Volume 104 — California Reports

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

<p>Laborer’s Lien — Threshing-machine—Assignment.—The laborer’s lien given by statute upon threshing-machines passes by the assignment of the claim of the laborer which the lien is given to secure, and may be enforced by the assignee, by foreclosure of the lien for the value of the labor, within the time of limitation fixed by the statute.</p> <p>Id. — Assignability oe Liens — Possession—Assignment oe Claim — Lien as Incident. — If the existence of a lien does not depend upon posses, sion it may be assigned, and the assignment of the claim carries with it the right to the lien as an incident.</p>

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

<p>Eminent Domain — Condemnation Proceedings — Costs op Second Trial —Compensation—Constitutional Law. — Section 1254 of the Code of Civil Procedure, which provides that “in all cases where a new trial has been granted upon the application of the defendant, and he has failed upon such trial to obtain a greater compensation than was allowed him upon the first trial, the cost of such new trial shall be taxed against him,” is not in conflict with section 14 of article I of the constitution; and the defendant, having received the compensation awarded upon the first trial,' cannot complain if the costs of an unsuccessful effort to obtain greater compensation are taxed against him upon a second trial.</p> <p>Id. — Right oe Dependant to Retain Condemnation Monet Paid — Second Trial Resulting in Less Compensation — Vested Rights. — Where the condemnation money awarded upon a first trial wa3 paid into court, without any motion for a new trial by the plaintiff, or notice of appeal, or other objection to the amount found by the jury, and possession is t?.ken of the land condemned, the plaintiff acquired a vested right in the property, and the defendant a vested right in the compensation, which he is not required to refund in part in case a second trial upon a claim for greater compensation results in a second award of a less compensation than that previously awarded and paid.</p> <p>Id. — Abandonment op Defenses — Estoppel.—The abandonment by the defendant of all defenses, except a claim for greater compensation, confirmed plaintiff’s right to the property, and estopped the defendant from denying that right; and the plaintiff is equally estopped to say that the money received by the defendant is not the defendant’s property.</p> <p>Id. — Appeal—Vacation of Judgment. — An appeal by the defendant upon the question of compensation alone, accompanied by an abandonment of ■ other defenses, does not vacate the judgment.</p> <p>Id. — Evidence—Comparative Vadee op Use op Property. — Evidence to show the comparative value of the use of the property, before and after the construction of the road, is not admissible.</p> <p>Id. — Cost op Maintaining Fences — Damages.—Under the provisions of sections 1258 and 1251 of the Code of Civil Procedure the cost of maintaining fences after their erection k not a subject of damage in condemnation proceedings; and under section 485 of the Civil Code, construed in connection with section 1248 of the Code of Civil Procedure, the duty of .maintaining a fence after its erection is upon the owner, and the expense of doing so is included in the damages allowed for the right of way.</p> <p>Id. — Evidence— Benepit to Remainder op Land — Error Cured by Instruction. — Where evidence has been received tending to show that the construction of the road would be a benefit to the remainder of the land, an instruction to the jury that the compensation to be awarded the owner must be ascertained without respect to any benefits that would accrue to the remainder of the land from, the building of the road is, in effect, an instruction to disregard all testimony tending to show such benefits, and to remove any prejudice to the defendant from the refusal to strike out evidence thereof.</p>

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

<p>Sureties — Action on Official Bond — Parties.—An action to recover damages for a breach of the condition of the official bond of a constable, by reason of his illegal seizure and conversion of the property of the plaintiff under a writ issued against the property of third persons, is properly brought against the constable and the sureties on his official bond.</p> <p>Id. — Alternative Provision in Judgment — Harmless Error. — A provision in the judgment rendered in such action according the defendants the privilege of avoiding the payment of the judgment by returning the property illegally seized, conceding it to be erroneous, cannot be complained of by them.</p> <p>Practice — Default Judgment — Discretion to Set Aside Appeal. — In the absence of an abuse of its discretion by the trial court the denial of a motion to vacate a judgment, on the ground that it was given through the inadvertence, surprise, and excusable neglect of the defendants and their attorney, will not be reviewed on appeal. In the present ease, under the facts stated in the opinion, there was no abuse of discretion.</p> <p>Id. — Assignment of Cases for Trial. — The judges of the superior court in a particular county, for the convenient dispatch of business, or for any other reason they may deem necessary, may assign and transfer cases for trial to any one or more of the several departments of such court, without notice to the parties.</p>

<p>Easement — Right oe Wat — Prescription — Use Under Claim op Right. — In an action to establish a right of way by prescription, where there is no conflict in the evidence as to the user of the way, the question whether the use was under claim of right or as a mere matter of neighborly accommodation is for the jury, or the court sitting without a jury, to deterniine as a fact, in the light of the relations between the parties and all the surrounding circumstances. In the present case the evidence is held sufficient to warrant the finding that the use was under a claim of right.</p> <p>Id. — Evidence—Wat oe Neoessitt — Harmless Error. — In such a case the admission of evidence on the part of the plaintiff tending to show a right of way by necessity, rather than a right by prescription, conceding it to have been erroneous, is without prejudice, if the exclusion of such evidence would not have changed any finding or the result of the case.</p> <p>Id. — Ouster—Patment oe Taxes. — In order to acquire a right of way by prescription it is not necessary that the use should amount to an ouster or exclusion of the defendant from a right to use the way. It is sufficient if the user is hostile, so as to- be a trespass. Nor is it necessary that the adverse possessor should have paid the taxes on the land affected by the right of way, there having been no separate assessment of the easement.</p>

<p>Divoece — Final Judgment — Alimony — Jurisdiction. — Where a final judgment has been rendered in a divorce suit settling the property rights of the parties, without an award of alimony, and the time for appeal therefrom has expired, the court has no jurisdiction to make an order, or supplemental decree, granting alimony for the support of the wife and children.</p> <p>Id. — Modification of Judgment— Construction of Code. — The provision of section 139 of the Civil Code, authorizing the court from time to time ■ to modify its orders for the maintenance and support of the wife and children, contemplates that the right to alimony as well as other property rights shall have been presented in the action and established by the judgment, and there can be no modification of an allowance for alimony where there is no allowance to modify.</p>

The main facts are stated in the opinion. The complaint was amended at the trial to conform to the proofs against the objection of the defendant. Paragraph 6 of the complaint alluded to in the opinion contained a count for damages for failure to deliver the water alleged to have been contracted for, while the next paragraph contained a count for money expended in procuring water from another source.

The defendant Felts entered into the office of assessor of ^Jie county of San Luis Obispo on the fifth day of January, 1891. The state poll taxes mentioned in the opinion were collected and received by him between the 9th of October, 1891, and the 30th of September, 1893. The road poll taxes were collected and received between the 6th of March and the 30th of September, 1893.

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

The facts are stated in the opinion of the court. The statute under which the appointment of plaintiff was made cannot be construed to authorize such an appointment. (See Pol. Code, secs. 3877-80.) The board of supervisors had power, under their general grant of power, to enter into the contract with the plaintiff. (Hawk v. Marion County, 48 Iowa, 474; Wilhelm v. Cedar County, 50 Iowa, 254; People v. Haws, 12 Abb. Pr. 208; 21 How.

The facts are stated in the opinion of the court. The court erred in setting aside the verdict of the jury, as it is only where the decision is against the weight •of the evidence that the trial court can set aside the verdict.

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

The defendant, George Kilvington, was informed against by the district attorney of Santa Clara county for the crime of murder, alleged to have been committed at said county on the third day of May, 1892, by the felonious killing of one Henry Schmidt. The defendant was convicted of manslaughter, and adjudged to be punished by imprisonment in the state prison of the state of California, at San Quentin, for the term of seven years.

The facts are stated in the opinion of the court. The proper construction of the order setting apart the homestead is, that it was set apart for the use of the family, as the law directs the court to so set it apart. (Sheehy v. Miles, 93 Cal. 295.) It is the law, and not the phraseology of the order of the court, which directs the course of title, and vests it in the parties entitled to it.

