Volume 105 — California Reports

<p>Adverse Possession—Tenancy in Common—Notice—Prescription.— When a tenant in common is in possession of the whole premises, and exercises acts of ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and notice to the other cotenants that an adverse possession and disseisin are intended, his possession is adverse, and if continued for five years, with payment of all taxes levied and assessed on the land after April 1, 1878, will vest a title by prescription.</p> <p>Id.—Instructions — Construction op Charge to Jury.—Instructions upon the subject of adverse possession by a tenant in common are to be taken together and considered as a whole; and if, when so considered, the law as to adverse holding between such tenants is correctly stated, the fact that one of the instructions taken by itself is not complete upon that subject will not vitiate the charge to the jury, but the jury will be deemed to have properly applied the law as stated by the charge taken as a whole.</p> <p>Id.—Residence of Cotenant in Family of Adverse Possessor.—The fact that a nephew of the adverse possessor, who is also a cotenant, continues to reside thereon as a member of the family of the cotenant, who is in adverse possession, does not prevent the possession of the latter from being adverse, but the undisputed hostile acts of adverse possession by him would be more readily brought to the notice of the co-tenant residing in his family, and afford him an opportunity of asserting his claim in opposition thereto.</p> <p>Id.—Directing Jury as to Form of Verdict—Limitation of Recovery not Asked for.—The court has the right to instruct the jury as to the form of their verdict, and when no question is made in the answer or at the trial as to the right of plaintiffs to recover the whole premises, if entitled to recover at all, the defendants cannot, after an adverse verdict, insist that there should have been a limitation in the instructions as to the right of recovery of plaintiffs with respect to which the defendants did not ask for any instructions.</p> <p>Id.—Evidence—Statements from Assessor’s Office.—Statements from the assessor’s office not signed by the party against whom they are offered, nor shown to have been made under his direction, or with his knowledge, are not competent evidence against him or parties claiming under him.</p> <p>Id.—Estates of Deceased Persons—Prescriptive Title of Heir—Subsequent Inventory and Appraisement—Petition for Homestead.— An inventory and appraisement of the estate of the deceased ancestor, and a petition by the widow for a homestead, made and filed after one of the heirs has acquired a title by prescription as against all other heirs, can have no effect in determining whether the possession of the land of the decedent by such heirs was adverse from the time of the death of the ancestor.</p>

The action was upon a joint and several promissory note made by the defendants Beer, Clifton, and Weil, dated February 24,1887, for the sum of twelve hundred dollars, with interest at the rate of ten per cent per annum.

The facts are stated in the opinion rendered by this court upon the first appeal in this case, 44 Cal. 462, and in the opinion of the court upon this appeal.

<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>Mutual Benefit Society — Change of Beneficiary — Refusal of Dormer Beneficiary to Surrender Certificate.— A beneficiary certificate, issued by a mutual benefit society, was taken out by a mother who was a member of the society, and. made payable upon her death to her daughter, or to any other member of her family whom she might thereafter in her lifetime designate, the by-laws of the society providing that members might, at any time when in good standing, surrender their benefit certificates, and have new ones issued, payable to such beneficiary dependent upon them as they may direct, subject to certain other provisions; and the mother, subsequently desiring to substitute her son for her daughter as beneficiary, attempted to secure control of the original certificate, in the keeping of her daughter, in order to surrender the same, which the daughter refused to permit, and kept and concealed the same until after her mother’s death. The mother being unable to secure and surrender the original certificate, regularly took all the other steps required by the laws of the order to change the beneficiary, and accompanied her application with an affidavit stating why the original certificate was not surrendered, and stating that she made her son her sole beneficiary under the certificate, whereupon the society refused to issue the new certificate upon the ground that the original was not lost or destroyed, and had not been surrendered, but, after the death of the mother, paid the money into court, being satisfied with the court’s adjudication as to whom it belonged. Meld, that whatever . right the society may have had to resist the application as between son and daughter, there was a substitution of beneficiaries in the eyes of a court of equity, and the proceeds of the policy belonged to the son.</p> <p>Id.—Rules as to Change of Beneficiary—Exceptions—Principles of Equity.—The general rule is that a change of a beneficiary in a mutual benefit society cannot be made by the insured unless a substantial compliance with the laws and regulations of the society has been had; yet courts of equity have recognized various exceptions to this general rule, grounded upon the principles that equity does not demand impossible things, and will consider that as done which ought to have been done; and when the insured complies with all the requirements of the rules for the purpose of making the substitution of beneficiaries, with which ‘ he has the power to comply, he has done all that a court of equity demands.</p> <p>Id.—Refusal to Surrender Certificate—Loss.—Where the surrender of the certificate is made impossible by the refusal of the beneficiary to surrender it, equity will treat the surrender as duly made, and in legal effect the certificate is deemed as lost.</p> <p>Id.—Taking Advantage of Wrong.—No person can take advantage of his own wrong, or come into a court of equity and reap beneficial results from his own iniquity; and a former beneficiary who has by fraudulent acts prevented a change of beneficiary will not be allowed to derive any benefit from the fraud.</p> <p>Id.—Vested Rights Under Contract.—A person contemplating benefits in a mutual benefit association may so contract with the proposed beneficiary as that when the certificate is issued the beneficiary may have a vested interest in the proceeds of the certificate, which the insured member has no power to defeat, unless a stronger and better equity prevails in favor of a second beneficiary.</p> <p>Id.—Designation of Beneficiary Without Contract — Revocable Gift.—The designation of a beneficiary with whom no contract is made is in the nature of an inchoate or unexecuted gift, revocable at any moment by the donor, and wholly within his control, and the beneficiary so designated possesses no equities, but is a volunteer pure and simple.</p> <p>Id.—Vested Equities—Estoppel—Enforcement Against Volunteer Beneficiary.—Whenever equities are vested in favor of a first beneficiary under a contract a court of equity will declare the insured estopped from substituting a second beneficiary who possesses no equities; and such estoppel being enforced against the insured is equally in force, and may be successfully urged against a volunteer beneficiary.</p> <p>Id.—Change of Beneficiary—Burden of Proof as to Equities—Review of Evidence upon Appeal.—Where there has been a change of bene- ' ficiary the burden of proof is upon the first beneficiary to prove such existing equities under a contract as will protect such first beneficiary against the change, and where there is a conflict of evidence, the finding of the court against the existence of equities in favor of the first beneficiary will not be disturbed upon appeal.</p> <p>Id.—Demand for Certificate—Hearsay Evidence—Harmless Error. Hearsay evidence as to the statements made by the insured prior to her death, in reference to a demand upon her daughter for the certificate, is harmless, where there is an abundance of other evidence showing such demand, and substantially nothing to the contrary, and the theory of the case of the daughter rests upon the claim that her mother was not entitled to the certificate, but that it was the separate property of the daughter, which she would not have yielded up upon demand.</p>

