Volume 108 — California Reports

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

<p>Criminal Law—Homicide — Motion to Set aside Information.—A motion to set aside an information against a defendant accused of murder, upon the ground that he had not been committed by a magistrate, upon an affidavit to the effect that he was a native of Germany and had a very limited knowledge of the English language, and did not know that he had a right to counsel at the preliminary examination, and did not hear or understand the magistrate to inform him that he had such right, is properly overruled, where it appears from the record of the proceedings of the preliminary examination that the defendant was fully informed of his rights, and stated to the committing magistrate that he desired no counsel and was then ready to have the examination proceed, and the answers of the defendant to the interrogatories put to him by the magistrate indicate a full comprehension on his part of the proceedings before the magistrate.</p> <p>Id.—Application for Interpreter—Discretion. —Under section 1884 of the Code of Civil Procedure the court is vested with a discretion in granting or refusing an application of the defendant for an interpreter.</p> <p>Id.—Defense of Insanity—Refusal of Commission to Take Testimony —Admission of Facts by Prosecution—Rejection of Defendant’s Belief.-—It is not error for the court to refuse to issue a commission to . take testimony of witnesses residing in Germany, upon application of a defendant accused of murder, proposing to show by the testimony of the witnesses “that the father of the defendant was insane, was confined in an asylum and died insane; that his sister was subject to epileptic fits and died insane, and that the defendant is subject to epileptic fits, and that he believes that the witnesses will testify that from their knowledge of him, his conduct, his conversation with them, and observation of his conduct, that they believe and are of the opinion that he, defendant, is of unsound mind,” where the prosecution admitted the facts that the defendant desired to prove as to the mental condition of his father and sister; and, it appearing by the record that the appellant had been a resident of the state of California for seven years immediately prior to the trial, and had been afflicted with but one epileptic fit in this state, the court was justified in rejecting his belief as to what the witnesses would testify as to their opinion of his insanity, many years prior to the trial.</p> <p>Id.—Challenge to Panel of Trial Jurors—Names not Upon Assessment-roll.—The fact that the names of 'two of the trial jurors summoned upon the panel were not found upon the assessment-roll for the preceding year, and were excused by the court for that cause, does not invalidate the panel or afford ground for a challenge to the panel.</p> <p>Id.—Uncertified List of Trial Jurors—Proof of Identity.—Where the county clerk and the clerk of the board of supervisors are the same, the fact that the list of trial jurors, as provided in section 208 of the Code of Civil Procedure, was not certified when filed with the county clerk, is not ground for a challenge to the panel, it appearing that the list of trial jurors was regularly drawn under the order of the court, and the county clerk testified as to the identity of the list at the time of the challenge, and that he was then and there ready to attach to the list the certificate required by the statute.</p> <p>Id.—Doubt as to Identity of List.—If there were the slightest doubt as to the identity of an uncertified list of jurors the entire panel should be set aside.</p> <p>Id.—Special Venire—Appointment of Elisor.—Where, as matter of caution, the district attorney made a showing which, in the opinion of the court, disqualified both the sheriff and coroner, it is not error for the court to appoint an elisor to summon a special venire of jurymen. Id.—Evidence—Conversation with Deceased—Ownership of Purse— Conduct of Defendant.—Where the defendant admitted the possession of a purse by the deceased at the time when he was shot, and a conversation occurred in presence of the defendant between the deceased and a witness as to the ownership of the purse which was found in the possession of the defendant at the time of his arrest, and defendant neither affirmed nor denied the statement of the deceased that the purse was his property, evidence of such conversation is admissible, and the conduct of the defendant under the circumstances is a fact which the jury were entitled to consider.</p>

Motion.for a new trial of a proceeding for disbarment of Horace W. Philbrook as an attorney at law. The facts are stated in the opinion of the court.

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

<p>Appeal from a judgment of the Superior Court of Yuba County. E. A. Davis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>•Summons—Return of Service—Clerical Error—Vacation of Judgment by Default.—Where a summons against one defendant only is returned as having been served upon the defendant personally an irregularity consisting of a clerical error or slip of the pen, by which a letter is affixed to the last name of the defendant which did not belong to his name, does not affect the regular service of the summons, and the irregularity is no ground for vacating a judgment by default.</p> <p>Action Upon Note—Sufficiency of Pleading—Assignment to Plaintiff—Support of Judgment.—In an action upon a note a complaint alleging the execution of the note set out in hose verba, and described as indorsed by the payees to the plaintiff by name, accompanied by the allegation that no part of the note had been paid, and that the whole thereof is due and owing from the defendant to the plaintiff, though defective in not distinctly alleging an assignment of the note to the plaintiff, is sufficient to support a judgment by default, which cures all defects in averments which by fair and reasonable intendment have been pleaded, though defectively. Such complaint shows an indorsement by assignment of the note to the plaintiff, and that plaintiff is the owner and holder of it. .</p> <p>Id.—Allowance of Attorneys’ Fees—Stipulation in Note—Default. Where the body of the note set forth in the complaint provides for an allowance of ten per cent for attorneys’ fees for the collection of the note, and the prayer of the complaint is for such an allowance, and it appears that the action was brought by an attorney at law, the default of the defendant admits the reasonableness of the claim for attorneys’ fees, and no evidence was required to be taken for the purpose of fixing the agreed allowance in the judgment, although the allowance might have been contested by the defendant.</p> <p>Id.—Judgment for Attorneys’ Fees Entered by Clerk—Ministerial Action.—The action of the clerk in estimating and adding the amount of attorneys’ fees to the judgment by default is as purely ministerial as his calculation of interest upon the principal sum of the note, and he was acting within the scope of his authority in entering judgment for the attorneys’ fees.</p> <p>Id.—Specification in Summons—Limitation of Authority of Clerk— Modification of Judgment—Costs of Appeal.—The clerk has no authority to enter judgment for an amount in excess of the amount specified in the summons, and, if a judgment by default is entered in excess of that amount, the superior court will be directed to order the clerk' to modify it by entering therein the amount specified in the summons, and the appellant will be allowed the costs of his appeal.</p>

Original Proceeding in the supreme court, brought under section 1174 of the Penal Code, to prove an exception in a case appealed from the Superior Court of Tulare County. Wheaton A. Gray, Judge. The facts are stated in the opinion of the court.

the City and County of San Francisco and from an order denying a new trial. J. M. Sea well, Judge. The facts are stated in the opinion of the court.

