgment-roll—Summons—Service by Publication—Affidavit and Order.—Whether a judgment is void upon its face or not can only be determined by an inspection of the judgment-roll, and when the service of summons is by publication, the affidavit and order for publication are no part of the judgment-roll, and cannot he considered.</p> <p>Id.—State School Land—Annulment of Purchase—Void Order Setting Aside Judgment.—Where the judgment-roll in an action by the people to foreclose the interest of a purchaser of state school land, and to annul the certificate of purchase, shows service of summons by publication, and contains all the papers properly constituting the judgment-roll, which are all in proper form and sufficient, the fact that no affidavit or order for the publication of summons is found among the papers, and that there is no entry in the record that any such affidavit or order was ever made, is immaterial; and the judgment not being void upon its face, the court has no power to grant a motion made more than twelve years after the judgment was entered, to set it aside for want of jurisdiction of the person of the defendant, and its action in so doing must be held void and of no effect.</p> <p>Id.-—Remedy by Action—Power oe Court.—When a judgment is not void upon its face, the court has no power to set it aside on motion, unless the motion is made within a reasonable time, bnt resort should be had to an action, and all the parties interested should be notified and have an opportunity to be heard.</p>

<p>Corporations—Contract For Purchase oe Stock—Insolvency oe National Bank—Payment oe Assessment.—Where a subscriber to the stock of a national bank, which afterwards became insolvent, had agreed with other stockholders that they would take the stock from him at the end of a year at the price paid for it, at his option, for the amount of his investment, and pay him ten per cent interest on the investment, they are bound to take the stock at the time agreed, upon notice of the option; and if they neglect and refuse so to do, they become liable not only for the amount of principal and interest as agreed, but also for the amount of an assessment levied by the controller of currency of the United States upon the stock of the insolvent bank to pay its debts, which the subscriber was compelled to pay, and did pay, to the receiver of the bank.</p> <p>Id.—Purchase of Stock—Assessments After Breach of Contract.— One who contracts to purchase stock on a given date must take it at the time indicated in his contract cwm onere, and if he fails to do so he is liable not only for the purchase price and interest, but also for all assessments levied upon the stock after his breach of the contract, which his vendor is compelled to pay thereon.</p> <p>Id.—Option to Return Purchased Property—Rescission of Contract. — Where a purchaser of chattels pays the price, and stipulates that if he so desires he may return the property and receive back the price paid upon the exercise of the option, a rescission of the contract takes place, and the title at once vests in the original vendor.</p> <p>Id.—Tender of Stock—Refusal of Payment—Trust—Reimbursement of Expenses.—Upon a tender of stock purchased, where the purchaser has the option to return the stock and receive reimbursement of the price with interest from the vendors, and they have refused to accept the stock and pay the money agreed, the purchaser holds the stock as trustee for the vendors, and as suph trustee is entitled to reimbursement of all necessary expenses for which he becomes liable and has paid by virtue of his position as such trustee.</p> <p>Id.—Breach of Contract—Measure of Damages—Assessment Upon Stock—Proximate Result. —Under section 3300 of the Civil Code, which provides that for the “breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which in the ordinary course of things would be likely to result therefrom,” an assessment upon stock agreed to be purchased which the vendor is compelled to pay as a consequence of the refusal of the defendants to take the stock at the time they had agreed to do so is a proximate result of their refusal.</p>