<p>Criminal Daw—Homicide—Cross-examination.—Upon cross-examination of witnesses for the prosecution, who have given damaging evidence against a defendant accused of murder, offers of evidence to show that one of the witnesses had been told of remarks by the accused about his family, and that another witness had said that she would hang the defendant if her evidence would do so, are competent for the obvious purpose of showing bias and ill-feeling on the part of the witnesses against the defendant, and it is error to exclude the offered evidence. Id.—Instructions—Reasonable Doubt— Burden of Proof.—Where the court has instructed the jury very fully upon the question of reasonable doubt it is not error to give an instruction as to the burden of proving circumstances of mitigation in the language of section 1105 of the Penal Code.</p> <p>Id.—Construction of Charge.—Instructions to the jury must be read as a whole, and, if the entire charge fairly presents the law of the case, the judgment will not be reversed for minor and unimportant defects, or because the court refuses to repeat itself.</p> <p>Id.—Instructions as to Defendant’s Testimony.—An instruction as to the defendant’s testimony which is not a departure from instructions that have been allowed to pass by this court does not furnish sufficient ground for reversal; but attention is called to the criticism of similar instructions in recent cases decided by this 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>Pleading—Complaint—General Demurrer.—Where a complaint is sufficient to sustain a judgment, although it may be carelessly drawn, a general demurrer is properly overruled.</p> <p>Id.—Argumentative Allegation of Assignment—Order upon Defendant—Account for Goods Sold and Delivered. —Where the complaint sets out an order or draft drawn upon the defendant by his creditor, payable to the order of the cashier of the plaintiff, and alleges that the claim of the creditor was for goods sold and delivered to the defendant, and the said draft was sold and delivered by said creditor to the plaintiff, and that he thereby assigned and transferred his claim against the said defendant, though it is informal and argumentative as to the fact of assignment of the drawer’s demand against the defendant for goods sold and delivered, is not wholly silent as to the fact of such assignment, and any defect in it can only be reached by a special demurrer, but the complaint states sufficient facts to support a judgment in favor of the assignee as against a general demurrer.</p> <p>Id.—Equitable Assignment—Intention of Parties.—An equitable assignment of a demand may be effected by means of an instrument having the form of an order or bill of exchange, drawn by the creditor upon the debtor for the full amount of the indebtedness, when such is the intention of the drawer and payee, and it is not essential that the intention to make such assignment should appear upon the face of the order or bill of exchange.</p> <p>Id.—Issue as to Assignment—Presumption in Favor of Judgment.— Where the answer presents an issue as to the assignment of defendant’s indebtedness from his creditor to the plaintiff it must be presumed upon appeal in support of the judgment that the fact-of such assignment was litigated upon the trial, and that the case was treated by the parties as involving that issue.</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>Vendor and Purchaser—Contract of Sale—Agreement with Real Estate Agent—Agency—Specific Performance.—A contract in writing delivered to a real estate agent, agreeing to sell and give full title and deed of the owner’s interest in a certain lot and improvements, at a specified price, the buyer to assume a mortgage on the property, and agreeing that certain stock in a loan association pledged with the mortgage is to be assigned to the purchaser, together with the insurance on the property, but not naming any purchaser, and accompanied by an order in writing to his tenants to pay the rents of the property to the real estate agent, merely gives to the agent authority to sell the premises, and is not a sufficient basis for an action by the real estate agent to compel the owner specifically to perform the contract as a contract to convey the premises to the real estate agent.</p> <p>Id.—Want of Certainty and Mutuality—Discretion of Court.—Such contract is not sufficiently certain and mutual to warrant the equitable remedy of specific performance, which is always addressed to the discretion of the court, and will not be sustained when the contract is not clearly mutual and certain both as to subject matter and parties.</p> <p>Id.—Authority of Agent to Sell—Revocation.—Where a real estate agent has authority to sell land, if no time is stated within which the sale can be made, the authority is revocable at the will of the owner, at any time before it has been exercised.</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>Estate of Deceased Persons—Action by Administratrix—Recovery of Life Insurance Collected — Defense — Consistency of Answer— • Purchase of Draft.—In an action by an administratrix to recover the amount of a draft for insurance upon the life of the decedent, alleged to have been deposited in the bank defendant merely to be collected for the use of the estate, there is no inconsistency between a denial, for want of information and belief, that the draft was executed for the use and benefit of the estate, and an affirmative allegation in the ’answer that the defendant purchased and paid for the draft, and such affirmative allegation is a defense to the action.</p> <p>Id.—Credit for Private Debt of Administratrix.—Where the evidence shows that the administratrix in her private capacity borrowed money from the defendant bank, and had given her note with surety to the bank, and that the bank in purchasing the draft for the insurance money due to the estate for insurance upon the life of the decedent paid part thereof in cash, and by arrangement with the administratrix credited her upon her own private note to the bank for the remainder of the purchase money, the bank is not liable to an action for the recovery of the money collected from the insurance company in the absence of an allegation that the administratrix was in default to the estate, to the detriment of the heirs or creditors.</p> <p>Id.—Involuntary Trust—Ability of Administratrix to Account— Presumption.—The bank does not become an involuntary trustee of the estate to the extent of the application upon the purchase money of the draft of the private debt of the administratrix to the bank if the administratrix fully accounted, or was able, ready, and willing to account, for the sum for which she was accountable, and it must be presumed, in the absence of allegation or proof to the contrary, that she was thus able, ready, and willing, and that there was no breach of trust upon her part to the injury of the estate of the decedent, and that no beneficiary of the estate has any cause of action against the administratrix as trustee or otherwise.</p> <p>Id.—Enforcement of Trust—Cause of Action Against Administratrix. An involuntary trust can be enforced against persons who come into possession of trust property only to the same extent, in the same manner, and with like force, and effect as against the original trustee; and there is no cause of action against one who purchases a draft from the administratrix in part consideration of her private debts, unless the administratrix has failed to account for that part of the proceeds of the draft which was applied to the payment of her private debt.</p> <p>Id.—Presumption of Discharge of Official Duty.—It must be presumed, in the absence of allegations and evidence to the contrary, that an administratrix has obeyed the law and performed her official duty, and that all the property and money of the estate for which she was accountable at the time of her death has passed into the possession of her successor.</p> <p>Id.—Pleading—-Variance—Contract—Trust.—Where the cause of action alleged in the complaint is based upon a special contract with the administratrix to collect a draft for the use of the estate there can be no recovery upon the theory of a constructive involuntary trust, as to which no allegations are made in the complaint, and which are not sufficiently proved by the evidence.</p>

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

<p>Appeal from a judgment of the Superior Court of 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>

Petition in the Supreme Court for a writ of mandate to the Superior Court of the City and County of San Francisco, Hon. John Hunt, judge, to compel the settlement of a bill of exceptions. The facts are stated in the opinion of the court.

<p>Street Railroad—Granting oe Franchise—Municipal Ordinance oe San Francisco—Veto oe Mayor.—An ordinance granting a right to construct and operate a street railroad in the streets of San Francisco is an ordinance granting a privilege, within the meaning of section 68 of the Consolidation Act, and is subject to the mayor’s veto.</p> <p>Id.—Construction oe Code—Mode oe Granting Privilege for Street Railroad—General Law—Repeal.—Section 497 of the Civil Code, providing that authority to lay railroad tracks through the streets and public highways of any incorporated city or town may be obtained for a term of years, not exceeding fifty, from the body to whom is intrusted the government of the city or town, is not inconsistent with, and does not repeal, any part of section 68 of the Consolidation Act of San Francisco, which provides the mode or manner of the grant; since that section of the code does not require all municipalities to grant the privilege in a uniform mode, and does not prescribe the manner in which the grant shall be made; although, to the full extent of authorizing these governing bodies to grant street railroad franchises, section 497 of the Civil Code is a general law, and by implication repeals all prior laws inconsistent therewith.</p> <p>Id.—Powers of Railroad Corporations—Two-thirds Vote of Supervisors—Veto Power of Mayor.—Section 470 of the Civil Code, referring to the powers of railroad corporations generally, and providing that no railroad corporation must use any street, alley, or highway within an incorporated city or town unless the right to use the same is granted by a two-thirds vote of the town or city authority, does not prescribe or regulate the manner in which municipal corporations shall legislate on that subject, and detracts nothing from the veto power of the mayor of the city and county of San Francisco, which power does not depend upon the number of votes by which an ordinance or resolution passes the board of supervisors.</p>

■file main facts are stated in the opinion of the court. The description of the premises given in the declaration of homestead in addition to the statement that the husband and wife were residing thereon, with their family, was as follows: “Situated on Main street, of .the village of Woodland, and being the western part of lot No. (5) five of said village as laid out by F. S. Freeman’s division of said village, the same being thirty-seven feet front on Main street of said…

<p>Foreclosure Sale—Redemption—Mandamus to Compel Deed—Title of Defendant—Estoppel of Plaintiff.—Where the plaintiff obtained a decree of the superior court ordering a whole block of land to be sold by the sheriff, and purchased the whole block at the sheriff’s sale as the property of the defendant in the foreclosure suit in satisfaction of the lien, and after redemption attempted by a successor of the judgment debtor, seeks from the sheriff a deed of the whole block, by writ of mandate, the plaintiff will not be heard to object to the redemption of the land on the ground that the defendant in the foreclosure suit never owned the whole block.</p> <p>Id.—Prior Sale of Part of Block—Right of Redemption.—It is not a valid objection to a redemption of the whole block by the successor in interest of the judgment debtor that, before such redemption, the judgment debtor had sold a part of the block to another person or corporation.</p> <p>Id. —Conveyance by Judgment Debtor of Land not Owned—Right of Successor to Redeem.—Although the defendant in the foreclosure suit in fact owned only a portion of the block sold under foreclosure, which portion had been previously conveyed to a railway company, the defendant nevertheless has a sufficient interest in the property foreclosed to be entitled to redeem the whole block, and can convey or assign his remaining interest in the block for the purpose of having the certificate of redemption of the property from the sale issued in the name of his grantee, and such grantee has the right as successor in interest of the judgment debtor, within the meaning of section 701 of the Code of Civil Procedure, to redeem the property in his own name.</p>