Application to the Supreme Court for a writ of mandate to a judge of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.,

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

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

On the third day of January, 1893, Firman Church, the district attorney of Fresno county, elected at the general election in 1892, appointed the plaintiff the assistant district attorney, at a salary of two thousand four hundred dollars a year. The plaintiff immediately qualified and entered upon the duties of his office.

<p>Mortgages — Priority—Assignee in Insolvency — Bona Pile Purchaser. A mortgage, which is received by the mortgagee under an express agreement that it is to be subject to another mortgage to a third person, although it is first recorded, is not entitled to priority; and the assignee in insolvency of such mortgagee, not being a bona fide purchaser, acquires no greater rights than his assignor had.</p> <p>Id. — Recording.—Under such circumstances the failure to properly record such other mortgage would not affect its right to priority.</p>

<p>Insolvency — Setoee—Pürchase of Claim Against Insolvent. — Under sections 21 and 43 of the Insolvent Act of 1880 a claim against an insolvent, purchased by his debtor prior to the adjudication of insolvency but with full knowledge at the time of the transfer of the fact of the insolvency, may be setoff by the debtor against the debt due from him to the insolvent.</p>

<p>Findings — Admissions os Pleading. — A finding is not necessary upon a fact admitted by the pleadings, but if the court finds thereon against the admission it is, if material, ground for reversal.</p> <p>Id. — Appropriation op Water — Public Lands. — An appropriator of the waters of a natural stream, flowing through the public lands of the United States, prior to the divestment of the government title, and who has continued to use such waters pursuant to such appropriation for a useful purpose, acquires a right thereto superior to that of a subsequent riparian owner claiming under the government.</p> <p>Id. — Prescription—Adverse Use op Water. — In order to acquire a prescriptive right to the use of the waters of a natural stream, as against a prior appropriator, there must have been such an invasion of the rights of the appropriator that he would have had ground of - action against the intruder; and, so long as the appropriator receives the quantity of water to which he is entitled, the use of the surplus waters by another is not an invasion of his rights.</p> <p>Id. — Use op Water on Fork op Stream. — The use by a riparian proprietor of all the waters of one fork of a stream is not an invasion of the rights of a prior appropriator, who takes water from the main stream below its forks, and who at all times has received all the water to which he is entitled under his appropriation.</p> <p>Id. — Impeachment op Witness — Collateral Matters. — In an action by such appropriator to determine his water right as against such riparian proprietor, a witness for the plaintiff cannot be impeached by showing contradictory statements made by hi m, in the absence of the plaintiff, as to the rights of the defendant in the waters of the fork of the stream.</p>

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

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

<p>Taxation — Inc>—'ktng Assessment — Board of Equalization — Notice. In a proceeding by a corporation to annul an order o£ the board of equalization increasing an assessment on its corporate property, recitals in the minutes of the board showing that the citation on which the order was based was directed to an individual described therein as the owner of the property is not presumptive evidence that such property was originally assessed to such individual as owner.</p> <p>Id. — Recitals in Minutes oe Board — Notice to Coreoration. — Such recitals are not inconsistent with the fact that the individual named was the president, secretary, or managing agent of the corporation, and, if he was, the notice served upon him of the intention of the board to increase the assessment was notice to the corporation.</p> <p>Id. — Evidence—Appeal.—In the proceeding to annul the order increasing the assessment evidence is admissible aliunde the minutes to show that the individual named in the notice was the president, secretary, or managing agent of the corporation, and that the property was assessed to it; and on an appeal from a judgment refusing to annul the order it will be presumed, in the absence of evidence to the contrary, that such proof was made.</p> <p>Id. — Sufficiency of Notice — Rules of Board. — Boards of equalization should not be held to very strict rules in the matter of keeping the minutes of their proceedings, and if, under a rule or order of such board, a party has notice of its intended action in regard to the assessment of his property, in time to have a full and fair hearing during the sessions of the board, such notice will be held sufficient, unless it appears affirmatively that a full and fair hearing was denied him by the action of the board.</p> <p>Id. — Affidavit for Increase of Assessment. — Under section 3673 of the Political Code a county board of equalization has jurisdiction to raise any individual assessment, without having before it any complaint or affidavit that such assessment is too low, and asking that it be increased.</p>

<p>Conflict of Evidence — Appeal—Appropriation of Water. — In an action to determine a water right which the plaintiffs claim by prior appropriation, and which the defendants claim to have acquired both by prior appropriation and adverse user, a finding in favor of the plain, tiffs will not be disturbed on appeal when there is a material conflict in ■ the evidence on such issues.</p> <p>Id. — Preponderance of Evidence. — While a plaintiff is required to establish his case by a preponderance of evidence, a preponderance of evidence does not necessarily mean a preponderance of the number of witnesses; and, in such a case, the appellate court cannot say, that, on the issues thus presented, the evidence of two or three witnesses testifying to a certain state of facts must overthrow the evidence of a witness testifying to the contrary.</p>

<p>Promissory Note — Provision'for Increase of Interest after Default — Penalty.—A provision in a promissory note, after providing for the payment of monthly interest at the rate of eight per cent per annum, that “if said principal or interest is not paid as it becomes due it shall thereafter bear interest at the rate of one per cent per month, ” is not to be treated as a penalty, but as a contract to pay one per cent per month interest upon a contingency.</p> <p>Id. — Acceptance of Interest at Lower Rate — Waiver.—If such note be not paid at its maturity the payee, by accepting monthly interest at the rate of eight per cent per annum, waives the right to collect more interest for the months for which it was so accepted, but does not waive the right to demand one per cent per mouth in the future.</p> <p>Id. — Executory Written Contract — Alteration.—Under section 1698 of the Civil Code the note, so far as the future interest is concerned, was an executory written contract, and could be altered only by a contract in writing or by an executed oral agreement.</p>

<p>Appeal from a judgment of the- Superior Court of the City and County of San Francisco, and from an order refusing a new trial.</p> <p>The facts are stated in the opinion.</p> <p>No change of the beneficiary was effected. (Elliott v. Whedbee, 94 N. 0. 115; Holland v. Taylor, 111 Ind. 121; ■Supreme Lodge, K. of H, v. Nairn, 60 Mich. 44; Wendt v. Iowa Legion of Honor, 72 Iowa, 682; Hellenberg v. ■District 1, I. O. B. B., 94 N. Y. 581; Maryland Mut. Ben. Soc. v. Glendinen, 44 Md. 429; 22 Am. Rep. 52; Olmstead v. Masonic Mut. Ben. Soc., 37 Kan. 93; Stephenson v. Stephenson, 64 Iowa, 534; Coleman v. Supreme Lodge, K. of H., 18 Mo. App. 189.)</p> <p>Under the facts of this case the attempt to change the beneficiary, although not done in the manner required by the by-laws, should be given effect. (Isgrigg v. Schooley, 125 Ind. 94; Splawn v. Chew, 60 Tex. 532; Kepler v. Supreme Lodge, K. of H., 45 Hun, 274; Manning v. Ancient Order U. W., 86 Ky. 136; 9 Am. St. Rep. 270; Catholic Mut. Ben. Assn. v. Priest, 46 Mich. 429; Natty y. Nolly, 74 Ga. 669; 58 Am. Rep. 458; National Am. Assn. v. Kirgin, 28 Mo. App. 80; Bacon on Benefit Societies, secs. 308, 310; Grand Lodge v. Child, 70 Mich. 163; Supreme Conclave, Royal Adelphia, v. Cappella, 41 Fed. Rep. 1; Luhrs v. Luihrs, 123 N. Y. 367; 20 Am. St. Rep. 754; Hirschl v. Clark, 81 Iowa, 200.)</p>

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

<p>Trespassing Animals — Pleading—Uninolosed Land — Trinity County. A complaint in an action to recover for injuries by trespassing animals to lands in Trinity county, which are not alleged to have been inclosed, does not state a cause of action, if it is not alleged that the trespass was instigated by the defendant, or that he had notice thereof.</p> <p>Id. — Common Law. — The common-law rule as to liability for trespassing animals, by reason of certain general legislative acts, has never been in force in this state.</p>