<p>Watercourse—Independent Flow of Water.—In order to constitute a watercourse, it must have a source independent o£ that fitful and occasional character that results from the falling of rain or the melting of snow, and must be a strdam flowing in a definite channel, having a bed, sides, or banks, though it need not flow constantly, and may sometimes be dry.</p> <p>Id.—Surface Water Flowing in Hollows or Ravines.—A watercourse does not include mere surface water flowing in hollows or ravines as a result of rain or melting snow, which at other times are destitute of water.</p> <p>Id.—Natural Flow of Surface Water—Law of California.—In California, the doctrine of the civil law has been substituted for the common-law rule as to the easement in favor of the owner of an upper estate to discharge surface waters falling or accumulating on his higher land upon or over the lower lands of the servient owner, as they were accustomed to flow in a state of nature, though this doctrine has no . application to lots held in cities and towns, where changes and alterations in the surface are essential to the enjoyment of such lots. ,</p> <p>Id.—Escape of Surface Water—Defined Channel—Liability of Municipal Corporations.—The general rule that municipal corporations, in the grading and improvement of streets, are not bound to provide for the escape of mere surface water, has an exception where the surface water, owing to the conformation of the adjoining country, has formed for itself a definite channel in which it is accustomed to flow, though such channel does not come within the common-law definition of a watercourse.</p> <p>Id. —Consequential Damages of Authorized Acts—Sewer—Unexpected Flood.—Where a municipal corporation, in the construction or maintenance of a sewer, has sufficiently provided for the ordinary flow of surface water, and has not been guilty of negligence in the construction or maintenance of the sewer, it is not liable for the consequential damages of its authorized acts, resulting from an extraordinary flow of water, by reason of an unexpected flood, which could not have been reasonably foreseen.</p> <p>Id.—Evidence of Freshets.—Evidence offered to show that another great freshet had occurred in the same place after the action was brought is inadmissible.</p> <p>Id.—Appeal—Harmless Instruction.—An erroneous instruction, which the record shows could cause no injury to the plaintiff, is not ground for reversal.</p> <p>Id.—Instructions Applicable to General Verdict—Special Verdict__ Error in instructions for defendants, which are applicable only to a general verdict, which had it been found in favor of the plaintiff would have been controlled by the facts specially found by the jury, upon which it is the duty of the court to have entered a judgment in favor of the defendants, is not ground for a reversal.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County dissolving a preliminary injunction.</p> <p>The facts are stated in the opinion.</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>Hearing in the Supreme Court upon writ of habeas corpus.</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>Criminal Law—Adultery—Void Judgment—Habeas Corpus.—Adultery is not made a crime by any statute of California, and mere adultery, without the parties living together in open and notorious cohabitation, does not constitute an offense; and a conviction upon a mere charge of the crime of adultery, and a judgment based thereon, is void, and a person held in custody under commitment based upon such judgment will be discharged upon habeas corpus.</p>

<p>Boards of Supervisors—Statutory Powers.—Boards of supervisors are creatures of the statute, and the authority for any act on their part must be sought in the statute.</p> <p>Id.—Employment of Counsel in Criminal Cases—County Government Act.—Under the County Government Act, boards of supervisors have no power to employ counsel on behalf of the county to prosecute or assist in the prosecution of criminal cases, prosecuted in the name, and on behalf of, the people of the state.</p> <p>Id.—Allowance of Illegal Claim.—The allowance by the board of supervisors to attorneys for assisting in the prosecution of criminal cases is void, and creates no legal claim against the county.</p> <p>Id.—Action to Restrain Payment of Warrant—Parties.—The county may maintain an action to restrain the collection of a warrant on the treasurer, drawn by the supervisors in payment for legal services rendered in assistance of the district attorney in the prosecution of criminal cases, and while the attorneys are not necessary parties they are proper parties to such action.</p>

<p>New Trial—Insufficiency of Evidence—Specifications in Statement. The object of the specifications of the insufficiency of evidence required by the statute is to direct the attention of the court and adverse party to the particular point on which the evidence is claimed to be insufficient, and when this object is accomplished the specifications will be held sufficient.</p> <p>Id.—Order Granting a New Trial—Presumption Upon Appeal.—Upon appeal from an order granting a new trial under specifications of the insufficiency of the evidence to justify the verdict, where the record contains no statement of any of the evidence given at the trial, all intendments are in favor of the regularity of the action of the court below, and error will not be presumed.</p>