<p>Deed—Vague Description—Conflicting Lines—Statement of Acreage. Where the description of tracts of land by monuments, distances, or otherwise is vague and indefinite, by reason of conflicting lines, or by the omission of a line, or from any other cause, a statement of the acreage is an essential part of the description. •</p> <p>Id.—Boundaries—Natural Monuments—River—Line of Official Bed. Natural monuments are all controlling, and, where it is plainly apparent that a river is called for as a boundary, it would control the calls for distance; but, where it is not clear that the river was intended as & boundary, and the description is satisfied by monuments consisting of the bank and the east line of the official bed of the stream, which corresponds with the distances and acreage given in the deed, the identity of the lot granted is established by taking the east line of the official bed as a boundary line instead of the river.</p> <p>Id.—Construction of Public Grant.—Grants of land by public bodies to private parties are to be interpreted in favor of the grantor.</p>

<p>Divorce—Alimony—Allowance of Counsel Fees—Past Services.—In an action for a divorce the court cannot in the final judgment make an allowance of additional counsel fees for past services of an attorney, such allowance not being necessary to enable the wife to prosecute the action.</p>

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

<p>Appeal from an order of the Superior Court of San Joaquin County denying a new trial. Joseph H. Budd, Judge.</p> <p>The facts are stated in the opinion.</p>

Orange County and from an order refusing a new trial. J. W. Towner, Judge. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Santa Barbara County and from an order denying a new trial. W. B. Cope, Judge.</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. J. W. McKinley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Riparian Rights — Ownership — Reasonable Use—Irrigation. — The right of a riparian proprietor to the waters of a stream flowing through or along his land is not a right of ownership in or to the waters, but is a usufructuary right, including a right to make a reasonable use of a reasonable quantity for irrigation, returning the surplus to the natural channel, that it may flow on in the accustomed mode to the lands below.</p> <p>Id.—Effect of Nonuser — Loss of Rights.—None of the rights of a riparian proprietor to put the water to legitimate uses can be lost by mere nonuser, but they are attached to the soil and pass with it, and may be lost by grant, condemnation, or prescription.</p> <p>Id.—Effect of Diversion Below Riparian Owner — Estoppel.—An upper riparian owner has no concern with any. use or diversion of the water after it has passed his laud, and none of his rights can be impaired thereby, and the fact that such owner never attempted to interfere with a diversion of the water below his land is immaterial, and can raise no estoppel against him.</p> <p>Id.—Prescriptive Right to Divert Water — Acquiescence—Absence of Cause of Action.—There can be no prescriptive right to divert the water of a stream, as against an upper riparian proprietor, at a point below his land by reason of his long acquiescence in such diversion . and use; and there can be no title by prescription where the acts constituting the alleged adverse use are not of such a nature as to give a cause of action in favor of the person against whom the acts are performed.</p> <p>Id.—Rights of Prior Appropriator — Change of Use.—As between appropriators of water, an appropriator who is prior in time and superior in location acquiies the ownership of water used for proper objects, with the right to change the place and purpose of use, so long as the change does not injuriously affect the rights of subsequent appropriators.</p> <p>Id.—Basement in Private Land—Change of Point of Diversion.—An appropriator of water upon government land retains his rights when the land passes into private ownership, and, while in the exercise of these rights, may change the point of diverson to another place upon the land when required to enable him to take the amount of water to which he has ownership, and when others are not injured by the change; but his rights are only those of the grantee of an easement, and he is limited to the exigencies of the situation, and has no right to make a change arbitrarily and at will, and, as to other lands not subject to his easement, and, as to other claimants and owners, he can make no change at all which injuriously affects them or their rights.</p>

<p>Assisnment for Benefit of Creditors—Preference of Creditors—Construction of Code.—The provisions of section 3432 of the Civil Code, allowing a debtor to pay one creditor in preference to another, or to give to one creditor security in payment of his demand in preference to another, must be construed in connection with the provisions of section 3457 of the same code, that an assignment for the benefit of creditors is void as against any creditor of the assignor not consenting thereto, if it gives a preference of one debt or class of debts over another, and the law must be construed as virtually saying to the debtor that he may give a preference by paying or securing a creditor, "but such preferred payment or security must not take the form of an assignment for his benefit.</p> <p>Id.'— Distinction between mortgage and such an assignment considered.</p> <p>Id.—Void Trust for Benefit of Portion of Creditors—Interest of Grantor in Surplus.—A conveyance to a trustee for the benefit of certain creditors of the grantor, to the exclusion of,other creditors not assenting thereto, is, in legal effect, a void assignment for the benefit of the creditors specified, the debtor having divested himself of the title to the property, and of all control over it, and the fact that the convey, anee provides for the payment of the surplus, if any, after the debts are paid, to the grantor, does not distinguish the contract as one of security only, but the reservation of an interest in the surplus merely, and not in the property itself, marks the transaction more clearly as an assignment for the benefit of creditors.</p> <p>Id.—Right of Creditor Secured by Mortgage.—The fact that a creditor not included in the assignment, nor consenting thereto, is secured by mortgage does not prevent such creditor from having a right to object to the assignment, but the statute renders the assignment void as against any creditor of the assignor not assenting thereto, without any exception, express or implied, as to creditors secured by mortgage.</p>

<p>Corporations—Eminent Domain—Action by Ditch Company—Plea in Abatement—Failure to File Copy op Articles op Incorporation. In' an action by a ditch company to condemn the necessary rights for extending its ditches over the land of the defendant, where the plaintiff necessarily pleaded its ownership of canals and water in the county in which the action was brought, for the purpose of showing that the condemnation of the land of the defendant sought to he acquired was necessary or expedient, and this ownership is denied, the action is sufficiently in relation to property held by the corporation to entitle the defendant to plead in abatement a noncompliance by plaintiff with section 299 of the Civil Code, by reason of not having filed a copy of its articles of incorporation in the county in which the action was brought.</p> <p>Id.—Acquisition of Property by Eminent Domain.—So far as relates to the acquisition of property to be acquired by eminent domain, it is not necessary that as to that property the plaintiff should have filed a copy of its articles of incorporation before the commencement of- the action.</p> <p>Id,—Construction of Code.—Section 299 of the Civil Code does not forbid corporations failing to comply with its provisions from acquiring property, either by purchase or condemnation, but it does inhibit the maintenance or defense by them of any action in relation to the property which they have acquired.</p> <p>Id.—Material Issue as to Ownership of Property—Action not Maintainable.—Where a plaintiff seeking to acquire property by condemnation finds it necessary to tender a material issue as to the ownership of property in the county, in order to support the action, it cannot be maintained where it appears that the corporation was incorporated in another county, and had not filed its articles of incorporation in the county in which the action was commenced prior to its commencement.</p>

Application in the Supreme Court for a writ of review to annul an order of the Superior Court of the City and County of San Francisco. C. W. Slack, Judge. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Siskiyou County. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Siskiyou county. J. F. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of San Benito County. James 1ST. Breen, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Motion to dismiss appeals from an order of the Superior Court of Yolo County refusing an injunction and from a judgment in favor of the defendants. W. H. Grant, Judge. The facts are stated in the opinion of the court.

Motion to dismiss an appeal from a decree of the Superior Court of the City and County of San Francisco, distributing certain property of the estate of a deceased person. J. V. Coffey, Judge. The facts 'are stated in the opinion of the court.

