Volume 106 — California Reports

The facts are stated in the opinion of the court upon the former appeal (97 Cal. 140) and in the opinion of the court rendered in this case.

<p>Corporations—Stock Held in Trust—Dividends—Estate of Deceased Owner—Demand and Refusal—Statute of Limitations.—Where stock of a mining company was issued in the name of a trustee as the agent of another person, and the administratrix of the beneficial owner of the stock applied to the officers of the corporation for information as to the dividends upon the stock, who informed her that all dividends on the shares of stock had been paid to the trustee, and that no money was due or owing on account of any dividends declared during the lifetime of the beneficial owner, and the administratrix of the beneficial owner allowed the estate to be distributed and closed without reference to the dividends of the corporation, and without further demand for an inspection of its books or papers, or effort to discover whether it was true that the dividends had been paid to the trustee, the statute of limitations for a recovery of the dividends from the corporation on behalf of the distributees of the estate began to run from the time of the refusal of the corporation to pay any dividends to the administratrix, at which time the corporation put itself in a state of hostility to the estate of the deceased beneficiary with respect to any alleged obligation in the matter of the dividends, and no further demand or refusal was necessary to set the statute in motion.</p> <p>Id.—Discovery of Fraud—Laches.—The statute of limitations for the recovery of dividends from a corporation cannot be avoided on the ground of fraud, in a ease where the facts are sufficient to put a person of ordinary intelligence and prudence on inquiry as to the truth, and where there is gross laches in not making any effort to discover the real facts with respect to the dividends, which might have been discovered by the use of slight diligence.</p>

<p>Criminal Law—Oral Instructions—Certificate by Court—Harmless Error.—It is the duty of the court, where oral instructions are given of its own motion, which are taken down by the reporter and afterwards written out, to certify them, so as to make them part of the record without a bill of exceptions; but the refusal of the court so to certify them is harmless error, where the instructions are embodied in a bill of exceptions, which forms part of the record upon appeal of the defendant, and are available to the appellant.</p> <p>Id.—Robbery— Evidence—Identification of Defendant — Conversations.—For the purpose of identification of a defendant charged with robbery it may be shown that the witness identified one of the robbers as a man with whom he had a conversation prior to the robbery, at a certain place, in the presence of another person, without knowing the name of the man identified, and evidence of the original conversation with the defendant, and of a subsequent conversation between the witness and the other person as to the name of the person identified, is admissible, and can be productive of no injury, where no statement or declaration testified to was touching the commission of the offense, and the witness positively identified the defendant at the trial as one of the active participants in the robbery.</p> <p>Id.—Understanding of Witness—Actions of Robbers.—A Chinese wit- - ness who was present at the time of the robbery, and did not understand what was said in English by the robbers, may properly testify to his understanding that they wanted him to go out, by the way they pointed their revolvers, and pointed toward the door.</p> <p>Id.—Proof of Absence of Witness.—It is proper to allow one of the witnesses to the robbery to explain the absence of another of the witnesses who was present at the time of the robbery, and not present at the trial, by showing where he was at the time of trial, and why he was absent.</p> <p>Id.—Harmless Ruling—Leading Question.—Whether the court erred or not in putting a leading question to a witness will not be considered upon appeal, where the answer was favorable to the appellant.</p> <p>Id.—Robbery of Chinamen—Money to be Paid as Rent—Knowledge of Third Parties.—Where the defendant is accused of robbing several Chinamen, who were partners and cotenants, in the cultivation of land, evidence that other parties than the defendant had learned prior to the robbery that a payment of rent was about to become due, and was to be made by the Chinamen, is not admissible, such knowledge not being proved to have been brought home to the defendant prior to the robbery.</p> <p>Id.—Harmless Error not Affecting Substantial Rights.—A technical error in the admission of erroneous evidence not affecting the substantial rights of the defendant, nor appearing by the record to have been prejudicial to the merits of his defense, is not ground for reversal of the judgment.</p> <p>Id,—Cross-examination of Defendant.—The defendant may properly be cross-examined in regard to what he was doing in the neighborhood of the robbery, where, upon his examination in chief, he had admitted himself to have gone to that neighborhood on the night of the robbery.</p> <p>Id.—Rebuttal of Defendant — Conversation.—Testimony may be received in regard to a conversation with the defendant just after ■ his arrest as to where he was on the night of the robbery, for the purpose of rebutting the testimony of the defendant upon that point.</p> <p>Id,—Variance—Ownership of Money Taken.—Where the information charged the defendant with having robbed a Chinese company of a specified sum, and the evidence shows that that sum was taken, but that only part of it belonged to the company, there is no such variance as entitles the defendant to an acquittal. It is not necessary that the property alleged to have been taken should, in its entirety, be the property of the person robbed.</p>

<p>Appeal ^Justification of Sureties — Exception to Sufficiency — Waiver.—The justification of the sureties upon an appeal bond, by their oath attached to the bond, establishes a prima facie justification, which is sufficient, unless overcome at the instance of the party excepting and by the examination of the sureties by him; and if he fails to appear at the time fixed for their justification, after exception taken, he waives the benefit of his exception.</p> <p>Id.—Withdrawal of Surety—Presence at Justification.—The contention that one of the sureties on the appeal bond withdrew from the undertaking, and that respondent’s failure to procure a new surety renders the appeal void, cannot be sustained where such surety was actually present at the time appointed for the justification, for the purpose of justification, and the party excepting to his sufficiency failed to attend.</p> <p>Id.—Appeal from Justice’s Court — Certiorari — Conflicting Evidence.—Where the question whether a surety was present for the purpose of justification upon a bond upon appeal from the justice’s court, the sufficiency of the sureties upon which was excepted to, was a fact presented to the superior court, and determined in favor of the sufficiency of the undertaking upon conflicting evidence, that determination is not subject to review in the supreme court upon certiorari.</p>

<p>Criminal Law—Homicide—Insanity—Time op Trial—Presumption op Sanity—Burden of Proof.—Upon the trial of a defendant charged with murder where the defense of insanity is presented, and there was no suggestion of his insanity at the time of trial, it is proper for the court to instruct the jury that the defendant is to be considered sane at the time of the trial, and that the question to be considered by the jury is whether he was insane at the very time of the alleged commission of the homicide, of which the burden of proof is upon the defendant.</p> <p>Id.—Mistaken Language op District Attorney—Correction by Court. The mistake of the district attorney in stating to the jury that they would he instructed by the court that they must find by preponderance of testimony that the defendant “is insane” before they could acquit him, to which the defendant excepted on the ground that the statement was not law, was properly corrected by the court by directing the jury that the only issue to he tried by them related to the insanity of the defendant at the time of the commission of the homicide, and that they must consider him as now sane, and after such correction the jury could not be misled by the error of the district attorney.</p> <p>Id.—Evidence op Insanity—Hearsay.—A witness who has already testified as to his opinion as to the insanity of the defendant cannot be permitted to testify that he had expressed his opinion to his sister two years before the homicide, and that his sister had answered that she knew he was crazy; and no hearsay declarations of the opinion of a third party as to the insanity of the defendant are admissible in evidence.</p> <p>Id.—Qualification op Witness as to Sanity.—Whether a witness as to the sanity of defendant had such acquaintance with him and opportunity of observing him as to he qualified to express an opinion as to his sanity is a question to be determined by the trial court, and while its ruling may be reviewed upon appeal, it will not be held erroneous upon a mere difference of opinion as to the qualification of the witness, but it must clearly appear that the decision of the trial court was wrong.</p> <p>Id.—Presumption as to Continuance op Insanity.—To establish the basis of a presumption that insanity once shown to have existed continues to exist it must appear to have been of such duration and character as to indicate the probability of its continuance, and not simply the possibility, or even probability, of its recurrence, as in case of temporary insanity.</p> <p>Id.—Partial Insanity—Delusion—Instruction.—Instructions as to partial insanity which introduce the word “ delusion” as a synonym of “insanity,”although the word “delusion”has no proper application to the facts of the case, cannot mislead the jury.</p> <p>Id.—Repetition op Instruction—Degrees op Opeense.—It is not necessary that the court should repeat instructions in every possible connection in which reference can be made to the degrees of the offense; but it is sufficient if such instruction is once clearly and explicitly given.</p> <p>Id.—Responsibility op Dependant—Development op Insanity Apter Sentence.—The fact that the insanity of the defendant has become fully developed since the trial, assuming it to be true, does not authorize the appellate court to act upon evidence furnished by his present demented condition, and upon that ground reverse a judgment otherwise legal, when it may be true that notwithstanding his present condition, the mental disease may not have so far progressed at the time of the homicide as to relieve the defendant from responsibility for his acts.</p> <p>Id.—Punishment op Insane Person.—Under the Penal Code a person, though adjudged to punishment, cannot be punished for a public offense; while insane, and his conviction of the offense does not exclude him, from the state insane asylum.</p>

<p>Appeal from an order of the Superior Court of San Diego County denying a motion for a change of venue.</p> <p>The facts are stated in the opinion of the court.</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 dissolving an attachment.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—■ Homicide—Conviction upon Circumstantial Evidence.—A defendant may be convicted of murder upon circumstantial evidence, where the circumstances, taken together, are sufficient to uphold the verdict, and to stamp the defendant as the perpetrator of the murder.</p> <p>Id.—Chain op Circumstances — Independent Facts — Reasonable Doubt.—Where a defendant is accused of murder, and independent facts and circumstances are relied upon to identify the accused as the person committing the offense charged, each material fact or circumstance necessary to complete the chain or series of independent facts tending to establish the guilt, must be established to a moral certainty and beyond a reasonable doubt; and, if the jury have a reasonable doubt upon any single essential fact relied npon to complete the chain of circumstances, they cannot convict the defendant as long as they entertain such doubt.</p> <p>Id.—Modification of Instruction—Perspicuity.—An instruction properly embodying the law relating to circumstantial evidence shonld not, at the request of the defendant, be modified so as to involve and cloud it, or detract from its perspicuity.</p> <p>Id.—Expert Evidence — Character of Blood — Refusal to Caution Jury.—It is not error to refuse to instruct the jury that they should exercise caution in accepting the opinion of an expert as a fact proven in the case, when there was nothing apparent in the character of the expert witness, or his relation to the parties, or his manner of testifying, calculated to arouse suspicion as to his capacity, skill, or impartiality, and his testimony related to well-established, scientific facts as to the character of human blood, and as to measurements of corpuscles, indicating that the blood found upon the clothing of the defendant was that of a human being.</p> <p>Id.—Evidence — Articles Found in Possession of Defendant — Res G-esmd.—Articles found in the possession of the defendant at the time of his arrest, when properly identified, are admissible in evidence where there is some evidence tending to show that a portion of them was the property of the murdered man, and they were so intimately connected with the case as to form part of the res gestae.</p> <p>Id.—Proof of Killing of Another Person.—The general rule, that in a criminal prosecution it is not permissible to prove that the defendant had committed crimes other than that with which he is charged, is subject to the exception that where two persons are killed at the same time and place, and apparently the same transaction, or approximately so, evidence as to the circumstances of the killing of one is admissible on trial under an indictment for the killing of the other.</p> <p>Id.—Death of Another Admissible as a Circumstance.—Evidence that another person living in the same house with the deceased was shot at the house, and one-half of his head blown off, and that parts of his skull and brains were found at the house, is admissible for the purpose of showing that his death occurred at that place, and that he could not have been the cause of the death of the other person whom defendant is charged with killing, it appearing that both bodies were placed in a stream at a distance from the house.</p> <p>Id.—Cross-examination of Defendant—Articles Pound in his Possession.—Where, on the direct examination of the defendant, he testified explicitly that all of the articles taken by him upon leaving the house were his own, it is legitimate cross-examination to ask him any questions tending to show that the articles, or some of them, belonged to the deceased, or to sift defendant as to where he got them.</p>