<p>Streets — Railway Franchise — Ejectment by Abutting Owner. — The owner in fee of land abutting upon a public street in an incorporated town cannot maintain an action of ejectment against a railway company which has constructed and is using a railroad track upon and over the public street, upon the side or half thereof adjoining the land of such abutting owner, under and by virtue of an ordinance of the town trustees empowering it to do so.</p> <p>Id. — Urban Servitudes — Railway Tracks — Compensation to Owner— Municipal Authority. — Urban servitudes are essential to the enjoyment of streets in cities, and include the authority to use the street for the track of a railway company under license by the city authority, without previous compensation to the owner of the fee whether for a street railway, or for an ordinary railway for the transportation of freight and passengers.</p> <p>Id. — Use oe Street por Railway Purposes — Servitude—Special Damages. — The use of a public street in a city for general railway purposes imposes no new burden or servitude upon the owner of the abutting land; and the object of the user being within the conceded rights of the public, the methods of its accomplishment are subject to legislative control, and subject also to an action for damages by any abutting owner (whether or not he may be vested with the fee to the center of the street) whose right of ingress and egress, or right to light and air, shall be interfered with.</p> <p>Id. — Possession op Public Street — Ejectment.—The municipal authorities as trustees of the public are in possession of the public streets, and hold them for the use of the public as effectually as they do or may the public buildings of the municipality, and ejectment will not lie for the recovery by an abutting owner of the possession of any part of the street from a railway company having a right of possession under the municipal authorities.</p>

<p>Kings County — Tax Lists for 1892 — Tax Collector of Tulare County —Mandamus.—Under section 15 of the act of May 29, 1893, creating Kings county, it is made the duty of the tax collector of Tulare county, upon demand of the tax collector of Kings county, to furnish, assign, and transfer to the latter a complete list of all unpaid taxes assessed and levied during the year 1892, on property within the boundaries of Kings county, and upon his refusal to comply with such demand, he may be compelled by mandamus to furnish the list.</p> <p>Id. — Taxes Unlawfully Collected by Tax Collector of Tulare County.- — Under that act, after such demand has been made by the tax collector of Kings county, it is not the duty of the tax collector of Tulare county to collect any of the unpaid taxes assessed and levied during the year 1S92, on property within the boundaries of Kings county, and if he does so, he cannot be compelled by mandamus to- deliver the moneys so collected to the tax collector of Kings county. In such case the remedy of Kings county is by an action for money had and received.</p> <p>Id. — Constitutional Law — Special Legislation — Title of Act_Section 15 of the said act of May 29, 1893, providing for the collection of taxes for the year 1892, on property within the boundaries of Kings county, and as to whom such taxes shall belong, is not unconstitutional because the subject matter of the section is not expressed in the title of the act, or because it is special legislation.</p> <p>Id. — Jurisdiction to Issue Writ of Mandamus. — The superior court may issue a writ of mandamus to run out of the county, or to be executed out of the county in which the court is held, and there is nothing in section 5 of article VI of the constitution restricting the jurisdiction of the court in this particular to the county in which it is held.</p>

<p>Game Laws — County Ordinance — Possession of Deerskins. — A county ordinance for the protection of game, after prohibiting the killing of male deer, except during a certain specified open season, and the killing of female deer at any time, and the selling of the hides of any deer, provided that “every person w’~ . . shall have in his possession any deerskins, or any hide or pen, mm vm.v..._ \ of sex has been removed, or any of the aforesaid game at a time when it is unlawful to kill the same, shall be guilty, of a misdemeanor.” Held, That the ordinance could not be construed to make it unlawful to have in one’s possession, at any time when it is unlawful to kill deer, any. deerskin, whether the evidence of sex has been removed or not.</p>

<p>Practice — Settlement of Bill of Exceptions — Poem of Petition. — A petition in the supreme court for a writ of mandate to compel the trial court to settle a hill of exceptions should allege in substance that the proposed bill contained every thing that the petitioner honestly believed it should contain in order to make it a fair and proper draft of a bill such as the statute requires him to prepare.</p> <p>Id. — Defective Petition Cured by Answer. — Where an alternative writ of mandate is inadvertently issued by the supreme court, on a petition which is defective in this particular, to which the respondent has demurred and answered, the supreme court will not sustain the demurrer and quash the writ if the matters set out in the answer are such as to cure the defects in the petition.</p> <p>Id. — Decree oe Distribution — Findings as to Intent and Meaning oe Testator. — A proposed bill of exceptions to be used on an appeal from a decree distributing the estate of a testator, which attacks certain findings of the court with respect to the “intention” and “meaning” of the testator, which findings depend wholly upon the terms of the will and the recitals it contains, cannot be held insufficient for a failure to set out the evidence on which the findings are based, if the will is found and recited in full in the findings and decree.</p>

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

<p>Fraudulent Conveyance — Intent.—Under section 3442 of the Civil Code, the question of fraudulent intent in a conveyance is one of fact and not of law.</p> <p>Id. — Voluntary Conveyance by Debtor. — A voluntary conveyance, made by a debtor in straitened circumstances, of all his property, which is kept secret until his death, until when he continued to use the property, is fraudulent, and a finding that it was not so, in an action to set aside the conveyance, is unsupported by the evidence.</p>

<p>Mechanic’s Lien — Assignee oe Claims — Notice oe Lien. — An assignee of the claim of a mechanic or a materialman has no right to file in the recorder’s office a notice of claim of lien, nor to serve upon the owner of the building the notice, provided for by section 1184 of the Code of Civil Procedure, requiring the owner to withhold from the contractor sufficient funds to meet his demands.</p>

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

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

The facts are, stated in the opinion of the court. A superior judge in a new county is a constitutional officer, and must derive his right to hold office from the constitution itself. (People v. Sands, 102 Cal. 12; People v. Ransom, 58 Cal. 558.) Superior judges can only be elected at a general state election and on even numbered years.

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

<p>Motion to dismiss an appeal from a judgment of the Superior Court of Contra Costa County.</p> <p>The facts are stated in the opinion.</p>

<p>Mechanics’ Liens — Bond Given by Contractor — Failure to Record Specifications. — A bond given by a contractor to tbe owner of a building, the contract price of which exceeded one thousand dollars, guaranteeing the performance of all the conditions of the contract, and that the house to be constructed by the contractor should be delivered to the owner free from all liens that might arise from or be filed against the building on account of material or labor furnished by the contractor, and used in or about the structure, is valid and binding upon the sureties, notwithstanding the plans and specifications forming a part of the building contract were not filed with the county recorder.</p> <p>Id. — Lumber Burnished by Sureties — Note Given for Cancellation of Lien — Consideration.—Where the sureties, upon the bond given by the contractor, sold and delivered lumber to the contractor, and claimed a lien upon the building for the purchase price, a note given to them by the owner of the building, in consideration of the cancellation of such lien, is without any legal consideration to support it.</p> <p>Id. — Sufficiency of Consideration — Forbearance to Sue — Cancellation of Lien. — The forbearance of plaintiffs to foreclose their lien is not a sufficient consideration for the note, they already being under a legal obligation not to foreclose such lien by the terms of the bond executed by them, and in canceling the lien they conferred no benefit upon the owner to which he was not legally entitled, and suffered no detriment which they were not legally bound to suffer.</p> <p>Id. — Defense to Note — Liability upon Bond of Indemnity. — Whether the note given to the sureties was with or without legal consideration, it having been given for the purpose of discharging one of the liens against which the plaintiffs undertook by their bond to indemnify the defendant, and upon which a cause of action would arise, by the terms of the bond, immediately upon the payment of the note, for the amount bo paid, in order to avoid circuity of action, the defendant should be permitted to interpose plaintiffs’ liability upon the bond as a defense to the action upon the note.</p> <p>Id. — Release of Sureties. — The sureties upon the bond of the contractor were not released from their obligation by the mere execution of the note sued on under the circumstances appearing in the case; nor was the obligation of the bond destroyed by the giving of the note under the mistaken belief that the bond executed by the plaintiffs was void for want of proper record of the contract.</p>

The facts are stated in the opinion. The evidence is insufficient to sustain the judgment, and is reviewable on this appeal. (Code Civ. Proc., secs. 187, 989; Hayne’s New Trial and Appeal, 44.) The finding that the evidence was insufficient to sustain the validity of the claim was in fact no finding at all, and was clearly insufficient as a finding upon the issues.

