Volume 107 — California Reports

<p>Will or Married Woman—Revocation—Second Marriage—Construction of Code.—Section 1300 of the Civil Code, which provides that “ a will executed by an unmarried woman is revoked by her subsequent marriage, and is not revived by the death of her husband,” only applies to a will which is executed by a woman unmarried at the time of its execution, and does not apply to a will executed by a married woman, and such will is not revoked by a second marriage subsequent to the execution of the will.</p> <p>Id.—Execution and Revocation of Will Statutory.—The right of any person to execute a will, as well as the form in which the will must be executed, or the manner in which it may be revoked, are matters entirely of statutory regulation.</p> <p>Id.—Power of Married Woman to Make Will.—By the common law a married woman has no power to make a will, and the marriage of a woman revoked any will that she bad previously made; but in this state there is no restriction upon the power of a married woman to make a will, and, upon proof of its execution, it is entitled to probate the same as the will of any other person, unless it is shown to have been revoked in one of the modes prescribed by statute.</p>

<p>Corporations—Notes Executed by Secretary—Absence of authority. Promissory notes executed in the name of a corporation, by its secretary, who does not appear to have been authorized to execute them by any resolution of the hoard of directors, or to have been clothed with general power to execute promissory notes or other obligations on its behalf, do not bind the corporation, and are not admissible in evidence in support of causes of action based thereon.</p> <p>Id.—Ratification—Unauthorized Special Meeting.—An attempted express ratification of promissory notes at a special meeting of the hoard of directors, of which the directors were not all notified, is not made at a meeting duly assembled, and does not bind the corporation as a corporate act.</p> <p>Id.—Recovery of Money Loaned by Bank.—If a bank has in fact furnished to a cable company moneys, whether as loans upon unauthorized promissory notes, or upon account, or paid money for construction of its road, or in discharge of its legal liabilities, such moneys, so far as the same were in fact applied to the proper use and benefit of the cable company, may be recovered by the receiver of the bank, to the extent to which they have not been repaid.</p> <p>Id.—Benefits Received Under Ultra Vires Contract—Interest.—A corporation must account for benefits received under an ultra vires contract, with interest on the amount found due.</p> <p>Id.—Distinct Corporations—Contracts—Partial Identity of Directors no Bar.—The fact that some of the directors of the bank were also directors of the cable company does not prevent them from being distinct corporations, who have a right to contract with each other in their corporate capacities, and, if the relation of the parties has not been abused, it constitutes no bar to a recovery for moneys advanced by the bank, and used for the benefit of the cable company.</p> <p>Id. Implied Promise—Repayment of Money.—Where money is obtained by and disbursed through the proper financial officer of a corporation through the agency of a bank, and is applied to the proper uses of the corporation, there arises from such use an implied promise of the corporation to repay the money to the bank.</p> <p>Id.—-Statement of Bank Accounts—Note Referred to in Account— Admissibility of Evidence—Indebtedness—Binding.—Where the statement of accounts furnished to the L k-keeper of the cable company by the bank, and the ledger account of l cable company showing the account of the bank made up from the stati, ent, shows an item of credit of a note, such note is properly admissible i.i evidence as explanatory of the entry, and the amount thereof should be added to a final balance or overdraft against the cable company, and judgment should be recovered therefor; and a finding that the cable company was not indebted to the bank is not justified by the evidence.</p> <p>Id.—Books of Bank and Vouchers — Prima Facie Evidence.—The books of a bank and the vouchers returned to the cable company’s bookkeeper with the statements are properly admissible in evidence, and should be regarded as prima facie evidence of the way the accounts stood at the date of the last balance.</p> <p>Id.—Effect of Vouchers as Evidence—Certified Bills.—The vouchers delivered with the statements of the bank to the cable company are not only prima facie evidence of the payment by the bank of the several sums named in them, but these payments, having been paid principally upon bills certified by the general manager, to that extent, at least, furnish satisfactory evidence that the money paid thereon was in fact applied to the proper use and benefit of the cable company, and it is prejudicial error to exclude from evidence the vouchers and books of the bank.</p> <p>Id.—Mode of Keeping Bank Accounts—Absence of Pass-book—Admissibility of Evidence.—The fact that the cable company had no pass-book, and that the money was paid out upon bills and not upon checks, does not affect the admissibility of the bank-books and of the statements rendered to the cable company’s book-keeper showing the deposits as well as the payments in the same manner as if written up in a pass-book.</p> <p>Id. —Interest of Officers of Cable Company in Bank—Weight of Testimony.—The fact that two officers of a cable company were interested in the bank does not affect the admissibility in c vidence of the books of the bank; but such interest merely invites scrutiny of the accounts, and goes only to the weight of the testimony, and not to its admissibility.</p> <p>Id.—Admissibility of Unauthorized Notes.—Although notes executed by the secretary of the cable company without proper authority are not evidence of a liability of the express contract appearing upon their face yet if the money represented by or named in the notes was furnished by the bank which was the payee of the notes, and was received by and applied to the proper use and benefit of the cable company, the notes are admissible in evidence for the purpose of showing that the money represented by them was furnished by the bank.</p> <p>Id.—Double Agency.—The fact that officers of the corporation were also officers of the bank does not affect the admissibility of the notes in evidence as an admission that the money was furnished by the bank.</p> <p>Id—Agency fob Two Parties—Presumption.—There can be no presumption that an agent of two parties will deal unlawfully with either, and it is only where the agent has personal interests conflicting with those of his principal that the law requires peculiar safeguards against his acts.</p>

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

The facts are stated in the opinions reported in 71 Cal. 513, 79 Cal. 115, 87 Cal. 104, 101 Cal. 82, 104 Cal. 126, and in the opinion of the court in the present case.

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

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

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

<p>Sale—Statute of Frauds—Want of Immediate Delivery—Finding j Against Evidence.—Where an alleged sale of personal property was not accompanied by an immediate delivery of the property, as required by section 3440 of the Civil Code, the sale is conclusively presumed to be fraudulent and void as against an attaching creditor, and a finding that the plaintiff was the owner of the property by virtue of the sale is not justified by the evidence.</p> <p>Id.—Sale of Farming Property—Constructive Possession.—Where the property in controversy was sold by a father to his daughter, and consisted of an undivided-third part of certain farming utensils, farm products, and livestock, situated at the time of the alleged sale on a farm owned in common by the daughter, father, and a brother of the father, and the father and his brother conveyed by deed to the daughter the entire farm, and verbally sold all their interest in the personal property to the daughter, who at the time of the sale was residing at her father’s residence on other premises, and did not receive actual possession either of the farm or of the personal property, the other cotenants making the transfer being then in actual possession of both, and working on the farm and using the personal property, the fact that the daughter received constructive possession of the personal property by a conveyance of the farm does not constitute such immediate delivery and actual and continued change of possession as is required by the statute of frauds.</p> <p>Id.—Title to Produce of Land After Conveyance.—Where the transfer of the farm was not actually fraudulent and void as having been made to delay or defeat creditors of the grantors the grantee is entitled to receive the produce of the farm raised after the date of the conveyance; and such produce cannot be attached by a creditor of one of the grantors.</p> <p>Id.—Effect of Conveyance to Defraud Creditors.—If the conveyance Was intended by the grantors to defraud their creditors, and the grantee did not purchase in good faith for a valuable consideration and without notice of intended fraud, the conveyance should be held void as against all persons who were creditors of the grantors at the date of the conveyance; and in that case the subsequent produce of the land would be subject to execution against the grantors.</p> <p>Id.—Trover Against Sheriff—Pleading—Fraud Against Creditors. In an action of trover against the sheriff, who has seized personal property at the suit of a creditor of a grantor of the plaintiff, where there is no indication in the complaint that the plaintiff claims title by sale from the defendant in the execution, the sheriff is not bound in his answer to anticipate such title, and ia not bound to plead any fraud, actual or constructive, in the sale.</p>

Hearing in the Supreme Court upon writ of habeas corpus to the Superior Court of Alameda County. The facts are stated in the opinion of the court.