<p>Criminal Law—Appeal—Review of Evidence.—A verdict of conviction upon conflicting evidence will not be disturbed for insufficiency of the evidence to support it, even though a portion of the evidence is calculated to cast discredit on the case of the prosecution.</p> <p>Id.—Assault with Deadly Weapon—Motive of Assault—Cross-examination of Prosecuting Witness—Prejudicial Error.—Upon the trial of a defendant charged with an assault with a deadly weapon, where the prosecuting witness in his direct examination testified that the only cause of the assault upon him, so far as he knew, was that he was present on a previous occasion when the defendant and several others assaulted another person, and that he witnessed the affair, and subsequently gave the names of those engaged in it to the officers, which resulted in their arrest, it is prejudicial error to refuse to allow cross-examination as to what the defendant did at the time of the previous assault.</p> <p>Id.—Improper Cross-examination of Defendant — Prejudicial Questions. — It is improper to cross-examine the defendant about any matters not testified to in his examination in chief; and to ask him questions as to his mode of life not testified to by him in chief, the obvious purpose and effect of which is to degrade and injure him in the estimation of the jury, is prejudicial error, and such error is not cured or the prejudicial effect removed by negative answers to the questions allowed, hut the error lies in permitting such an examination to be made.</p> <p>Id.—Improper Impeachment of Witness.—It is not proper to ask a witness for the prosecution on cross-examination whether he is connected with a gambling-house, when such evidence has no relevancy to any thing called out on his direct examination, and is asked solely for the purpose of discrediting the witness with the jury.</p> <p>Id.—Conflicting! Evidence—Instruction as to Conflict.—While it is a dangerous practice for the court, in its charge to the jury, to undertake to characterize the effect of the evidence, yet where there is in fact an irreconcilable conflict in the evidence as between the prosecution and defense, a charge stating that such conflict exists is not prejudicially erroneous.</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>m Ejectment—Title and Possession—Admissions in Answer—Absence oe Evidence—Conclusión oe Law.—Where a complaint in ejectment alleges that the plaintiff is seised in fee simple of the demanded premises, and that the defendant is in the unlawful and wrongful possession thereof, and wrongfully withholds the possession from the plaintiff, upon an answer not denying the seisin of the plaintiff or the possession by himself, but merely denying that his possession and withholding is wrongful or unlawful, the conclusion of law follows that the plaintiff is entitled to the possession of the land.</p> <p>Id.—Right of Possession—Affirmative Defense.—A defendant claiming the right to retain possession as against the owner of land must establish such right as matter of affirmative defense.</p> <p>Id.—Omission of Finding—Character of Possession—Failure of Evidence.—Where the record shows that the defendant did not offer any evidence at the trial to show the rightfulness of his possession the failure of the court to make a finding as to whether his possession was rightful or wrongful does not constitute error.</p> <p>Id.—Admission as to Rents and Profits—Computation of Damages.— Where the complaint alleges the annual value of the rents and profits of the land, and no issue is taken upon the allegations, the damage to the plaintiff is properly determined by a computation of the value alleged during the period of the withholding of the land by the defendant, down to the time of rendering judgment.</p> <p>Id.—Denial of Damages—Legal Conclusion.—The denial in the answer that plaintiff had been damaged, without a denial of the alleged value of the rents and profits of the land, raises no issue of fact, and is only the denial of a legal conclusion.</p>

<p>Appeal from a judgment of the Superior Court of Alameda 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>Estates of Deceased Persons—Action to Enforce Trust in Lands— Incapacity of Administrator to Sue.—An administrator has no capacity to bring an action to enforce a trust in lands conveyed by the decedent in his lifetime, and to compel a conveyance of the legal title.</p> <p>Id.—Fraudulent Conveyance—Defective Complaint.—An administrator cannot maintain an action to set aside a deed of his testator as void against creditors unless it appears from the complaint both that there are creditors to be paid and that there is an insufficiency of assets in the hands of the administrator to meet their demands.</p> <p>Id.—Creditors—Claims not Allowed.—Until the estate has been charged with claims by allowance or judgment there is no basis for a bill by the administrator to set aside a fraudulent conveyance against the decedent to recover means to pay them, and a complaint averring that there are no allowed claims, but that there are creditors whose claims have not as yet been presented against the estate, and that the time for the presentation of claims has not yet expired, shows upon its face that there are no such creditors as are necessary for a recovery.</p> <p>Id—Insufficiency of Assets—Personal Property Taken by Trespassers—Presumption.—A complaint showing that the personal property of the decedent is in the possession of others who claim it as their own, and against whom a suit for the recovery thereof by the administrator is pending and undetermined, and which does not allege the amount or value of the personal property, does not show an insufficiency of assets to sustain a suit to set aside a fraudulent conveyance of real estate; hut it must he presumed that the personal property of the estate taken hy trespassers without right will be recovered by the administrator in the performance of his duty, and that it will be sufficient to meet the demands of the creditors of the estate.</p> <p>Id.—Conjunctive Special Demurrer—Specifications of Uncertainty. A conjunctive demurrer on the general grounds of ambiguity, unintelligibility, and uncertainty will be regarded only as a demurrer for uncertainty, where the only specifications made are on, the ground of uncertainty.</p>

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

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

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

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.

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

<p>Conversion of Piano—Pleading—Variance.—In an action for the conversion of a piano the date of the conversion alleged in the complaint is not material, and a variance in proof as to the date, if prior to the commencement of the action, will not warrant a reversal of the cause.</p> <p>Id.—Storage of Piano in Warehouse—Sale for Charges—Findings —Support of Judgment.—In an action for damages for the conversion of a piano, in which the defendants pleaded that the piano was stored with them as warehousemen, and that after due notice to plaintiff it was sold to pay charges, and claimed a balance yet due on account of the charges, findings showing that the piano came into their possession against the plaintiff’s will, that it was not stored because the plaintiff refused to pay the lawful charges upon it, but was stored without authority, that plaintiff demanded its return and was refused, and that thereafter defendants converted it to their own use, are sufficient to sustain a judgment for the plaintiff, and to negative the claim of defendants, and additional findings, which would not affect the judgment nor afford defendants any relief, are not required.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco directing the immediate payment of a claim against the estate of John T. Hope, deceased.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

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

Application to the Supreme Court for a writ of mandate to 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 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—Review of Conflicting Evidence—Instruction—Burden of Proof—Preponderance of Evidence.—Where the evidence is conflicting, and that introduced by the plaintiff is sufficient, if believed, to support a verdict for the plaintiff, the appellate court will not disturb the verdict on the ground that the jury disobeyed an instruction that the burden was upon the plaintiff to prove his claim by a preponderance of evidence.</p> <p>Id.—Action for Wages—Evidence—Purchase of Lot from Defendant— Instruction as to Issues—Harmless Error.—In an action to recover wages, where there was a dispute as to the amount of wages, and it appeared in evidence that the plaintiff had agreed to purchase a lot from one of the defendants, and that one-half of his wages should be applied monthly in payment thereof, and the questions as to the lot arose incidentally in the effort to show that plaintiff was to be paid the amount of wages claimed by him, and the court correctly instructed the jury as to what the issues were that they were to consider and pass upon, the refusal of the court to instruct the jury, at the request of the defendant, that there was no issue as to the title to the lot, or as to what lot was selected by the plaintiff is not prejudical error.</p> <p>Id.—Inadmissible Evidence—Amount of Wages—Settlement of Partnership Accounts—Absence of Plaintiff.—Evidence of a settlement of the partnership accounts between the partners and as to the amount of the wages of plaintiff settled in the partnership accounts, the plaintiff not being a party to the settlement, is not admissible against the plaintiff, upon the issue as to the amount of his wages.</p>

<p>Foreclosure of Mortgage — Jurisdiction — Sale by Commissioner— Pleading—Prayer of Complaint.—The court has jurisdiction in an action to foreclose a mortgage to order a sale of the mortgaged property by a commissioner, although the prayer of the complaint follows the usual form and asks for a sale of the mortgaged property by the sheriff, the essence of the prayer being only for a judicial sale.</p> <p>Id.—Variance Between Decree and Order Appointing Commissioner— Amendment.—The fact that the decree as entered by the court ordered the encumbered property to be sold by the sheriff, while an order made and entered on the same day appointed a commissioner to discharge the same duty, is an oversight of the court, not calling for an appeal, and may he remedied at any time by a simple motion to amend and correct the decree by striking out the word “sheriff,” and inserting “commissioner, ” wherever they occur in the decree.</p> <p>Id.—Constitutional Law—Power to Appoint Commissioners—Uniformity of Law.—Section 726 of the Code of Civil Procedure, conferring upon the court authority to appoint commissioners to sell mortgaged property, is not in violation of the fifth section of article XI of the constitution, requiring that the duties of a sheriff shall be prescribed by general and uniform laws.</p> <p>Id.—Duties oe Sheriff.—It is no part of the duty of a sheriff, as such, in the absence of statutory provision, to sell property under a sale in foreclosure, and he has no duty to perform in case of sale of real property under foreclosure, where the court appoints a commissioner to make such sale by authority of law.</p> <p>Id.—Authority of Court in Foreclosure Cases—Discretion.—In cases of foreclosure of mortgages the court is authorized to appoint a commissioner to sell the encumbered property, in every case, at its discretion.</p>

<p>Action for Refusal to Satisfy Mortgage—Damages—Statutory Penalty—Issue as to Title—Waiver of Damages—Nonsuit—Jurisdiction.—In an action brought to recover damages for the refusal of a mortgagor to execute a satisfaction of the mortgage, and also to recover the statutory penalty of one hundred dollars allowed for such refusal, where the answer put in issue plaintiff’s title to the mortgaged land, and the plaintiff waived all claim for damages except for the statutory penalty, a motion for nonsuit on the ground that the court had no jurisdiction to enforce the statutory penalty in a sum less than three hundred dollars, is properly overruled, and a judgment for the statutory penalty will be affirmed, the superior court having original jurisdiction to enforce the penalty in an action in which plaintiff’s title to the land is denied.</p>