<p>Negligence—Master and Servant—Contributory Negligence—Place of Danger.—A conductor on a street railway while engaged in switching his car from the main to a side track is not guilty of contributory negligence in standing in the space between the two tracks, if such position was the usual one assumed by the employees in performing that duty, and was not, in itself, a place of peril.</p> <p>Id.—Selection of Employee—Inquiry as to Fitness.—A railroad company cannot be charged with negligence in the selection of an employee, merely because it omitted to question the employee himself as to his competency, skill, and carefulness at the time of his employment, if it made such inquiries of his former employers.</p> <p>Id.—Retention of Unfit Employee. — Under section 1971 of the Civil Code, an employer is as much guilty of a lack of ordinary care by the retention of an unfit employee, after knowledge of his unfitness, as by a failure to use due diligence at the time of his selection, and in either case the employer is liable for all losses resulting therefrom.</p> <p>Id. —Knowledge of Unfitness—Durden of Proof.—An employer who has exercised due care, in the selection of an employee cannot be held liable for an injury to a co-employee occasioned by the employee, unless the latter had become and was actually unfit or incompetent through negligence or incapacity, and the injury happened by reason thereof, and the employer knew of his negligence or incapacity or his general reputation was so in accord with the fact that the presumption is that the employer knew it, and was therefore negligent in not acting upon the knowledge, and the burden of proving such facts is on the employee injured.</p> <p>Id.—Bad Reputation of Employee.—After proof of the fact of unfitness the employer may be charged with liability, if it can be shown that the reputation of the culpable employee was so generally known and notoriously bad that it ought to have been, and therefore presumptively was, known to the employer. But proof of bad reputation, without evidence of the fact of unfitness, is insufficient.</p>

<p>New Trial—Conditional Order Granting Motion—Effect of Refusal to Comply.—Where a motion for a new trial made by the defendants is granted on condition that they pay to the plaintiff within a time named his costs of suit, and the defendants refused to comply with the condition imposed, the motion must be regarded as having been denied.</p> <p>Trover—Conversion of Wheat—Indorsement of Warehouse Receipt— Pledge—Presumption—Burden of Proof.—In an action of trover to recover damages for the conversion of wheat, the warehouse receipt for which had been indorsed and delivered to a bank, the plaintiff’s ownership of the wheat being proved, it is to be presumed that the plaintiff had a right to its present possession at the time of the conversion, and the burden of proof is upon the defendants to show that the indorsement made upon the back of the warehouse receipt was made by authority, and that on the security of it money was advanced or loaned by the bank which had not been repaid, and that there was an existing indebtedness secured by a pledge of the wheat to the bank at the time of its conversion by the defendants, and, in the absence of such proof, a judgment in favor of the plaintiff cannot be reversed upon the ground that there was no evidence to show that the indebtedness to the bank had been paid at the time of the conversion.</p> <p>Id.—Effect of Warehouse Receipt—Negotiable Paper.—A warehouse receipt is negotiable paper, and under the statute in relation to warehouse receipts, the property represented thereby is transferable by the indorsement of the party to whose order it was issued.</p> <p>Appeal—Review oe Instructions—Exceptions Taken too Late.—Errors in the giving or refusing of instructions are errors in law occurring at ■ the trial, which must be excepted to at the time the errors occurred, or they cannot be reviewed upon appeal; and, where the bill of exceptions does not show any attempt to take exception to the action of the court in regard to the instructions until after the jury had retired and deliberated upon their verdict, exceptions thereafter taken are too late, and must be disregarded upon appeal.</p> <p>Evidence—Removal op Wheat — Declarations op Warehouseman— Ownership—Res Gesta—The statements of a warehouseman as to the ownership of wheat removed from the warehouse and loaded by him upon a barge, identifying the wheat removed, and made at the time of its removal, are admissible in evidence as part of the res gestee.</p>

<p>Claim and Delivery—Action Against Constable—Allegation of Demand.—In an action of claim and delivery against a constable, to recover the possession of personal property which had been seized by him under a writ against another, an allegation in the complaint that, prior to the commencement of the action, the plaintiff had made a demand on the defendant for the possession of such property, is a sufficient averment of the fact of such demand, as against a general demurrer. If the form of the demand did not comply with the requirement of section 689 of the Code of Civil Procedure, as amended in 1891, the defendant could traverse the allegation in his answer, and could also object to the proof when offered at the trial.</p> <p>Id.—Finding as to Value.—In an action of claim and delivery of several articles, the values of which were alleged in the complaint, both separately and in the aggregate, the failure of the court.to find the specific value of each article does not invalidate a- judgment for their aggregate value, if the defendant, in his answer, only took issue upon the aggregate value, and it does not appear from the record that any evidence was offered at the trial regarding the value of any of the property.</p>

John L. Campbell, Judge. The defendant in the present action was executrix of the last will of Cornelius Jensen, deceased, and the devisee thereunder of the land the title to which was sought to be quieted. The further facts are stated in the opinion of the court.

Appeals from a judgment of the Superior Court of San Diego County and from an order refusing a new trial. George Puterbaugh, Judge. The facts are stated in the opinion of the court..