<p>Mines—Conveyance by Owner of Two Claims Held as One—Inter, section of Veins—Title of Grantee—Estoppel by Deed.—Where the dividing line between the original locations of two mining claims has been disregarded by one who has become the owner of both of them, and he has sold and conveyed a portion thereof in a deed of conveyance not purporting to be made in accordance with the lines or claim of any previous location, but as a conveyance of a tract of mining ground carved out of the entire tract by metes and bounds agreed upon between the parties, the grantor is estopped by-his deed from questioning the right of his grantee to all of the gold found within the surface lines of the deed, irrespective of the depth below the surface at which it is found and such grantee has title to the gold found at the place of intersection of two veins falling within the surface lines of the deed.</p> <p>Id.—Construction of Revised Statutes—Priority of Location of Intersecting Veins—Effect of Deed.—Where the proprietor of a tract of mining ground which had been derived through several locations disposes of the same in parcels, irrespective of the lines of the locations, the rights of his grantees are measured by the terms of their deeds. Section 2336 of the Revised Statutes of the United States providing that when two veins intersect, priority of title shall govern as to the ore or mineral contained within the space of intersection, has no application to a conveyance of part of a mining claim, in respect to which there is no priority of location, and was not intended to limit or define the rights of a person in possession of a tract of mining ground where there is more than one vein, or to prescribe the effect of a conveyance by the locator of a claim of a portion of his location; but the sole object of that section is to supplement the provisions of section 2332, and to prescribe rules under which different locations by different proprietors should be held, and to determine the rights of such proprietors in case of intersecting veins.</p> <p>Id.—Description—Boundaries—Parol Evidence —Monuments—Identity of Land.—In the description of the boundaries in a conveyance, monuments designated as the corners of the tract conveyed, which can be ascertained, will prevail over designated measurements, and parol evidence offered for the purpose of pointing out upon the surface of the earth the monuments which had been agreed upon in the sale, and which were named in the conveyance, is admissible to show the identity of the land conveyed with that upon which the trespass was committed.</p>

<p>Municipal Corporations — Validity of Organization — Substantial Compliance with Statute — Quo Warranto.—While substantial compliance with the statute in the organization of a municipal corporation is sufficient, yet, where any important provisions of the law have been violated or ignored, the corporation may be annulled at suit of the people in an action of quo warranto.</p> <p>Id.-—Time of Presenting Petition—Publication of Notice—Construction of Statute.—The proper construction of section 2 of the statute of 1883, as amended in 1889, respecting the formation of municipal corporations, does not require that the. petition describing the territory to be incorporated, and signed by at least fifty qualified electors of the county, resident within the limits of such territory, should be presented to the board in the first place before the publication of notice; but it is only required to be presented to the board of supervisors after two weeks’ notice by publication of the time when it will be presented.</p> <p>Id.—Insufficient Affidavit to Petition—Genuineness of Signatures. An affidavit attached to a petition for the organization of a municipal corporation which merely shows that the names attached to the petition were names of qualified electors, resident within the limits of the proposed corporation, but which does not show that their signatures were genuine, is radically defective; and if it does not appear that there was any evidence offered before the board of supervisors, or before the court, of the genuineness of the signatures other than the affidavit attached to the petition, there is no evidence to sustain a finding that the petition was in fact signed by fifty qualified petitioners, and there was a failure, in a substantial particular, to comply with the statute.</p> <p>Id.—Jurisdiction of Board to Establish Corporation.—It is absolutely essential to the jurisdiction of the board to make an order declaring the establishment of the corporation that a proper petition, signed by the requisite number of qualified petitioners, should be laid before them, involving proof of the genuineness of the signatures attached to the petition, and filed with it; and where no evidence was placed before the supervisors of the genuineness of the signatures of a sufficient number of qualified petitioners, and there is no finding or declaration of that fact by the board, it had no jurisdiction to declare the establishment of the corporation.</p> <p>Id.—Loss of Jurisdiction—Adjournments of Hearing—Hours not Specified.—If the board of supervisors has acquired jurisdiction of a proceeding to establish a proposed municipal corporation it does not lose it by adjournments of the hearing from time to time merely because in the orders of adjournment the hour of the day for resuming the hearing was not specified.</p> <p>Id.—Publication of Order—Ordinance not Required.—If an order of the board establishing boundaries, and providing for a submission of the question of incorporation to the people is otherwise valid, it is not invalidated by failure to publish the order as an ordinance; but such orders are not ordinances governed as to their enactment by the provisions of the County Government Act, but are orders to be entered on the minutes of the board in accordance with the provisions of the statute regulating this particular proceeding.</p> <p>Id.—Manner of Giving Notice of Election—Unauthorized Delegation of Power to Clerk. —The board of supervisors are required to direct as to the manner and time of giving notice of the election, whether in a newspaper or by posting, and they cannot delegate to the clerk power or discretion to determine what the notice shall be; and an order delegating such power or discretion is not a substantial compliance with the statute.</p> <p>Id.—Description of Boundaries—Apparent Mistake in Designation of Corner.—The fact that the description of the boundaries in the notice is ambiguous by reason of a mistake in the call for a corner does not vitiate the description where the other calls show conclusively that another corner was meant.</p> <p>Id.—Completion of Corporation—Filing of Certified Copy of Order of Supervisors—Remedy for Failure—Proceedings for Dissolution.—A certified copy of the order of the board of directors declaring a municipal corporation duly incorporated must be filed in the office of the secretary of state, and such filing is essential to the completion of the corporation, and, until it is filed, there is no corporation; but the failure to file such certified copy with the secretary of state may be remedied pending the proceedings for a dissolution of the corporation.</p>

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

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

<p>Justice's Court of San Francisco—Summons—Signature.—A summons issued from the justice’s court of the city and county of San Francisco is properly issued by the justice’s clerk, upon the order of the presiding justice, and it need not be signed by the justice of the peace, as provided by section 844 of the Code of Civil Procedure.</p> <p>Id.—Construction of Code—Special Legislation.—Chapter V, article I, of title I of the Code of Civil Procedure is not special legislation, and section 91 of that code contains a modification of the rule declared in section 844 regarding the proper party to sign a summons in the justice’s court of the city and county of San Francisco.</p> <p>Id.—Designation of Justice’s Clerk—Technical Variance.—Although the proper designation of the officer authorized to sign and issue summons, under section 95 of the Code of Civil Procedure, is “justice’s clerk,” yet a technical variance in a signature to a summons by that clerk by the designation of himself as “clerk of the said court,” viz., the justice’s court, is a variance so slight and unimportant as to involve no question of jurisdiction.</p> <p>Id.—Mistake in Recital of Name of Presiding Justice.—Though the summons may upon its face recite that it was issued at the order of the presiding justice, there is no statutory requirement to that effect, and the recital is not conclusive as to the fact, especially where a mistake appears in the recital of the name of the person who was at the time presiding justice; and it may be proved that the order was in fact made by the presiding justice, though he is another person than the one whose name is recited in the summons.</p>

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

<p>Foreclosure — Inserting Untaxed Costs in Decree — Clerical Misprision—Validity op Order op Sale.—The action of the clerk in inserting in a decree of foreclosure the amount of coats as claimed by plaintiff, before the same had been taxed or ascertained, is a mere clerical misprision, not affecting the validity of the decree in other respects, nor invalidating the order of sale issued thereon, nor affecting the validity of the sale thereunder.</p> <p>Id.—Amendment op Decree and Order op Sale—Taxation op Costs— Curing op Error.—The decree and order of sale, being'merely erroneous in the insertion of costs before taxation, are amendable in that regard, and the subsequent action of the court in taxing the costs is, in effect, such an amendment, and cures the error, and, where the property is sold under the decree as modified by the taxation of costs, and only the costs taxed are collected, there is no prejudicial error.</p> <p>Id.—Order op Sale not Premature—Frivolous Appeal—Damages.— The issuance of an order of sale before the taxation of costs is not premature, and an appeal taken after the taxation of costs from an order refusing to vacate the order of sale because the costs were inserted in the decree before taxation is without merit; and the order will be affirmed with damages.</p>

Application to the Supreme Court for a peremptory writ of mandate to compel the settlement of a bill of exceptions and hearing in said court upon an alternative writ issued to the Superior Court of the City and County of San Francisco, William T. Wallace, judge. The facts are stated in the opinion of the court.