<p>Writ of Restitution—Reversal of Order—Rights of Appellant.— Upon a reversal of an order for a writ of restitution the appellant is entitled to be restored to all that he has lost by virtue of the order, and to be placed in the same position as he was prior to the execution of the writ, by the removal of all persons that have been placed in possession of the land by virtue of the writ, as well as of all those who have come in under him after that date.</p> <p>Id.—Attornment of Tenant of Appellant—Eviction—Restoration of . Possession.—The eviction of one who was in possession of premises as the tenant of the appellant against whom a writ of restitution was issued, at the time the writ was executed, and against whom the writ was executed by the attornment of such tenant to the assignee of the plaintiff by his agent, was the eviction of the appellant, and upon reversal of the order for the writ, the appellant is entitled to be restored to the possession as against such tenant.</p> <p>Id.—Order Refusing to Vacate Writ—Appeal—Conflicting Evidence. Upon an appeal from an order refusing to vacate a writ of restitution, where the evidence taken before the court upon the hearing of the motion was substantially conflicting, and there is evidence tending to show that the writ was rightfully issued, the order denying the motion will be affirmed.</p> <p>Id.—Title Under Foreclosure—Writ of Assistance—Action of Ejectment.—In an ordinary action of ejectment the relief to be given is the same as that in any other action of ejectment, notwithstanding the plaintiff’s title is derived through a purchase under the foreclosure of a mortgage; and the plaintiff is not entitled in the action of ejectment to the same relief as if a writ of assistance had been asked for under the decree of foreclosure.</p>

<p>Entry of Judgment—Motion to Correct Mistake as to Date—Burden of Proof—Sufficient Showing.—The burden of proof is upon the moving party upon a motion to correct an alleged mistake as to the date of the entry of the judgment, and, where a clear showing is not made that the judgment was not entered at the date indorsed at the foot of the record of judgment in the judgment-book, the date so entered must prevail.</p> <p>Id.—Duty of Clerk—Violation of Duty.—It is the duty of the clerk to show the true date of the clerical entry of the judgment in the judgment-book, and to willfully make a false certificate as to the date is a violation of official duty.</p> <p>ID.—Making-up of Judgment-roll—Docketing Judgment.—The judgment-roll cannot be made up and filed until after the entry of the judgment in the judgment-book, and not until after this entry can the judgment be docketed and a judgment lien created.</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>Bailment—Loss of Hay Stored in Warehouse—Action fob Storage— Entibe Contract.—A contract for the storage of hay in a warehouse for a season beginning October 17th, and ending June 1st, is an entire contract, notwithstanding a provision that the warehouse owner will not be responsible for loss or damage to hay from fire, and, if the warehouse and hay are wholly destroyed by fire before the time for the storage of the hay expires, the storage is not earned, and the warehouse owner cannot maintain an action to recover the price of storage.</p> <p>Id. — Compensation Determined from Contract — Performance.—The right to recover compensation under a contract is to be determined from the contract itself; and in order to recover, the plaintiff must show performance according to the terms.</p> <p>Id.—Proportionate Compensation.—Where the contract does not provide for contingencies, and for a proportionate compensation for proportionate service, the warehouseman cannot recover proportionate compensation.</p> <p>Id.—Power op Court over Contracts.—The court cannot make contracts for parties, but can only determine such contracts as they have made.</p>

Hearing in the Supreme Court upon writ of habeas corpus against the sheriff of the City and County of San Francisco. The facts are stated in the opinion of the court and in 84 Cal. 584, therein referred to.

<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 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 the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Gift—Savings Bank Deposit—Husband and Wife—Check Payable After Death of Wife.—The giving of a check by the wife to the husband, in consideration of love and affection, while the wife is living and well, with the understanding that the check is not to be used or presented until after her death, unaccompanied by the delivery of the pass-book representing the deposits, or of any order accompanying the pass-book, as required by the rules of the bank, is invalid; and the check cannot be paid after the death of the wife, but the money on deposit in the bank belongs to the estate of the deceased wife.</p> <p>Id.—Gift in View of Death.—To constitute a gift in view of death the gift must be made in contemplation of the near approach of death by the donor, and under the apprehension of it by some present disease or some other impending peril.</p> <p>Id,—Gift Inter Vivos.—A gift inter vivos, to be valid, must take effect at once, and there must be nothing remaining to be done essential to its validity.</p> <p>Id.—Gift in Futuro Invalid.—If an intended gift is to take effect in the future there is no gift, but only a promise to give; and a gift to take effect at the death of the donor is void.</p>

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

<p>Municipal Corporations—Purchase op Site por Smallpox Hospital— Power op Supervisors op San Francisco.—The board of supervisors of the city and county of San Francisco have no authority, under the terms of the Consolidation Act, to purchase real estate as a site for a smallpox hospital.</p> <p>Id.—Refusal op Treasurer to Pay Demand.—The action of the treasurer of the city and county of San Francisco in refusing to pay a demand for the purchase price of a site for a smallpox hospital is in the exercise of authority conferred upon the treasurer by the terms of the Consolidation Act.</p> <p>Id.—Powers op Municipal Corporations.—A municipal corporation can exercise no powers except those which are granted in express words, or those necessarily or fairly implied in or incident to the powers expressly granted, or those indispensable to the declared objects and purposes of the corporation; and any reasonable doubt concerning the existence of the power is to be resolved against the municipal corporation.</p> <p>Id.—-.Authority op Municipal Oppicbrs.—-Powers of a municipality are to be exercised through its legally constituted agents, and the authority of each officer, board, or department to exercise any of the corporate power with which the municipality has been clothed must be distinctly conferred upon that officer, board, or department, or its act will create no obligation against the municipality.</p>

<p>Street Improvement—Permissive 'Statute.—Section 6 of the act to provide for work upon streets, approved March 18, 1885, which provided that “the city council may by ordinance prescribe general rules directing the superintendent of streets and the contractor as to the materials to be used, and the mode of executing the work under all contracts thereafter made,” is permissive, and not mandatory upon the city council, and the prescribing of general rules is not a condition precedent to the jurisdiction of the council to order a street improvement where both the order and the contract for doing particular work sufficiently specifies the material to be used, and the mode of doing the work.</p> <p>Id.—Statutory Construction—Use of Word “may.”—The word “may” in a statute does not primarily and ordinarily denote the imperative mood of the verb to which it is attached, but merely imports permission, ability, possibility, and contingency, and should never be interpreted as mandatory, except by compulsion of the context, showing that the legislature must have used it in that sense.</p> <p>Id.—Adoption of Plans and Specifications—Resolution of Council.— The plans and specifications for a street improvement may be adopted by resolution of the council, signed by the president of the council, and do not require an ordinance signed by the mayor.</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>Order Granting New Trial—Substantial Conflict of Evidence.—The superior court is authorized to grant a new trial, notwithstanding a sub- • stantial conflict in the evidence, where it is of the opinion that the verdict or decision of the court is against the weight of the evidence.</p> <p>Id.—Discretion.—A wide discretion is accorded to trial courts in the ‘disposition of motions for new trial; and an order granting a new trial for insufficiency of the evidence to support the findings will not be disturbed where the findings are against the weight of the evidence.</p> <p>Vendor and Purchaser—Contract for Sale of Land—Marketable Title—Probate'Proceedings.—Under a contract for the sale of land and the delivery of a good and sufficient conveyance thereof by a grant, bargain, and sale deed from all the owners, a marketable title is shown in the heirs of a deceased person in whom the title was vested in his lifetime, where a settlement of the estate in the probate court and the final decree of distribution in that court have served to release the property from the condition to which the estate of a deceased person was subject.</p> <p>Id.—Source of Title of Heirs.—The title of the heirs of a deceased person to real estate owned by him does not originate in the decree of distribution, but comes to them directly from their ancestor, subject only to the control of the probate court, and the possession of an administrator appointed by that court for the purpose of administration.</p> <p>Id.—Construction of Code—Declarative Provision.—Section 1384 of the Civil Code, as adopted in 1884, is declarative of the law as previously interpreted by this court.</p> <p>Id.—Estates of Deceased Persons—Notice of Hearing of Petition for Administration.—The ten days’ notice required under section 1373 of the Code of Civil Procedure, of the hearing of a petition for letters of administration, is properly given by a posting of notice on the twelfth day of the month, giving notice of a hearing on the twenty-second day of the same month.</p> <p>Id.—Decree of Distribution—Description of Property—Mistake in Courses — Surplusage — Conveyance from Heirs—Estoppel.— Where the land distributed to the heirs of a deceased person is described in the decree of distribution as the whole of the Bedding ranch, and as being the property conveyed by a certain recorded deed, referring to the book and pages of the record, such decree sufficiently describes the property distributed, notwithstanding a mistake in the decree in the designation of two of the courses; and the erroneous courses, being apparent on their face when applied to the land, and the description being perfect without them, will be rejected as surplusage, and a conveyance from the heirs having the full, legal, and equitable title to the land conveyed to their ancestor, there being no other person or persons in whom any apparent title is legally or equitably vested, will estop the heirs and all other persons to claim through or under them or either of them.</p>