The facts are stated in the opinion. The extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired. (Civ. Code, sec. 806; Angelí on Watercourses, 7th ed., sec. 224.) An easement like the one in question cannot he enlarged, varied, or changed without the consent of the person whose property is affected by the easement. (Angelí on Watercourses, 7th ed., sec. 224; Cotton v. Pocasset Mfg.

The facts are stated in the opinion of the court. The court erred in refusing to give the instruction asked for by the defendant in regard to distrusting the evidence of a witness who has sworn falsely in part. The instruction asked for has been uniformly upheld.

The action was brought by the county of Los Angeles to restrain the county auditor from delivering a warrant to E. C. Hodgman for salary as license tax collector, and to restrain the treasurer from paying the warrant, upon the ground that the office of license tax collector was unlawfully created by the supervisors.

The plaintiff is superintendent of schools of Yolo county, and the action was brought to recover compensation for the sum of four hundred and ninety dollars for services rendered by plaintiff as secretary of the county board of education.

<p>Marriage — Declaration Under Code — Agreement Not to Live To. gether. — Where a man and woman united in a declaration of marriage, conforming in all respects to the requirements of section 75 of the Civil Code, which was duly witnessed, acknowledged, and recorded, but, prior to and at the time of making the declaration, it was expressly and mutually agreed between the parties that they should never assume any marital rights, duties, or obligations, and should not cohabit as husband and wife, but should live separate and apart from each other, and they thereafter lived separate and apart and independent of each other, such declaration of marriage does not constitute a valid marriage between the parties.</p> <p>Id. — Effect oe Consent. — Consent alone does not constitute marriage under the Civil Code, but must be followed by solemnization, or by a mutual assumption of marital rights, duties, or obligations.</p> <p>Id. — Solemnization of Marriage — Construction of Code. — The signing, acknowledging, and recording of the declaration of marriage provided for by section 75 of the Civil Code is not a solemnization of marriage under the provisions of the code.</p>

<p>Appeal prom Judgment — Insueeicient Notice. — A notice of appeal from an order denying a motion for a new trial, and from an order denying a motion to set aside the decision and judgment, describing the judgment, and concluding with the words “and from the whole thereof” does not include a notice of appeal from the judgment, but the concluding words refer to the orders previously mentioned, and indicate that the appeal is from the whole, and not a part of said orders.</p> <p>Id. — Construction op Notice oe Appeal. — While notices of appeal should be liberally construed, and no appeal should be dismissed because of any misdescription of the judgment or order to which it relates, unless it appears that the respondent has been misled by such misdescription, yet this rule does not extend to sustaining a notice of appeal as an appeal from a judgment when it does not state that the appeal is taken from a judgment.</p> <p>Id. — Striking Cause erom Calendar. — Where the appeal from the orders named in the notice has been dismissed, and there is no appeal from the judgment, the cause is not properly on the calendar, and will be stricken therefrom.</p>

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

The facts are stated in the opinion of the court. The failure of the mortgagor to pay the interest when due gave the mortgagee the right to foreclose the mortgage. (Yoalcam v. White, 97 Cal. 286; Jones on Mortgages, secs. 652, 1176, 1178.) A mortgage cannot be foreclosed in this state for interest due, unless the terms of the note or mortgage say so. (Brodribb v. Tibbets, 58 Cal. 6.)

Hearing in the Supreme Court upon writ of habeas corpus. The facts are stated in the opinion of the court. Under the municipal corporation act of 1883 the territory comprising the city of Hanford was completely separated from the jurisdiction of the county authority.

<p>Deed — Possession by Grantee — Delivery—Evidence.—While the possession of a deed, by the grantee is prima fade evidence that it was delivered by the grantor with intent that it should take effect according to its terms, yet such possession is not conclusive evidence of a valid delivery; and it may be shown by parol evidence that a deed in the possession of the grantee was not delivered.</p>

<p>Public Highways — Use by Public. — A way, originally intended for and used as a racetrack, which is connected at each end with public roads, and which has been uninterruptedly used by the public as a road for twelve or fourteen years, is a public highway.</p> <p>Id. — Obstruction.—The owner of the fee in the land over which a public highway passes has no right to obstruct it.</p> <p>Id. — Highways Over Public Land. — The act of Congress of 1866 granted the right of way for highways over public lands not reserved for pub-lie uses, and a patent from the United States is taken subject to the easement of such highways.</p> <p>Id. — Removal op Obstruction. — A person who is not the road overseer, hut who acts by the direction of the hoard of supervisors, may lawfully remove an illegal obstruction from a public highway.</p> <p>Id.— Eindins. — A finding that the road in question “now is, and was at all times mentioned in plaintiff’s complaint, and for more than twenty years last past has been, a public road or highway, used and treated as such by the road officers of Placer county, and duly constructed as such in the manner required by law,” is not a finding of a mere conclusion of law.</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 action was brought to foreclose the lien of a street assessment. The facts are stated in the opinion of the court.</p>

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

<p>Divorce — Willful Neglect — Prior Judgment When not a Bar. — A judgment in favor of the husband, in an action by his wife for a divorce on the ground fof his willful neglect to provide her with the common necessaries of life, is not a bar to a subsequent action brought by her for a divorce on account of his continued neglect to support her for a year, occurring after the entry of such prior judgment.</p> <p>Id. — Obligation to Support Wife. — The support of his wife is a continuing obligation on the part of the husband, and his failure to meet it is a continuing cause for a divorce, unless there has been an unreasonable lapse of time before the action is commenced; and he is not released from this obligation by a judgment in his favor in an action for a divorce upon this ground.</p> <p>Id. — Finding of Willful Neglect. — When a husband is in constant employment for which he receives the ordinary wages of his labor, and refuses or neglects for years to make any provision for the wants of his wife, a court is justified in finding him guilty of willful neglect.</p>

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

<p>Partnership — Agreement eor Sale oe Lands. — An agreement between three persons, associating them into a syndicate for the purpose of carrying on together the business of selling certain lands and dividing the profits of the business between them, and which contemplates united action in advertising and otherwise in promoting sales, and a joint expense to be incurred thereby, and which expressly provides for the , payment to the syndicate of commissions on sales of other lands than those put into the syndicate, creates the relation of partnership between them, whether they knew that they were partners or not.</p> <p>Id. — Title Beserved by Individual Partners. — The respective parcels of land embraced in the syndicate, and which were contributed by the respective partners, thereby became subject to the partnership agreement, notwithstanding it was provided that each partner should retain his title. In such case the legal title was held by each in trust for the partnership use.</p> <p>Id. — Dissolution op Partnership. — Subsequent agreements between the partners which operated to vest in one of them the whole beneficial ownership of the land contributed by the others to the partnership, and which provided for the distribution of the proceeds in a manner different from and inconsistent with that provided by the syndicate agreement, created a dissolution of the partnership, and remitted the parties to their rights under the subsequent agreements.</p>

The facts are stated in the opinion of the court. The sale ought to have been restrained. (Lubboclc v. McMann, 82 Cal. 226; 16 Ana. St. Rep. 108; Both v. Insley, 86 Cal. 184; Farley ,v. Hopkins, 79 Cal. 203;/ Cohen v. Knóx, 90 Cal. 266.) The alleged threatened sale is not sufficient to authorize a temporary injunction. (City of Logansport v. Uhl, 99 Ind. 531; 50 Am.