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

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

<p>Criminal Law—Sufficiency of Information.—Where an offense is charged in the information in the language of the statute the information is in substantial compliance with the requirements of the code, and a demurrer thereto is not well taken.</p> <p>Id.—Swindling by Use of Cards — Larceny. —Where a defendant is charged with a felony committed by fraudulently obtaining money from another person by trick and device by the use of cards, and the evidence discloses that the means employed was a trick of the defendant and his confederate of pretending to play a game of cards, wherein the defendant, as an inducement to the prosecuting witness to part with his money, was permitted repeatedly to win; but the moment the money of the prosecutor was put up, it was apparently lost by the defendant to his confederate, who immediately disappeared with it, the evidence is sufficient to sustain a conviction under the information; and the fact that the circumstances disclosed are such that the defendant might have been charged with and convicted of larceny does not make the offense any less one of the special class provided for in section 332 of the Penal Code, nor render the defendant less amenable to a prosecution under that section.</p> <p>Id.—Conduct of District Attorney—Improper Allusion to Appearance of Defendant—Effect of General Objection.—Where an objection to the language of the district attorney used on the argument is general, and the court’s attention was in no way directed to any particular feature complained of, the fact that the district attorney improperly commented upon or called attention to the personal appearance of the defendant as a factor in the evidence, though the defendant did not submit himself as a witness in the case, cannot be taken advantage of for the first time on appeal. In order to avail himself of the objection, it was the duty of the defendant to direct the court’s attention specifically to such transgression of the people’s privilege.</p>

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

<p>Appeal by Mortgagor—Servios op Notice—Defaulting Codefbndants. In an action to foreclose a mortgage, where an averment in the complaint, that the interest of othei defendants than the mortgagor in the mortgaged property is subject to the lien of the plaintiff, is admitted by their default, and the judgment merely forecloses their interest in the property, upon an appeal taken by the mortgagor alone, it is sufficient to serve the notice of appeal upon the plaintiffs, and it need not be. served upon the defaulting codefendants, who could not be affected a reversal or modification of the judgment.</p> <p>Id.—Description of Mortgaged Property — Certainty — Sw Water Stook—Capital Stock of Water Company—Ceív. . Where the mortgage, in addition to the land mortgaged, di _ ¿bed certain shares of water stock, and the complaint described the same in the same terms in which it had been described in the mortgage, the mortgagor upon appeal cannot object to uncertainty in the description; and where it does not appear that a certificate had been issued for shares' of the stock of a water company, the description of it as so many t.has os of its capital stock, in the mortgage and in the complaint, is sufficir n¡ to identify the property mortgaged, as well as for the purpose of ?, ¡o under the judgment, and such sale will transfer any title v/?” I no mortgagor might have to shares of the capital stook for which no r; -<- tifieate had been issued.</p> <p>Id.—Allowance of Counsel Pees—Absence of Agreement.—In the absence of an agreement for the payment of counsel fees in a mortgage the court is not authorized to include counsel fees as a part of the judgment; and where the complaint contains no averment of any agreement on the part of the mortgagor to pay a counsel fee, and the copy of the mortgage annexed to the complaint does not contain any such stipulation, no counsel fees can be allowed, although prayed for.</p>

<p>Negligence—Falling of Piled Lumber—Carelessness of Fellow-servants—Presumption.—Where boards were piled by workmen, of whom the plaintiff was one, without direction in what mode they should be piled, or how high, and the pile toppled over, to the injury of the plaintiff, the presumption is that the accident occurred through the carelessness of the plaintiff and his fellow-servants.</p> <p>New Trial—Visit of Jury to Premises—Conflicting Evidence—Jurisdiction of Court.—The fact that the jury visited the premises to enable them to understand the evidence introduced on the trial cannot deprive the court of its jurisdiction to grant a new trial, which it should do, notwithstanding a conflict in the evidence, if fully convinced that the verdict was wrong.</p>

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

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

<p>Counties—Contract for Repairs and Improvements of Courthouse_ Notice of Letting Contract—Construction of County Government Act.—Section 25 of the County Government Act of 1891, requiring all county buildings to be let by contract, after notice by publication for sixty days, has no application to a contract for making repairs or alterations in the courthouse, or for laying walks and making improvements upon the grounds surrounding the courthouse.</p> <p>Id.—Contract for Liquidated Damages — Pleading — Insufficient Averment—Presumption__In an action by a contractor to compel payment of warrants for repairs to the courthouse and improvements of the courthouse grounds, under a contract which entitled the county to liquidated damages for each day the building should remain unfinished or incomplete after a certain date, where the answer does not aver that the repairs of the building were not completed and delivered within the time agreed upon, hut only avers generally that the work was not completed before a subsequent date, it shows no case for liquidated damages, since the work included the improvements upon the grounds, and it may be assumed that the building was completed in time.</p> <p>Id.—Time of Incurring Indebtedness—Fiscal Year—Invalid Order of Supervisors.—Where indebtedness was incurred within one fiscal year, it can only be paid out of the revenue provided for that fiscal year, and the hoard of supervisors have no jurisdiction or authority to carry the indebtedness over, and make it payable out of the revenue of the next fiscal year.</p> <p>Id.—Judgment on Pleadings—Admissions of Answer.—Where a judgment is granted on the pleadings all of the averments of the answer are, in effect, admitted to be true.</p> <p>Ib. — Mandamus — Payment of Warrant—Presumption—Burden of Proof—Jurisdiction of Supervisors.—Upon the hearing of a writ of mandate to compel the payment of a warrant, where it is averred in the petition, and not denied, that the board of supervisors allowed the claim and ordered a warrant drawn therefor, and that a warrant was regularly drawn by the auditor and delivered to the respondents, it must be presumed that official duty in allowing and issuing the warrant was regularly performed, and the burden of proof is upon the treasurer to show that he was justified in refusing payment, and it does not rest upon the plaintiff to show by affirmative proof that the hoard of supervisors had jurisdiction to issue the warrant, merely because the averments of the answer show that the board of supervisors had no jurisdiction to allow the claim.</p>

<p>School Law—Kindergarten—Primary Schools—Special Instruction —Power of Board of Education—San Jose.—Under section 1617, subdivision 9, of the Political Code, and section 1662 of the same code, as amended in 1893, which are controlling'in the city of San Jose, as elsewhere, the board of education of that city has power to adopt the kindergarten as part of the public primary schools, and to provide for the admission of children of kindergarten classes to be instructed by teachers provided with a special certificate authorizing the holder to teach the kindergarten system as a special study.</p> <p>Id.—Meaning of Kindergarten—Judicial Notice.—The court will take judicial notice of the significance of the word “ kindergarten,” and that the term applies to a system elaborated for the instruction of children of very tender years, guiding their inclination to play into organized movement, and investing games with an ethical and educational value.</p> <p>Id. — Qualification of Kindergarten Teacher — Classes in Primary Schools—Certificate for Special Branch—Authority of County Board.—Although the kindergarten system, when adopted, is to be regarded as part of the public primary schools of the school district, yet it is not essential that the teacher of the kindergarten classes must have a certificate authorizing her to teach the whole primary school course before she can be eligible to employment as a teacher in the kindergarten; but, under section 1771 of the Political Code, the county board of education has authority to grant a certificate to teach kindergarten classes as a special branch required by a city board of education.</p> <p>Id.—Payment of Kindergarten Teacher—Primary School Fund— Mandamus.—The kindergarten classes being a part of the primary schools, a warrant drawn by the b'oard of education upon the treasurer of the city against a fund in his hands known as the “ Grammar and Primary School Fund ” must be paid out of that fund, and, upon refusal of the city treasurer to pay the same, a writ of mandamus will issue compelling such payment.</p> <p>Id.—Time of Levy of Tax Immaterial.—It is .immaterial that the kindergarten class or system had no existence in the primary schools at the time when the tax was levied to raise a fund for the expenses and teachers’ salaries of the grammar and primary schools of the city.</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>Appeal from a judgment of the Superior Court of Mendocino County and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Contract for Services — Drying of Prunes — Implied Obligation of Skill.—Under a contract to render services for another in the drying of prunes, without specifying in the contract the degree of care or skill to be employed for the purpose, there is an implied obligation to dry the prunes in a proper and skillful manner, under the provisions of sections 1983 and 1984 of the Civil Code.</p> <p>Id.—Action for Services—Counterclaim for Negligence and Want of Skill.—In an action to recover promised compensation for the drying of prunes the defendants may counterclaim damages sustained by reason of the negligence and want of skill of the plaintiff in the performance of the contract, whereby the prunes were injured.</p> <p>Id.—Failure to Use Care and Skill—Finding—Conflicting Evidence. Where the evidence conflicts as to the failure of the plaintiff to exercise care and skill in drying the fruit, a finding of such failure will not be disturbed upon appeal, especially where the evidence appears to preponderate in favor of the conclusion of the trial court.</p> <p>Id.—Effect of Sale of Dried Prunes at Usual Prices—Liability for Want of Care.—The circumstance that the defendants sold at usual prices a large part of the prunes dried by the plaintiff and incurred no loss as to the portion sold, though it may be relevant evidence, and proper for consideration upon the question whether the value of the prunes was really lessened, and to what extent, cannot overcome a finding sustained by evidence that plaintiff failed to exercise care and skill in drying the fruit, nor exempt plaintiff from responsibility to the defendants for want of care and skill.</p> <p>Id.—Evidence—Boxes of Dried Prunes.—Boxes of prunes dried by the plaintiff being a finished and separable part of the manufactured product, the character of which was in question, may be properly received in evidence for the defendants; and the question whether they were fair samples or not goes only to the weight of the evidence and not to its admissibility.</p>