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

<p>Estates of Deceased Persons—Settlement of Executor’s Account— kamm oii Suuvivim Ikmii-MiMCTM-kkoim^WIim an executor is also the surviving partner of the deceased, and presents his account for settlement in the probate court, purporting upon its face to be his account as executor and not as surviving partner, such executor cannot contend upon appeal from an order settling the account that the account involved is the account of the surviving partner under section 1585 of the Code of Civil Procedure, and that the court has no jurisdic tion to settle such an account.</p> <p>Id.—Review of Evidence upon Appeal—Substantial Conflict.—Where the evidence is substantially conflicting, an order settling the account of the executor will not be disturbed upon appeal.</p> <p>Id.—Support of Findings—Stipulation.—A stipulation made at the trial in the same terms as a finding made thereupon is sufficient to justify the finding.</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>Bill of Exceptions—Mandamus.—A writ of mandate will not be granted to compel the settlement of a bill of exceptions where the instrument submitted does not show an attempt to present a fair and bonajide statement of the case.</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>County Government Act—Counties of Twenty-first Class—Fees of Constables. —The County Government Act of March 24, 1893, did not take effect as to the fees of constables who, in counties of the twenty-first class, were incumbents of office at the time of its passage, but the fees of such incumbents are governed by the act regulating fees and salaries, approved March 5, 1870.</p> <p>Id.—Statutory Construction —“ Compensation” — “ Salary.”—The words “compensation” and “salary” are used synonymously in the constitution and County Government Act, and the term “salary,” as used in the County Government Act, applies equally to all officers, included in the act whose compensation is fixed thereby, whether such compensation is limited to a fixed sum of money or is payable in fees, and such is its meaning in subdivision 17 of section 183 of the County Government Act, which provides that that section shall “take effect immediately, except such provisions as affect the salaries of the present incumbents.”</p>

<p>Appeal from a judgment of the Superior Court of Tulare 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>Instructions—Question of Fact.—An instruction to the jury, which assumes as undisputed a question of fact which ought to be submitted to the jury, is prejudicial error.</p> <p>Id.—Withdrawing Question of Fact from the Jury.—It is only where a fact is admitted, or there is no shadow of conflict of evidence with respect to it, that the court is justified in taking the fact from the consideration of the jury.</p> <p>Id.—Part Ownership of Vessel—Liability for Construction—Erro- . neous Charge to Jury.—In an action to recover a balance due on an account for lumber used in the construction of the vessel, in which one of the defendants is claimed to have been a part owner, at the time of the furnishing of the lumber, where the evidence of the defendant is such that a finding in favor of the contention that the defendant did not become a part owner of the vessel until after it was built, would be sustained, an instruction to the jury that there was no question of fact to be submitted to the jury as to the question of ownership, and that the defendant was liable for the lumber as part owner in the vessel, erroneously charges the jury upon a question of fact, contrary to section 19 of article VI of the constitution of this state.</p> <p>Evidence—Declarations of Codefendant.—Evidence as to the declarations of one defendant are not admissible against a codefendant, where they are not joint defendants in a sense which would make the declarations of one binding upon the other.</p>

The facts are stated in the decision rendered upon the former appeal, 90 Cal. 402, and in the opinion of the court upon this appeal.

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

<p>Street Improvement — Authority op Supervisors — Delegation op Power.—The board of supervisors of the city and county of San Francisco has exclusive authority for the improvement of its streets, and has no power to delegate authority to the superintendent of streets to determine the necessity of making any improvement in whole or in part, or the character or extent of any improvement which it may itself direct to he made.</p> <p>Id.—Construction op Sewers—Void Resolution op Intention—Specifications op City Engineer—Discretion op Superintendent.—A resolution of intention to construct sewers upon certain designated streets, according to the plans and specifications prepared by the city-engineer, which contain provisions and conditions which are not determined by the supervisors, but are left to the discretion of the superintendent of streets, without any fixed rules to control his discretion, is void, and no lien can be created under it.</p> <p>Id.—Power to Determine Amount op Assessment—Expense op Improvement—Delegation op Power.—The legislative body must deteimine not only the character and extent of the improvement to be made, but also the amount of the burden which is to he imposed by assessment upon the adjacent property, to defray the expense of the improvement; and, after the improvement has been ordered, the actual expense must be approved by the legislative body, and fixed in the contract for doing the work as the data upon which the assessment is to he calculated, and no part of the assessment, or of the power to determine the actual expense of the improvement, can he delegated to the superintendent of streets.</p> <p>Id.—Invalid Lien—Clodd upon Title—Equity—Depense.—An action may be maintained by the owner of property subject to an invalid street assessment to have it adjudged invalid, where there is nothing upon the face of the assessment to show that the lien is not valid, and where, by reason of matters outside of the assessment as it is recorded, the apparent lien may be shown not to be a valid encumbrance; in such ease the assessment constitutes a cloud upon the title, which the property owner is entitled to have removed by a court of equity, although the same matters may be asserted as a defense to an action for the enforcement of the assessment.</p>

The complaint alleged, in substance, that defendants were members of a Merchants’ Protective and Collection Association, doing business iú Oakland; that they caused to be entered upon the “ black list ” of the association the following: “When entered, February 13, 1892; name of delinquent debtor, George Ingraham; occupation, porter; residence, 718 Henry street, when account closed, month, January, day, 2nd, year, 1892, amount, $14.25, by whom reported, J. L. Lyon & Son”;…

<p>Divorce—Custody and Education of Minor Children—Jurisdiction of Superior Court—Future Contingencies.—Under sections 138 and 139 of the Civil Code the court may make necessary or proper provision for the custody, care, and education of the minor children, and, where the divorce is granted for an offense of the husband, may compel him to provide for the maintenance of the children, and may from time to time modify its orders in these respects; but its jurisdiction to make such orders is limited to the conditions and circumstances existing at the time they are made, and the court cannot anticipate and provide for future contingencies.</p> <p>Id.—Death of Mother—Appointment of Guardian for Child—Power of Court.—The court, in making its orders for the custody and support of a minor child, cannot anticipate that the mother may die during the minority of the child, and that a guardian other than her father may thereafter be appointed, and then proceed to direct that the allowance made to the mother for the support of the child shall be paid to such guardian.</p> <p>Id.—Rights of Father—Obligation to Support Child.—Upon the death of the mother, the father becomes entitled to the custody of the child, and this right continues .until a guardian of her person is appointed, after which he is under no obligation to furnish support to' the child other than such as the law imposes upon him.</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>Satisfied Judgment—Motion to Issue Execution—Order to Show Cause—Practice.—Upon a motion for an order that execution issue upon a judgment apparently satisfied, upon an affidavit that the judgment had not been satisfied in fact, and that the entry of satisfaction thereof had been fraudulently procured, it is proper and regular practice for the court, of its own motion, to order the defendant to show cause why plaintiff’s motion should not be granted, thus giving the defendant an opportunity to be heard in answer to the motion.</p> <p>Id.—Jurisdiction oí Court.—The court has jurisdiction of the subject matter of a motion for an order to issue execution on the judgment, and incidentally to determine whether or not the apparent satisfaction of the judgment is void as claimed by the plaintiff.</p> <p>Id.—Appeal írom Order to Show Cause—Review—Final Order.—Upon appeal from an order to show cause why an execution should not issue upon a satisfied judgment the appellate court cannot review a subsequent and final order directing the issuance of the execution, made after the appearance of the defendant, as the result of a hearing on the merits, from which final order no appeal has been taken.</p>

Motion to affirm a judgment appealed from the Superior Court of Humboldt County. The facts are stated in the opinion of the court.