<p>Streets—Judicial Notice—Dedication—Passage of Ordinance—Questions of Fact.—The courts will take judicial notice of streets established by act of the legislature, and of their relation to each other, and of the directions in which they run; but they do not take judicial notice of the existence and location of streets established by dedication, or opened or adopted by a municipal ordinance. The dedication or the passage of the ordinance is a question of fact to be determined upon the sufficiency of evidence.</p> <p>Id.—Location of Official Street—Street Improvement—Validity of Assessment—Finding—Conflict of Evidence.—Where the actual location of an official street is an essential fact in determining the validity of an assessment for a street improvement, and the evidence is conflicting as to its location, the finding of the court upon that question cannot be disturbed upon appeal.</p> <p>Id. — Jurisdiction of Supervisors of San Francisco — Location of Streets.-—Under the statute of 1871-72, declaring that all the streets laid down on the maps in the office of the city and county surveyor, commonly known as the “Brooks and Potter map” and “Humphreys’ map, ” are public streets for the purpose of the law, the board of supervisors has jurisdiction to order the improvement of any of the streets delineated on either map, and to order the grading of the whole or any part thereof.</p> <p>Id.—Statutory Construction—Reference to Maps—“And ” Construed as “ Or.”—The statute of 1871—72 cannot be construed so as to require that the streets therein referred to shall be those delineated upon both maps described in the statute, but gives jurisdiction to the supervisors over each street, or any part thereof, as delineated upon either map, and the word “and” as used in the statute in reference to the maps is to be construed as “or.”</p> <p>Id.—Acceptance of Work before Completion of Contract—Appeal. Where the superintendent has accepted the work before the completion of the contract it is incumbent upon the owner first to appeal to the supervisors, and seek.from that body a correction of the error, before he can make such defense to the enforcement of the assessment.</p> <p>Id.—Determination of Location of Street by Superintendent—Conolusiveness—Failure to Appeal.—The superintendent of streets may determine, in the first instance, whether the contractor has completed his contract, and this includes the determination by him of the location of the street intended by the supervisors in the description of the work ordered to be done; and, in the absence of an appeal from his decision, his judgment thereon must be accepted as conclusive, and the contractor-may rely upon his decision, and upon the acquiescence of the owners, therein, by their failure to appeal.</p> <p>Id.—Basis of Assessment—Frontage—Shape and Size of Lots.—The basis of the assessment is the frontage of the lot upon the work, and the frontage of each lot determines the amount' of the assessment against that lot, irrespective of its shape, size, or depth, nor is there any requirement that the lots to be assessed shall be rectangular with the street on which they front.</p> <p>Id.—Incorrect Delineation of Lot by Superintendent—Appeal.—If the superintendent does not properly delineate an owner’s lot upon the diagram, or includes with it property which should be included in another lot, his act can be corrected on appeal to the supervisors; but an owner cannot be said to be “aggrieved,” where the proper amount' is assessed according to the correct frontage of his lot, merely because the superintendent has incorrectly delineated the interior lines of the lot.</p> <p>Id.—Foreclosure of Lien—Description of Land.—In an action to fore, close the lien of a street assessment the plaintiff must describe the land with sufficient definiteness to enable the purchaser under a decree for its sale to obtain possession thereof; but the complaint and judgment must be limited to the description of the lot as found in the assessment, and unless the diagram contains such a delineation of the lot that a definite description thereof can be embodied in the complaint there can be no foreclosure of the lien.</p> <p>Id.—Pleading—Identification of Lot Assessed.—Where the complaint describes a lot assessed by streets and distances, and as being the same lot shown by a specified number on the assessment and diagram, it sufficiently identifies the lot assessed, and confines the particular descrip, tion in streets and distances to those delineated upon the diagram.</p> <p>Id.—Description in Judgment—Discrepancy between Diagram and Official Map—Reference to Diagram.—Where one of the main issues in the foreclosure of a lien for a street assessment is the proper location of a street, and there is evidence tending to show that the street as delineated upon the official map of the city is not located as delineated upon the diagram, the court, in its judgment, must give such description of the lot to be sold as will identify it with the lot assessed, and prevent any controversy as to' the property purchased at the sale.</p> <p>Id.—Parties—Assignment of Assessment as Security—Power to Collect.—Where an assessment is assigned as security, and the assignee in express terms is authorized to demand, sue for, settle, and compromise the assessment, an action to foreclose the lien is properly brought in the name of the assignee.</p> <p>Id.—Award—Time for Entering into Contract—Holiday. —Where the statute requires the person to whom the contract was awarded to enter into the contract within ten days after the award, and the last of the ten days is a holiday, the contractor has the whole of the next day to enter into the contract.</p> <p>Id.—Record of Contract—Omission of Superintendent.—The requirement that the superintendent shall cause the contract to be recorded in the office of the county recorder is an official duty imposed upon him; but his failure to perform it does not impair a valid contract previously entered into.</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. James M. Troutt, Judge.</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 motion to discharge and quash a writ of attachment. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Conveyance—Description — Physical Boundary—Central Point.—In the absence of any qualifying term, the designation in a conveyance of any physieial object or monument as a boundary implies the middle or central point of such boundary.</p> <p>Id.—Construction of Private Grant—Designation of Tidal Stream as Boundary—Thread of Stream—Presumption.—A private grant is to he interpreted in favor of the grantee; and, where the grantor in a private conveyance is the owner of the bed of a tidal stream, which is designated as a boundary of land granted or mortgaged, the conveyance or mortgage will be held to extend to the middle line or thread of the stream, and the general presumption is that the title of a purchaser or mortgagee extends as far from the shore toward the thread of the stream as the grantor owns, in both tidal and fresh waters.</p> <p>Id.—Middle Line of Creek must Prevail over Courses and Distances. Where a creek is made the boundary of the land conveyed, and the calls of the conveyance ascend the creek, the line ascending the creek follows the thread of the stream, and the courses and distances must yield to the actual line of the creek.</p> <p>Id.—Line Ascending and Crossing Creek—Crossing from Thread of Stream.—A call for a line ascending a creek, and then crossing the creek to the end of an old wall, is not inconsistent with holding that the call ascending the creek follows the thread of the stream, and the next course will be deemed to cross the creek from the thread of the stream toward the end of the wall.</p> <p>Id. — Boundary by Shore of Stream — Intersection of Ditch with Shore.-—In the absence of any qualification a grant bounded, by the shore of a river or stream, when the grantor is the owner thereof, conveys the land up to the lowest point of the shore at any time; but it is '■competent for the grantor to so designate the line on the shore which shall constitute the boundary, that there shall be no uncertainty in its location, and, where the starting point of the description is the intersection of a ditch with the shore line, the starting point is susceptible of exact location, and the term “shore” must be construed in the same ■ meaning wherever used in the conveyance.</p>

<p>Constitutional Law—Municipal Corporations—Exemption from Taxation—Pueblo Lands—Assessment by Irrigation District.—An assessment by an irrigation district upon the pueblo lands of a city situated within the district, which are unoccupied and uncultivated lands, susceptible of cultivation by irrigation, and which would be benefited thereby, is not a tax within the meaning of section I of article 13 of the constitution, exempting property of municipal corporations from taxation, and such pueblo lands may he sold by the irrigation district, for unpaid assessments thereon.</p> <p>Id.—Extent of Exemption from Taxation.—The exemption of municipal property from taxation relates to general county and state taxes, and has no reference to assessments for improvements made under special laws of a local character.</p> <p>Id.—Implied Exemption.—There can be no implied exemption of municipal property from taxation or assessment which is not held or used for municipal purposes, or devoted to a specific public use.</p> <p>Id.—Power of Legislature over Pueblo Lands.—The legislature may empower a city to sell its pueblo lands, and may make it liable for an assessment for its proportion of expense incurred to secure a local benefit.</p>