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

<p>Action upon Promissory Note—Proof of Indorsement to Plaintiff.— In an action upon a promissory note it is sufficient evidence of the title of the plaintiff as indorsee, that the names of the payees were written upon the face of the note at the left-hand end thereof, instead of being written upon the back of the note.</p> <p>Id.—Mode of Indorsement.—The ordinary mode of indorsing a note is by the indorser writing his name upon the back thereof, but the indorsement may be made upon the face of the note with the same effect as if made upon the back; and, under section 3108 of the Civil Code, it is sufficient to constitute an indorsement, that the name of the indorser be written upon the negotiable instrument, otherwise than as a maker or acceptor, and that it be delivered with his name thereon.</p> <p>Id. — Proof of Delivery and Title.— The production of the note by plaintiff is evidence to show its delivery to him, and of his right to collect it from the defendants, where it appears that the names of the payees were written by them upon the instrument.</p> <p>Id.—Evidence—Genuineness of Indorsement — Failure to Object.— Where no objection was made to the indorsement of the names of the payees when the instrument was offered in evidence, upon the ground that there was no proof of the genuineness of the indorsement, such ground of objection is waived.</p> <p>Id.—Appeal—Waiver of Objection to Evidence.—A party cannot allow evidence to be introduced at the trial without objection, and afterward, upon an appeal, make an objection which might have been obviated if he had made it when the evidence was offered.</p>

<p>Criminal Law—Assault with Intent to Commit Rape—Consent op Female under Fourteen.—Under the law of this state making a female under the age of fourteen years incapable of consenting to the offense of rape, a girl under that age is incapable in law of consenting to an assault in connection with the intent to commit the offense, and it is immaterial whether the girl in fact consented or resisted.</p> <p>Id.—Object of Statute.—The purpose of the statute is the protection of society by protecting from violation the virtue of young and unsophiscated girls; and although an assault ordinarily implies force by the assailant, and resistance by the one assaulted, and one is not, in legal contemplation, injured by the act consented to, these principles have no application to a case where under the law there can be no consent, and the female is to be regarded as resisting, no matter what the state of her mind may be at the time; but in such case the law resists for her.</p>

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

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

<p>Foreclosure of Liens—Priority—Judgment for Defendants—Appeal Insufficient—Service of Notice.—In an action for the foreclosure of a mortgage executed by one of the defendants, who conveyed the mortgaged property to a corporation codefendant, in which the claimants of mechanics’ liens upon a building constructed upon the premises are made codefendants, and the mechanics’ liens were decreed to be prior to the lien of the mortgage, and a judgment ordered docketed in favor of the plaintiff for any deficiency that may remain in its favor against the mortgagor, and in favor of the claimants of the mechanics’ liens respectively, for any deficiency remaining against the corporation defendant, an appeal from that portion of the judgment which gives to the mechanics’ liens of the defendants a priority over the mortgage lien of the plaintiff cannot he considered, where the notice of appeal was not served either upon the mortgagor or upon the corporation defendant.</p> <p>Id.—Parties Affected by Judgment.—A modification of the judgment giving to the plaintiff’s mortgage a prior lien would change the personal liability of the mortgagor and of the corporation defendant, relieving the mortgagor, and injuriously affecting the interests of the corporation defendant, and the appellate court can have no jurisdiction to render a judgment affecting the interests of those defendants, unless the parties to be affected thereby are before it.</p> <p>Id.—Validity of Mechanics’ Liens—Jurisdiction of Appellate Court. An appeal from that portion of the decree which enforces the mechanics’ liens upon the mortgaged premises may be considered, notwithstanding the notice of appeal was not served upon the corporation defendant, who is the owner of the premises, since the falsification of those liens would beneficially and not injuriously affect the rights of the corporation.</p> <p>Id.—Mechanics’ Liens — Original Contractor — Time of Filing.— Where a building is constructed by the owner under distinct contracts for the different departments of work involved therein, each person contracted with is an original contractor, and can file his claim of lien within sixty days after the completion of bis contract, irrespective of the time when the building is completed.</p> <p>Id.—Liens of Laborers and Materialmen.—The laborers and material-men under any one of the original contractors for distinct departments of the work are entitled to a lien, and the contract price with the contractor is the limit of the owner’s liability for such liens.</p> <p>Id.—Allowance of Interest. —Interest may be allowed upon the liens of claimants up to the time of entering judgment upon the principal sum found due from the date of payment, where the contract prescribed the time of payment; and, where no time for payment is provided, interest may be allowed from the time of filing a complaint to foreclose the lien.</p> <p>Id.—Allowance of Attorneys’ Fees.—The court may allow a reasonable attorney’s fee to each lien claimant whose lien is established, for services in the superior and supreme courts, as an incident to the judgment, and the amounts are to he fixed by the court, irrespective of any averment in the complaint; and it is no objection to a allowance fixed by the court, that the sum is in excess of the^amount designated in the complaint.</p> <p>Id.—Review of Discretion—Absence of Evidence.—The discretion of the court in the allowance of attorneys’ fees cannot be reviewed upon appeal, in the absence of evidence regarding the amount of services.</p> <p>Id.—Failure to Record Lien.—A lien claimant who fails to show that he filed any claim of lien with the county recorder cannot enforce his lien, and it is error for the court to allow him any attorneys’ fees or any amount for filing the claim of lien, or to direct any payment for his claim for materials to be paid out of the proceeds of the building.</p> <p>Id.—Claim of Lien for Labor and Materials—Rejection of Claim for Labor—Forfeiture of Claim—Construction of Code—Willful Violation not Presumed.—Section 1202 of the Code of Civil Procedure, which provides that any person who shall willfully include in his claim work or materials not performed upon or furnished for the property described in the complaint shall forfeit his lien, cannot be applied for the rejection of a lien claimed for labor and materials under which the claim for labor was disallowed, in the absence of clear and convincing evidence that the including of a false claim for labor was willful and intentional; and where the record does not contain any evidence concerning the claim, the finding of the court in favor of its validity as a claim for materials will not be set aside upon a mere surmise that the statute . was willfully and intentionally violated.</p> <p>Cd.—Priority of Lien over Mortgage — Relation.—The lien for the furnishing of materials relates to the date of beginning to furnish them, and includes all the materials thereafter furnished for the building; and such lien has priority over a mortgage executed after the date of the commencement to furnish the materials.</p> <p>Id.—New Trial—Conclusions of Law.—The conclusions of law from the facts found cannot be reviewed upon a motion for a new trial.</p> <p>Id.—Review upon Appeal—Sale of Premises under Foreclosure.— Where the part of the judgment directing the sale of the premises under foreclosure is not expressly included in the notice of appeal it cannot be reviewed upon an appeal from that part of the judgment respecting the validity and priority of liens enforced therein.</p>

<p>Water Bights—Title of City — Appropriation — Riparian Lands— Injunction.—Where a city is entitled to divert the waters of a river for municipal purposes, and for the benefit of its inhabitants, a corporation owning riparian lands, which has diverted a portion of the waters of the river for purposes of sale and not for use upon its riparian lands, it not appearing that its lands were susceptible of cultivation, or could be injured by deprivation of the water flowing in the stream, is not entitled to an injunction against the city to protect its riparian rights, especially in view of the fact that the injunction, if issued, would not have the effect to cause the water to flow over or along its riparian lands as it was accustomed to flow.</p> <p>Id.—Diversion by Plaintiff — Adverse User. — The diversion by the corporation plaintiff of a specified quantity of water for sale, made while the city was actually diverting the stream, where it does not certainly appear when and for how long a time plaintiff was able to take and sell that quantity of water, or whether its use of the water is not permissive, is not sufficient evidence of adverse user to entitle the plaintiff to an injunction against the city.</p> <p>Id.—Superior Rights of Mexican Pueblo to Waters of Stream.— A Mexican pueblo was entitled to the use of so much of the waters of a stream flowing through the pueblo as was necessary for municipal purposes, and for the supply of its inhabitants, and this right was superior to that of riparian proprietors.</p> <p>Id.—Rights of City as Successor to Pueblo—Sale of Water to Outside Parties — Unauthorized Acts of Officers.—The rights of a city as successor to a Mexican pueblo are confined to the rights of the pueblo, and it has no power to appropriate water to sell to outside parties, for a profit, for use on extra-municipal lands, and the city can acquire no rights by the unauthorized acts of its officers in making such sales.</p> <p>Id. — Limitation of Powers of City — Unauthorized User. — A city can obtain no title to water through a continuous use which is forbidden, and which involves the continuous exercise of powers with which the corporation is not vested.</p> <p>Id.—Source of Powers of City — Grant not Presumed — Judicial Notice.—The powers of a city are derived from its charter, and from public laws, of which the courts take judicial notice; and the exercise of powers by its officers, in excess of their authority, for a great length of time, will raise no presumption of a grant to the city of such powers.</p> <p>Id.—User of Water by City—Evidence of Reputation.—For the pur- „ pose of showing that the city had the use of the waters of the stream under a claim of right for more than thirty years evidence is admissible to prove that it was matter of common reputation that the city claimed and had control of the water during that period.</p> <p>Id.—Improper Decree.—Where there is no evidence to show that there was any developed or artificial water in the stream, and no evidence to support a decree adjudging that a codefendant owning riparian lands immediately above the riparian lands of the plaintiff is entitled to divert for sale to nonriparian owners all the artificial water which the city permits to flow past, besides four-fifths of the natural flow of the stream, and limiting plaintiff’s right to one-fifth, when there was only sufficient water to supply the uses required for their riparian lands, and making further disposition of the water when there is more than is required for such needs, and professing to protect the riparian rights of the parties in a manner inconsistent with such rights, the decree will be reversed upon appeal.</p> <p>Id.—Nature of Riparian Rights—Appropriation.—The riparian owner is entitled to the continuous flow of the stream as part and parcel of the estate, and not as an easement or incorporeal right issuing out of the land, and he does not own the corpus of the water, but, incident to his riparian right, has a right to appropriate a certain portion of it, and an appropriator cannot acquire a right to any of the waters of a stream to the prejudice of a riparian owner, by any use, except under the statute of limitations.</p>

The main facts are stated in the opinion of the court. Instructions Nos. II, IV, X, and XIII, asked by plaintiff, referred to in the opinion of the court, were as follows: “II. To cause water to flow wrongfully upon another’s land which would not flow there naturally is to create a nuisance, and the party creating such nuisance is liable for the damages caused thereby.” “ IV.