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

<p>Recovery of Money Paid—Mistake of Fact—Voluntary Payment with Knowledge of Facts.—Where money is paid voluntarily, with knowledge of the facts concerning a mistake under which the sum was paid, and without protest or objection, no recovery can be had upon the ground that the money was paid by mistake.</p> <p>Id.—Duress of Property—Threat to Foreclose Mortgage—Conveyance to Mortgagee—Repurchase—Voluntary Payment.—Although money paid to prevent the unlawful taking of property may be recovered back upon the theory of moral duress, based upon an unlawful act of the defendant, yet this rule does not apply where no unlawful act was committed by the defendant; and where the only act threatened was the exercise of a right conferred by law upon defendant as a mortgagee to foreclose the mortgage in the usual way, resulting in a conveyance by the mortgagor of all the mortgaged property to the mortgagee, upon an agreement for a repurchase, a voluntary payment upon and repurchase of a specified amount larger than the aggregate of principal and interest intended to be included as the price at which the property was to be repurchased, made with full knowledge of all the facts, and without protest, cannot be recovered.</p> <p>Id.—Fear that Defendant Will Leave State—Tender of Performance.—A voluntary payment, with knowledge of the facts, is not excused by the fact that plaintiff thought that defendant was about to leave the state to avoid a reconveyance of the property, since plaintiff had only to tender performance to conserve all his legal rights.</p>

<p>Libel and Slander—Malice.—Malice, in actions of libel and slander, is divided into two classes, to wit, malice in law and malice in fact.</p> <p>Id.—Malice in Law—Conclusive Presumption.—Malice in law may be defined as a wrongful act done intentionally, without just cause or excuse, and is conclusively presumed where the publication of a libel or slander is not justified by the proof of its truth nor by the privileged occasion of publication.</p> <p>Id.—Malice in Fact.—Malice in fact may be defined as a spiteful or rancorous disposition which causes an act to be done for mischief; and may be established by evidence aliunde, or may appear from the face of the publication itself.</p> <p>Id.—Absence op Malicious Motive.—The absence of malicious motive may protect against exemplary damages, but will not bar the action if there is no justification of the libel or slander.</p> <p>Id.—Actual Damages—General Damage —Special Damage—Pleading-Evidence.—Actual or pecuniary damages for libel include general damages for injury to feelings and loss of reputation, which need not be alleged in detail in the complaint, and may be recovered in the absence of actual proof and special damages.</p> <p>Id.—Recovery op Exemplary Damages—Malice in Fact.—Exemplary damages may be recovered when malice on the part of the defendant is established as a fact, either actually or by presumption, or inference of fact from the libelous character of the publication.</p> <p>Id.—Construction op Code—Disputable Presumption op Fact—Evidence.—In section 3294 of the Civil Code, which allows the recovery of exemplary damages where the defendant has been guilty of malice, actual or presumed, the presumed malice spoken of is a disputable presumption of fact establishing prima facie the right of plaintiff to exem.plary damages for a publication libelous per se, but this presumption may be overcome by other evidence that there was no malice in fact.</p> <p>Id.—Question of Fact—Erroneous Instruction.—An instruction upon the subject of exemplary damages, in an action of libel, which assumes that malice in fact was established by the evidence, when the defendant had attempted to rebut the presumption of malice in fact by evidence to the contrary, is erroneous, as assuming a question of fact in issue before the jury.</p>

<p>Contracts for Construction—Assignment as Security—Liability of Pledgee—Assumpsit for Work and Labor.—An assignment of contracts for the construction of a section of seawall, thoroughfare, and wharf, and for the excavation of a cellar, as security for money advanced, accompanied by a power of attorney to the assignee to collect the money to become due under the contracts, is merely a pledge of the contracts, creating a lien thereon, subject to which the title and general property in the pledge remains in the pledgor; and such pledge and lien imply no obligation on the part of the pledgee to perform or to pay for the work which the pledged contracts required to be performed by the pledgors, and the pledgee is not liable to an action of assumpsit by employees of the pledgors for work and labor performed.</p> <p>Id.—Acceptance of Benefit of Transaction—Construction of Code.— Section 1589 of the Civil Code, which provides that a voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, applies only to a transaction to which the person accepting the benefit is a party.</p> <p>Id.—Parties to Contract—Pledgee.—The assignee of a contract who receives the assignment as collateral security for money loaned does not accept the beneft of the original contract otherwise than as pledgee, and does not become a party to the original contract, nor obligate himself to pay for work done under the contract.</p>

<p>Appeal from a judgment of the Superior Court of the city and county of San Francisco and from an order made after judgment striking out a cost bill.</p> <p>The facts are stated in the opinion.</p>

<p>Pleading—General Demurrer—Consent to Ruling—Waiver.—The ground of a general demurrer is neither waived by failure to demur nor by consent that the demurrer be overruled.</p> <p>Id.—Action on Bond of Executor—Sufficiency of Complaint.—A complaint in an action upon an executor’s bond which alleges that the executor was appointed, that letters testamentary were ordered to be issued to him upon his executing a bond according to law, and that the executor and sureties duly made and executed the bond required by the order, sufficiently alleges compliance with the requirements of the statute, as against a general demurrer, although the complaint does not specifically allege that the bond sued on was approved by the judge or was filed or recorded, or that a certificate of justification was attached thereto.</p> <p>Id.—Misappropriation of Money by Executor—Sale of Realty—Bond —Irrelevant Defense—Striking Out Answer.—In an action on an executor’s bond for misappropriation of moneys which he failed to pay over to the distributees, it is no defense that the moneys were derived from the sale of realty belonging to the estate which the executor had been permitted to sell without giving the additional bond required by law, and such defense may be properly stricken from the answer as irrelevant and redundant.</p> <p>Id.—Estates of Deceased Persons—De,oree of Distribution—Liability of Executor and Sureties. —A decree of distribution of the estate of a deceased person fixes the liability of the executor, and is conclusive upon his sureties who are liable upon their undertaking to the full extent of the penalty, regardless of whether an additional bond has been given or not.</p>

<p>Evidence—Recalling Witness—Discretion.—The question whether a witness may he recalled and re-examined as to matters about which he has already been examined is one left to the sound discretion of the court, and its action will not be disturbed unless a clear abuse of discretion is shown.</p> <p>Slander—Railroad Commissioner—Charge oe Single Act of Dishonesty.—A charge of a single act of dishonesty in relation to private matters against a person holding the office of railroad commissioner does not amount to an imputation of general disqualification for that office; and where the officer continued in the performance of the duties of the office without molestation until the close of his term, and was after-wards re-elected to the same office, and entered upon a second term, it cannot be said that the words spoken during the first term tended directly to injure the plaintiff in respect to his office.</p> <p>Id.—Evidence—General Character.—The rule is uniform that general character cannot be proved by a single act.</p> <p>Id.—Gist of Action for Slander—Direction of Verdict.—The gist of an action for slander is pecuniary loss, and where it does not appear that the plaintiff sustained any loss, or was in any way prejudiced by words spoken by the defendant which were not actionable per se, it is not error for the court to charge the jury to return a verdict for the defendant.</p>