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

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

<p>Action Against State — Coulterville and Yosemite Turnpike Company — Act oe March 31, 1891 — Estoppel.—The recitals in the act of March 31, 1891, authorizing the Coulterville and Yosemite Turnpike Company to sue the state of California for the damage sustained by it by the construction of a road by the Yosemite Turnpike Road Company, under the act of Eebruary 17, 1874, do not estop the state, in an action brought against it under the act of March 31, 1891, from showing that no exclusive privilege to construct a road to the Yosemite valley on the northerly side of the Merced river was ever granted to the Coulterville and Yosemite Turnpike Company by the commissioners for the management of the Yosemite valley and Mariposa big tree grove.</p> <p>Id. — Recitals in Act. — The sole object of the act of March 31, 1891, was to empower the Coulterville and Yosemite Turnpike Company to bring an action against the state, and the legislature did not intend, by any recital therein, to preclude the state from availing itself of whatever defense it may have had against that company’s claim prior to the passage of the act.</p>

The facts are stated in the opinion. The plaintiff having availed itself of the privileges conferred on it by the ordinance of said city of Visalia, it became its legal duty, itself, to maintain and operate its gas and electric works, and to supply the inhabitants of that city with gas and electricity for illuminating purposes, and it was therefore against public policy, and in violation of such duty, to lease these works and privileges.

<p>Reclamation District — Public Corporation — Collateral Attack on Organization. — A corporation organized under the provisions of the Political Code, for the purpose of reclaiming swamp and overflowed lands, is quasi public, and the legality and regularity of the proceedings leading up to its final creation cannot be attacked collaterally in an action to enforce an assessment levied upon lands within the district.</p> <p>Id. — Acquisition op Private Levee. — Under section 3454 of the Political Code, existing private levees, which are necessary for the reclamation of the land within the reclamation district, may be acquired by the trustees of the district by either purchase or condemnation.</p> <p>Id. — Disqualification op Trustees — Void Assessment. — A trustee of the reclamation district is disqualified from acting with respect to the acquisition by the district of a levee owned by himself, and if a majority of the trustees are severally the owners of different levees embraced within the reclamation scheme they are each disqualified from acting with respect to the acquisition of either of such levees, and if they do so, an assessment levied therefor is void.</p>

<p>Street Improvement — Time op Notice by Superintendent — Pleading. In an action to enforce an assessment for a street improvement, a complaint which shows that the resolution of intention was posted and published as required, in the month of January, and that upon the 26th of March following the street superintendent caused to be posted along the line of the contemplated work the notices required to be posted by him, and caused a similar notice to be published in a newspaper, is not subject to demurrer, upon the ground that the delay in the notice by the street superintendent was so unreasonable as to vitiate the assessment.</p> <p>Id. — Construction oe Statute — Definition—“Thereupon.”—Thesection of the street law which provides for the posting and publishing of the resolution of intention, and that “the street superintendent shall thereupon cause to be conspicuously posted,” etc., only requires that the posting and publication by the street superintendent is to be made upon the precedent conditions of the posting and publishing of the resolution of intention, and does not require that the publishing and posting by the street superintendent must immediately follow the publication of the resolution of intention.</p> <p>Id. — Reasonable Time — Delay prom Inclement Weather. — The question of what is a reasonable time for posting and publication by the superintendent depends upon the circumstances of the case, and a delay from inclement weather is not unreasonable.</p> <p>Id. — Demurrer to Complaint — Defense.—To sustain a general demurrer to the complaint on the ground of delay in posting the publication of notice by the street superintendent, the unreasonableness of the delay must conclusively appear on the face of the complaint; otherwise, the question of delay is matter of defense.</p>

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

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

The facts are stated in the opinion of the court. The court had jurisdiction in this case, and here the court found the property to be community property, which is conclusive of its status. (Kearney v. Kearney, 72 Cal. 591; Griffith’s Estate, 84 Cal. 113.) By the force of the order setting aside the homestead the title thereto is as against the plaintiff in the defendant. (Code Civ.

The facts are stated in the opinion of the court. The court erred in its instruction as to the distrust with which the defendant’s evidence was to be viewed. and as to the falsity of his evidence, as it in effect charged the jury with reference to matters of fact. (People v. Murray, 86 Cal. 31; Code Civ.

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

The main facts are stated in the opinion of the court. The instruction referred to in the opinion of the court, as pointed out in appellant’s points and authorities, was as follows: “There are two classes of evidence recognized and admitted in courts of justice, upon either of which juries may find an accused guilty of crime; one is direct and positive testimony of an eyewitness to the commission of the crime, and the other is proved by testimony of a chain of circumstances…

The facts are stated in the opinion of the court. The sale of the cargo was not barratrous, as the ship-master was part owner of the vessel and could not commit barratry. ( Wilson v. General M. Ins. Co., 12 Gusli. 360; 59 Am. Dec. 188; 2 Arnould on Insurance, 837.) The court erred in admitting in evidence the portion of the letter of Theobald & Co. to the board of underwriters objected to, as it contained the mere opinions of the writers, and was not a part of the res gestee.

The facts are stated in the opinion. Unless the viewers viewed the road in person, and estimated the damages themselves, and made their own report, the report was not such as would give the board of supervisors jurisdiction either to adopt or reject it, and in adopting such a report the board exceeded its jurisdiction.

The facts are stated in the opinion of the court. The instrument of assignment is void, as it has never been recorded as required by law. ■ (Civ. Code, secs. 1158-65, 1183, 3458, 3463, 3465, 3466, 3473; Pol. Code, sec. 4235; Mutual Life Ins. Co. v. Dolce, 87 N. Y. 257, 263; Schell v. Stein, 76 Pa. St. - 398; 18 Am. Pep. 416; Luck’s Appeal, 44 Pa. St. 519; Anthony v. Butler, 13 Pet. 423; Sawyer v. Adams, 8 Yt. 172; 30 Am.

ApplicatioN in the Supreme Court for writ of habeas corpus against W. E. Hale, warden of state prison. The facts are stated in the opinion of the court.

Appeal fronua judgment of the Superior Court of the City and County of Sau Francisco. The facts are stated in the opinion of the court. Even if the rule of the common law obtained in this state, and the cause of action for moneys paid under a mistake ran from the date of the payment, and not from the date of the discovery thereof, yet the fraudulent concealment by this defendant of the facts constituting the mistake would suspend the running of the statute of limitations.

The facts are stated in the opinion of the court. It was error for the court to admit in evidence what purported to be a copy of the judicial record of a foreign country, as it was authenticated in accordance with the provisions of section 1906 of the Code of Civil Procedure, which applies only to original records. (See Code Civ.

<p>Oiuminal Law — 'Perjury — Sueeicienoy oí Prooe— Circumstantial Evidence. — Perjury must be proven by the testimony of two witnesses, or of one witness and corroborating circumstances, and the evidence, in each case of a defendant charged with perjury, must be weighed and measured by that test; and evidence of circumstances alone, without the positive testimony of a witness to facts absolutely incompatible with the innocence of the accused, is insufficient to justify a conviction.</p> <p>Id. — Perjury by Insolvent — Deposit in Savinss Bank in Name or Wipe. — Upon a charge of perjury against an insolvent debtor by a false oath to his petition and schedule, in fraudulently omitting money therefrom, proof that ten days after the filing of his petition in insolvency his wife, accompanied by himself, deposited to her credit a sum of money in a savings bank, without further evidence or testimony showing that the money deposited by the wife was the money of the husband at the time of filing his petition in insolvency, is insufficient to support a conviction of perjury.</p>

<p>Criminal Law — Trial—Irregular Impaneling op Jury — Waiver op Objection — An irregularity in the impaneling of a jury upon a criminal trial is waived by failure of the defendant to object thereto, although it would have been sufficient reason for reversal if done against the objection of defendant.</p> <p>Id._Instruction as to Ruling upon Motion to Dismiss. — An instruction that a motion to dismiss the case for want of proof was denied because there was testimony enough to sustain a conviction, provided the jury believed it, and that it is for them to say what they believe about it, is not a charge as to the effect of the evidence, but is a caution to the jury against concluding from the ruling that the court had determined that the defendant was guilty.</p>

The facts are stated in the opinion. The court erred, in overruling the demurrer to the complaint, as the mortgage covers furniture and other articles alleged to be in a saloon which are not subject to mortgage. (GassnerY. Patterson, 23 Cal. 299; Stringer v. Davis, 30 Cal. 318.) Even if some of the articles were the proper subject of a mortgage, yet, inasmuch as there was included property not subject thereto, the mortgage is void in toto.