<p>Action upon Bond op Deceased Executor—Delay op Administration —Laches op Heirs.—Where an action is brought by the heirs of a decedent’s estate upon the bond of a deceased executor, who did not close the administration of the estate, or render any account thereof to the probate court, and the action is commenced within a reasonable time after the death of the executor, the heirs cannot be charged with laches by merely passive delay and forbearance on their part, though they might have compelled the executor to account to the probate court long before he died, nor could such merely passive delay and forbear, anee on their part discharge the sureties on the executor’s bond, nor affect their obligation which was conditioned that their principal should perform all the duties of executor, which obligation was not discharged owing to failure on their part to procure their release from further re. sponsibility as provided in sections 1403 and 1404 of the Code of Civil Procedure.</p> <p>Id.—Effect op Judgment Against Exeoutrix op Deceased Executor— Res Adjudicata.—A judgment obtained against the executrix of the deceased executor whose estate was insolvent is conclusive against the sureties on his bond in an action against them to recover from the sure, ties of the deceased executor the amount found due by the judgment to -the estate of which he was the executor.</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>

<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>

<p>Street Assessment—Invalid Certificate of City Engineer—Signature by Clerk—Evidence — Insufficient Basis for Lien.—In an action to foreclose a street assessment a certificate purporting to be a certificate of the city engineer as to the performance of the work, which was not signed by him in person, nor in his name by a deputy appointed by him, but by a mere clerk in his office, who signed the name of the city engineer to the certificate, adding Ms own initials to indicate that he bad written that officer’s name, is not admissible in evidence, and is invalid and insufficient as the basis of a lien upon any property charged with the expense of the work.</p> <p>Id.—Delegation of Official Duty,—A deputy cannot be appointed unless authority to make the appointment has been conferred by law, and a mere clerk or employee cannot be empowered by an officer to perform official acts.</p> <p>Id.—Recording of Civil Engineer’s Certificate. — Under the act of March 14, 1889, the engineer’s certificate must be recorded, as well as the warrant, assessment, and diagram, as an additional and necessary prerequisite to the creation of a lien.</p> <p>Id.—Separate Books of Record—One Record Essential.—Where the assessment, warrant, and diagram were separately recorded in a separate book of assessment records, while the engineer’s certificates were recorded in a small book kept in the same office, but not with the assessment records, nor referred to therein, so as to make it even constructively a part of the assessment records, such recording of the engineer’s certificate is invalid, the statute contemplating but one record of the warrant, assessment, and diagram, and engineer’s certificate.</p> <p>Id.—Validity of Contract for Work—Indemnity of Street Superintendent.—A contract for the construction of a sewer is not void, because it guarantees the street superintendent and his sureties and bondsmen immunity from liability; and such provision can have no effect to prevent property owners who are not affected by this clause of the contract, to which they were not parties, from maintaining an action against the street superintendent, or for any injury caused by his acts for which that officer is liable personally.</p> <p>Id.—Fixing Time for Commencement of Work.—A contract which provides that the work is to be commenced within a specified number of days from the date of the contract sufficiently fixes the time for the commencement of the work.</p>

<p>County Office—Vacancy—Death of District Attorney Elected After Qualification. —Where a district attorney has been elected to succeed a prior incumbent, and has died after qualification, and before the expiration of the term of the prior incumbent, a vacancy arises in the office by reason of the election, qualification, and death of the successor, which exists upon the expiration of the term of the prior incumbent, when the newly elected officer would have entered upon his duties as successor, if he had lived, and not before.</p> <p>Id.—Power of Supervisors —Anticipation of Future Vacancy—Right of Subsequent Appointment.—The board of supervisors cannot, by its action, either create a vacancy, nor by anticipation fill one which is to arise in future during the term of a newly elected board of supervisors, and the appointment of a district attorney by an outgoing hoard of supervisors to fill a vacancy in the office of district attorney before such vacancy arises is in excess of its power and void; and such vacancy is properly filled by a succeeding hoard of supervisors by another appointment made after the vacancy has arisen.</p> <p>Id.—Appointing Power—Forestalling Rights of Successors—Expiration of Power.—The appointing power cannot forestall the rights and prerogatives of their own successors by appointing successors to offices expiring after their power to appoint has itself expired.</p>

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

<p>Corporations—Organization of Manufacturing Company—Power as to Railroads and Tramways—Eminent Domain.—The articles of incorporation of a manufacturing company formed to own and run a sawmill, and to manufacture lumber and articles made of wood, are not vitiated by including therein power to operate, construct, maintain, and deal in railroads, tramways, and rights of way, it being frequently necessary in such business to have tramways and railroads as part of the manufacturing plant, though such a corporation could not exercise the right of eminent domain to acquire rights of way.</p> <p>Id.—Quo Warranto—Functions of Railroad Corporation—Pleading —Demurrer.—An information in the nature of a quo warranto seeking to have it adjudged that such manufacturing corporation is exercising the corporate functions of a railroad corporation without right, not being constituted as the code requires of every railroad corporation, does not state a cause of action, and a demurrer thereto is properly sustained.</p> <p>Id.—Refusal to Allow Amendment.—It is generally a matter of absolute right to allow the plaintiff to amend his complaint; but it may be refused if the court is able to see that the complaint cannot be so amended as to state a good cause of action.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to vacate and set aside a judgment, and to strike findings from the files of the court..</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>Mechanic’s Lien—Foreclosure—Pleading—Attorney’s Fees—Immaterial Issue—Finding.—No allegation need be inserted in a complaint for the foreclosure of a mechanic’s lien relative to the claim of Che plaintiff for attorney’s fees; and an allegation on that subject, if iriade, does not bind the party making it, and an issue made by the pleadings on that question is immaterial, and the court need not find uponi it.</p> <p>Id.—Evidence—Value oe Counsel Fee—Power oe Court—Discretion. The attorney’s fee in an action for the foreclosure of a mechajnic’s lien is to be fixed by the court irrespective of any averment in the eomplaint, and no evidence need be produced or appear in the record as to she value of the fee; nor is the court bound by testimony touching its\ value, though such testimony is admissible and may properly be considered by the court, the only limitation being that it shall not abuse the discretion committed to it by the statute.</p> <p>Id.—Duty of Contractor—Deduction by Owner—Amount of Foreclosed Lien—Costs.—It is the duty of the contractor to protect the property of the owner against any lien preferred by subcontractors, laborers, or materialmen employed by him; and the owner is entitled to deduct from any amount due to the contractor the amount of judgment and costs, including attorney’s fees, recovered upon foreclosure of the lien of a subcontractor.</p> <p>Id.—Order for Payment of Subcontractor Before Suit.—The fact that an order was given upon the owner by the contractor to the amount of the subcontractor’s claim before action was begun to foreclose the lien, the payment of which was refused, does not affect the obligation of the contractor to pay the debt together with all expenses and attorney’s fees for the foreclosure of the lien.</p> <p>Id.—Assignment by Contractor—Splitting of Demand.—The contractor cannot split his demand against the owner, and by assignment of a por. tion thereof impose upon the owner, without his consent, the legal obligation to pay the assignee.</p>