<p>Mutual Benefit Association—Rights of Beneficiaries—Interpleader —Equity.—Where a mutual benefit association is not an aggressive party, standing strictly upon its legal rights, but has paid money into court, in respect of which rival beneficiaries have interpleaded, the rights of the beneficiaries as between themselves must be determined upon principles of equity.</p> <p>Id.—Litigation Over Fund in Court—Principles of Adjudication— Source of Title not Material.—Where a fund has been paid into court by a mutual benefit association, in respect of which the plaintiff and an intervenor both claimed title, their respective claims of ownership are to be litigated in the same way, and finally adjudicated and determined upon the same general principles as though the common source of title of the money came through a bequest or gift.</p> <p>Id.—Change of Beneficiary—Trust—Death of Trustee.—Where the insured in a mutual benefit association had named his wife as the original beneficiary in the certificate of membership, and afterwards changed the certificate to the name of a member of a firm to which he was indebted in a large sum of money, who took in trust for the firm, with the knowledge and consent of the mutual benefit association, upon the death of the trustee prior to the death of the insured, the wife cannot claim the proceeds of the certificate as against the firm for whose benefit it was held by the deceased trustee.</p> <p>Id.—Equities of Real Beneficiaries as Against Trustee.—In the eyes of a court of equity the firm for whose benefit the certificate was issued in the name of one of its members was the real beneficiary, and the death of the trustee could not affect the rights of the real beneficiary living at the death of the insured, and it is the duty of the court to protect such beneficiary.</p> <p>Id.—Certificate Irregularly Issued—Waiver of Rules.—The fact that a certificate was irregularly issued to a beneficiary, by reason of noncompliance with the rules of the order, in reference to the application for a change of beneficiary, does not render the certificate invalid; but the issuance of the certificate upon the application was a waiver by the order of its rules.</p> <p>Id.—Declaration of Trust—Administrator of Trustee—Denial of Trust — Evidence.— A declaration of trust made by a beneficiary, defining his relations with a firm of which he was a member as to the beneficiary certificate, is properly received in evidence as against the administrator of the estate of the deceased trustee, who has denied the trust relations.</p>

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

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

The action was brought by James Crowe, as administrator of the estate of Henry Dobbel, deceased, against F. W. Dobbel, as administrator of the estate of Margaretha Dobbel, deceased, to recover the full amount of a policy of insurance on the life of Henry Dobbel, in the sum of four thousand five hundred and twenty-four dollars, which policy had been made payable to Margaretha L. Dobbel, her executors, administrators, or assigns, and which had been collected by the defendant…

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

<p>Marriage Without Solemnization—Evidence. —There can be no mutual assumption of marital rights, duties, and obligations, within the meaning of section 55 of the Civil Code, so as to constitute a marriage without solemnization, unless the parties live together as husband and wife, treat each other in the usual way with married people, and so conduct themselves as to have full repute among their intimate friends and associates to be husband and wife. Tested by this rule, held, that the evidence sustained the finding of the trial court that the appellant and the deceased did not live together as husband and wife.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco partially distributing the estate of a deceased person.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal from an order of the Superior Court of Contra Costa County 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 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>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 of the court.</p>

<p>Fraud in Procuring Judgment—Injunction—Sufficiency of Complaint—Action to Set Aside Justice’s Judgment.—An action will lie to perpetually enjoin the execution oí a justice’s judgment against the plaintiff or his property where the complaint shows that the judgment was obtained by fraud practiced upon the plaintiff by the attorneys of the defendant, who was plaintiff in the justice’s court, with the assistance of the justice, and that the fraudulent judgment was concealed from the plaintiff, and that the plaintiff first learned that it had been entered against him after the time for appeal had expired, and that relief had been sought against the judgment and denied in the justice’s court.</p> <p>Id.—Equity—Code Procedure—Form of Action—Relief Against Judgment.—Where legal and equitable relief is dispensed in different tribunals "a court of equity will not grant relief against a judgment when the same relief can be obtained by the aid of the court that rendered the judgment; but, under the system of procedure that obtains in this State, where the various kinds of relief are administered by the same tribunal, and where there is but one form of civil action for the enforcement or protection of civil rights, a party who presents a complaint showing his right to the relief asked is not to be denied that relief because he might have sought it under a different form of action.</p> <p>Id.—Denial of Relief in Court Where Judgment was Rf.ndered.— The rule under which a court of" equity declines to interfere until after an application for relief has been made to the court in which the judgment was rendered has no application when relief has been sought and denied in that court; and the denial of that court to grant that relief gives to a court of equity the sanie authority to interfere as if the other court was powerless to render aid.</p> <p>Id.—Motion to Open Justice’s Judgment—Vacation of Order Granting Motion—Appeal.—Where a motion made in the justice’s court to open the judgment procured by fraud was granted, but, on the fol- ■ lowing day, the justice, without notice to the plaintiff or his attorney, vacated the order, his subsequent action in vacating the order is equivalent to a denial of the motion, and from this order there was no appeal to the superior court, and equity will relieve against the judgment.</p> <p>Id.—Remedy—Certiorari—Injunction.—Even if the plaintiff could have had the judgment annulled upon certiorari, he was not compelled to resort to that remedy, especially where he would not thereby obtain as effective relief as by an action to enjoin the execution of the judgment. Id.—Parties—Codefendant.—A codefendant against whom the judgment was rendered in the justice’s court need not be a party to an action to restrain, the judgment so far only as affects the plaintiff and his property, the judgment against the codefendant being left in full effect, to be enforced at any time.</p>

<p>New Trial—Insufficiency of Evidence—Discretion.—A motion for a new trial, on the ground of the insufficiency of the evidence to justify the verdict or other decision, is addressed to the sound legal discretion of the trial court, and its action in granting the motion will not be disturbed on appeal, unless it appears that there was a clear abuse of such discretion.</p> <p>Id.—Conflicting Evidence—Duty of Trial Court.—When the evidence is conflicting the trial court is authorized to review it on motion for a new trial; and if, in its opinion, the verdict is against the weight of the evidence, it is its duty to grant a new trial.</p> <p>Id.—Independent Causes of Action — Entire Verdict.—Where the verdict is for an entire sum without any mention of separate items, the fact that it covers two independent causes of action, on one of which the plaintiff is entitled to recover, does not make it erroneous to set the whole verdict aside, on the ground of the insufficiency of the evidence to sustain the other cause of action.</p> <p>Id.—Correction of Settled Statement—Insertion of Exhibits.—After a statement upon a motion for a new trial has been settled by the judge and filed with the clerk the court may, on motion of the moving party, vacate the settlement and allowance of the statement, and allow it to be re-engrossed, so as to include exhibits referred to therein which had not been engrossed at length.</p> <p>Id.—Discretion of Court—Negligence of Attorney—Vacating Certificate of Settlement—Power of Court.—Whether the omission properly to engross the exhibits before the statement was settled and filed was the result of inadvertence or carelessness on the part of the attorney of the party moving for a new trial, such omission does not deprive the court of discretion to vacate a certificate of settlement, and direct that the exhibits be properly inserted, so that the certificate may conform to the facts; and, for the purpose of determining what exhibits were in reality referred to in the statement, the court is authorized to make such investigation as may enable it to settle the statement according to the facts.</p> <p>Id.—Rights of Litigants—Object of Rules of Procedure.—Courts of justice are organized for the purpose of determining the controversies between litigants according to their respective rights; and rules of procedure are intended to facilitate this purpose, rather than to hamper or obstruct the action of the court in determining which of the parties is entitled to a judgment.</p>

Motion in the Supreme Court to set aside a foreclosure sale under a judgment of the Superior Court of San Bernardino County and to restrain the execution of a sheriff’s deed. The facts .are stated in the opinion of the court.