<p>Criminal Law — Assault with Intent to Commit Murder — Self-defense—Appeal—Review of Evidence.—Although the evidence upon a charge of an assault with intent to commit murder shows a close case upon the plea of self-defense, yet, where the jury has found against the defendant upon that plea, and the court held the evidence sufficient to support a verdict of guilty of an assault with a deadly weapon, the appellate court is not justified in disturbing the verdict for lack of evidence.</p> <p>Id.—Axe in Hand of Prosecuting Witness—Intention—Appearance to Defendant — Harmless Evidence. — Where the prosecuting witness, when shot at, had, an axe in his hand his actual intentions as to the use of the axe are immaterial, the only question at issue being how did the axe appear to the defendant as a reasonable man, and evidence as to the prior statement of the prosecuting witness out of the hearing of defendant, that he was going to cut down a fence ejected upon his land by the defendant, is immaterial and harmless evidence, especially where the law to the effect that it was not the matter of fact, but the matter of appearance, which measured defendant’s right of self-defense, was fully and fairly stated to the jury by the court.</p>

<p>Criminal Law—Assault with Intent to Commit Rate—Evidence-Age of Prosecutrix.—Upon the trial of a defendant accused of an assault with intent to commit rape, the admission in evidence of the testimony of the prosecutrix that she was but twelve years of age, and that she gained such information from certain entries made in the family Bible, is not prejudicial error if her elder sister testified positively that she was hut twelve years of age, and there was no testimony offered by the defendant to prove that she was fourteen years of age.</p> <p>Id. — Declaration of Defendant—Exclusion of Evidence—Ruling Cured by Subsequent Evidence.—Where a witness for the prosecution related a conversation which occurred with the defendant at the home of the prosecutrix, after he had returned with him from the shop of a shoemaker, and upon cross-examination was not allowed to he asked by the defense what the defendant had said to the witness at the house of the shoemaker, any error in the ruling is without injury to the defendant, in view of the fact that the shoemaker, as a witness for the defendant, was allowed without objection to state all that the defendant had said at his shop.</p> <p>Id.—Testimony of Arresting Officer—Proof of Active Part in Defense—Opinion of Innocence.—Where the arresting officer while testifying was required by the prosecution to state that he had taken an active part in the defense, for the purpose of showing his interest in the case, it is proper for the defense in rebuttal to ask the witness the cause or reason of his interest, and a statement by him that it was because upon investigation he believed the defendant innocent, cannot properly be stricken out upon motion of the prosecution.</p> <p>Id.—Reputation of Prosecutrix for Unchastity—Age of Consent— Credibility of Witness.—While, as a general rule, both the general reputation of a prosecutrix for unchastity and particular acts of unchastity may he proven in a criminal action, involving an intent to commit rape, yet, where the prosecuting witness is under the age of consent, no evidence either of general reputation or specific acts of unchastity is admissible, either as going to the question of consent, or as going to the credibility of her testimony in its entirety.</p> <p>Id.—Instructions.—Where the charge as given to the jury fairly covers the law bearing upon the case, the refusal of very numerous instructions asked for by the defendant is not erroneous.</p> <p>Id.—Instruction—Acts and Conduct of Defendant—Guilty Intent_ Question of Pact—Erroneous Instruction.—Upon a charge of an assault with intent to commit rape, the specific intent with which the" assault was made is a material element in the ease, and the court has no right to put a state of facts to the jury which would bar them from finding the intent to he other than that charged in the information; and where the defendant may have done any of the things testified to by the prosecutrix and still have had no intent to commit rape, his intent is a question of fact which it is the sole province of the jury to determine, and an instruction to the jury that if they believed the evidence of the prosecutrix as to the acts and conduct of the defendant, they must find him guilty, is erroneous.</p> <p>Id.—Specific Intent—Presumption of Law.—When a specific intent is an element of the offense, no presumption of law can ever arise that, will decide the question of intent.</p>

Heabing in the Supreme Court upon a writ of habeas corpus to the chief of police of the City of Los Angeles. The facts are stated in the opinion of the court.

<p>Criminal Law—Embezzlement—Evidence—Proof of Corporation db Facto.—Where a defendant is charged with embezzlement of moneys as an officer, manager, and servant of a banking corporation “duly created, organized, and existing under and by virtue of the laws of the state of California,” proof that such corporation existed as a corporation de facto, claiming in good faith to be a corporation organized under the laws of California, and doing business as such, is sufficient to sustain the indictment.</p> <p>Id.—Sufficiency of Articles of Banking Corporation—Failure to State Amount of Capital Stock Subscribed—Change of Code__ The articles of incorporation of a banking corporation executed and filed prior to the amendment of 1876, of section 290 of the Civil Code, were not required to contain a statement of the number of shares of the capital stock subscribed, or by whom.</p> <p>Id._Proof of Incorporation—Instruction—Modification—Conflict.— An instruction to the effect that the prosecution must prove a corporation duly formed, organized, existing, and doing business under the laws of the state of California, is not in conflict with a modification thereof to the effect that if the jury find that the corporation existed as a de facto corporation at the time of the alleged offense, it was a corporation duly formed, organized, existing, and doing business, nor in conflict with another instruction solely relating to the sufficiency of proof of a corporation defacto.</p> <p>Id._Effect of Proof of Corporation de Facto.—When the proof shows such facts as the code designates as sufficient to constitute a corporation de facto, it is for all the purposes of the action to be treated as a corporation duly formed, and the legality of its organization cannot be questioned.</p> <p>Id._Liability of Officers of de Facto Corporation—Embezzlement by Officer de Facto.—Any officer who in fact acts as an officer of a corporation de facto is subject to all the liabilities and penalties imposed upon directors and officers duly elected by a corporation de jure; and a de facto officer of a defacto corporation is liable criminally for the embezzlement of funds in his hands.</p> <p>Id.—Construction of Instructions—Province of Jury—Admissions of Defendant.—The whole of an instruction' to the jury upon any given subject must be taken together; and where it appears that an instruction to the jury explicitly charged that they were the exclusive judges of the sufficiency of the evidence, and of the credibility of witnesses, and informed the jury that if they found the company had performed certain enumerated acts then it became a corporation de facto, and that if they found that the defendant during the latter years of the existence of this de facto corporation, as a business association, acted as its manager, and in fact bad control of its funds and managed its business, etc., then the admissions and statements made in the course of his conduct as manager may be considered, the instruction, taken as a whole, does not invade the province of the jury.</p> <p>Id.—Evidence—Entries in Cash-book Under Direction of Defendant—Instruction.—The entries in a cash-book kept in the bank by a book-keeper under the direction of the defendant, as manager of the bank, are prima facie evidence of the balances of cash on hand at the several dates at which it was important to show such balance, and it is proper to instruct the jury that such entries are evidence tending to show the cash on hand at such dates.</p> <p>Id.—Substitution of Worthless Securities for Funds of Bank.— Where an officer in charge of the funds of a bank takes therefrom such funds, and deposits in place thereof securities known by him to be worthless, and appropriates to his own use the funds thus taken, he is guilty of embezzlement.</p> <p>Id.—Instructions—Unsecured Note of Insolvent Manager—Fraudulent Appropriation of Funds—Independent Evidence.—An instruction that if the defendant, knowing his insolvency, took large sums of money from the vaults of the bank, and executed therefor an unsecured promissory note to the bank, such taking of the money was a fraudulent appropriation falling within the definition of embezzlement, must be taken in connection with other instructions to the effect that the making of the note was not of itself a criminal act, and that the jury must find from other evidence independent of the notes that money was taken by defendant from the bank and appropriated contrary to his trust, and, when thus taken together, the instructions were not detrimental to the defendant.</p> <p>Id.—Evidence — Officers of Corporation—Records of Bank — Oral Proof.—Where the records of the bank showing the election of officers and adoption of by-laws were excluded by the court upon objection by the defendant upon the ground that the bank was not legally organized as a corporation de facto, it is proper for the prosecution to show by oral testimony who were in fact the acting officers of the corporation.</p> <p>Id.—Impanelment of Grand Jury—Excusing of Jurors—Discretion as to Filling Special Panel—Venire.—Where in the drawing and impaneling of a grand jury out of thirty names drawn from the jury-box, after the excusing of those who offered satisfactory excuses, and the challenging of those who are shown by the evidence to be incompetent to serve as jurors, nineteen names are not left, it is discretionary for the court either to draw other names from the grand jury box and issue summons, or to issue a venire to the sheriff to summon additional persons to complete the panel, and there is no abuse of discretion in causing sufficient persons to be summoned by special venire to complete the grand jury.</p> <p>Id.—Time of Service of Grand Jury.—The fact that a grand jury was organized in November, 1893, and found an indictment against the defendant in January, 1894, does not render the indictment invalid, where it does not appear that the jurors for 1894 had been selected and returned at the date of the finding of the indictment, and the jury of 1893 were properly continued until other jurors were selected and returned in 1894.</p>

The body of the information was as follows: “ Juan Millan, the above-named defendant, is accused by the district attorney of said Ventura county by this information of the crime of felony, to wit, obtaining money by false representations, committed as follows: The said Juan Millan on the eleventh day of December, A. d. eighteen hundred and ninety, at the said county of Ventura, and before the filing of this information, with intent to defraud one Antonio Urtasun of said…

Application to the Supreme Court for writs of prohibition to the Superior Court of Los Angeles County. The facts are stated in the opinion of the court.

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

<p>Banking Corporation—Action by Stockholders—Recovery of Attorney Pees Paid by President.—Where the president of a bank employed attorneys in a contest between stockholders for its control in which it had no real interest, and whose services were rendered for his private benefit alone, the fees of such attorneys cannot properly be paid from the funds of the bank, and if so paid an action by stockholders will lie to compel him to account to the bank therefor.</p> <p>Id.—Request of Directors to Bring Action, When Useless—Control of Directors.—Where it is averred in the complaint, as a reason for not making a request of the directors of the bank to bring the action, that the directors were under control of the president, and acting in conjunction with him, and that such request would have been useless, and would have been refused; and where the president of the bank contested the merits of the case and justified the alleged wrongful acts, he cannot be heard to object that the stockholders should have made a futile request.</p>

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

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

<p>Irrigation District—Proceedings for Confirmation—Insufficient Petition for Organization.—Where a petition for the organization of an irrigation district was not signed by fifty freeholders owning lands in the district as required by the “Wright act,” it is fatal to the organization, and a proceeding to confirm it cannot be maintained.</p> <p>Id.—Qualification of Signers—Owners of Residence Lots.—Quiere, whether the owners of small residence lots in towns and cities are such “owners of lands,” within the meaning of the Wright act, as to make them qualified signers of original petitions for the organization of an irrigation district.</p> <p>Id.—Tenants in Common.—It seems that one of several tenants in common is not to be considered as an owner of land within the meaning of the Wright act, but the question is left open.</p> <p>Id.—Signature to Petition by Married Woman—Community Property.—Where a deed was made to a married woman for a money consideration, prior to the amendment of 1889 of section 164 of the Civil Code, the land conveyed by it was presumably community property, and, where the evidence shows that it was not purchased with her separate funds, she is incompetent to sign a petition for an irrigation district as an owner of the property.</p> <p>Id.—Stipulation—Estoppel.—A stipulation evidently intended only to admit that the title to the land had passed to the wife through several conveyances, and not admitting that she took it as her separate property, does not estop the defendant from showing that the land was community property, especially where the case was tried by consent, upon the theory that the stipulation did not preclude a showing that the land was community property.</p> <p>Id.—Husband and Wife—Community Property.—The wife is not the owner of community property, in any legal sense, during the existence of .the marriage, and the husband can control, sell, or mortgage it without her consent.</p> <p>Id.—Signature by Holder of Certificate of Purchase.—The holder of a mere certificate of purchase from the state for school land within a proposed irrigation district, upon which he has paid only twenty per cent of the purchase money, is not a freeholder owning land, within the meaning of the Wright act, and is not authorized to sign a petition for the organization of such district.</p> <p>Id.—Ownership—Definition of “Owner."—“Owner," in its general and unrestricted meaning, when used alone, means one who has full proprietorship in and dominion over property, and imports an absolute owner.</p> <p>Id.—Construction of Wright Act.—Words used in a statute are to be given their general and unrestricted meaning, unless the context or the apparent scope and purpose of the statute indicate a limited meaning; and there is nothing in the language of the Wright act, or in its scope, purpose, and intent to intimate that the words “ owning lands” were used in any other than their general and unrestricted sense.</p>