<p>Irrigation District—Public Corporation—Collateral Attack Upon Organization.—An irrigation district is a public corporation, formed under a general law for the promotion of the public welfare; and the validity of its organization cannot be attacked collaterally in an injunction suit to prevent the sale of lands for assessments levied by the district, by showing that the board of supervisors acted without their jurisdiction in effecting the organization of the irrigation district.</p> <p>Id.—Validity op Assessment—Corporation De Jure.—The validity of an assessment levied by an irrigation district in no way depends upon the de jure character of the corporation, and it is immaterial whether the district be a corporation de jure or de fació.</p> <p>Id.—Exorbitant Assessment—Injunction—Payment op Just Tax.—If the levy of an assessment by an irrigation district is in excess of the power of the board , and the tax is more than the plaintiff can be compelled to pay, he will not be entitled to relief in a court of equity until he has paid the amount the board had power to levy upon his land, it being a matter of computation equally as exact as the computation showing that the levy was at too high a rate.</p>

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

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

<p>Alleyway—Grant of Easement—Trust.—A deed granting a tract of land to the grantee, his heirs and assigns, for the sole purpose of an alleyway, to he used in common with the owners of other property adjoining the alleyway, is an express grant of an easement—a right to the use, and nothing more —and does not pass a fee-simple title to the grantee, hut merely vests the legal title in the grantee, his heirs and assigns, for the benefit of the owners of the adjacent lots, to be used as an alleyway, and subject to the easement created by the dedication of the strip of land for that use.</p> <p>Id.—Presumption—Intention Appearing From Grant—Fee-simple— Lesser Estate.—Under section 1105 of the Civil Code a fee-simple title is presumed to be intended to pass upon a grant of real property only where it does not appear from the grant that a lesser estate was intended, and where it clearly appears from the grant that a lesser estate was intended, a fee-simple title does not pass.</p> <p>Id.—Irreconcilable Parts of Grant—Single Grant For Use.—The principle declared in section 1070 of the Civil Code that if several parts of a grant are irreconcilable, the former part prevails, has no application where the grant has but one part, which is essentially the grant for a use.</p> <p>Id.—Limitation of Use.—Estate Less Than Fee.—The rule that a prohibition or limitation of the use of property granted, which is inconsistent with the title conveyed, is void, has no application where an estate in fee does not pass to the grantee,</p>

<p>Judgment by Default—Entry of Default—A valid judgment by default may be rendered by the court, though no formal default has been entered, the only purpose of a default being to limit the time during which the defendant may file his answer, which time never extends beyond a trial and judgment.</p> <p>Id.^Service of Summons—Proof of Service—Jurisdiction—Validity of Judgment.—The fact of the service of the summons and of the copy of a complaint in a civil action gives the court jurisdiction of the person of the defendant, and the proof of service is not essential to such jurisdiction; and a judgment by default rendered in a case where the proof of service was imperfect is not void if the service wafe in fact made.</p> <p>Id.—Amendment of Record—Proof of Service Nunc Pro Tunc.—The court may allow the proof of service to be amended and filed nunc pro tuna as of the date of the judgment, where such proof appears to have been defective or insufficient when the judgment was entered.</p> <p>Id.—Notice of Application For Amendment — Waiver.—Where the defendant was present in court when an application was made to file an amended proof of service of summons nunc pro tunc, and raised no objection for want of previous notice of the application, but proceeded to argue the question at length and took an exception to the ruling, his action was in effect a waiver of the notice, and he cannot be heard to complain on appeal of the action of the court on the ground that notice was not given of the application.</p>