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

<p>Vacation of Judgment — Trial without Notice — Surprise and Excusable Neglect—Removal of Attop.ney from County.—A motion by the defendants to vacate and set aside a judgment rendered against them, without notice of trial, upon the ground of surprise and excusable neglect, should be granted, and the defendants should be given an opportunity to defend upon the merits, where it appears that the attorney who had been retained in the case removed from the county, and, before going, took reasonable precaution to give notice to his clients of the fact of his removal and the necessity of procuring other counsel, but, through the inadvertence of an employee of defendants, knowledge of the fact of such removal did not reach the defendants until after the trial, and it appears that the case was not neglected by them, and they were proceeding to defend it in good faith and upon the merits; but, owing to the removal of their attorney, and in his absence, and without his knowledge or the knowledge of the defendants, the case was set down for trial and tried, and a judgment rendered against the defendants, and the application to set it aside when the facts were discovered was made promptly and so soon after the default that no considerable delay or injury was caused to the plaintiff.</p> <p>Id.—Discretion—Trial upon Merits—Doubt to be Resolved in Favor op Application.—The exercise of the mere discretion of the court ought to tend in a reasonable degree to bring about a judgment on the very merits of the case, and, where the circumstances are such as to lead the court to hesitate upon the motion to open a default, it is better, as a general rule, that the doubt should be resolved in favor of the application.</p>

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

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

<p>Appeal from a judgment of the Superior Court of Fresno County and from an order denying a new trial. M. K. Harris, Judge.</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 refusing to set aside a judgment. E. S. Torrance, Judge.</p> <p>The facts are stated in the opinion.</p>

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

James A. Gibson, Judge. The facts are stated in the opinion of the court, reported in 89 Cal. 416, and in the opinion of the court in this case.

<p>Appeal from an order of the Superior Court of Amador County refusing a mandate to compel the county clerk to issue certificates of attendance as jurors for days during which a trial had been suspended on account of the sickness of jurors. John F. Davis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Place of Trial—Corporation.—Under section 16 of article XII of the. constitution, an action against a corporation may be brought in the county where the obligation sued on arose, and a motion to change the place of trial to the county where the principal place of business of the corporation is situated is properly denied.</p> <p>Id.—Appeal—Conflict of Evidence — Refusal to Change Venue.— Where the facts alleged in the complaint, showing that the obligation sued on arose in the county where the action was brought, are controverted by an affidavit of the defendant, the supreme court cannot, in view of such conflict, interfere with the order of the trial court refusing to change the place of trial.</p> <p>Id.—Notice of Mode—Reference to Complaint.—The trial court may properly consider the allegations of the complaint in determining the motion for the change of the place of trial, where the defendant’s notice of the motion stated that it would be based upon certain affidavits, “ and upon all the papers, files, records, and proceedings” in the action.</p>

<p>Deeds—Acknowledgment.—A deed signed and delivered, except where a married woman is the grantor, is good, and operates to convey the title, though not acknowledged.</p> <p>Id.—Object of Acknowledgment.—The object of acknowledgment is to entitle an instrument to be used as evidence without further proof, and to enable it to be recorded.</p> <p>Id.—Delivery—Date of Instrument—Statutory Presumption — Decisions.—Under section 1055 of the Civil Code a grant duly executed is presumed to be delivered at its date, and the presumption of delivery being statutory in this state, decisions in other states as to a presumption that a deed is not delivered until after its acknowledgment are inapplicable, and, where there is no proof of the date of the delivery beyond the date of the deed and the date of filing it for record, the presumption declared by the statute must prevail.</p> <p>Id.—Deed of Pueblo Lands—Action of City Trustees—Parol Proof.— Where an election was held authorizing the sale of pueblo lands, and a resolution was passed by the board of trustees prescribing the terms upon which pueblo lands would be granted, the fact that there is no record of any official action by the board of trustees fixing the price and the particular parcel of land to be conveyed to an applicant, does not render void a deed executed by the trustees, but parol evidence is admissible to prove that the sale and deed were authorized by the hoard of trustees.</p> <p>Id.—Parol Evidence of Facts Omitted from Record.—Parol evidence is admissible to prove facts omitted from the record, unless the law ex-</p> <p>, pressly and imperatively requires all matters to appear of record, and makes the record the only evidence.</p> <p>Id.—Tenancy in Common—Deed of Part of Tract by Specific Bounds— Ratification by Cotenant—Partition by Consent.—Where the trustees of a city conveyed an undivided one-half of a pueblo lot, and on the following day conveyed the west half of the same lot to another grantee, and for many years prior to the death of the first grantee the east half of the lot was assessed to him by the city, and he paid the taxes thereon, he thus assented to the conveyance of the west half as a partition of the lot, and it appearing that his wife, as administratrix of his estate, had the property inventoried as the east half of the lot, and not as an undivided half of the entire lot, the facts are sufficient to show a ratification of the deed to the city of the west half of the lot, and a partition of the lot by consent.</p> <p>Id. — Evidence of Ratification and Partition after Suit — Supplemental Complaint—Harmless Error.—Where there is sufficient evidence of the ratification of the conveyance by the city of the west half of the lot, and an assent to the partition of the lot, by the grantee of the undivided half, and by his administratrix before the commencement of the suit, who accepted the east half of the lot as his share, the admission of evidence under a supplemental complaint showing that since the commencement of the action the plaintiff had obtained a deed from the estate of the deceased grantee conveying the east half of the lot to him, and had subdivided it in specific lots which he had granted away, the allowing of the supplemental complaint and of evidence of the facts transpiring after the commencement of the action bearing upon the ratification and assent to a partition of the lot by the plaintiff, if erroneous, is harmless.</p> <p>Id.—Supplemental Pleading—New Cause op Action.—If there is no cause . of action when a suit is commenced the plaintiff cannot under supplemental complaint give evidence of a cause of action which accrued afterward; and, as a general rule, the right to file a supplemental complaint can be exercised only with reference to matters which may be consistent with and in aid of the case made by the original complaint, and it is not allowable to substitute a new and independent cause of action by way of supplemental complaint.</p>

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

<p>Costs—Fees and Expenses of Keeping Attached Property—Cost Bill. Where the fees and expenses of a sheriff for the keeping of property held under a writ of attachment are not claimed by the plaintiff in the memorandum of costs, and are not included in the judgment, the failure so to claim and include them in the manner required by the statute is a waiver of such costs, and precludes a recovery thereof from the defendant.</p> <p>Id.—Application of Proceeds of Sale—Accruing Costs—Execution.— The sheriff cannot apply the proceeds of sale under execution to the payment of keeper’s fees and expenses under a writ of attachment which were not included in the cost bill and judgment, and they are not part of the accruing costs allowed under section 697 of the Code of Civil Procedure, which include only such fees and expenses as are incurred in the execution of the judgment.</p> <p>Id.—Satisfaction of Judgment.—Where it appears that, exclusive of the item of keeper’s fees under a writ of attachment constituting no part of the judgment, the property sold under the execution is sufficient, when properly applied, to satisfy the judgment, including the amount of costs claimed in the cost bill and accruing costs, the defendant is entitled to have the proceeds so applied, and to have the judgment satisfied.</p>

<p>Appeal from a judgment of the Superior Court of the-City and County of Sail Francisco. J. M. Seawell,. Judge.</p> <p>The facts are stated in the opinion of the court.</p>

W. B. Cope, Judge. The facts are stated in the opinion of the court rendered upon the former appeal, reported in 95 Cal. 378, and in the opinion of the court rendered upon this appeal.