<p>Irrigation District—Confirmation of Proceedings—Issuance of Bonds —New Trial.—In proceedings for the confirmation of the organization of an irrigation district, and of its issuance and sale of bonds, a new trial may be granted as to a specified issue, and denied as to other issues.</p> <p>Id.—Construction of Statute—“Issues”—Evidentiary Bindings.—The “issues” referred to by the statute are those which the statute authorizes the court to determine, viz: The validity of the organization of the district, and the validity of the proceedings of the board of directors for the issuance of bonds; and these issues are distinct from subordinate and evidentiary findings of the court.</p> <p>Id.—Election for Issuance of Bonds — Departure from Statute.— Where the order for an election for the issuance of bonds made by the directors of the district and the notice of election called for the opening and closing of the polls earlier and later than the time fixed by the statute, and persons were allowed to vote at the election after sunset, the effect of the departure from the statute renders the election nugatory.</p> <p>Id.—Corporation as Actor—Burden of Proof.—The corporation is the actor in the proceedings taken under the statute, and tenders the issues upon which it asks that its proceedings for the issuance and sale of bonds may be approved and confirmed by the court, and the burden of proof upon those issues is upon the corporation.</p> <p>Id.—Attack Upon Bonds—Presumption—Absence of Proof.—The presumptions and rules of construction which would be applicable in a collateral attack upon the bonds after they have been issued have no application to proceedings taken under the statute to obtain an approval of their issuance; and the defendants are not required to show the absence of any fact essential to the establishment of any issues presented for determination, but the failure of the corporation to make proof of such facts requires the court to deny its petition.</p> <p>Id.—Error not Affecting Substantial Rights — Proof Essential.— The provision of the statute that the court must disregard any error, irregularity, or omission which does not affect the substantial rights of the parties to the proceedings does not authorize the court to dispense with proof of the several acts which the statute has made requisite, or to assume that the omission of such acts or any other error was harmless; and it is not sufficient that any error or omission may not have affected the substantial rights of the parties, but it must clearly appear-that it has not affected them, and, if it may have affected them, the corporation must make the contrary to appear.</p> <p>Id.—Canvass of Votes of Election—Declaration of Result.—Where the board of supervisors, in canvassing the votes of an election for the issuance of bonds, merely recited the votes which had been cast without any entry made in the record declaring the result, and the record as made was approved by the board, the statute requiring that the result of the election be declared and entered of record is not complied with.</p> <p>Id.—Unauthorized Entry by Clerk of Board—Amendment of Record. An entry made by the clerk of the board of his own accord, and without any direction from the directors directing him to amend the minutes by inserting a declaration of result in the records of the session of the board at which the votes had been canvassed, is unauthorized, and does not make the inserted words a part of the record of the board.</p> <p>Id.—Rescission of Resolution by Directors.—It is competent for the directors of an irrigation district to rescind a previous resolution by them for the issuance of bonds for a specified amount.</p> <p>Id.—Adjourned Meeting of Board.—Where the board of supervisors of an irrigation district have regularly adjourned from the day on which the board held its regular meeting, the matter of the issuance of bonds may be presented at the adjourned meeting with the same effect as if it had been presented on the day fixed for the regular meeting, and it is not necessary that such matter should have been presented at the regular meeting, and its consideration postponed or adjourned to that date.</p>

<p>Trust— Conveyance from Husband to Wife—Presumption—Conflicting Evidence as to Oral Trust for Children.—Where a husband, during a serious illness, executed a conveyance of lands to his wife in consideration of love and affection, and, after recovering from his illness, he and his wife sold and disposed of a large amount of the land, and there was no writing evidencing a trust for the children, the parties to the conveyance must be presumed to have intended the legal effect of the terms of the conveyance, unless it is clearly and satisfactorily shown by a preponderance of evidence that at the time of the conveyance there was an oral agreement that the land should be held in trust for the children, and where the evidence is conflicting as to such contemporaneous oral agreement, a finding that it did not exist is conclusive upon the appellate court.</p> <p>Id.—Subsequent Oral Declarations.—An absolute conveyance of lands cannot, after its execution, be turned into a trust by any subsequent oral declarations of the parties thereto.</p> <p>Id.—Immaterial Findings and Rulings.—Where the court finds that the trust upon which the plaintiff’s right of action depends was not created, issues as to whether the property was at the date of the instrument community property or separate property, or whether the defendant was improperly managing the property, or was under the undue influence of her husband, became irrelevant, and any error in the findings of the court upon this issue, or in its rulings as to the admission of evidence in their support, are immaterial.</p>

<p>Appeal from an order of the Superior Court of Santa Clara County modifying a decree of divorce.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Husband and Wife—Community Pboperty—Evidence—Declarations —Res Gesta—In a controversy between a husband and the donees of his wife concerning lots which were conveyed to the wife by an employer of the husband and wife, who, built houses upon the lots, and who was dead at the time of trial, the declarations of the grantor in corroboration of the plaintiff’s testimony that the property was community property at the time of the purchase of the lots, and when he was building the houses thereon, and as to the character in which the purchases were made, and the terms and conditions upon which he was building the houses, though not made in the presence of the wife, are admissible in evidence as illustrative of his intent, and as forming a part of the res gestee.</p>

<p>Insolvent Bank—Proceeds of Draft Deposited for Collection— Agency—Trust.—Where a draft on a bank in another state is deposited for collection in a bank of this state the relation between the depositor and the bank is that of principal and agent, and the bank has no title to the draft, or to the proceeds thereof, nor is the receipt of the money by its correspondent as subagent of the bank a collection of it by the bank; and where the bank authorized to collect the draft becomes insolvent after notice of collection of the draft by its correspondent, and, after placing to the credit of the depositor on its books the amount of the draft without authority from the depositor, the subsequent receipt of the money collected on the draft by the receiver of the insolvent bank is a receipt of money held in trust for the depositor of the draft, and not a part of the assets of the bank to be distributed to its creditors, and the depositor may recover such proceeds from the receiver.</p>

<p>Water Rights—Possession or Ditch in Land or Another— Conveyance by Possessor.—Where a settler upon public lands of the United States constructed a ditch to convey the waters of a creek to his house and lands for domestic purposes and irrigation, and upon his death his son in law, without transfer of any rights from his heirs, took possession of the property and utilized the ditch for the appropriation of the water of the creek for domestic purposes and for irrigation of the land, the son in law of the deceased owner thereby acquires a right by his possession of the land and ditch which he can convey to a third party, and which, if not lost by abandonment, is prior in time and superior in right to the claim of a subsequent riparian proprietor whose right did not vest until after the transfer of the ditch and water right by the possessor thereof.</p> <p>Id.—Date or Possessory Right.—Where there is no transfer of the rights of a prior possessor or owner of land and a water right appurtenant thereto, a right acquired by subsequent peaceable possession of the land and appropriation of the water for useful purposes, dates from the date of the possession and appropriation. '</p> <p>Id.—Abandonment or Water Right.—To abandon a water right acquired by the use of water by appropriation there must be a concurrence of the act of leaving it so that it can be appropriated by the next comer, without the intention to repossess it; and the mere intention to abandon it, not coupled with a yielding up of possession or cessation of user,' is not sufficient, nor will nonuser alone, without intention to abandon, be held to amount to an abandonment.</p> <p>Id.—Water Right—When not Abandoned. —The facts that after the conveyance of a ditch and water right to the plaintiff but little water was used from the ditch for irrigation, and that the ditch became so obstructed that it would conduct but a small quantity of water, do not establish an abandonment of the ditch and water right, where it appears that the ditch was used continually to convey water for domestic purposes, and to some extent for irrigation, and that the intention of the plaintiff to retain his right was made manifest to the defendant by his course of action.</p>

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

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

<p>Drainage Act—Constitutional Law—Delegation of Power to County Surveyor—Construction of Constitution The act of March 3, 1881, to provide a system of drainage for agricultural, swamp, and overflowed lands, which confers upon the county surveyor the authority to make a survey of the line of a proposed drainage ditch, and to report the land or interest to be affected thereby, is not in conflict with section 1 of article III of the constitution providing that the powers of the government of the state shall be divided into three departments, and that no person charged with the exercise of powers properly belonging to one of them shall exercise any functions appertaining to either of the others; but that article relates only to the state government, and has no application to the local governments provided for by article XI of the constitution.</p> <p>Id.—Delegation of Power by Local Boards—Ministerial Duties.— The power of delegation by local boards is confined to the discharge of duties ministerial in character, and not calling for the exercise of discretion or judgment.</p> <p>Id.—Preliminary Survey of Ditch—Ministerial Duties of Surveyor, The drainage act does not provide that any duties other than ministerial are to be devolved upon the county surveyor, whose survey is but preliminary," and is not a judicial act, but he is required simply to furnish evidence to be submitted to the board, upon which their judgment and discretion after a full hearing is to be exercised.</p> <p>Id.—Judgment by Ministerial Officers—Existence of Facts.—Judgment must often be exercised by ministerial officers in determining whether or not the facts exist which authorize them to act.</p> <p>Id.—Repeal of Drainage Act—County Government Act.—The drainage act of 1881 is not repealed by the County Government Act of March 14, 1883.</p> <p>Id.—Distinction Between Tax and Assessment.—An assessment, as distinguished from a tax, is a special and local charge or imposition upon property in the immediate vicinity of municipal improvements, predicated upon the theory of benefits from such improvements, and levied as a charge upon land or property specially benefited thereby, while a charge imposed by law upon the assessed value of all property, real and personal, in a district, is a tax, and notan assessment, although the purpose be to make a local improvement.</p> <p>Id.—Construction of County Government Act—Submission of Tax to Electors.—The proviso in the thirteenth subdivision of section 25 of the County Government Act, that no tax shall be levied upon any district unless the proposition to levy the same has been submitted to the qualified electors, applies only to such taxes as are levied upon property on the ad valorem principle, as prescribed by the constitution, and has no application to assessments for local purposes where the charge is upon the property benefited and is fixed in proportion to the benefits received.</p>

Appeals from an order of the Superior Court of the City and County of San Francisco directing the payment of a family allowance and from a decree of partial distribution. The facts are stated in the opinion of the court.

Appeals from orders of the Superior Court of the City and County of San Francisco, rendered in a proceeding for the settlement of the estate of a deceased person. The facts are stated in the opinion of the .court.