<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>

The facts are stated in the opinion of the court. The premiums on the insurance policy having been paid by the husband the policies will be presumed to be community property. (Civ. Code, secs. 162 — 64; Meyer v. Kinzer, 12 Cal. 248; 73 Am. Dec. 538; Tibbetts V. Fore, 70 Cal. 242; In re Bauer, 79 Cal. 308.) Being community property the entire policies belonged to the husband without administration. (Civ.

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

The facts are stated in the opinion. The court erred in admitting evidence that on a prior date the defendant had stolen some money from the prosecuting witness. (People y. Hartman, 62 Cal. 562; People • y. Lane, 100 Cal. 379; Farris v. People, 129 Ill. 521; 16 Am. St. Rep. 283; Sutton v. Johnson, 62 Ill. 209; Shaff-ner v. Commonwealth, 72 Pa. St. 60; 13 Am. Rep. 649; State y. Lapage, 57 N. H. 245; 24 Am. Rep. 69; People y. Sharp, 107 N. Y. 456; 1 Am.

The facts are stated in the opinion. The purchase at a tax sale is a contract, made under the law as it then exists, and upon the terms prescribed by law, and no subsequent statute can import new terms into it, or add to those before expressed.

<p>Tax Title — Burden op Proop. — A person claiming under a tax title has the burden of proof to establish its validity.</p> <p>Id. — Purchase op Tax Title by Owner op Land — Payment op Taxes. The owner of land whose duty it is to pay the taxes cannot, by neglecting to pay them and permitting the land to be sold in consequence of his negligence, add to or strengthen his title either by purchasing at the tax sale himself, or by subsequently buying the tax title from a stranger who purchased at the tax sale; but such purchase is deemed one mode of paying the taxes.</p> <p>Id. — Title to Timber on Land Sold for Taxes — Reservation in Deed. The fact that the timber on the land sold for taxes does not belong to the owner of the land, but was reserved in a deed under which he claims title to the land, will not justify him in permitting the land upon which the timber grew, including the timber, to be taxed as his property, and then permit the land to be sold for the entire tax, and thus obtain title to the timber.</p> <p>Id. — No New Title Obtained — Effect of Tax Sale upon Prior Reservation of Timber. — The owner obtains no new title to the land from a purchaser at a tax sale, and is in the same position after the purchase as though he had paid the taxes each year, and the reservation of timber in the deed under which he holds remains in full force, and is unaffected by the tax sale.</p>

<p>Street Assessment —Appeal to City Council — Protests Without Formal Statement of Appeal.. — Where written protests are filed by persons who object to the assessment upon grounds specified in section 11 of the act of March 18, 1885, as grounds of appeal to the city council, by stating their objections in writing, and filing the same with the clerk of the city council, the objections constitute an appeal, although the protestante do not say in their protests that they thereby appeal from the assessment.</p> <p>Id. — Sustaining Appeal upon Ground not Specieied — Jurisdiction. — , The council having jurisdiction to entertain an appeal, the court cannot review its action in sustaining the appeal on the ground that the relief granted was not based upon the objections made.</p> <p>Id. — Immaterial Finding. — A finding by the court tending to show that the assessment was illegal, when the objection made upon the appeal was that the work was badly done,is immaterial.</p> <p>Id. — Vacation of Assessment by City Council — Power to Set Aside Order and Confirm Assessment. — Where the city council has entertained an appeal and vacated the assessment it has no power or jurisdiction on a subsequent day to set aside the order and overrule the objections, and confirm the assessment previously vacated.</p> <p>Id. — Judicial Action of City Council — No Power of Rehearing_ The action of the city council in the matter of an appeal is judicial, and the final judgment entertained by the council cannot be vacated, there being no provision in the statute for granting a new trial or a rehearing.</p> <p>Id. — Special Jurisdiction — Limit of Power — Reconsideration—Final Action.. — Where a special jurisdiction is conferred. upon a court or board to determine specified controversies, and no provision is made for a review, when it has once determined the matter its jurisdiction is exhausted, and it has no further power to act, except that where the matter is still sub judies the tribunal may reconsider its action, but when the final action has been entered, the board is functus officio.</p>

The facts are stated in the opinion of the court. The court erred in admitting evidence of the forgery of other instruments after the alleged commission of the crime charged. (Regina v. Oddy, 5 Cox C. C. 210; Commonwealth v. Shepard, 1 Allen, 581.) The defendant not having testified as to any other instrument upon his direct examination than that alleged to have been forged, if was error to allow the counsel for the prosecution to cross-examine him as to other instruments.

The facts are stated in the opinion. The court erred in denying defendant’s application for a jury trial. (Code Civ. Proc., sec. 631; Const., art. I, sec. 7; Proffatt on Jury Trials, secs. 110-12; Sweeney v. Stanford, 60 Cal. 362.) The demurrer should have been sustained on the ground of uncertainty, as it is impossible to tell from the complaint what is claimed to .be due for goods sold, and how much for labor performed.

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

The facts are stated in the opinion. The complaint is insufficient as the note and mortgage is not pleaded in hsec verba, but is merely attached to the complaint as an exhibit.

The facts are stated in the opinion. The court erred in giving the third instruction, as the giving of such instruction invaded the province of the jury. (Ells v. State, 20 Ga. 438; McLeland v. State, 25 Ga. 477; Parker v. State, 34 Ga. 262.) Instruction seven was clearly improper, as it violates the constitution and is against the provisions of the code. (Const., art. VI, sec. 17; Pen. Code, sec. 1321; Code Civ.

<p>Summons — Service—’Contradiction or Sheriff's Return — Affidavit or Want or Recollection. — Where the official return of the sheriff shows personal service of the summons upon the defendant, an affidavit by the defendant made after a great lapse of time showing that he had no recollection of the service of summons is entitled to but little weight as against the official return of the sheriff, and a finding in such case by the court below that the defendant was personally served with the summons and a certified copy of the complaint will not be disturbed on appeal.</p> <p>Id. — Statement or Cause and Nature or Action — Foreclosure or Interest in State Land — Collateral Attack upon Summons. — A summons issued in 1876, stating the cause and general nature of the action, as having been “brought to annul a certain certificate of purchase resulting from location No. 248, and to foreclose and bar defendant, and those claiming under him, of all right and interest in the land described in the complaint (filed in this action), and for such other relief as is consistent with equity, together with costs of suit, ” though irregular in not stating fully the cause and general nature of the action, as required by the original section 407 of the Code of- Civil Procedure then in force, is not void, but only voidable by a motion or proceeding in the action, and is good as against a collateral attack.</p> <p>Id. — Description or Land — Reference to Complaint. — The description of the land in a summons by reference to the complaint has the effect to make that portion of the complaint a part of the summons, and obviates the necessity of repeating the description in the summons.</p> <p>Id. — Judgment by Default upon Irregular Summons not Void.— Where the court has jurisdiction of the subject matter of the suit, and by personal service of the summons has jurisdiction of the person of the defendant, the entry of judgment by default upon a summons which is merely irregular in not fully stating the cause of action, but which is regular in other respects, is voidable, but not void.</p> <p>Id. — Correction oe Voidable Judgment. — In all cases where a judgment is voidable, but not void on its face, the error can only be corrected by an appeal, or by motion to set the judgment aside in the court where rendered, within six months after the rendition thereof, and if denied, by an appeal from the order of denial.</p> <p>Id. — Motion after Expiration op Six Months — Want op Jurisdiction. After the expiration of six months from the rendition of a judgment it can only be set aside upon motion in cases where it is upon its face absolutely void for want of jurisdiction of the subject matter, or of the person of the defendant.</p>