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

<p>Action upon Note — Execution — Indorsements — Admissions of Answer—Evidence.—In an action upon a note which is set out in the complaint with the indorsements thereon, where the complaint specifically avers the execution o£ the note and its indorsement by the payees and by another party, and none of these averments are denied in the answer, except the last indorsement, no evidence is necessary as to the execution of the note, or as to the first indorsement.</p> <p>Id.—Liability of Indorser—Time of Demand.—Where a note is payable at a specified date, and there is no waiver of demand and notice, in order to charge an indorser who has indorsed the note before maturity, it is essential to his liability that a demand should be made upon the maker upon the very day upon which the note falls due; and where it is not made until the following day, and no excuse therefor is claimed or proved, the effect is to discharge the indorser from liability.</p>

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

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

<p>New Trial—Decision Against Law—Failure to Find upon Material Issue—Review upon Appeal.—When the court rendering judgment fails to find upon a material issue, the decision is against law, and may be reviewed upon appeal from an order granting or refusing a new trial.</p> <p>Id.—Omission to Find upon Issue Rendered Immaterial.—Where the complaint sets forth two or more grounds for relief, either of which is sufficient to support a judgment in favor of the plaintiff, a finding upon one of such issues is sufficient to sustain a judgment, and a failure to find upon the other issue does not render the decision against law, and is not ground for a new trial.</p> <p>Id.—Forcible Entry and Detainer—Sufficiency of Finding.—Where a complaint charges both a forcible entry and a forcible detainer a finding that the plaintiff was the owner and in possession of the property should be construed to import that he was in the actual and peaceable possession thereof at the time when he was forcibly removed therefrom, and that he was entitled to the possession at the time of the forcible detainer; and the finding being sufficient to support a judgment for forcible detainer, it is immaterial whether it is sufficient to support a judgment upon the ground of forcible entry.</p> <p>Id.—Review of Evidence—Insufficient Specifications.—Specifications of the insufficiency of the evidence which are merely brief statements of what the evidence shows are insufficient.</p> <p>Id.—Surplusage—Statement of What Evidence Shows.—It is not necessary that a specification in a statement on motion for a new trial should state what the evidence does show, and such a statement is insufficient if standing alone, and surplusage if joined to a proper specification.</p>

<p>Estates of Deceased Persons—Bequest to Executors nr Trust—Payment of Income—Rights of Beneficiary—Jurisdiction of Probate Court.—Where a bequest was made to executors in trust of a sum of money which they were directed to invest, and to pay the income thereof to a beneficiary named, the only right of the beneficiary in the probate court is the right to move the court to make distribution of the fund to the trustees, which the court may grant at any time the circumstances of the estate will warrant it, without awaiting final distribution of the general estate, and the court has no authority to order the executors as such to pay out of the general estate an amount equal to the income to be derived from the investment provided for in the will.</p> <p>Id.—Distribution to Trustees—Legacy for Maintenance—Allowance of Interest from Death of Testator.—Where it appears that the beneficiary of the trust created by the will had been supported by the testator for a long period, and was in receipt of such support at the time of the making of the will, the bequest in trust of the legacy, the income of which is to be paid to her, is to be considered as a legacy for maintenance under section 1569 of the Civil Code, and will bear interest from the death of the testator; and it is the duty of the court, in distributing the fund to the trustees, also to distribute to them such interest as shall have accrued upon it at the date of the distribution, to be paid to the beneficiary in lieu of the income specified in the legacy, up to the date of the distribution.</p>

<p>Boundaries—Monuments—Courses and- Distances.—Where no monuments, natural or artificial, called for by description, or by the field notes of a survey, are to be found, the courses and distances called for must control.</p> <p>Id.—Erroneous Survey on Section Line.—Where the original survey of a section shows that the section and quarter sections were full, and only the monuments fixing the eastern line of the section are found, it is error for a county surveyor, instead of starting from the northeast and southeast corners of the section, and surveying the section and quarter sections by courses and distances, so as to make them full, to attempt to start from a corner in another township, and assuming that certain fences had been located on section and quarter section lines, to survey so as to reduce the length of the south boundary line of the section to less than the eighty chains provided for in the original survey.</p> <p>Id.—Adverse Possession—Prescriptive Title—Insufficient Proof.— There is no proof of adverse possession sufficient to justify a verdict of title by prescription where it appears that the controversy related simply to the location of the division line between the northeast and northwest quarter of the section, and the defendants had never claimed title to any land in the northeast quarter, and had never inclosed the land in question; nor built a fence upon the line claimed by them within five years next before the commencement of the action, and had paid no taxes on any part of the land in question.</p> <p>Id.—Agreed Line—Agency—Absence of Authority.—An agent who has no authority to agree upon a division line, but was merely employed for the purpose of superintending the lands of the owner and leasing the same, does not bind the owner by staking a line and causing a furrow to be ploughed to indicate how far west the tenants should plough, nor does he thereby authorize the owner of the adjoining land to build a fence upon the line staked by such agent; and where the evidence does not show any acts or representations of the agent by which his principal should be estopped, or any agreement between the agent and the owners of the adjoining land as to the location of the division line, the evidence fails to show an agreed division line.</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>Pire Insurance—Contract for Reinsurance—Effect of Prior Loss.— Where an insurance company, which has insured the property of a lumber company against loss by fire, contracts for reinsurance by way of partial indemnity with another insurance company, in the absence of any circumstances indicating the mutual intention of the parties to give to the contract of reinsurance a retrospective effect, the company agreeing to insure is not liable if the property insured had been destroyed by fire prior to the agreement, though at the time of the application and agreement neither of the insurance companies knew of the prior destruction of the property.</p> <p>Id.—Date of Insurance.—The general rule is that a policy of insurance, if delivered, takes effect from its date, unless it be otherwise stated, or unless there is evidence of a contrary intent.</p> <p>Id.—Contracts—Known Usase of Trade—Custom of Fire Insurance Companies—Premiums.—Where there is a known usage of trade, persons carrying on that trade are held to have contracted in reference to the usage unless the contrary appears, and the usage forms a part of the contract; and where it appears that it was the custom among fire insurance companies granting reinsurance to charge and collect premiums as and from the date of reinsurance, and to write their policies so as to cover the reinsured company from the date of reinsurance, the contracting companies are presumed to be familiar with their customs, and, in the absence of a showing to the contrary, to have contracted with reference to them.</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>Fraudulent Conveyance—Creditor’s Bill—Appeal—Conflicting Evidence.—Upon a creditor’s bill to set aside a conveyance alleged to have been made without consideration and with intent to hinder, delay, and defraud the creditors of the grantor, where there is a substantial conflict in the evidence, a finding that the conveyance was made to hinder and defraud creditors cannot be disturbed upon appeal.</p> <p>Id. —Rights of Assignee in Insolvency—Receiver in Creditor’s Supe —Sale of Property of Insolvent.—Where a conveyance in fraud of creditors was made several months before a proceeding in insolvency was instituted against the grantor the assignee in insolvency is not entitled to recover the property as assets of the insolvent estate; hut the property may be sold upon a creditor’s bill by a receiver appointed for that purpose for the benefit of the creditors suing as plaintiffs in the action.</p> <p>Id.—Attorneys’ Bees—Costs—Improper Allowance.—The court cannot decree attorneys’ fees to he paid to the creditors, plaintiffs, nor to the assignee in insolvency, out of the gross proceeds of the sale of the property, nor can it allow costs to the assignee in insolvency out of the fund.</p> <p>Id.—Attorneys’ Bees, When and When not Recoverable.—The general rule is that counsel fees are not recoverable by a successful party in an action either at law or in equity, except in enumerated instances-where they are expressly allowed by statute.</p> <p>Id.—Allowance of Counsel Bees Out of Bund—Common Interest— Adverse Claim__Counsel fees may be allowed in equity in an action for the preservation or distribution of a fund where all the parties have a common interest; but a plaintiff who brings suit for himself and others interested with him cannot recover counsel fees against a defendant who denies the right of each and all of the plaintiffs, and sets-up in himself an adverse and independent title to the thing in litigation.</p>