<p>Contract for Sale of Raisins—Curing—Delivery.—An agreement for the sale of a crop of raisins, which provides that “raisins now uncared to be cured and delivered at packing-house in good order,” does not require that the raisins should be cured when brought to the pack, ing-house. Such provision is complied with if the raisins are properly cured after being brought to the packing-house, and in such condition are delivered to the purchaser.</p> <p>Id.—Executory Contract—Title.—Such contract, as to the uncured raisins, was executory, and the title thereto did not pass to the purchaser in the absence of a delivery and payment of the purchase price, in accordance with the terms of the contract.</p> <p>Id.—Measure of Damages—Breach by Buyer—Value.—Upon the refusal of the purchaser to accept and pay for such raisins when delivery was tendered him by the seller the latter is not required, in order to recover of the purchaser the difference between the contract price and the value of them to him, to sell them in the manner prescribed by the code for the sale of pledged property; if he does so sell them such sale is conclusive as to their value, while, if not so sold, he must prove their value to him in the action against the purchaser.</p> <p>Id.—Interest.—Under section 3311 of the Civil Code, in an action by the seller against the buyer to recover damages for the breach of a contract for the sale of personal property which had no established or reasonably well-known market value, interest on the excess of the contract price over the value of the property to the seller is not recoverable.</p> <p>Id.—Evidence.—In such action a contract between other parties, which was referred to in the contract on which the action was based, for the purpose of fixing certain of its conditions, is admissible in evidence.</p> <p>Id.—Evidence of Expert.—A witness for the plaintiff in such action, after testifying that he had examined the raisins and found them in good merchantable condition, and on cross-examination stating that he could not tell the number of boxes he examined, may be allowed to testify on redirect examination that his examination was made in the method usual with experts.</p> <p>Id.—Harmless Error.—Error in admitting evidence on behalf of the plaintiff, the only effect of which was to support an allegation of the answer, is not ground for reversal at the instance of the defendant.</p>

<p>Public Hiohway—Dedication—Acceptance—User.—The acceptance of a ' dedication of land as a public highway may be established by evidence of its user as such by the public.</p> <p>Id.—Abatement of Obstruction—Action by Road Commissioner.—An action to remove and abate an obstruction upon a public highway is properly brought in the name of the road commissioner.</p>

<p>Appeal from an order of the Superior Court of Butte County granting letters of administration.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Homicide — Conviction — Circumstantial Evidence — Appeal.—Where the circumstantial evidence adduced upon a trial for murder in the first degree is persuasive of the guilt of the defendants charged with the murder, a verdict of conviction of the charge will not be disturbed upon appeal.</p> <p>Id.—Joint Accusation—Instruction—Conspiracy—Reasonable Doubt as to G-uilt of Either Defendant.—Where two defendants are jointly accused of the crime of murder, and the court has properly charged the jury upon the question of conspiracy between the defendants, an instruction that in order to find the defendant guilty of murder of the first degree, they must be convinced beyond a reasonable doubt that the defendants, “or either of them,” unlawfully, or with malice aforethought, killed the deceased, does not, in effect, tell the jury that the claim of the prosecution as to conspiracy had been proved, or that without any proof of conspiracy one defendant could be convicted for the act of the other, but the jury were, in effect, told that if they should find that either one of the defendants committed the act, they could convict that one; and the jury could not be misled by the form of the charge.</p> <p>Id.—Variance in Instruction—Bill of Exceptions—Judgment-roll.— Where an instruction appears in an erroneous form in the bill of exceptions and in a different form in the judgment-roll, which is not erroneous, the form of instruction as given in the judgment-roll will be taken as correct upon appeal.</p> <p>Id.—Instructions, When Part of Judgment-roll—Bill of Exceptions.—Where instructions are properly authenticated by the judge they are a part of the judgment-roll, and do not properly belong in a bill of exceptions; and it is only where an oral charge is given and not otherwise authenticated, or modifications are made in written instrucstructions which it is desired to show, that it is either necessary or proper to preserve instructions in a bill of exceptions.</p> <p>Id.—Intendments in Favor of Judgment.—All intendments of the law are in favor of the regularity of the judgment and proceedings of the court below, and it is incumbent upon the appellants to show error affirmatively.</p> <p>Id—Exception Reserved by Law.—Exceptions to instructions in a criminal case need not be incorporated in a bill of exceptions; hut the law preserves an exception to each instruction as fully as though stated in terms in the record, and the defendant has the same advantage of every objection to an erroneous instruction when properly authenticated in the judgment-roll, as when set out in a bill of exceptions and formal exception made.</p> <p>Id.—Instruction as to Murder in the First Degree—Elements of Deliberation and Premeditation.—Where the court has clearly and elaborately stated the law as to murder in the first degree, emphasizing that the intent to kill must be the result of deliberate premeditation, the mere omission of the elements of deliberation and premeditation in one clause of the instructions, so as erroneously to convey the thought in that clause that if the killing was with malice aforethought, it would be murder in the first degree, is not prejudicial to the defendant, and could not tend to mislead or confuse the jury.</p> <p>Id.—Charge Construed as a Whole. —When the charge, taken as a whole, states the law with sufficient fullness and clearness, it is not ground of reversal that there are verbal inaccuracies in the charge, or that isolated sentences and phrases are open to just criticism; but it is sufficient that the charge, regarded in its entirety, shows no substantial error.</p> <p>Id.—Review Upon Appeal—Rulings not Argued in Brief.—Where a large number of rulings are simply assigned in the brief of appellants’ counsel, without suggestion of counsel’s reasons for deeming them erroneous, they will not be dealt with by the court in detail, nor will the court seek for grounds of error to which its attention is not called.</p> <p>Id. —Evidence — Primary Cause — Motive—Circumstances Preceding Homicide.—Evidence in reference to the working of a mining claim, and a misunderstanding arising between one of the defendants and the deceased and his brother respecting it, which occurred less than a week prior to the homicide, and which appeared to be the primary cause which led to the homicide, and constituted a link in the chain of circumstances pointing to the guilt of defendants, and tending to show their motive, is admissible in evidence, and is relevant and material to the issue; and, where it appears that the facts were subsequently communicated to and acted upon by the other defendant, such facts are admissible as against him.</p> <p>Id.—Declarations Showing Bad Blood.—Statements made by one of the defendants during a difficulty at the mine which were communicated to the other defendant, and tended to establish the origin of bad blood between the parties, are admissible against both defendants.</p> <p>Id.—Expert Evidence—Character of Wound—Description.—One who is shown to have had experience in the observation and treatment of gunshot and other wounds on the frontier, against the Indians, and in the territories, although not a medical witness, may be permitted to testify as to the character of a wound found upon the body of the deceased, and the description of the wound by such witness is admis' sible as the statement of a fact.</p>

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

<p>Default Judgment—Failure to Answer—Mistake of Attorney—Service by Mail.—A judgment by default, rendered upon the failure of the defendant to answer within the time limited, after the attorney had been properly served by mail with a notice of the overruling of a demurrer to the complaint, should not be vacated merely on the ground of the mistake of the attorney in believing that such a service was unauthorized by law. If vacated on such ground, the order will be reversed on appeal.</p> <p>Id.—Receipt of Notice—Personal Service.—The receipt of a notice served by mail is legally equivalent to a personal service.</p> <p>Id.—Inadvertence How Alleged.—A judgment by default cannot be set aside upon a mere abstract allegation of inadvertence of the attorney in serving or filing the answer. The reason for the inadvertence must he stated.</p>

<p>Swamp and Overflowed Land—Grant to State.—The grant of swamp and overflowed lands to the several states by the act of Congress of September 28, 1850, was a grant in presentí, and operated as an immediate transfer to the state of California of all lands within its boundaries which at that date were “swamp and overflowed ” within the meaning of the act.</p> <p>Id.—Designation of Land on Township Plat.—Under the act of Congress of July 23, 1866, the representation of lands as swamp and overflowed upon an approved plat of a township was a determination by the United States that such lands were of that character, and that the title thereto vested in the state at the passage of the act of September 28, 1850.</p> <p>Id.—Sale of Land by State.—The power of the state of California to dispose of its swamp and overflowed lands ends when it has once disposed of them in pursuance of the act of April 21, 1858, and the acts amendatory thereof.</p> <p>Id.—Certificate of Purchase—Transfer of Title.—Under these acts, a certificate of purchase for swamp and overflowed lands, issued by the registrar of the land-office, is prima facie evidence of title, and vests in the purchaser the entire ownership of the lands described therein, and thereafter he can make the same disposition of such lands as could any other owner of lands, and his delay to apply for a patent from the governor does not affect his title.</p> <p>Id.—Assignment of Certificate—Corporation.—Where a certificate of purchase of such lands has been issued to a properly qualified purchaser, he may assign the same to a corporation, and thereupon it or its assignee becomes entitled to a patent; and, where such assignment was made prior to the taking effect of the constitution of 1879, the right of the corporation or its assignee to a patent is not affected by the provisions of section 3 of article XVII of that constitution, forbidding the state to grant the lands to any but “actual settlers.”</p> <p>Id.—Action to Determine Contest—Assignee of Original Defendant. In an action to determine the right to purchase such land, the plaintiff, who has by amendment joined as a party defendant a purchaser pendente lite, cannot, on an appeal from a judgment in favor of such purchaser, object for the first time to the power of the trial court to determine the rights of. such purchaser.</p>

<p>Appeal from a judgment of the Superior Court of Contra Costa County refusing to revoke the probate of a will.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Improvement—Resolution of Intention—Description of Work. Under section 3 of the Street Improvement Act of 1891 (Stats. 1891, p. 196), the resolution of intention of the city council must describe the work; and a resolution of intention which describes the work as consisting of the construction of “granite or artificial stone curbing” in a specified street is insufficient to confer jurisdiction on the council to order the work done.</p> <p>Id.—Defense to Assessment—Appeal to Citt Council.—A property owner, in order to defend against an action brought to enforce an assessment purporting to be based on such resolution of intention, is not required by the statute to appeal to the city council.</p>

<p>Incorporation op Town—Election—Canvass of Votes. — Under the statute of 1883, page 93, a board of supervisors, in canvassing the votes given at an election called to determine whether or not a town should be incorporated, need not actually count the ballots; it is sufficient if it canvass the returns.</p> <p>Id.—¡-Order op Board of Supervisors—Count op Ballots.—After the canvass the board entered an order on its minutes, which showed that votes were cast as follows: “ For incorporation received, one hundred and twenty-eight votes; against incorporation received, one hundred and five votes”; and then, after a showing of certain votes for officers, there was this statement in the order: “ Total votes polled, two hundred and sixty-six.” Held, That in an action attacking the validity of the incorporation, any uncertainty arising from the statement as to the number of votes “polled” might be explained by showing the real facts upon a judicial count of the ballots.</p> <p>Id.—Order Declaring Incorporation.—The requirement of the statute that a certified copy of the order declaring the territory duly incorporated should be filed in the office of the secretary of state does not necessitate the certifying and filing of all the entries which were made at the time of the canvass on the minutes of the board.</p> <p>Id,—Blank Ballots,—In an election to determine as to the incorporation of a town, official ballots deposited in the ballot-box, without any marks thereon to indicate the elector’s wish in any particular, are not to be deemed as “votes cast” in any sense.</p> <p>Id.—Pencil Marks.—In such election a ballot marked with a lead pencil and not with the official stamp, is invalid, and should not be counted; and so also as to a ballot which had no mark of any kind, except that at the bottom, entirely below all the printed matter, it had the words “against incorporation” written with a pencil.</p> <p>Id,—Stamping Ballots.—A ballot, stamped at the proper place with the official stamp, but having the cross-marks blurred, is valid, and should be counted, as should also a ballot on which the cross-marks extended slightly below the line.</p>