<p>Fraudulent Conveyance—Disseisin by Vendor—Ejectment by Bona Eidb Purchasers—Title to Crops.—Where the vendor of land has made a conveyance which was procured by fraud of the vendee, and has afterwards taken possession of the land in disregard of the conveyance, his action is a disseisin, and his possession is adverse to the whole world; and, pending an action of ejectment by bona fide purchasers from the fraudulent vendee, the vendor is entitled to dispose of the crops during the period of his possession, and any one dealing with him, therefore, becomes the owner of what is purchased from him, and their title is not affected by the subsequent determination of the ejectment suit in favor of the bona fide purchasers.</p> <p>Id.—Rights op Plaintiff in Ejectment—Use and Occupation—Fruits i of Land.—The plaintiff in ejectment is entitled to recover from a defendant only the value of the use and occupation, and is not entitled to the fruits of the land, nor can he, after he has established his right to the possession, recover the fruits of the land from one who has purchased them from the defendant while in adverse possession.</p> <p>Id —Purchaser of Crops—Knowledge of Ownership of Land.—The fact that a purchaser of the- crops from the claimant of the land in adverse possession knew that the plaintiffs in ejectment claimed to be the owners of the land does not impair his right of recovery of the crops as against them.</p> <p>Id.—Right to Fruits—Volunteer Crops.—The right to the fruits of the land does not depend upon the amount of labor expended by the occupant in their production, and it is immaterial whether the hay out from the land was a volunteer crop, or had been sown under a cropping contract with the occupant, and the fruits gathered belong to him as fully as the crops.</p> <p>Id.—Cropping Contract—Purchase—Replevin—Conversion of Crops— Trover.—One entitled to two-thirds of the crops and fruits under a cropping contract, and to the remaining one-third by purchase from the occupant in adverse possession, is not affected by a judgment in replevin brought against the occupant for the possession of the crops by the plaintiffs in the ejectment suit, to whom possession was delivered in the •replevin suit, and such owner may recover damages from them for the conversion of the crops.</p>

<p>Heal Estate Brokers—Contract for Commissions—Alternatives— Pleading—Election of Counts — Single Subject of Action.— Where real estate brokers made a written contract for the sale of lands through their agency, for a specified commission, in which the owner of the land agreed that if he found a purchaser independent of the real estate agents, or withdrew the property from the sale, he was to pay one-half of the specified commission, in an action upon the contract, the complaint in which sets up two causes of action, one based upon an alleged sale of the property by the owner, entitling plaintiff's to one-half of the commission, and the second based upon the first clause of the contract alleging that plaintiffs being ignorant of the sale by the owner, thereafter found a purchaser and notified the owner thereof, who refused to convey to such purchaser, both causes of action are based upon the same contract, and the facts might properly have been set forth in a single count, the subject of the action being the recovery of the commissions under a single contract for the payment thereof at a certain rate under one set of circumstances, and a different rate under different circumstances, and it is error for the court to require the plaintiffs to elect between the counts, and to rely upon one count only.</p> <p>Id.—Averment op Pacts Within Knowledge op Dependant—Counts.— Where the facts are peculiarly within the knowledge of the defendant, and cannot be certainly known to the plaintiffs, as to the precise nature and limits of defendant’s liability, before the evidence is all in, the plaintiff may state his cause of action variously in different counts of the complaint, and should not be compelled to elect upon which count he will proceed.</p> <p>Id.—Sale by Owner op Property—Lease—Option to Purchase. — Where the owner of the property, during the time limited by the contract of agency, executed a lease for a term of five years, with the sole and exclusive privilege to the tenant to purchase the property, such lease, with the privilege of purchasing, constitutes a sale of the property, or a withdrawal of the property from the sale, within the meaning of the contract of agency, entitling the brokers to recover one-half of the specified commission.</p>

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

<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>Constitutional Law—Qualifications of Electors—Gaining or Losing Residence—Intention.—The fourth section of the second article of the State constitution, which provides that “ for the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas, nor while a student at any seminary of learning, nor while kept at any almshouse or other asylum at public expense, nor while confined in any public prison,” does not preclude the gaining of a residence for the purpose of voting, by soldiers, college students, or inhabitants of a Veterans’ Home, or infirmary, upon proof of their intention to acquire a domicile in the county of which they are the inhabitants.</p>

Application in the Supreme Court for a writ of prohibition to the Superior Court of Kern County. The facts are stated in the opinion of the court.

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

<p>Attorney at Law—Violation of Duty—Contempt of Court — Sus-s pension.—Where an attorney at law has filed in the supreme court a brief in which he has violated his duty as an attorney by the use of unwarrantable language in assailing a justice of the supreme court, with intent to commit a contempt of the court, and by palpably attempting to influence the decision of the court by appeals to the supposed timidity of its justices, the attorney guilty of the same should be suspended from his office as an attorney at law.</p>

<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 of the court.</p>

<p>Criminal Law — Indictment — Jurisdiction or State and Federal Courts—Pleading—Matter or Detense.—The jurisdiction of the state being general over persons within its limits, and that of the United States being exceptional over places purchased for specified uses of the general government, it is not necessary, in an indictment or information in the state courts, to negative the jurisdiction of the federal courts, but, if the federal courts have exclusive jurisdiction over the offense, it is matter of defense simply.</p> <p>Id.—Federal Jurisdiction or Crimes—Ownership or Land.—The mere ownership by the United States of land or property within the county does not show any federal jurisdiction over crimes committed upon ig unless the ownership is shown to have been acquired by purchase with the consent of the legislature, or under the power of eminent domain authorized by the legislature.</p> <p>Id.—Question or Fact—Judicial Notice.—Federal jurisdiction involves a question of fact as to the acquisition of property by the United States by purchase, or under proceedings to condemn it, of which the courts will not take judicial notice.</p> <p>Id.—Impanelment or Jury—Failure or Jurors to Respond.—Where, during the formation of a jury during the trial of a criminal cause, one of the venire men failed to respond to his name when called by the clerk, it is not error for the court to refuse to delay the proceedings until such venire men can be brought into court by attachment, where there are present more than enough of venire men to fill the panel of jurors.</p> <p>Id.—Attachment of Jurors—Discretion.—Whether an attachment shall issue for absent jurors who have been summoned and failed to respond to their names when called by the clerk is within the discretion of the court; and the defendant has no absolute right under the law to have the first juror called present to be examined before he is required to proceed.</p> <p>Id.—Bias of Jurors—Newspaper Statements.—Where the examination of jurors upon a challenge for actual bias discloses the fact that, so far as any of them had formed an opinion as to the guilt of the defendant, such opinion was based upon newspaper statements, which would not prevent them from acting fairly and impartially as jurors, the challenges are properly disallowed.</p> <p>Id. — Opinion of Juror upon Insanity. — Where no defense based on insanity was made or contemplated, the challenge of a juror upon the ground that he did not believe in the plea of insanity is properly denied. Id.—Special Venire—Failure to Answer When Called.—The jurors summoned on a special venire who failed to answer when called do not cease to be of the venire, and their names may be placed in the jury-box upon their subsequent appearance.</p> <p>Id.—Examination of Juror—Death Penalty—Allowance of Challenqe—Discretion.—Upon a trial for murder, where one of the jurors, upon examination by the prosecution, testified that he had conscientious scruples against the infliction of the death penalty, and a challenge on behalf of the people has been allowed on that ground, the court does not abuse its discretion in refusing the request of counsel for the defense to further examine the juror.</p> <p>Id.—Impeachment of Witness—Collateral Question.—Where a witness for the prosecution upon a charge of murder was asked, upon cross-examination, whether he had not been paid for executing a bond for certain Chinamen under the internal revenue laws, and admitted that he had executed the bond, but denied that he was paid for it, it is not admissible for the defendant to attempt to prove by another witness that the people’s witness was paid for going upon the bond.</p> <p>Presence of Defendant—Presumption.—Where the bill of exceptions does not show that the defendant was not present when the case was set for trial it must be presumed that he was present.</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.</p>

Application to the Supreme Court for a discharge from imprisonment upon a writ of habeas corpus. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco.</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.</p>

Hearing in the Supreme Court upon writ of prohibition to the Superior Court of the City and County of San Francisco, Department 9, Hon. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

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

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

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

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order refusing to set aside an information.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a decree of distribution ordered by 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 Amador County and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Instruction—Credibility of Witnesses—Relatives of Defendant.—An instruction to the jury in a criminal case upon the credibility of witnesses for the defendant, to the effect that, in judging the credibility of such witnesses, the jury are to take into consideration the fact that they were near akin or related to the accused, and that they could not be expected to say any thing unfavorable to the defendant, is erroneous.</p> <p>Id.—Credibility of Defendant—Principle Inapplicable to Relatives. An instruction to the jury bearing upon the credibility of a defendant’s testimony is not looked upon with favor by this court, and must be limited within the strictest lines; and the principle of such an instruction cannot be applied to the relatives of the defendant.</p> <p>Id.—Reception of Stolen Goods—Instruction as to Value.—The value of stolen goods alleged to have been knowingly received by the defendant is a question, of fact for the jury, and is a material element of fact in the case, as bearing upon the presence of guilty knowledge in the mind of the defendant when purchasing the stolen articles; and, where various estimates of value were given by the witnesses, for the court to assume in its instruction any specific statement of value higher than the lowest estimate given by any witness is to charge the jury in respect to a matter of fact, and is violative of the constitution of the state.</p> <p>Id.—Instructions—Argumentative Review of Circumstances Tending to Show Guilt.—A judge cannot be too cautious in a criminal trial in avoiding all interference with the conclusions of the jury upon the facts; and it is improper for the court to review argumentatively the circumstances tending to show the defendant’s guilt, so as to reveal the opinion of the court as to matters of fact bearing upon the question of defendant’s guilt.</p>