<p>Criminal Law — Obtaining Property Under False Pretenses — Mis. REPRESENTATION AS TO OWNERSHIP OR LAND—EVIDENCE—ADMISSIONS of Defendant—Corpus Delicti.—Upon, a charge of obtaining property under false pretenses, through misrepresentations made by the defendant as to his ownership of land, evidence of the extrajudicial statements and admissions of the defendant are insufficient to prove the fact that he owned no land as represented, that fact being an essential element and part of the cdrpus delicti, which must be established before the admissions of the defendant are admissible in evidence.</p> <p>Id.—Meaning of Corpus Delicti.—The term corpus delicti involves the elements of crime; and, in order to prove it, all of the elements of crime must be made to appear before defendant’s confessions are admissible for any purpose; and they cannot be used to establish any necessary element of the commission of a crime.</p>

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

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

<p>Negligence—Streetcar Company—Change op Horses—Collision—Injury prom Frightened Team.—Where the driver of a horsecar, after detaching the horses from the car at the company’s stables, for the purpose of obtaining a fresh team, swung them into the crowded, busy street, so as to collide with a wagon and team traveling in the same direction as the car, and which was already abreast of him when he swung the horses, his act in so swinging the horses, without either looking or listening for any approaching team, tends to prove negligence; and where, as the result of the collision, the horses ran away, and injured the plaintiff, a verdict against the horsecar company for damages for the resulting injury will be sustained upon appeal.</p>

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

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

<p>Mortgage—Deed Absolute in Form—Evidence.—A deed absolute in form, if given to secure the payment of a debt, will be treated in equity as a mortgage, and the facts and circumstances attending its execution may be shown by parol evidence.</p> <p>Id.—Continuing Indebtedness. —Whether the deed can be treated as a mortgage or not must depend upon whether there was a continuing indebtedness from the grantor to the grantee to be secured by it; if there is no indebtedness there can be no mortgage. In the present, case the finding that there was no indebtedness is held to be justified by the evidence.</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 refusing a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Municipal Corporations —Creation of Indebtedness—Statutory Construction.—Section 865 of the Municipal Corporation Act of 1883, which forbids the hoard of trustees of cities or towns to create, audit, allow, or permit to accrue any debt or liability iu excess of the available money in the treasury that may be legally appropriated for such purpose, has no application to a proceeding under the Municipal Indebtedness Act of 1889, to provide for a public improvement requiring an expend!tute in excess of the amount allowed therefor by the annual tax levy of the town; and the latter act is controlling in the cases provided for therein.</p> <p>Id.—Rejection of Bids—Power of Municipal Board.—The municipal hoard is justified in rejecting or refusing to consider a bid put in for a public improvement by a town official who could not lawfully take the contract therefor; and may also reject any bid which is clearly collusive ami fraudulent.</p> <p>Id.—Proof of Character of Bids—Records of Board—Admissibility of Evidence.—It is not requisite for the board in making a record of its action in rejecting bids to make an entry of their reasons for so doing, and any statement of reasons entered in the record does not preclude the board from showing in court what reasons in fact caused their action; and the court may admit evidence as to the facts in the ease.</p> <p>Id.—Restriction of Bidders—Action of Members of Board—Harm—• Irregularity—Equitable Relief.—The action of individual members of the municipal board in directing the engineer to inform intending bidders that no bids for the work would be received unaccompanied by a hid for the purchase of the bonds is not sufficient ground for relief in equity against a contract for a public improvement, where it does not appear that any injury accrued from the irregularity complained of, and there is no evidence that any one was deterred thereby from bidding on the contract, or that atiy person would have hid without such condition who did not bid with it, or that the bids put in were any higher by reason of such condition than they would have been without it, or that there was any fraud or bad faith.</p>

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

<p>Wills—Construction'—Intestacy.—In the interpretation of wills constructions which lead to intestacy, total or partial, are not favored; and such an interpretation should, if reasonably possible, be placed upon the provisions of the will as will prevent intestacy, especially where the will evinces an intention on the part of the testator to dispose of his whole estate.</p> <p>Id.—Devise of Residue of Estate—Trust—Homestead and Furniture— Right of Occupancy—Intention of Testator.—Where a will, after making certain bequests of personal property, devised all the residue of the estate of the testatrix, real, personal, and mixed, to trustees in trust, including in such residue a homestead, together with the furniture and statuary therein, the possession of which was to he delivered by the trustees to a sister of the testatrix, to be occupied and used until her death free of rent, the will clearly indicates the intention of the testatrix to dispose of her whole estate in the homestead, furniture and statuary, the legal title to which became vested by the will in the trustees; and it will not be presumed that the testatrix intended to devise any property in trust without declaring effectual trusts; and such an interpretation must, if possible, be placed upon the remaining provisions of the will as will include the whole estate in the homestead, furniture and statuary within the trusts created by the will, and prevent the title thereof from falling to the heirs at law upon the death of the sister of the testatrix.</p> <p>Id.—Personal Right of Occupancy—Life Estate—Trust as to Income of Residue of Estate.—The permission to the sister of the testatrix to use the homestead and furniture free of rent does not create a life estate in the occupant; but the entire estate remains in the trustees, and the beneficiary has a mere personal right of occupancy without rent; and a devise of the income of the residue of the entire estate of the testatrix includes any income to be derived from the use of the homestead after the death of the sister.</p> <p>Id.—Conversion of Residue of Estate—Sale of Reversion.—A provision in the will that upon the death of the sister, or in case she does not die until ten years have elapsed from and after the death of the testatrix, then at the expiration of such ten years all the residue of the estate then remaining in the hands of the trustees is to be gold and converted into money, and the proceeds distributed as in the will provided, includes the whole estate vested in the trustees at the expiration of the ten years, or upon the prior death of the sister, and authorizes the trustees to sell and convey the reversion in the homestead, furniture, and statuary, subject to the right of the sister to use and occupy it during her lifetime.</p> <p>Id.—Sale of Personal Property—Delivery of Possession—Future Interest.—A sale of personal property only requires an immediate delivery when a present interest is transferred, while the transfer of a future interest in personal property only entitles the transferee to possession at a future period.</p> <p>Id.—Presumption as to Intention of Testatrix—Contingencies in Will.—In construing the will it is immaterial whether or not the testatrix had all the various contingencies that might occur clearly before her mind, and, if language is employed sufficient to provide for every contingency, it must be presumed to have been intentionally employed.</p>

<p>Findings—Statute of Limitations—Accounting—Demand.—In an action for an accounting of trust funds, in which the complaint averred a demand upon the defendant before suit brought, which allegation was admitted by the answer, a finding against the defendant’s plea of the statute of limitations need not find the date of such demand.</p> <p>Id.—Decision — Findings of Fact — Conclusion of Law—Judgment.— Where, in such an action, the decision of the trial court, in its findings of facts, specifically finds the trust relation under which the money was obtained, a judgment entered thereon, decreeing that the money was held in trust, and ordering the same paid to the plaintiff, will not be reversed merely because the decision contained no express “ conclusion of law” as to such trust relation.</p> <p>Id.—Erroneous Conclusion of Law.—An erroneous conclusion of law is not ground of reversal if the judgment >s right.</p>

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

<p>Malicious Prosecution—Malice—Probable Cause.—In actions for malicious prosecution the plaintiff must, in order to recover, establish not only malice but want of probable cause.</p> <p>Id.—What is Probable Cause.—Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true. Whether the alleged circumstances existed or not is simply a question of fact; but, conceding their existence, whether or not they constituted probable cause is a question of law. In the present case, after a review of the evidence, the court is of the opinion that the circumstances disclosed a case of probable cause.</p> <p>Id.—-Declarations of Asent.—Before the declarations of an agent are admissible to bind his principal the fact of the agency must be established. Evidence of the declarations of the person claimed to be such agent are inadmissible to establish the agency.</p>