<p>Estates of Deceased Persons — Action to Vacate Order Setting Apart Homestead — Fraud—Burden of Proof — Mistake of Law. — In an action to vacate and annul an order of the superior court setting apart a homestead to the use of the widow and children out of the estate of a decedent, for alleged fraud in the allegations in the petition of the widow for the homestead, it is necessary for the plaintiff to establish by clear and indubitable proof, to the satisfaction of the court, that the order setting apart the homestead had been obtained through some fraud practiced upon the court by the widow; and it is not sufficient to show that she had made the application under an erroneous view of her rights in the premises, or that, upon the facts presented in her petition, or at the hearing, the court had mistaken the law applicable thereto.</p> <p>Id. — Omission of Material Pacts — Proof Required. — The widow cannot be charged with fraud or fraudulent imposition upon the court for merely failing to state in her petition any facts tending to show that the petition ought not to be granted, unless it is made to appear that she knew the import of these facts, or that they were willfully suppressed by her with the intention of deceiving the court, and thereby inducing it to grant her petition.</p> <p>Id. — Petition upon Advice of Attorney. — Where the widow was advised by her attorney that she was entitled to have the property set apart to her as a homestead, and the petition therefor was prepared by him and signed by her, and presented to the court, and it is not shown that the advice was not given in good faith, or that the facts set forth in the petition were not correctly stated, the fact that the attorney was mistaken in his views of the law will not justify a charge of fraudulent imposition upon the court.</p> <p>Id. — Concealment of Articles of Separation — Silence of Petition._ Where it is not shown that the legal effect of articles of separation between the widow and her husband, upon her right to a homestead out of his estate, was ever called to the notice of the petitioner, or that she was advised in reference thereto, or that she had any purpose or motive in omitting to make mention thereof in her petition or at the hearing, she cannot' be charged with concealing them from the court by mere silence with reference to their existence.</p> <p>Id. — Setting Aside Judgment. — A court of equity will never set aside a judgment for mere error, whether of law or fact, committed in the rendition of the judgment.</p> <p>Id. — Judgment upon Pleadings — Denial on Information and Belief._ A motion for judgment on the pleadings ought not to be granted where material matters denied on information and belief were not presumptively within the knowledge of the defendants.</p>

Application in the Supreme Court for writ of mandate against the county clerk of the City and County of San Francisco. The facts are stated in the opinion of the court. A conditional order on motion for a new trial is a valid exercise of judicial power. (Davis v. Southern Pacific Go., 98 Cal. 17.) The imposition of costs is a proper condition.

The facts are stated in the opinion of the court. The appellate court on this appeal should take an original view of the evidence introduced precisely the same, and to the same extent, as could be done by the trial court, and the evidence should be. considered and weighed here exactly the same as if this were an original hearing.

<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>

A-ppm at. from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. The facts are stated in the opinion of the court. Defendant is not liable, as the plaintiff used force in violently plucking defendant’s flowers, and therefore the defendant was entitled to forcibly eject him without first requesting him to depart.

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

The facts are stated in the opinion of the court. The complaint is defective, as it fails to allege that the defendant knew, or ought to have known, at the time of the accident, of the defective appliances. (Malone v. Hawley, 46 Cal. 415; Baxter v. Roberts, 44 Cal. 187; 13 Am. Kep. 160; Sappenfield, v. Main St. etc. R. R. Go., 91 Cal. 48; Finney v. Curtis, 78 Cal. 498; 2 Thompson on Negligence, 1058; Sherman v. Western Trans.

The facts are stated in the opinion of the court. The judgment should be reversed, as the injuries received by the plaintiff were received because of the carelessness of the engineer, who was a fellow-servant with the plaintiff. (Long v. Coronado R. R. Co., 96 Cal. 269; Trewatha v. Buchanan etc. Co., 96 Cal. 495; Crispin v. Babbitt, 81 N. Y. 516; 37 Am.

The facts are stated in the opinion. The second judgment is void, as there cannot be two such judgments in one action, and the entry of the second judgment did not vacate the former one. (Nuck-olls v. Irwin, 2 Neb. 60, 65; Freeman on Judgments, sec. 104 a.) An appeal lies from a void judgment. (Hayne on New Trial and Appeal, sec. 187; Bond v. Pacheco, 30 Cal. 533; People v. Green, 74 Cal. 400; 5 Am.

<p>Action Upon Judgment — Statute op Limitations. — The statute of limitations against an action upon a judgment does not begin to run until the entry of the judgment, and, notwithstanding the filing of findings and an order for judgment was made more than five years prior to the commencement of the action, the action may be sustained if it appears that the judgment was not entered of record until within five years next preceding the commencement of the action.</p> <p>Id. — Fiduciary Debt — Dischaege in Insolvency. — A judgment in an action brought to recover money had and received by the defendant as an agent, for the use of the plaintiff, is for the recovery of money held in a fiduciary capacity, and is not discharged by a decree in insolvency in favor of the defendant.</p>

A motion was also made to dismiss the appeal. The facts are stated in the opinion of the court. The law requires that such an interpretation be given to testamentary instruments as will prevent intestacy, rather than bring it about. (Civ. Code, sec. 1326; State v. Robinson, 57 Md. 501; 2 Redfield on Wills, 3ded.,116; Houser v. Rujfner, 18 W. Va. 244, 256; Booth v. Booth, 4 Yes. 403; In re Shillaber, 74 Oal. 144; 5 Am.

Appear from an order of the Superior Court of Ala-meda County dismissing a petition for the revocation of the probate of a will. The appellant is a nephew of Catherine M. Garcelon, deceased, and this appeal is taken from an order of the superior court of Alameda county dismissing his petition, contesting the validity of a document theretofore admitted to probate in that court as the last will and testament of said decedent, and praying that the probate thereof be revoked.

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

This action was brought to recover from the defendant the sum of four thousand four hundred and two dollars and eighty-five cents, for moneys advanced and paid out by the plaintiffs for and at the request of the defendant. The plaintiffs were stockbrokers dealing in the Pacific Stock Exchange of San Francisco.

The facts are stated in the opinion. These lands are situated in Alameda county. The superior court of the city and county of San Francisco had no jurisdiction to try the case. Nor could consent give such jurisdiction. (Sloss v. DeToro, 77 Cal. 129; Franklin v. Dutton, 79 Cal. 605; Fritts v. Camp, 94 Cal. 393; Pennie v. Visher, 94 Cal. 323; Baker v. Fireman’s Fund Ins.

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

The facts are stated in the opinion of the court. . The notice for redemption was sufficient, as it was given in substantial compliance with the code. (Pol. Code, secs. 3780, 3785.).

<p>Estates oe Deceased Persons — Right of Administration — Bona Fide Resident. — One who is not a bona fide resident of this state is not entitled to administer the estate of a deceased person, nor to nominate another to administer it; and a brother of the deceased who came to this state after thirty-eight years’ residence in the state of Massachusetts, accompanied by an unmarried daughter, but leaving his wife with a married son and daughter in Massachusetts, and coming for the purpose of seeing to the interests of his brother’s estate, at the request of an attorney, fails to show that he is a bona fide resident of this state, notwithstanding his statement that he was a resident of the state at the time of the nomination, three days after his arrival.</p> <p>Id. — Change of Residence — Union of Act and Intent. — Union of act and intent are necessary to make a. change of residence; and, where one has been in the state but three days, nothing can be inferred from his presence in the state for so short a time, and it is for the court to determine from the whole of his testimony what his intention was.</p> <p>Id. — Abandonment of Former Domicile. — To constitute one who has been a nonresident of the state a bona fide resident of this state there must be evidence of an abandonment of the domicile in another state.</p>

The facts are stated in the opinion. If error was committed by the court in giving instructions to the jury, such error was without injury, and therefore not ground for granting a new trial. (Oreen v. Ophir etc. Mining Co., 45 Cal. 527; Levitzky v. Canning, 33 Cal. 305; Clark v. Child, 66 Cal. 90; Robinson v. Western Pac. R. R. Co., 48 Cal. 424; Woo Dan v. Seattle Electric Ry. etc. Co., 5 Wash. 466; Carroll v. Centralia Water Co., 5 Wash. 613; Benson v. Central Pac.