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

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

<p>Municipal Corporations—Pleading—Implied Assumpsit.—A complaint against the board of education of a city averring that at the defendant’s request the plaintiff made and delivered to defendant certain plans and specifications for public school buildings, to be built in the city, which were duly approved, accepted, and adopted by the defendant, and that the services of the plaintiff in preparing and furnishing the same, to the defendant were reasonably worth a certain stated sum of money, payment of which plaintiff has demanded of defendant, and that the-defendant has paid no part thereof, states a sufficient cause of actiom upon an implied assumpsit.</p> <p>Id.—Corporations—Defense of Ultra Vires—Presumption—Validity of Contract.—When a corporation seeks to avoid its contract on the-ground of its want of power to contract, where the contract is not-upon its face necessarily beyond the scope of its authority, it will, in the absence of proof, be presumed to be valid, and the corporation must make good its defense of ultra vires by plea and proof.</p> <p>Id.—Power of Municipal Corporation to Contract—Demurrer.—With respect to mere ordinary business contracts a municipal, or quasi municipal, corporation, stands on the same footing with other corporations; and it is only where the contract could not legally be made by it under any conceivable circumstances that its inability to contract can be raised upon demurrer.</p> <p>Id.—Implied Contracts of Corporations—Assumpsit.—Corporations may be bound by implied contracts within the scope of their authority; and municipal corporations are liable to actions of implied assumpsit.</p> <p>Id.—Pleading—Common Counts.—The rules of pleading are general, and are designed to embrace all persons, natural or artificial, capable of suing or being sued, and the common counts may be used in an action of assumpsit against a municipal corporation.</p>

<p>Appeal from an order of the Superior Court of San Diego County denying a motion to set aside a decree of foreclosure entered against the defendant by default.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Elections—Publication of List of Nominations by County Clerk.— The publication of the list of nominations provided for in section 1194 of the Political Code is a part of the county advertising, and the cost of it is a county charge.</p> <p>Id.—Publication of General Lists—Separate Lists—Township Offices —Construction of Code.—Section 1194 of the Political Code, reasonably construed, contemplates only the publication of one general list of all nominations upon which the people of the county will be called to exercise their choice, and not a copy fac simile of the official ballot, nor the publication of separate lists of the nominations, each complete in itself for each of the political subdivisions of the county having offices to fill; each list containing, besides the names of those nominated for state and county offices, only the names of the district or township nominees in the county, to be voted for in a particular district or township; and the proprietor of a newspaper cannot recover for the printing of such separate lists.</p> <p>Id.—Action For County Advertising—Demurrer to Complaint— Money in Treasury—Limit of County Liability—Defense.—In an action to recover for county advertising for publication of the lists of nominations, it is not a ground of demurrer that it is not alleged that there was money in the county treasury to meet the demand, nor that the allowance of the demand against the county would not exceed the limit of liability which the county was authorized to contract for the fiscal year, but such matter, if it exists, is purely matter of defense.</p>

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

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

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

<p>Corporations—Actions by Stockholder—Judgment—Jurisdiction— Modification After Affirmance—Attorney’s Fees.—Where a judgment has been rendered in an action by a stockholder of a corporation for the use of the corporation without a provision for attorney’s fees, and the judgment has become final by affirmance upon appeal, the trial court cannot, upon petition or motion thereafter, change or modify the judgment by ordering the moneys recovered to be disposed of in any way other than that provided in the judgment itself, and the court has do power, upon motion therefor, to order the amount expended by the plaintiff-for attorneys’ fees to be paid to him out of the money for which the judgment was rendered, and which has been paid into court in satisfaction of the judgment.</p>