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

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

<p>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>Landlord and Tenant — Lease — Possession — Damages—Judgment in Ejectment—Res Adjudicata.—In an action for damages by a lessee for failure of the lessor to put the lessee in possession of the leased premises, owing to the existence of a prior lease, a judgment in favor of the lessor in an action of ejectment'brought against the prior lessee and the plaintiff in the damage suit, who entered under contract with the prior lessee for the purchase of his improvements, and who pleaded . his right of possession in the ejectment suit, may be pleaded and proved as a conclusive adjudication against the plaintiff in the damage suitf and isa bar to recovery by the lessee therein.</p> <p>Id.—Adjudication Against Validity of Lease—Failure of Evidence. The validity of a lease which might he shown in evidence in support of a plea of right of possession in an action of ejectment is adjudged against by the recovery of the plaintiff in the ejectment suit; and the failure of the defendant to offer the lease in evidence in support of the plea cannot affect the conelusiveness of the judgment against his right to recover damages for not being permitted to occupy the premises recovered in the ejectment suit.</p> <p>Id.—Estoppel — Entry Under Tenant — Right of Lessee. — Although one who enters under a tenant cannot deny .the title of the landlord without surrendering possession, yet if he "enters under a valid lease he is not estopped from defending his possession under it, but the landlord is estopped in such case from denying the right of the lessee to possession under a lease expressly conferring such right.</p>

<p>Criminal Law—Homicide—Evidence—Hearsay—Declarations oe Deceased.—Upon a trial for murder, declarations of the deceased not made in extremis, as dying declarations having reference to the circumstances of the death, and not constituting any part of the res gestas, are hearsay and inadmissible in evidence.</p> <p>Id.—Declarations Preceding Homicide.—On the trial of a defendant accused of murder, the admission of evidence of the declarations of the deceased made on the day before the homicide, to the effect that he had discovered that the defendant had been writing to his wife, and was trying to get his wife and child to run away with him, is prej udicial error.</p> <p>Id.—Irrelevant Evidence—Testimony of Wife of Deceased.—Where the killing was admitted by the defendant, and the only issue was as to whether it was in necessary self-defense, the testimony of the wife of the deceased, and of the defendant’s efforts to induce her to leave her husband, is not pertinent to any issue before the jury, and it is prejudicial error to admit such testimony in evidence.</p>

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

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

<p>Appeal from an order of the Superior Court of San Diego County dissolving an attachment.</p> <p>The facts aro stated in the opinion.</p>

<p>Quieting Title—Erroneous Description in Judgment—Inclusion oe Street — New Trial — Conditional Order — Discretion.—In an action to quiet title, where it appeared that a street was laid out entirely upon plaintiff’s lot, and no part of it upon defendant’s lot, and a narrow strip of land between the northerly boundary of the street and defendant’s fence was really the subject matter of the dispute; and the defendant had stipulated that no claim was made to any part of the plaintiff’s lot, a finding that the plaintiff was not the owner of the land between the center line of the street and defendant’s lot is unsustained, and it is within the discretion of the court to grant a new trial, unless the defendant would consent to have the judgment modified so as not to include any part of the street in defendant’s lot.</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 qourt.</p>

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

<p>Mechanics’ Liens—Unrecorded Contract—Parties to Foreclosure— Joinder oe Contractor.—A complaint in an action to foreclose mechanics’ liens which alleges that the contract between the owner of the property and the original contractor was void, upon the ground that neither the contract nor a sufficient memorandum thereof was filed with the county recorder, is not demurrable for a misjoinder of parties defendant, in making the original contractor a party defendant in the action, and he, being alone personally liable for any deficiency which may arise after the foreclosure of the liens, is properly joined as a party defendant if a personal judgment against him is for any reason desired.</p> <p>Id.—Date of Completion of Work—Sufficiency of Averments—Time of Filing Claim of Lien.—The fact that the complaint alleges that the building and structure was completed “on or about” a certain date does not subject the complaint to a general demurrer for insufficiency where the complaint alleges that the claim of lien was filed within thirty days after the completion of said building and structure.</p> <p>Id.—Uncertainty as to Extra Work—Harmless Ruling.—The overruling of a demurrer on the ground of uncertainty of allegation as to the character and extent of extra work alleged is harmless, and not ground of reversal, where nothing is allowed or awarded in the decree on account of extra work.</p> <p>Id.—Void Memorandum of Contract—Reference to Plans and Specifications.—The memorandum of contract filed in the recorder’s office reciting that the contractor is to furnish material and labor for the erection of a one-story brick building and all work mentioned in the speci" fications in connection therewith, and in conformity with the plans, drawings, and specifications for the same, etc., is void where the plans, drawings, and specifications referred to are neither set out nor filed in the recorder’s office.</p>

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

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

<p>Mortgage—Deed with Defeasance—Allowance of Interest.—Where a mortgage is given by a deed with a defeasance, to secure the payment of a certain sum of money due at a specified time, which sum is the amount of a sum of money loaned with interest thereon for one year at fifteen per cent, without any agreement as to a rate of interest beyond the date at which the money is to become due, only the statutory rate of seven per cent per annum can be recovered after the date of maturity of the obligation secured.</p> <p>Id.—Estoppel of Mortgagor—Interest Included in Amount Stated in Defeasance—Absence of Wp.itten Promise.—The mortgagor cannot claim that the deed and defeasance constitutes a mortgage, and at the same time deny that it fixes the amount to be paid at the maturity of the obligation, or object that more than seven per cent per annum on the money loaned was 'included in the amount secured, without any written promise on the part of the mortgagor to pay any rate of interest.</p> <p>Id.—Improvements bv Mortgagee—Wrongful Possession.—Where the mortgagee wrongfully takes possession of the premises mortgaged, without the consent of the mortgagor, and makes improvements thereon, which are not made with the consent or approbation of the mortgagor, no allowance can be made for such improvements.</p> <p>Id.—Conflicting Claims of Ownership—Action to Quiet Title.—The fact that the mortgagee holding under the deed claimed title to the mortgaged property, and brought an action to quiet title, does not aid him as to money expended for improvements, where he was informed by the proceedings in the action that the mortgagor denied his ownership, and insisted that the deed was given as security only, and any money expended for repairs and improvements as though he were owner, in the face of the appeal of the mortgagor from a judgment quieting title in favor of the mortgagee, cannot he allowed to him after a reversal of the judgment in a subsequent action to foreclose the mortgage.</p> <p>Id.—Rights of Mortgagee in Possession—Repairs and Improvements. To constitute a mortgagee in possession who can be allowed for repairs and improvements, the mortgagee must be in possession by reason of the agreement or assent of the mortgagor.</p>

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

<p>Roads and Highways—Petition for Private Road—Power of Supervisors.—The board of supervisors has no power to create a private road, or take any step therein, until a petition is filed, which petition in form must be in substantial compliance with the requirements of the statute.</p> <p>Id.—Signature to Petition.—A petition for a private road should regularly be signed by the party who is directly benefited by the laying out of the road.</p> <p>Id.—Necessity of Bond—Compliance with Statute.—A bond must accompany the petition, and it is only when the petition and bond are presented to the board of supervisors that power is vested in them to take affirmative action; and a bond in substantial compliance with the statute is as necessary to vest the board with jurisdiction to act as is a petition in substantial compliance with the statute.</p> <p>Id.—Irregular Bond—False Reference to Petition__A bond which appears upon its face to be given upon a petition for a private road by a party who is not a signer to the petition, and which in no way refers to the petition, upon which the proceedings were inaugurated, is wholly void as a bond to support the petition, and does not give the board of supervisors jurisdiction of the proceedings.</p> <p>Id.—Omission of Necessary Condition in Bond.—A bond supporting a petition for a private road, which omits the condition provided for in section 2692 of the Political Code, that the bondsmen will pay to the person over whose land said road is sought to be opened his necessary costs and disbursements in contesting the opening of the road in case the petition be not granted and the road finally not opened, is fatally defective.</p> <p>Id.—Amendment of Bond—Previous Acts not Validated.—A fatally defective bond cannot be cured by amendment so as to validate previous acts of the board done without jurisdiction.</p>