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

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

<p>Deed of Trust—Mortgage.—A deed executed to trustees named as parties of the second part, to secure an indebtedness from the grantor to a party named as party of the third part, as the beneficiary of the trust, and any further indebtedness of the grantor to the party of the third part that may be contracted during the continuance of the trust, is a deed of trust, and not a mortgage, and transfers the legal title to the trustees, retaining to the grantor the right to a reconveyance upon payment, and conferring the right of sale as provided in case of default.</p> <p>Id.—Extinguishment of Trust—Acceptance of Note in Payment of Debt Secured.—If the beneficiary in a deed of trust accepts a note made by the debtor, and his subsequent grantee, in payment and satisfaction and extinguishment of all sums of money then due from the debtor, or his grantee, and of all claims and demands which the beneficiary then had against them, or either of them, by such payment the trust is extinguished, except as to the duty of the trustees to reconvey, and a deed by the trustees after sale is in contravention of the trust and void.</p> <p>Id.—Finding Against Evidence—Note not Received in Payment.—The finding that a note was taken and received in payment and satisfaction and extinguishment of the indebtedness secured by the deed of trust is against the evidence, notwithstanding the new note was given for a balance due "upon pre-existing indebtedness, and the former note secured by the deed of trust was canceled and surrendered to the debtor, where the evidence of witnesses without conflict shows that the note was neither given nor received in payment of the pre-existing indebtedness, and that there was no mutual agreement of the parties to that effect, and the note itself declares in terms that it is secured by the deed of trust, and it appears that there was no demand for a reconveyance by the trustees, but a subsequent request was made for a postponement of the sale, and the trust deed was ratified in writing by the debtor and his grantee.</p> <p>Id.—Disputable Presumptions—Conflict of Evidence.'—The disputable presumptions that an obligation delivered up to a debtor has been paid, and that the ordinary course of business has been followed, do not raise a conflict in the evidence, where the fact is proven contrary to the pre. sumptions by evidence without conflict, but in such case the presumption is simply overcome and dispelled; and such presumptions are allowed to stand as evidence, not against the facts they represent, but in lieu of proof of them.</p> <p>Id.'—Express Agreement Required to Extinguish One Note by Another.—It is the general rule that one note or executory contract does not extinguish another, and there must be an express agreement or understanding to that effect before another note, bill, or check extinguishes and satisfies the indebtedness evidenced by an earlier one.</p> <p>Id.—Presumption Against Payment—Secured Debt.—Where a note is secured by a deed of trust, the taking of a new note for the debt, whether the new note be by the same maker, or whether it bears an additional name, is strongly presumed not to be taken in payment of the debt, where, if so taken, it would be taking an unsecured debt for one fully secured.</p> <p>Id.—Optional Advances After Actual Knowledge of Later Deed— Constructive Notice.—Where the beneficiary in a deed of trust has the option to make payments or advances on account of the debtor the deed of trust cannot be enforced against subsequent encumbrancers, or subsequent trustees of the debtor under a second deed of trust, for advances made or given after actual notice of the subsequent encumbrances or deed; but constructive notice by the recording of the subsequent encumbrance or deed is not enough.</p> <p>Id.—Power to Sell Under Trust Deed—Sale for Amount Greater than Secured Debt—Remedy by Action.—Powers of sale under trust deeds or mortgages will be strictly construed, and the acts of the trustees in contravention of the trust are void; but it does not follow that any sale made under such a power is void, or eveñ voidable, because made for an amount greater than the secured debt, where no bad faith appears; but the remedy of the debtor is by an action to recover the surplus, and not by an action to set aside the sale, in the absence of proof of fraud, or that the property or the rights of the mortgagor were injuriously affected, or that bidders were deterred from attending the sale.</p> <p>Id.—Payments for Benefit of Property—Sanction by Trustee Under Later Deed—Ratification—Quieting Title—Pleading.—Where the trustee under the later deed has authority to make improvements and to raise money by mortgage or otherwise for that purpose, and the subsequent payments by the bank were requested both by the debtor and by the subsequent trustees, who both, with knowledge, ratified the prior trust deed as security for all payments made by the beneficiary of that deed, in an action by such beneficiary to quiet title to the property pur. chased at a sale under the first trust deed, where no pleading for the defendants presents a question as to the validity of the sale, or makes any offer to restore any of the moneys admittedly paid under the first deed of trust, it cannot be held, upon appeal, that the sale thereunder was either void or voidable.</p> <p>Finding as to Ownership — Conclusion of Law — Special Facts Found.—Although ownership may be pleaded and found as an ultimate fact, yet it may be pleaded as a conclusion of law, and be determined by the court as such conclusion, and not as a fact; and where the court sets forth special facts in its findings, upon which it predicates ownership as a conclusion of law, the conclusion cannot stand, if the specific facts found do not support it.</p>

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

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

<p>Adoption op Child—Irregularities in Proceedings—Death of Adopting Parent.—After adoption papers have been executed before the judge, and the adopted child has lived with the adopting father many years, down to the day of his death, it requires more than mere irregularities to brush aside and annul the relationship so entered into.</p> <p>Id.—Form op Judge’s Order—Object op Statute.—The statute lays down no rules by which the form of the judge’s order declaring the child to be the child of the person adopting shall he measured and its sufficiency tested; hut the real purpose of the statute requiring the parties to come before the judge is to enable him either to ratify or reject the contract of adoption, as seems best to him, in the interest of the child.</p>

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

<p>Insolvency—Sufficiency of Creditors’ Petition.—A petition by creditors against an insolvent debtor sufficiently states a cause of action, when it shows that all the creditors were residents of the state of California, that the demands are due an? accrued in this state, and states * the nature and amount of their several demands, and the other facts required by section 8 of the Insolvent Act.</p> <p>Id.—Verification of Petition.—The verification of a petition by three persons, one of whom swears that he is vice-president of a corporation named as one of the petitioners, sufficiently shows a verification by an officer of the corporation, as required by section 446 of the Code of Civil Procedure.</p> <p>Id.—Allowance of Counsel Fees.—The law makes no provision for an allowance from the estate of an insolvent debtor, to employ counsel and pay expenses of the litigation on his part, contesting the adjudication of insolvency.</p> <p>Id.—Insufficient Petition for Counsel Fees.—A petition for counsel fees in a specified sum, which does not show the nature or value of the estate, is insufficient.</p>

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

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

<p>Justice’s Court—Objection to Jurisdiction—Appeal—Questions op Law and Pact.—Where a defendant, sued in the justice’s court of a county having no jurisdiction of the action, objected to the jurisdiction by a motion to dismiss the action, and also by special demurrer, and afterwards, not waiving his motion or demurrer, in his answer to the merits pleaded in a separate defense facts showing that the court had no jurisdiction, if all of his objections to the jurisdiction were overruled and the case determined upon the merits, the defendant may appeal to the superior court upon questions both of law and fact, and is not bound to take only the question of jurisdiction to the superior court upon a statement of the case.</p> <p>Id.—Decision of Jurisdiction upon Appeal.—It is proper for the superior court to dispose of the defense of want of jurisdiction before considering the merits of the case upon the appeal.</p> <p>Id.—Writ of Review.—A writ of review will not lie where there is no excess of jurisdiction, even though there may be error in the decision of the court sought to be reviewed. „</p>

<p>Time for Appeal—Dismissal.—An appeal from a judgment not taken within one year from the time of the entry of the same must be dismissed</p> <p>Id.—Review of Findings—Conflicting Evidence.—Where the findings of the court are as general in their statements as the pleadings themselves, any material conflict appearing in the evidence must he resolved in such manner as to sustain the general conclusions found as facts by the court.</p> <p>Agency—Unauthorized Lease.—An agent empowered to lease a tract of land for one year at a specified rental cannot make a lease, either oral or written, obligatory on his principal, for a portion of the land at a less rental for a term exceeding one year.</p> <p>Id.—Authority of Agent—Statute of Frauds.—The authority of an agent to make a lease for a period in excess of one year must be in writing, and cannot be conferred by oral contract.</p> <p>Id.—Void Lease.-—A lease by an agent exceeding the term of one year cannot operate as a valid lease for one year, the agent’s authority not being in writing.</p> <p>Id.—Lease by Owner—Ratification of Void Lease—Want of Power. Where the owner of land, without knowledge of a lease made by an agent without authority, has rented the land to another, no power remains in him to ratify the previous unauthorized act of his agent so as to warrant a recovery of the land by his lessee from the lessee of the owner.</p> <p>Id.—New Trial—Surprise—Contents of Lease—Want of Diligence —Discretion.—Where the validity of a lease for more than one year is in controversy in an action of ejectment, the failure of the plaintiff and his counsel to acquaint themselves before the end of the trial with the fact that the lease was for a period of more than one year, the lease being the foundation of the plaintiff’s action, and being in their possession and produced in evidence by them, is not a surprise which ordinary prudence could not have guarded against; and, where the affidavits upon motion for a new trial, upon the ground of suprise, do not show why application was not made for leave to amend when the defect in the document was first discovered, so as to have a reformation of the lease before the final submission of the cause, the refusal of the court to grant a new trial upon the ground of surprise is not an abuse of discretion.</p>

<p>Negligence—Leaving Excavation Unguarded—Uncertainty in Pleading.—A complaint stating that a pit was dug in the sidewalk of a highway by the defendant at a certain date, and that the same was left without protection, barriers, or lights, to warn persons of danger, and alleging that the injury to the plaintiff occurred on a subsequent date, but not stating that at the time of the alleged accident the pit was not properly protected and guarded with barriers and lights sufficient to apprise of danger persons traveling on the highway or sidewalk, is subject to a demurrer for uncertainty in not specifically alleging the unguarded condition of the excavation at the time of the accident.</p> <p>Id.—Defective Findings.—Findings of fact, from which it cannot be inferred that the excavation was not sufficiently guarded and lighted at the time of the accident, are defective, and such defect is ground of reversal, where the evidence upon that subject was substantially conflicting.</p> <p>Id.—Master and Servant—Excavation Made for Contractor by Servants of Subcontractor.—Subcontractor not Liable.—Where a building contractor is required by his contract to furnish all materials and do all the work including all necessary excavations for the foundation, with areas under the sidewalk to give light and ventilation to the cellar, and a subcontractor has only contracted to do the brickwork, including the walls inclosing the areas under the sidewalk, and the men employed by the subcontractor excavated the areas for the contractor, and under his direction, the relation of master and servant does not exist between the subcontractor and the men who excavated the areas in the sidewalk in regard to that work, and it is not material that the servants who did the work were in his general employ for other purposes.</p> <p>Id.—Duty to Guard Areas—Completion of Contract.—Where areas are excavated under a contract it is not the duty of the contractor to guard them after the job is completed, unless he has agreed to do so.</p>

<p>Divorce—Award of Community Property to Wife—Subjection to Debts of Husband. —Where the court, in an action for a divorce, assigns all the community property to the wife, leaving the husband without separate property, the property so assigned is taken subject to the equitable claim of existing contract creditors whose demands are due, or to become due, on account of credit extended to the husband for the benefit of the community during the existence of the marital relation.</p> <p>Id.—Creditor’s Bill—Supplies Furnished to Family—Wife’s Complaint for Divorce—Recognition of Debts.—The community property, entirely assigned to the wife in a decree of divorce, may be subjected to a creditor’s bill at the suit of a judgment creditor of the husband for supplies purchased by the wife, for which the credit was given to the husband, and which were used by the family bef ore the action for divorce was brought, and which are referred to in the wife’s complaint for divorce as due and unpaid for, as a predicate for seeking to have the entire community property set apart to her.</p> <p>Id.—Specific Lien not Required—Object of Creditor’s Bill.—It is not necessary, in order to maintain a creditor’s bill, that the plaintiff should have a specific lien upon the property sought to be held liable for the satisfaction of his debt; the nature and purpose of a creditor’s bill being to enable the creditor to apply to the payment of his debt the property of the debtor, which cannot be taken in an execution at law, or to aid the creditor in reaching property of his debtor passed beyond the reach of his creditors by ordinary process of law.</p>