<p>Appeal from an order of the Superior Court of Merced County granting letters of administration to the public administrator and denying them to another appellant.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Deed of Married Woman—Acknowledgment as Single—False Representations—Estoppel of Subsequent Donee.—Where a married woman, who was living apart from her husband, before and at the time of the execution of a deed by her of her separate property, falsely represented to the agent of the grantee that she was a widow, and acknowledged the deed as a single woman, intending thereby to deceive the grantee, who acted upon such representations, believing them to be true, not only in paying the purchase money, but in paying all the taxes and street assessments during the period of thirteen years, without notice of the falsity of the representations, or that the grantor intended to lay any claim to the land prior to the commencement of an action to quiet title by her daughter, to whom she subsequently conveyed the property without a valuable consideration, and who took the deed with knowledge of the prior deed, the plaintiff in such action is estopped from denying that her mother was a widow at the time she acknowledged her deed to the prior grantee.</p> <p>Trial—Reservation of Ruling Upon Objections to Evidence—Harmless Failure to Rule.—The failure of the court to decide whether or not evidence, which was temporarily admitted under objection to be passed upon prior to judgment, was admissible, is not prejudicial error where all the evidence was either properly admissible or harmless.</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>Malicious Prosecution—Probable Cause — Prosecutions of Land Jumpers by Stockholder of Corporation—Threats of Employee. In an action for malicious prosecution, where it appears that the plaintiff belonged to a company of from two to four hundred men which was organized for the purpose of “jumping land,” and a company o£ about fifteen of them, with a four-horse team loaded with lumber, were proceeding to go upon a tract of land owned by a corporation, in which the defendant was a large stockholder, when they were met by the superintendent of the corporation, who stopped them, and thereupon one of the party said that the owners might as well yield peacefully as he had three or four hundred men, and would go on the land, and they returned next day to survey the land, the defendant had probable cause to prosecute such parties for threatening .to enter upon and detain the property by force and violence, and the facts that the threats to occupy the land were made by one of the employees of the company of jumpers, and not by the plaintiff, and that the plaintiff had already selected land on another tract, are immaterial.</p> <p>Id.—Evidence—Declaration of Go-conspirators.—In such action, where it appears that plaintiff was not only a member of the association of jumpers, but was actively participating in what was being done, the admission of testimony showing the acts and declarations of members and employees of the association, of the intention of the association to take possession of the land in which defendant was interested, is proper, although the declarations were made without the plaintiff’s hearing.</p> <p>Id.—Burden of Proof—Want of Probable Cause.—In an action for malicious prosecution, the burden is upon the plaintiff to show affirmatively that there was a want of probable cause.</p> <p>Id.—Actions For Malicious Prosecution Not Favored—Proof Required.—Actions for malicious prosecution are not favored in law, and will be sustained only when it is shown that the prosecution was in fact actuated by malice, and that the party instigating it had no reasonable ground for causing the prosecution.</p> <p>Id.—Malice—Probable Cause—Questions of Fact and Law.—Malice is a question of fact; but what facts and circumstances amount to probable cause is a pure question of law, though whether such facts and circumstances exist is a question of fact.</p> <p>Id.—Arrest in Good Faith For Probable Cause—Advice or Counsel. Where the facts upon which an arrest is made constitute prohable cause, and the party causing the arrest acts in good faith, it is not necessary to show that he consulted counsel and acted upon his advice in causing the arrest; though taking the advice of counsel tends to show good faith and the absence of malice.</p> <p>Id.—Probable Cause a Defense Regardless of Malice.—In an action for malicious prosecution, where probable cause is found to exist, no amount of malice will entitle the plaintiff to recover.</p> <p>Id.—Trial—Direction of Verdict—Conflict of Evidence—Appeal.— To justify the court in directing a verdict it is not necessary that there should be no conflict in the evidence; but where the evidence is such that it is clearly insufficient to support a verdict in favor of the party against whom the direction is given, the instruction is proper, unless the circumstances of the case indicate that upon another trial the evidence may be materially different, in which case the facts should be submitted to the jury in order that a new trial may be had; but in either case the decision of the trial court will be sustained, unless it clearly appears that its conclusion is wrong upon the facts.</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>

This action was brought by the owners of lands affected by an assessment levied by the Otay Irrigation District, for expenses of organization, including the salaries of officers and employees, to have the assessment declared illegal and void, and to enjoin the enforcement of its collection, upon the ground that the assessment was levied without submission to a vote of the electors of the district.