<p>Criminal Law — Seduction Under Promise or Marriage — Marriage, How Constituted. — A verdict of guilty of seduction under promise of marriage will not be set aside upon the ground that the parties were married, where there was no solemnization of marriage, and no present consent to marriage followed by a mutual assumption of marital rights, duties, or obligations, evidenced by cohabitation of the parties as husband and wife.</p> <p>Id. — Introduction as Wire — Proof or Marriage — Cohabitation.—The mere introduction of the prosecuting witness as the wife of the defendant is not sufficient to prove a marriage, where there is no proof of a present contract of marriage, and that the parties lived or dwelt together in the same habitation; and the mere using together of a boat for a short trip as a means of conveyance, and stopping together as transient guests at a hotel during a short journey, does not make the parties habitants of the boat or hotel, or prove cohabitation.</p>

The facts are stated in the opinion. There was a misjoinder of causes of action. The first count is a cause of action founded on negligence, error, or mistake of the defendants’ vendors, and is united in the same complaint with a cause of action in the second count founded upon an express contract for money due plaintiff from defendants. (Benton v. Winner, 23 N. Y. Supp. 413; Code Civ. Proc., sec. 427; CheroJcee Nation v. Southern Kan. Ry.

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

<p>CORPORATIONS — ELECTION OF OFFICERS — RlOHT OF STOCKHOLDER TO VOTE by Proxy — Invalid By-law. — Under section 312 of the Civil Code stockholders of a corporation may be represented at all elections by proxies of their own selection; and a- by-law of a banking corporation providing that no proxy should be voted by any one not a stockholder of the corporation is void, as being an infringement upon the statute.</p> <p>Id. — Substantial Rights of Stockholder. — The substantial rights of a stockholder cannot be taken from him or even abridged by the by-laws.</p> <p>Id. — Power of Legislature — Mode of Voting by Proxy — Construction of Code. — Section 303 of the Civil Code, which provides that a corporation may by its by-laws provide for “ the mode of voting by proxy,”' refers to the preliminary requirements to be followed in order that the proxy may be entitled to vote, and does not authorize the curtailing of the right of voting by proxy, but only to regulate the exercise of the right-by requiring that the authorization must be in writing, properly witnessed, acknowledged, and filed with the records, etc.</p> <p>Id. — Change of Officers of Bank — Substitution of Attorney — Dismissal of Prohibition. — Where, upon a change of officers of a banking corporation, the attorneys representing it are dismissed, and a new attorney, appointed, the new attorney appointed is entitled to be substituted as attorney in a proceeding brought by the bank for a writ of prohibition, seeking to annul and prevent the proceedings of the superior court in the matter of appointment of a receiver in a creditor’s suit against the bank, and the attorneys dismissed have no right to raise the objection that the new attorney appointed by the bank was also-attorney for the receiver, and that the bank has retained him as its attorney in order to dismiss the prohibition proceeding, which it has a right to do.</p>

<p>UNIVERSITY OF California — Reoents—Corporation.—The regents of the University of California, under the organic act of March 23, ] 868, and the subsequent steps taken by them to incorporate, became and are a corporation.</p> <p>Id. — Regents not Individually Liable for Negligence. — The regents of the University of California are not individually liable for the negligence of the corporation in failing to properly maintain a telegraph line belonging to it.</p> <p>Id. — Regents not Public Oeeicers. — Under the provisions of the organic act of March 23, 1868, and of section 9 of article IX of the constitution, the regents are not public officers. Section 343 of the Political Code designating them as “civil executive officers,” was repealed by said section of the constitution.</p>

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

The facts are stated in the opinion of the court. The order granting a new trial was erroneous, as the affidavit as to newly discovered evidence did not even attempt to show diligence or contain any allegation of it.

The facts are stated in the opinion of the court. There was no ratification by the defendant, as she did not receive any of the money from the ostensible agent,, German Rouse. (Civ. Code, sec. 2310; 1 Am. & Eng.

<p>County Government Act — Salary oe Auditor’s Olerk. — Section 182 of the County Government Act allows to the auditor of counties of the twentieth class, in addition to his salary, one clerk at a monthly salary fixed by that section, and does not require the auditor to pay the salary allowed by the statute for the clerk out of his own salary; but if he employs more than the one clerk allowed, or pays a higher salary than that allowed, he must pay the same out of the salary allowed to him.</p> <p>Id. — Constitutional Law. — The fourth subdivision of section 182 of the County Government Act regulates the salary of the auditor in a manner not objectionable upon any constitutional ground.</p> <p>Id. — Local and Special Legislation. — The regulation of the compensation of the auditor and his clerk, applying uniformly to all counties of the twentieth class, is not open to the objection that it is local or special legislation.</p>

<p>Foreclosure ob Mortgage toon Homestead — Default oe Wife — ' Irregularity — New Trial. — It is irregular to enter a judgment foreclosing a mortgage upon a homestead in an action against the husband and wife, where the wife has made default, without first entering the default of the wife, but the judgment is not therefore void, and the irregularity in rendering it does not concern the husband, and is not ground for granting him a new trial.</p> <p>Id. — Findings—Immaterial Defense. — Where findings are not waived the court must find upon every issue, a decision of which is necessary to support the judgment; but, where the court finds that all the aver-ments of the complaint are true, the omission to find an additional fact pleaded in the answer which would have constituted no defense if it had been found as averred is not ground for a new trial.</p> <p>Id. — Acknowledgment of Homestead — Power of Court Commissioners. — A declaration of homestead may be acknowledged before a court commissioner.</p> <p>Id. — Statutory Construction — Repeal by Implication. — The statute of 1880, amending section 259 of the Code of Civil Procedure so as to grant court commissioners power to take acknowledgments and proof of deeds, mortgages, and other instruments, was not repealed by the amendment three days afterwards of section 1181 of the Civil Code, omitting court commissioners from the list of officers authorized to take acknowledgments, there being no inconsistency between the two sections; and the implication arising from the omission of court commissioners from section 1181 of the Civil Code is not so strong as to effect the repeal of the special provision concerning the power of court commissioners in section 259 of the Code of Civil Procedure.</p> <p>Id. — Repeal by Implication not Favored. — A repeal by implication is not favored, and the conflict must be irreconcilable, or the intent to repeal very manifest, or both statutes will stand.</p> <p>Id. — Conflicting Provisions Under Different Titles. — The rule laid down in section 4481 of the Political Code, that, “if the provisions of any title conflict with or contravene the provisions of another title, the provisions of each title must prevail as to all matters and questions arising out of the subject matter of such title,” only applies where there is a conflict, and implies that where there is no conflict a provision will be valid, although in the sense of that rule it is not in regard to a question arising out of the subject matter of that title.</p>

The facts are stated in the opinion. As the proposals for the doing of the work required that the material to be used should be bituminous rock, and there was a patent for the only available method of using such rock, it prevented the owners of the three-fourths of the frontage of the lands to be assessed from contracting to do the work themselves under the statute, and therefore the assessment is invalid. (Stats. 1889, p. 162; Nicolson Pan.

The facts are stated in the opinion of the court. Plaintiff’s right to recover is amply sustained by the following authorities: Shearman and Redfield on Negligence, secs. 251, 259; Sipple v. State, 99 N. Y. 284; Ballou v. State, 111 N. Y. 496; People v. Stephens, 71 N. Y. 527; Nickerson v. Tirrell, 127 Mass. 286; People v. Miles, 56 Cal. 401; O’Rourke v. Peck, 40 Fed. Rep. 907; Newall v. Bartlett, 114 N. Y. 399.