<p>Contract for Manufacture and Erection — Pleading — Delivery — Uncertainty as to Damages.—In an action by the assignee of contractors who agreed to manufacture iron gates and lamps, and to erect them upon foundations to be prepared and designated by the defendant for an agreed sum, a complaint alleging that the assignors manufactured the gates and lamps, and that since a certain date they have been able, ready, and willing to erect the same in accordance with the contract, •and that the gates are specially adapted to the places for which they were made, and cannot be sold elsewhere without enormous loss, amounting to almost the entire contract price; that the assignors requested the ■defendant to accept the gates and lamps, and to permit their erection, and to pay the agreed sum, which defendant refused to do, does not state a ckuse of action for the price of the goods for want of an averment of delivery, or offer to deliver them, sufficient to pass the title; and, though it states a cause of action for damages for breach of the contract, is subject to a special demurrer for uncertainty as to what the damage consists of, or as to the extent of the damage, or as to how much injury was sustained by the refusal of the defendant to permit the completion of the contract.</p> <p>Id.—Immaterial Averment of Damage to Assignee.—The averment that the plaintiff, who was the assignee of the contract, was damaged to the extent of the agreed sum, is immaterial, the defendant not having contracted with the plaintiff, and cannot help out a failure to aver to what extent the assignors were damaged by the breach of the contract.</p> <p>Id.—Practice—Failure to Present Demurrer—Rule of Court—Decision of Issue of Law.—A demurrer raises an issue of law, and to overrule it decides that issue; and it is immaterial that the court overruled the demurrer because the defendant failed to appear and present it, or that a rule of the superior court provides that a demurrer will be overruled for want of presentation.</p> <p>' Id.—Doty of Court—Decision of Demurrer—Review Upon Appeal. The code allows an issue of law to be made by a demurrer, and unless the demurrer is waived, or gotten rid of in some lawful mode, the court, must decide the questions raised, regardless of whether the defendant fails to appear and present it or not; and if, on appeal, there is prejudicial error in the action upon the demurrer the case may be reversed for-that reason.</p>

Application in the Supreme Court for a writ of certiorari to review and annul an order of the Superior Court of Stanislaus County granting an injunction after judgment. W. O. Minor, Judge. The facts are stated in the opinion of the court.

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

corpus, to secure a discharge from a judgment of imprisonment of the Police Court of the City of Los Angeles. Court upon a writ of habeas The facts are stated in the opinion of the court.

<p>.Estates op Deceased Persons —Probate Jurisdiction op Superior Court— Constitutional Law—General Jurisdiction.—In this state the superior courts are given jurisdiction by the constitution of all matters of probate, in like manner as they are given jurisdiction of cases at law and in equity, and the grant of jurisdiction in regard to matters of probate is part of the general jurisdiction of the superior court.</p> <p>Id.—Probate Jurisdiction not Statutory.—The superior court, while sitting in probate, is not a statutory tribunal, and does not derive its power from the act of the legislature.</p> <p>Id.—Nature op Probate Proceedings — Special Proceedings — Presumptions.—Probate proceedings are not classed by the constitution as special proceedings, though the administration of an estate so far as it can be called a judicial remedy is classed as a special proceeding in the code; hut it is a proceeding hi rent, which is not, in the technical sense, such a special proceeding unknown to the framework of the common law as will change the presumptions which attach to the action of the superior court as a court of general jurisdiction derived from the constitution, and it does not become pro hac vice a court of inferior and limited jurisdiction.</p> <p>Id. — Mode oe Action Regulated by Code.—Although the superior court derives its authority from the constitution it is controlled as to the mode of its action by the code, and the legislature may regulate the mode in which the court shall exercise its jurisdiction, though it cannot circumscribe its powers.</p> <p>Id.—Presumption as to Probate Decrees—Collateral Attack.—Under the constitution of 1879, the same presumption attaches to decrees in probate proceedings upon collateral attack, as to judgments in cases at common law or in equity, and the sufficiency of the proceedings or petition will be tested by the same liberal rule which applies to the pleadings in an ordinary action upon such attack.</p> <p>Id.—Application to Sell Real Estate of Decedent — Nature of Jurisdiction-Independent Step in Administration.—In undertaking and passing upon an application to sell real estate belonging to a decedent, the court is not acting as a special tribunal, but is in the exercise of its general jurisdiction over the subject matter derived from the constitution; but such application is an independent step or proceeding in the administration of the estate, and it is essential that the application be made substantially as provided by statute.</p> <p>Id.—Power of Legislature — Sale of Property.—The legislature has the power to direct how either real or personal property of a decedent shall be sold.</p> <p>Id.—Petition and Notice—Jurisdiction—Errors—Validity of Decree. Under the statute, the filing of a petition for an order of sale, and the giving of notice and an opportunity for hearing, are jurisdictional and essential to the power of the court to order the sale; but, if the court has, by the petition and notice, acquired jurisdiction, errors afterward in the exercise of it, however gross, will not render the decree invalid.</p> <p>Id.—Sufficiency of Petition—Description of Real Estate—Statement of General Facts.—Under section 1537 of the Code of Civil Procedure, as amended in 1874, no sale of real estate is made invalid by reason of the omission to give in the petition a description of all the real estate of which the deceased died seised or the value or condition of the different parcels, and the petition is sufficient to support the validity of a decree for the sale of the property, where it states general facts showing that the sale was necessary.</p> <p>Id.—Order of Sale — Irregular Order Nunc pro Tunc.—Where, on the return day of an order to show cause why an order to sell real estate should not be made, a hearing ivas had and proofs were made, and a decree was ordered directing the sale, and, on a subsequent day, another order of sale was made, referring to the same petition, and ' reciting that the order theretofore made had been vacated for errors, and the sale took place under the second order, such order must be deemed a nunc pro tunc order, though not made so in form, and must be regarded as the decree rendered at the hearing, although by a mistake a different decree was then entered.</p> <p>Id. — Reference of Bond to Date of Vacated Order. — A bond for the sale of real estate is not invalidated by the fact that it referred to the order of sale as made at the date of the hearing, though the order of that date was vacated, and the order under which the sale was made was actually dated at a subsequent date, where the latter order sufficiently shows that it was intended to be nunc pro tunc, and that its true date would have heen the date of the hearing, and the bond was approved after the date of the nunc pro tunc order.</p> <p>Id.—Error in Ordering Sale — Validity of Sale.—Any error of the court in ordering a private sale rather than a public sale, or in determining that a sale was necessary, does not affect the validity of the sale.</p> <p>Id. — Purchase by Administratrix from Purchaser — Violation op-code— Voidable Act—Rescission.—A contract by the administratrix with the purchaser at the administrator’s .sale to purchase the property from him before the confirmation of the sale, is a violation of section 1576 of the Code of Civil Procedure, but does not render the sale or conveyance to the administratrix absolutely void; but it is only voidable within a reasonable time at the election of the heirs or other persons interested in the estate, who must rescind and restore to the-purchaser the money paid as a consideration.</p> <p>Id.—Action by Heirs to Quiet Title — Fraud not Pleaded.—Where the heirs of the decedent brought an action to quiet title as against the-purchasers at the administrator’s sale they cannot rely upon fraud not pleaded to set aside the title procured by the defendants.</p> <p>Id.—Answer—Denial of Title —Defense Referring to Administrator’s Sale — Aider of Complaint.—The fact that the answer, in addition to a denial of plaintiff’s title, pleaded further defenses respecting the administrator’s sale, and claimed that the plaintiff was estopped from assailing it; that the sale had been ratified, and that the defendants, in case the sale was held void, were entitled to be subrogated to. the rights of creditors of the estate as against the heirs, cannot change the theory of plaintiff’s action to quiet title, or aid the complaint so as to entitle plaintiff to a rescission of the sale as fraudulent, no fraud or notice of fraud being alleged in the complaint, or rescission sought therein.</p>