<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 Orange 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 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 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>Mortgage—Foreclosure—Construction of Code.—Section 726 of the Code of Civil Procedure, which provides that there can he but one action, for the recovery of any debt secured by mortgage upon real estate, is a limitation upon the rights which usually pertain to property, and the restriction will not be carried beyond the obvious import of the language used.</p> <p>Id.—Object of Code Provision—Exhaustion of Security—Personal Action.—The obvious purpose of section 726 of the Code of Civil Procedure is to compel one who has taken a special lien to secure his debt to exhaust his security before having recourse to the general assets of the debtor; and when he has done this, or when without his fault the security has been lost, the policy of the law does not prohibit a personal action.</p> <p>Id.—Statutory Construction.—A construction should not be given to a statute, if it can be avoided, which will lead to absurd results, or to a ' conclusion plainly not contemplated by the legislature.</p> <p>Id.—Collateral Mortgages to Secure Indebtedness—Foreclosure.— Section 726 of the Code of Civil Procedure was not intended to prohibit the ordinary transaction of putting up mortgages as collaterals to secure an indebtedness, nor to limit such collaterals to mortgages which can be foreclosed in the same action.</p> <p>Id.—Separate Actions Upon Collateral Mortgages.—Where a mortgagee has assumed a debt of the mortgagor, for which he has given his personal note to a hank, and has assigned to the hank the mortgage as collateral security for the payment of his note, and at the same time has executed another note to the bank, secured by a mortgage upon land of his own, which was also intended as collateral security for his other note to the bank, the hank, after foreclosing the first mortgage and crediting the proceeds upon the first note, may maintain a separate action for foreclosure of the second mortgage given to secure the principal debt.</p> <p>Id.—Nature of Action Upon Collateral Mortgage—Enforcement of Principal Debt.—An action to foreclose a mortgage which has been assigned as collateral security for a principal debt, is not an action for the recovery of the principal debt, but to preserve and enforce the security which is a duty imposed upon the creditor by the contract of hypothecation, and the principal debt need not be enforced in such action.</p>

<p>Appeal—Review op Conflicting Evidence.—Where there is a substantial conflict in the testimony as to disputed facts, the appellate court is authorized to assume as proved the facts found, which there is substantial evidence to uphold.</p> <p>Building Contract—Prevention of Performance—Quantum Meruit —Rescission.—Where a building contractor has proceeded to construct the building of the material and in the manner substantially as provided for in the contract, save as changed by orders of the superintendent of the owner, and the owner, before completion of the contract, without cause, and in violation of the contract, took possession of the building, ousted the contractor therefrom, and refused to permit him to complete the building according to the contract, and appropriated to his own use the material on hand and provided to be used for its construction, the contractor is entitled to treat such contract as rescinded, and to recover the reasonable value of the work performed and materials furnished at the request of the defendant.</p> <p>Id.—Evidence—Contract as Proof of Value.—The building contract is admissible in evidence as proof of the value of the material furnished and services rendered, but is by no means conclusive on that point, and is to be taken with the other evidence in arriving at such value.</p> <p>Id.—Liability of Owner as Contractor.—The owner is not personally liable for the debts of the contractor as such to persons furnishing materials to him, and is not under obligation to the plaintiff to pay his debts to the materialmen.</p> <p>Id.—Orders From Contractor For Payment of Materialmen—Offset of Liens—Costs and Expenses.—Where the contractor has given orders to the owner of the building in favor of materialmen, who after-wards filed liens upon the property, and the owner, at the date of the orders, was indebted to the contractor in excess of that amount, the liens should he offset in a suit by the contractor against the owner, only for the amount due at the date of the orders, and not the costs and expenses of the liens.</p> <p>Id.—Assignment of Demand Pro Tanto—Refusal of Owner.—The orders given-by the contractor operated as an assignment by the contractor of his demand pro tanto, and if the owner refused to pay the orders he should not be permitted to recover from the contractor the costs and expenses incurred by reason of his refusal.</p> <p>Id.—Mechanics’ Lien—Hauling of Bkick.—One who did not perform labor upon the building^ or furnish materials therefor, but was merely employed by the brick-men to haul brick for them, and who had no contract with the contractor, who owed him no liability, is not entitled to a lien upon the building for his labor.</p>