<p>Municipal Ordinance—Liquor License — Duty of City Trustees— Absence of Discretion—Mandamus.—Where the ordinance of a city entitles every man who complies with its provisions to a retail liquor license, upon written application to the trustees, and the giving of a bond conditioned to keep a quiet and orderly house, one who complies with such provisions is entitled to the license, and the trustees have no discretion to say that the license shall not be granted, and they will be compelled by mandamus to issue a license to the applicant.</p>

<p>Application in the Supreme Court to annul an order of the Superior Court of Alameda County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>State School Land—Foreclosure of Certificate of Purchase—Service of Summons—Void Judgment.—A judgment of foreclosure of a certificate of purchase of state school land rendered without personal service upon the holder of the certificate, and upon a publication of summons not based upon any affidavit or order of publication, is void.</p> <p>Id.—Power to Set Aside Judgment,—The court has no power to set aside a judgment foreclosing a certificate of purchase upon evidence not found in the judgment-roll, where more than six months have elapsed since its rendition.</p> <p>Id.—Action to Cancel Second Certificate—Admissions of Invalidity of Judgment.—In an action brought by the people upon relation of the holder of a patent from the state to school land, the certificate of which was foreclosed, upon publication of summons, to cancel a second certificate of purchase of the same land issued to another, where the complaint alleges that the holder of the certificate foreclosed never appeared in the foreclosure action, nor was summons ever served upon him personally, nor was an affidavit ever made by any one to obtain an order of publication of summons, nor was any order ever made in said action authorizing the service of summons by publication, and none of these allegations are denied in the answer, upon appeal upon the judgment-roll from a judgment canceling the second certificate of purchase, the judgment of foreclosure appears up..n the judgment-roll appealed from to have been void.</p> <p>Id.—Impeachment of Judgment — Service of Summons — Proof of Invalidity. — Although a judgment not void upon its face cannot be impeached by evidence showing a want of service of summons, if such evidence is objected to, yet, where evidence is admitted to that effect without objection, or the parties stipulate or admit that there was in fact no service of summons, it is the duty of the court to declare the judgment void, as matter of law, upon the admitted facts.</p> <p>Id. — Defective Application for School Land — Effect of Curative Act.—An affidavit for the purchase of school land, though substantially defective, filed prior to the curative acts of 1870 and 1872, is validated as against a second certificate obtained subsequent to the passage of those acts.</p> <p>Id.—Judicial Notice of Curative Acts—Pleadings.—The curative acts of 1870 and 1872 are essentially general acts, of which the court will take judicial notice, and it is not necessary either to allege their existence or prove them at a trial involving their application to a prior defective certificate of purchase.</p> <p>Id.—Construction of Curative Act—Date of Title of State Immaterial—Contract of Purchase. —The fact that the title to the land applied for did not vest in the state until a subsequent listment of the land to the state is not an element entering in any degree into the construction of the curative act of 1870, which validates a contract of purchase with the state, regardless of the time of the acquisition of its title.</p>

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

<p>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>Contest of Will—Agreement of Compromise—Breach of Executory Contract—Damages.—Where the heirs of a decedent instituted a contest of a will as against the surviving wife, anda compromise was agreed upon under mistake of the wife as to the amount of the estate, after the discovery of which mistake she gave notice of rescission of the agreement of compromise, whereupon the heirs continued the contest, in disregard of the executory agreement and without any bona fide or valid offer or tender of performance of the agreement of compromise on their part, they cannot, in an action upon the agreement of compromise, recover the amount agreed to be paid by the terms of the compromise, but, having broken the contract on their part, and not performed any of their covenants, a judgment against them, in an action for breach of the contract of compromise, will he affirmed, where no damage is alleged or proved to have grown out of the defendant’s breach of the executory contract.</p> <p>Id.—Obligation to Pay Money—Consideration—Executory Contract —Measure of Damages for Breach—Pleading.—The measure of damages upon an obligation to pay money is not the amount due by the terms of the obligation, with interest thereon, unless the consideration has passed to the obligor; but, when the consideration has not passed, and the contract is executory on both sides, and the promisee has not done the things required of him to be done, nor made a bona fide or valid offer or tender thereof, so as to pass the consideration to the promisor, he can only recover the actual damages, if any, suffered by the repudiation of the contract by the promisor, and must plead such damages in order to recover the same.</p>

<p>Construction of Wilt,—Power of Sale—Trust. —Where a testator devised all his property to his wife in trust for his children, and, without appointing any executor, in direct terms provided that if a majority of his executors deem it desirable to sell part of the unproductive estate granted by the will before the final distribution of the same, the proceeds were to be divided among the surviving heirs, the power of sale of the unproductive estate must be considered as given to the widow as trustee, and not as executrix, during her life and ability to act.</p> <p>Id.—Estates of Deceased Persons—Effect of Distribution to Trustee—Probate Jurisdiction.—The lands distributed after administration into the hands of the widow, as trustee under the will, ceased to be a part of the estate in the course of administration; and, prior to the enactment of sections 1699 to 1703 of the Code of Civil Procedure, the probate court, and its successor the superior court, in the exercise of probate jurisdiction, had no further control of the same; and the circumstance that at a future time there was to be a division of the property among the beneficiaries of the trust did not affect the rule; and the only power to regulate and direct the administration of the trust lay with the court possessed of general equity jurisdiction.</p> <p>In.—Power of Sale by Trustee—Confirmation by Court.—After the decree of distribution to the widow as trustee no confirmation of a sale under the power held by her as trustee was required or authorized by law.</p> <p>Id.—Estate of Trustee.—The trustee takes an estate adequate to the execution of the trust, no more and no less.</p> <p>Id.—Discretionary Power of Sale—Enlargement of Life Estate— Naked Power to Sell Remainder.—Where there is no trust for the purpose of sale and the power of sale of the unproductive lands is by the terms of the will left discretionary, a life estate, vested in the trustee as an individual, is not enlarged to a fee by the power of sale, and the power of sale granted to the trustee to sell the remainder after the termination of her life estate is a mere naked power to sell such estate, not coupled with any interest in the fee.</p> <p>Id.—Execution of Power — Conveyance in Name of Donee. ■—Where the donee of a power owns an interest in the land granted the fact that the conveyance is made only in the individual name of the donee and makes no reference to the power is not conclusive against the execution of the power; hut, where it appears, in view of the circumstances under which the deed was made, including the situation of the subject of the instrument, that the intent of the donee of the power was to transfer the whole estate, and to exercise the power necessary for that purpose, the instrument will he held to work both by the interest and by the power and to pass the entirety of the estate.</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>Appeal from a judgment of the Superior Court of Alameda County and from an order denying a new trial.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a decree of distribution of the estate of Cutler Salmon, deceased, in the Superior Court of San Joaquin County.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of Sonoma County, refusing to set aside a homestead.</p> <p>The facts are stated in the opinion of the court.</p>

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

This action was brought to foreclose a mortgage upon property in Los Angeles county, given to secure a note for sixteen thousand five hundred dollars, with interest at the rate of eighteen per cent per annum.

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

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

The property sought to he charged with the line of the street assessment in this case was situated in the city of Sacramento. The further facts are stated in the opinion of the court.

The action was brought by A. Ramish against Kirschbraun & Son% to recover the amount of six hundred dollars damages, alleged to have been sustained by the negligence of the defendants to deliver a carload of eggs according to agreement upon their arrival at Los Angeles. The verdict rendered was for the sum of four hundred and eighty dollars.

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

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

<p>Appeal—Review op Nonsuit—Exception—Specification.—The ruling of the trial court upon a nonsuit presents a question of law, and, as such, must be both excepted to and specified as an error at law occurring at the trial and excepted to .by the appellant; and the exception must appear in the stating or substantive part of the bill of exceptions or statement, and it is not sufficient that it be stated or referred to merely in the assignment of errors relied upon.</p>