<p>Pleading—Defective Denials—Admissions. —Imperfect and defective denials, if acted upon as sufficient at a trial, are in no sense admissions of the allegations of a pleading which are attempted to be denied.</p> <p>Findings—Conclusiveness of Appeal.—Where the evidence is not before the appellate court the findings of fact are conclusive as to the matters therein stated.</p> <p>Sale of Stock—Action to Reform Contract—Acknowledgment of Indebtedness—Condition of Sale—Indivisible Contract.—Where a purchase of stock in a mining corporation is made on condition that the purchaser acknowledge an indebtedness of a specified sum as properly due on part of the shares, and also acknowledge an aggregate indebtedness to the seller of the stock in a specified sum, the contract is an entirety and indivisible, and cannot be reformed by striking out the acknowledgment of indebtedness upon the shares upon the ground of mistake of fact or law.</p> <p>Id.—Mistake of Law.—A mistake of law of the purchaser in believing the advice of the vendor of the stock that under the contract only the dividends of the stock should be applied to the payment of the indebtedness is no ground upon which to reform the contract so as to conform to plaintiff’s intentions as to what the contract should be in disregard of the intentions of the vendor, especially where it appears that no misrepresentations were made by the vendor and no fraud was practiced by him upon the purchaser, and that the purchaser entered into the contract with the full knowledge of its contents and its meaning.</p> <p>Practice—Trial Without Passing upon Demurrer—Error Without Prejudice.—The fact that a trial was had without passing upon a demurrer to the answer before rendering a decision in the ease is not prejudicial error where it appears that the demurrer is without merit, and it will be presumed upon appeal that it would have been overruled if passed upon by the trial court.</p>

<p>Nuisance—Private Wharf and Ferry Landing—Obstruction of Public Street—Findings.—In an action for the abatement of a nuisance in the erection of .a wharf and ferry landing in a public street, where the findings show that the wharf and ferry landing are not in the street, but are east of its easterly line, and are the private property of the defendant, free from any public right or easement, and do not in any manner prevent the free and comfortable use and enjoyment by the public of the street, such finding is determinative of the case in favor of the defendant, if reasonably supported by evidence.</p>

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

<p>Criminal Law—Homicide—Self-defense—Declining Further Combat —Construction of Code—Common Law.—Section 197 of the Penal Code, which allows an assailant to commit justifiable homicide in self-defense, but provides that he “must really and in good faith endeavor to decline any further struggle before the homicide is committed,” is simply declarative of the common law, and in no wise broadens and enlarges the right of self-defense.</p> <p>Id.—Withdrawal of Assailant must be Known to Adversary.—In order for an assailant to justify the killing of his adversary he must not only endeavor really and in good faith to withdraw from the combat, but he must make known his intentions to his adversary; and he cannot kill his adversary in self-defense, unless he has fairly notified him by his conduct that he has abandoned the contest; and, if the circumstances are such that he cannot so notify him, it is his fault, and he must take the consequences.</p> <p>Id.—Condition of Assailed Party—Notice to Reasonable Man.—In determining whether the assailed was fairly notified that the assailant had abandoned the combat the assailed must be deemed a man of ordinary understanding, and his acts and conduct must be weighed and measured in the light of the test of a reasonable man; nor will his naturally demented condition, nor his passion, nor his cowardice, be allowed to blind him to the fact that his assailant was running away and that all danger was over.</p> <p>Id.—Demented Condition Produced by Assailant.—Where the assailant has placed the assailed person in a demented condition, and the assailed person attempts to kill the assailant upon the supposition that he was acting in self-defense, it must be held that the defendant has unlawfully brought upon himself the necessity for killing the deceased, and he cannot be allowed to plead that necessity as matter of self-defense against the deceased, who at the time was made non compos mentis by reason of defendant’s assault.</p> <p>Id.—Erroneous Instruction as to Self-defense.—An instruction that the plea necessary to killing in self-defense is a shield for those only who are without fault in occasioning it, and acting under it, is erroneous, as assuming that, if the defendant was the aggressor, the quarrel could subsequently assume no form or condition whereby the defendant would be justified in taking the life of the party assailed; and the vice of such instruction cannot be taken away by any explanation or qualification.</p> <p>Id.—Double Assault not Necessary to Self-defense—Erroneous Modification of Instruction.—The right of a defendant to act in self-defense is in no way dependent upon the commission of two assaults; and an instruction to the effect that, after an assault upon the deceased by the defendant, if the defendant really and in good faith endeavored to decline any further struggle before the homicide was committed, and if the deceased procured his gun and made such an attempt to shoot defendant as gave the defendant reasonable ground to apprehend and fear that the deceased was about to take his life, or do him great bodily injury, and acting under such reasonable apprehension alone defendant shot deceased, that the defendant should be acquitted, is erroneously modified by inserting a qualification that the first assault must have ceased, and an interval elapsed between the first assault and the final assault, making them substantially distinct transactions.</p>

<p>Criminal Law—Burglary—Larceny— Information—Demurrer—Joinder of Offenses—Carrying Stolen Goods into County of Jurisdiction.—Although an indictment or information must not charge more than one offense, and the defendant may demur to the indictment or information when it appears upon the face thereof that more than one offense is charged, yet an indictment or information charging the offense of burglary with intent to commit larceny, and further charging that in the commission of the burglary the defendants stole, took, and carried away, as proceeds of the burglary, personal property of the value of four hundred and eighty-nine dollars, which they brought, carried, and removed into the city and county where the information was filed, is not subject to demurrer for charging more than one offense, but merely states facts showing the jurisdiction of the offense of burglary.</p> <p>Id.—Jurisdiction of Burglary—Pleading.— Ordinarily the offense of burglary can be tried only in the county in which it is committed, but, under section 786 of the Penal Code, it can he tried in any county into which the property burglariously taken has been brought; but, in order to give the court in the latter county jurisdiction of the offense, the facts showing that a burglary was committed, and that property was burglariously taken and carried into that county must be set out, and an information merely complying with this rule to show jurisdiction of the offense is not subject to a demurrer for charging more than one offense.</p> <p>Id.—Form of Verdict.—Where the information charged that burglary was committed in another county, and that the goods burglariously taken were brought into the county in which the information was filed, a general verdict imports a conviction of the offense charged, and it is not necessary that the verdict should specify the county in which the offense was committed, nor that the goods were taken into the county where the information was filed.</p> <p>Id. —Effect of General Verdict.— A general verdict of guilty implies proof of all facts necessary to a conviction.</p> <p>Id.—Surplusage in Verdict.—Surplusage in a general verdict of guilty is not prejudicial to the defendant, and is not ground for a reversal o* the judgment of conviction.</p>

Hearing in the Supreme Court upon an alternative writ of mandate issued to the Superior Court of the City and County of San Francisco, W. R. Daingerfield, judge, commanding him to settle a bill of exceptions. The facts are stated in the opinion of the court.

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

<p>Appeal from 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>Mortgage—Power of Trustee to Assign.—Where a note given to a trustee was made payable to him as trustee, “or order,” and a mortgage was also expressly made to him as trustee, “ his assigns and successors, ” the trustee has, by necessary implication, the power to sell or assign the note and mortgage; and, where no evidence is offered to overcome the presumption that the assignee took the note and mortgage for value, the transfer to him is valid and not in violation of the trust. \</p> <p>Id.—Intended Gift—Delivery.—The fact that a mortgagee intended the note and mortgage to pass by gift to an incompetent daughter for whom the father has obtained letters of guardianship, and that the same have been entered in the inventory of her estate as the property of the incompetent, is not sufficient of itself to establish a gift, there being no delivery or assignment of the note and mortgage to the daughter, and no indorsement of the note payable to his order by the mortgagee.</p> <p>Id.—Read Party in Interest—Statutory Right of Defendant.—The defendant has a statutory right to have a cause of action against him prosecuted by the real person in interest; but where the plaintiff shows such a title in a note and mortgage sued upon as that a judgment upon it satisfied by defendant will protect him from future annoyance or loss, and where, as against the party suing, defendant can urge any defenses he could make against the real owner, there is an end of the defendant’s concern and of his right of objection; and, so far as he is interested, the action is being prosecuted in the name of the real party in interest.</p> <p>Id.—Defense Against Read Owner.—Where prima facie legal title is shown in the plaintiff, such as would protect the defendant if judgment were obtained upon it, if the defendant claims another to be the real owner he must support his right to make that claim by showing that he has some equity or defense against the real owner which he cannot maintain against the prima facie legal owner.</p> <p>Id.—Correction of Description of Mortgage.—The court may properly reform a mortgage as to the description of the land, where there is sufficient evidence to support the finding of a mistake, and to justify the decree of correction.</p> <p>Id.—Findings.—Findings need not be made of facts admitted by the plead, ings, or sufficiently covered by the findings actually made.</p>

<p>Water "Eights—Act of Congress Confirming Water Rights—Right of Appropriator to Change Place of Diversion—Riparian Rights of Homestead Claimants.—The act of Congress confirming vested and accrued rights to the use of water for beneficial purposes, acquired by priority of possession thereof on the public lands, as against homestead settlers on those lands, does not justify a ditch-owner in shifting the point of diversion and the line of his ditch without the consent of a homestead settler on riparian lands, who has obtained a certificate of entry of such lands.</p> <p>Id.—Construction of Act of 1866.—The terms of the proviso found in section 9 of the act of Congress of July, 1866, that whenever any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured therefor, does not authorize the construction of a new ditch or canal, nor grant rights of way where none existed before, nor confer additional rights upon owners of ditches subsequently constructed.</p> <p>Id.—Rights of Homestead Settlers.—The right of a homestead settler who has made entry, but has not made final proof of residence and cultivation, or obtained a patent, amounts to an equitable interest in the land subject to the future performance of certain conditions, and, until forfeited by failure to perform the conditions, it must prevail not only against individuals, but against the government.</p> <p>Id.—Decisions — Authority of Federal Supreme Court—Rights of Settlers as Against Appropbiators of Water,—The former decisions of this court, to the extent to which they hold that the interest of a settler on the public lands under the pre-emption or homestead laws attaches as against the appropriator of water rights on his tract only as of the time of his final proof or of obtaining a patent, must be controlled by the decision of the federal supreme court to the contrary.</p> <p>Id.—Rights of Appropriator.—An appropriator of water having the prior right to the use of water to the extent of an appropriation made by bis predecessors through a ditch maintained by them prior to defendant's settlement upon riparian lands may maintain such prior right, together with the right to maintain such ditch as against a subsequent homestead settler, whose land is subject to a servitude for the support of the ditch and water right.</p> <p>Id.— Effect of Change of Location of Ditch—Abandonment.—An improper and ineffective change of the location of a ditch as against the rights of a homestead settler does not have the effect to lose the prior right to the flow of the water which is not intended to be abandoned, and whether he abandoned his property in the former ditch and the right to lead water through the same is a question of fact to be determined under proper pleadings.</p>

<p>Appeal from a judgment of the Superior Court of Sonoma County and from an order dissolving an injunction.</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 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>