<p>Statutory Construction—State, Excepted From General Words.— The state is not bound by general words in a statute which would operate to trench upon its sovereign rights, or injuriously affect its capacity to perform its functions or establish a right against it.</p> <p>Id.—Attachment—Garnishment—School District.—The state cannot be subjected to garnishment upon a claim against it; and a school district is but an instrumentality of the state, the trustees of which are special agents without general power to represent the district, and cannot be garnished in an attachment suit by a third party against its creditor.</p> <p>Id.—Payment of Debt of School District Under Execution Against Creditor—Assumption of Risk.—A school district may voluntarily pay the amount of a debt due to its creditor to the sheriff, while the sheriff has in his hands an execution issued upon a valid judgment against the creditor of the district; but the officers of the district in such case assume the risk of showing that the debt existed against the school district.</p> <p>Id.—Pleading—Judgment by Default.—Where the answer of the school district pleads that the judgment upon which the payment was made under execution was one upon which a default was entered by the clerk, and that judgment was thereupon entered by him, the answer is not defective because it also avers that the judgment by default was duly given and made by the clerk.”</p> <p>Id.—Retention of Execution by Attorney—Payment to Sheriff.—The fact that the execution upon the judgment was retained by the attorney of the plaintiff until after an order was procured from the school trustees, and a requisition from the school superintendent for a payment of the debt due from the school district to the execution defendant, is not material, if before the money was paid the sheriff took the execution and received the money from the treasurer.</p>

<p>Municipal Corporations—Power Over Salary of Officers.—The power of a corporation to fix or change the salary of its officers rests entirely upon statute, and the exercise of this power is subject to all of the limitations contained in the statute.</p> <p>Id.—Change of Salary of City Assessor—Municipal Government Act.—A municipal corporation which is subject to the municipal government act, which provides that the compensation of its city assessor shall not be increased nor diminished during his term of office, can neither directly, by express ordinance for that purpose, diminish the amount of his salary during his term, nor can it accomplish that result indirectly, by diminishing the duties of his office or dispensing with his services.</p> <p>Id.—Municipal Taxation—Assessment by County Assessor—Election of Act by Ordinance—Repeal of Salary of City Assessor—Repeal of Poll Tax—Abolpiton of Office—An ordinance adopted by a municipal corporation of the fifth class, electing to avail itself of the provisions of the act of March 2, 1891, to make the assessment of property by the county assessor the basis of municipal taxation, and also repealing a former ordinance fixing the compensation of the city assessor, and another ordinance repealing all provisions for street poll tax, cannot have the effect to alter or change the salary of the city assessor or to abolish his office.</p> <p>Id.—Right of Officer to Salary—Cessation of Duties.—The right of an officer to the salary fixed by law for that office is not impaired by any change that may be made in the duties of the office, or even by an entire cessation of those duties, so long as the office itself remains in existence.</p> <p>Id.—Power to Abolish Municipal Office.—A municipal office created by the legislature cannot be directly or indirectly abolished by the city.</p> <p>Id.—Action by Municipal Officer For Salary—Mandamus—Election of Remedy.—A municipal officer is not required to proceed by writ of mandate to compel the payment of his salary; but he may elect to bring an action against' the municipal corporation for the amount of the salary claimed by him.</p>

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

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

<p>Criminal Law—Compounding Felony—Information—Knowledge of “Actual” Commission of Crime.—Under section 153 of the Penal Code, knowledge of the actual commission of a crime and the taking of money or property of another, upon agreement or understanding to compound or conceal such crime, are the facts necessary to constitute an offense; but there can be no knowledge of the commission of the crime unless it was actually committed, and an information charging that the crime of grand larceny was committed, and stating by whom, when, where, and how it was committed, and that the defendant, “ having knowledge of the commission of said crime,” took money from the person who committed it, upon the agreement and understanding that he would compound and conceal the same, sufficiently states a public offense, and the omission of the word “actual” is immaterial, and does not tend to the prejudice of a substantial right of the defendant.</p> <p>Id.—Failure to Demur to Objections—Waiver of Objections.-—Where no demurrer to an information is interposed, all objections thereto, except that the facts stated do not constitute a public offense, are waived.</p>

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