<p>Appeal from an order of the Superior Court of Los Angeles County granting a new trial. Lucian Shaw, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Ruling Upon Evidence not Excepted to.—A ruling of the court sustaining an objection put by appellant to a witness cannot be considered upon appeal, where no exception was taken to the alleged erroneous ruling.</p> <p>Divorce — Application After Decree for Change of Custody of Children — Discretion.—Where the .custody of the children was awarded to the mother in a decree of divorce, a subsequent application by the father for the custody of one of the children is addressed to the sound legal discretion of the court, and its conclusion will not be disturbed upon appeal, unless it clearly appears that its discretion has been abused.</p>

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

<p>Tax Deed—Admission oe Genuineness—Construction.—The effect of an admission of the genuineness and due execution of a tax deed pleaded by the defendant, and not denied by affidavit of the plaintiff, as provided by section 448 of the Code of Civil Procedure, is to avoid the necessity of proof of its genuineness and due execution, and nothing more; and, whether it is proven or its execution admitted, its terms and legal effect are to be construed by the court.</p> <p>Id.—Sale for City Taxes—Failure to Prove Municipal Ordinance.— A tax deed which. purports to be a conveyance of real estate sold for the nonpayment of city taxes, although its genuineness may be admitted by the failure of the plaintiff to deny its due execution, cannot be prima facie evidence of a compliance with the city ordinance authorizing the tax proceedings, without proof of the passage and existence of such ordinance as a prerequisite to the effectiveness of the deed.</p> <p>Id.—Judicial Notice—Tax Laws—Municipal Ordinances—Burden of Proof.—The courts take judicial notice of the revenue laws, and, if a tax deed recites the performance of the acts required by those laws, the burden of proving a noncompliance is cast upon those who attack the regularity of the several essential acts; but courts do not take judicial notice of the ordinances of municipal corporations authorizing tax proceedings, or of the time when, if passed, they take effect, and such an ordinance must be proved as a prerequisite to a tax deed becoming prima facie evidence of a compliance with such proceedings.</p> <p>Id.—Recital in Tax Deed—Defective Notice of Sale.—Where there is no proof of a municipal ordinance respecting a sale for delinquent city taxes, and the notice provided by section 3768 of the Political Code in cases of sales for state and county taxes was not given, a recital in the deed which shows that less notice was given of the sale cannot be prima facie evidence of its regularity.</p>

Walter Van Dyke, Judge. The facts are stated in the opinion of the court rendered upon the former appeal in Gould v. Wise, 97 Cal. 532, and in the opinion rendered upon this appeal.