<p>Writ of mandate from the Supreme Court to the Superior Court of Napa County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Assault with Intent to Commit Mayhem—Less Offense—Simple Assault—Befusal to Instruct Jury.—Under an information charging a defendant with an assault with intent to commit mayhem, the court should instruct the jury that the defendant may be found guilty of a simple assault, and, where the court has omitted to give an instruction to that effect of its own motion, it is error for the court to refuse so to instruct the jury when asked to do so by counsel for the defendant.</p> <p>Id,—Rule Requiring Party to Present Instructions Before Argument—Object of Rules—Duty of Court—New Trial.—A rule of court requiring parties who desire instructions to be given to present them to the court before argument may be proper and beneficial as a general rule, when applied to doubtful and controverted questions of law; but rules of court are only a means to accomplish the ends of justice and may be departed from when the purposes of justice require it; and such general rule should not be allowed to prevent the court from giving an instruction upon request of the counsel of the defendant which is usually given by courts of their own motion, and a refusal to give such instruction is ground for a new trial.</p> <p>Id.—Erroneous Instruction as to Mayhem—Intent to Bite Lip.—An instruction as to an assault with intent to commit mayhem with respect to the lip of another person should follow the statutory definition by using the word “slit,” employed in section 203 of the Penal Code, and is erroneous if it speaks of “biting” instead of “slitting” the lip. The lip may be bitten in such a manner as not to amount to mayhem, and the intent to “bite” is not the equivalent of an intent to “slit.”</p>

<p>Violation of Municipal Ordinance—Selling Liquor Without License —Defective Complaint—Habeas Corpus.—Under a municipal ordinance requiring a license tax for the selling of liquor in each bar-room, saloon, or other place where liquor is sold, “to be drank upon the premises where sold,” a complaint merely charging the defendant with carrying on “the business of selling liquor,” without referring to a saloon or bar-room, or other place, or alleging that the liquors were to be drank upon the premises where sold, is fatally defective, and will not sustain a commitment for an offense against the ordinance, and a defendant committed under such a complaint will be discharged upon habeas corpus.</p>

<p>Criminal Law—Reasonable Doubt—Instruction—Possible Doubt.— The law requires only a belief in the minds of the jurors to that degree of moral certainty which excludes all reasonable doubt of the guilt of the accused; and an instruction that there must be a conviction in their minds so perfect, complete, and unconditional as to exclude the possibility of a doubt, is properly refused.</p> <p>Id.—Homicide—In applicable Instruction—Harmless Error.—Upon the trial of a defendant accused of murder, whilst it is presumably injurious for the court to give, at the request of the district attorney, merely abstract propositions of law having no connection with the evidence, yet the presumption of injury is rebutted and overcome where the record shows affirmatively that the error was harmless.</p>

<p>Pleading—Misjoinder op Causes op Action—Injuries to Property— Character and Person.—A complaint which alleges that by wrongful acts of the defendant the property of the plaintiff was damaged, her character was injured, and that her health has been permanently impaired, and that by reason of all of these acts she has been damaged in a specified sum, for which she asks judgment, shows a misjoinder of distinct causes of action, forbidden by section 427 of the Code of Civil Procedure.</p> <p>Id.—Trespass to Real Property—Circumstances op Aggravation— Exemplary Damages.—A complaint which is not in terms limited to a recovery for trespass upon real property, hut contains other averments of grounds of damage for injuries to character and to person, and under which the plaintiff at the trial offered proof of injuries to her person and to her health continuing down to the day of the trial, cannot he sustained upon the ground that the action was merely for a trespass upon real property under circumstances of such aggravation as to entitle the plaintiff to exemplary damages.</p> <p>Id.—Uncertainty in Pleading—Actual Damage to Property.—A complaint for trespass to real property must contain a specific and certain averment of the actual damage done to the property, 'even though exemplary damages may be claimed for injury thereto under circumstances of aggravation, and, if the actual damage to the property is not averred with certainty, a demurrer for uncertainty on that ground should be sustained.</p> <p>Id.—Certainty as to Damages—Misjoinder óe Causes.—A complaint alleging such circumstances of aggravation as will entitle the plaintiff to punitory damages in an action for trespass to real property must plead those circumstances in such a manner that there will be no ambiguity or uncertainty in determining that they are set forth solely for the purpose of establishing such claim, and, if they are pleaded in such manner as would be proper in an action brought to recover damages other than those for the trespass, the complaint will for that reason be subject to a demurrer for misjoinder of causes of action.</p> <p>Id.—Parties—Husband and Wife—Injury to Wipe—Common Property.—A right of action for damages for a personal injury to the wife is community property, and, in an action to recover such damages, the husband is a necessary party, unless the wife is living separate and apart from her husband by reason of his desertion of her, or by agreement in writing entered into between them; and, if the wife is living separate and apart from her husband by reason of her desertion of him, she cannot by herself maintain any action for damages to her person.</p> <p>Id.—Trial by Court—Practice—Declaration of Legal Principles.— Under the Code of Civil Procedure there is no authority for the practice at the close of a trial by the court, of presenting to the court propositions of law which the court is requested to declare as legal principles applicable to the facts of the case, and to render its decision in accordance therewith, and the refusal of the court so to do cannot properly be reviewed upon a bill of exceptions.</p> <p>Id.—Trespass to Real Property—Evidence—Condition of Plaintiff’s Health.—In an action by a married woman to which the husband is not a party, for trespass upon her separate property, the evidence as to the condition of her health and strength subsequent to the date of the trespass is inadmissible, and should be excluded.</p> <p>Id.—Change of Residence After Trespass—Res Gesta—Evidence that shortly after the trespass upon the property of the plaintiff she left the house and went elsewhere to reside is not admissible, the removal being no part of the res gestee connected with the trespass, and not appearing to have been caused by any injury to the house.</p> <p>Id.—Personal Fear—Damage to Property.—Any personal injury sustained by the plaintiff in the nature of fear and timidity would not be an element of damage done to her property.</p> <p>Id.—Damages Sustained by Children.—The plaintiff cannot recover for any personal injuries sustained by her son or her daughter.</p> <p>Id.—Arrest of Son—State of Mind at Time of Trespass. —Evidence for defendants that the arrest of the son of plaintiff had been the subject of discussion between plaintiff and her daughter prior to the trespass is admissible as tending to show the plaintiff’s state of mind at the time of the trespass, which was a, circumstance proper to be considered in determining the cause of her fright at the time of the trespass.</p> <p>Id.—Motives of Defendants—Exemplary Damages.—Defendants, in an action for trespass upon real property, in which exemplary damages are claimed by reason of circumstances of aggravation connected with the trespass, have a right to introduce evidence to show their motives and purpose in going to the house of the plaintiff and doing what was there done, and to state the intention with which they visited the premises of the plaintiff.</p> <p>Id.—Intention, When Material.—If a trespass was in fact committed, the actual damage which was caused thereby could not be diminished or increased by the character of the motives which actuated the trespassers; but, for the purpose of determining whether punitory damages should be allowed, the motive or intention with which the act was done is important.</p> <p>Id.—Conversation with Some of the Defendants—Severing of Damages.—Evidence for the plaintiff of conversations had with some of the defendants, in the absence of other defendants, subsequent to the trespass, for the purpose of showing the intention of the defendants with whom the conversations were had, is inadmissible and incompetent for that purpose, as there can be no severing of damages against the several defendants in the joint action.</p> <p>Id.—Liability of Spectator for Trespass.—A spectator of the trespass who did no act to promote or encourage the trespass is not rendered guilty of the trespass by his mere silence while it is being committed by others, nor by his subsequent declaration of approval of the trespass.</p>