<p>Corporations—Election of Directors—Proxies from Stockbrokers.— Stockbrokers who have purchased stock of a corporation upon orders from dealers and speculators upon deposit of the customary margin, wh:ch stock has been transferred to the trustees of the brokers as security for their advances, if authorized to vote the stock at all, are bound to vote it in the interest of those for whom they have purchased it, and they should not give proxies as a mere matter of favor or professional comity, or for a consideration, to any one who may choose to make a contest for the control of the board of directors.</p> <p>Id.—Conspiracy to Defraud Minino Company—Secret Agreement with President for Control of Board—Liability of Directors.—In an action against the stockholders of a mill company and the president and directors of a mining company who were charged with conspiracy to defraud the mining company, it appeared that the president of the mining company, who was invested by the by-laws with the sole management of the business of the corporation, subject to the advice of the board of directors, had carried the elections of directors and been made president of the board by obtaining proxies from stockbrokers, and, upon a contest with him for the control of the board by certain stockholders of the mining company, who were controlling stockholders of the mill company, a compromise was effected resulting in the election of a board acceptable to both parties, and the retention of the former president, under a secret agreement between him and the contesting stockholders by which lie was to receive one-eighth of the profit on the crushing of all the ores of the mine milled by the mill company: held, that the directors elected were liable, if by abuse of their trust they caused loss and damage to the mining company, but, if they had no knowledge of the secret, unlawful agreement, they could not be charged as active participants in the conspiracy to defraud the milling company.</p> <p>Id.—Pleading—Fraudulent Conspiracy—Negligence of Directors.— Where the complaint against the president and directors of the mining company and the stockholders of the mill company charges them with a conspiracy to defraud the mining company, but does not charge the directors with negligence, the latter cannot be held liable for loss and damage caused to the mining company by their mere negligence.</p> <p>Id.—Statute of Limitations—Negligence—Fraud.—Where the liability of the directors of a corporation arises from negligence the action must he commenced within two years after the cause of action accrues, whereas, if it arises out of fraud, it may he commenced within three years after the discovery of the facts constituting the fraud.</p> <p>Id.—Construction of Constitution—Embezzlement—Misappropriation of Funds.—Section 3 of article XII of the constitution, making the directors of corporations jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of the corporation, must he construed in accordance with the maxim noscitur a sociis, and only applies to such misappropriations of moneys as are similar to embezzlement, consisting of the misapplications of funds intrusted to an officer for a particular purpose, by .devoting them to some unauthorized purpose, and does not apply to the payment of an extravagant price for services or materials properly appertaining to the business of the corporation.</p> <p>Id.—Control of Other Mills—Findings—Review of Evidence.—Where . the court finds that the conspiring stockholders and the mill company controlled and managed two additional mills in which ore from the mine was crushed, and it appears in evidence that two of the three stockholders of the mill company paid to the president of the mining company his one-eighth share of the profits on the crushing of ores at one of those mills, under the secret agreement between them, the evidence is sufficient to sustain the finding of fraud with respect to the ores crushed at such mill as against such stockholders, but is not sufficient to sustain a finding against the mill company of its participation in such fraud; and, where there is no evidence that any of the defendants controlled or operated the other mill charged to have been operated by them, none of the defendants can he charged in respect of any loss caused by crushing at such mill.</p> <p>Id. — Conspiracy to Mine Worthless Ores.—Where the agreement between the president of the mining company and the stockholders of the mill company disclosed a motive in both parties to increase the cost of milling by the extraction and crushing of low-grade ores, which could not be milled at a profit, and there is testimony to show that such ores were milled under instructions of the president, the evidence of a conspiracy to mine worthless ores is sufficient to support a finding to that effect.</p> <p>Id.—Fraudulent Milling—Oar Sample and Battery Assays—Damages —Findings Against Evidence.—Where the court has found that the value of the total amount of ore worked was correctly shown by the car sample assays, and that, by a system of fraudulent milling, the mining company bad been damaged in a large sum, based upon such car sample assays, but it appeared, without substantial conflict of evidence, that the amount indicated by the car sample assays was too great and was not a proper criterion of the value of the ores crushed, and that the average battery sample assays, taken in the mill after the reduction of the ore to pulp, if properly taken, were a better criterion of the value of the ore, the basis adopted by the court for estimating the damage is without support in the evidence; and a new trial must be granted as to any damage caused by fraudulent milling, upon which the court should consider all of the assays, and the uncoutradicted testimony of all the witnesses, and make just deduction from the car sample assays.</p> <p>Id.—Mode of Determining Loss by Fraudulent Milling.—The true method of determining pthe loss sustained by imperfect or fraudulent milling is to ascertain the quantity of gold and silver actually contained in the ore as milled, as nearly as practicable, and what percentage of the bullion should be returned by fair and honest milling, and to take the difference between this amount and the actual return.</p> <p>Id.—Uniform Standard of Value—Computation of Damages—Discount on Silver.—In computing the loss or damage from imperfect or fraudulent milling, the standard of value must be the same in the assays of ore and in the assays of bullion returned, and, after taking the difference between them, the money value of such difference must be obtained by allowing for the discount upon the silver.</p> <p>Id.—Custom as to Ownership of Tailings—Efficient Milling.—A custom among mill-owners that the tailings, consisting of the slimes and concentrates resulting from the working of the ores, become the property of the mill, can only obtain when the milling has been reasonably efficient and bona fide.</p> <p>Id.—Presumption Against Spoliator—Assays of Ore.—The presumption against a spoliator does not apply, so as to justify a court in assuming that the ores of the mine were of the value shown by the car sample assays, when the evidence shows that they indicated too great a value, and there is no suppression of evidence, either of the car sample assays or of the pulp sample or settler sample assays, which were taken according to the usual course of the business and all preserved; and it is only so far as the assays may be indefinite or uncertain that the willful suppression of any secondary evidence or corroborating circumstance, which would tend to clear up the uncertainty, would justify a court in giving to the direct evidence the strongest construction in favor of the other side that it would reasonably bear.</p> <p>Id.—Refusal of Bank to Exhibit Books—Parties to Action Hot Responsible.—Where the superintendent of the mill was president and the principal stockholder of a bank, and also a stockholder of the mill company, but was not a party to the action, and the cashier and clerk of the bank refused to exhibit the books of the bank when their depositions were taken, at a time when neither the mill company nor its principal stockholders were parties to the action, and no demand appears to have been made at any time upon any party to the action for a production or inspection of the books of the bank, the parties to the action cannot he treated as spoliators of testimony.</p> <p>Id.—Records of Mint—Customary Mode of Entries.—The fact that the cashier of a hank, which was under the control of the superintendent of the mill company, was also acting superintendent of the mint, and that, in entering the deposits of bullion in the mint, instead of giving the name of the mine or locality which produced it, he sometimes entered it as “unknown,” does not prove a suppression or spoliation of evidence in reference to the transactions of the mint, where it appears that as acting superintendent he was following' the established practice of the mint in the mode of entries made in the books.</p> <p>Id.—Fraudulent Conspiracy—Cost of Milling.—Where it appears that there was a fraudulent agreement and conspiracy between the fililíowners and the president of the mining company to sacrifice the interest of its stockholders by mining and milling ores which would not pay the cost of mining added to the current price of milling, and the intention to mine and sell ores which would barely pay the cost of handling was in fact carried out, although a large proportion of the ores worked were of sufficient value to pay a profit on the mining and milling rates, a court of equity is justified in applying to the whole transaction only one measure of compensation for the milling of the ores, and that is the actual cost of milling without allowing any profit to the mill-owners.</p> <p>Id.—Parties—Foreign Corporation—Service of Summons upon Superintendent—Want of Jurisdiction.—A mill company which is a Nevada corporation cannot he brought under the jurisdiction of the superior court of this state by the service of summons made upon the superintendent of the mill, who was at the time of service in attendance upon a trial of the ease, but not engaged in attending to any of the business of the corporation in this state, and such service is wholly ' insufficient to confer any jurisdiction over the company, and any judgment rendered against it upon such service is wholly erroneous.</p> <p>Id. — Right of Stockholder to Maintain' Action — Construction of Finding.—Where the court finds that the plaintiff is a stockholder in the mining company alleged to have been defrauded, and was such stockholder at all the times mentioned in the complaint, and the finding is not assailed as unsustained by the evidence in the statement on motion for a new trial, it must be construed as meaning that plaintiff was a stockholder having a substantial interest in the corporation.</p>

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

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

Application in the Supreme Court for a writ of prohibition 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.

<p>Estates of Deceased Persons—Order Settling Account of Administrator—Review upon Appeal—Construction of Code.—Upon appeal from an order settling the account of an administrator, taken more than sixty days after the order was signed and filed with the clerk, and less than sixty days after it was 'entered in the minute-book of the court, the evidence upon which the order was based is open for examination and review by the appellate court; and the provision of section 939 of the Code of Civil Procedure, that upon appeal from a judgment the evidence cannot be reviewed unless the appeal is taken within sixty days after the rendition of the judgment, does not apply to an appeal from such an order.</p> <p>Id.—Bill of Exceptions—Specifications of Insufficiency of Evidence —Items of Account.—The account of an administrator is a bill of items, and specifications of the insufficiency of the evidence to justify the decision settling the account are stated with sufficient particularity when the evidence is alleged to be insufficient to justify the decision allowing particular items of the account specified in the bill of exceptions.</p> <p>Id.—Settlement of Accounts—Findings not Required — Nonwaiver. The manner in which the account of an executor or administrator is usually made up, and the manner in which objections thereto are usually presented, do not at all conduce to the development of issues such as arise upon the pleadings in a civil action, and in such a proceeding it is not incumbent upon the court to make and file express findings; and the fact that findings were not waived, and that none were made, is not ground for the reversal of the order accepting the account.</p> <p>Id.—Change of Administration of Estate—Allowance of Commissions . —Presumption—Extraordinary Services not Claimed.—Where the executor of a will of a deceased nerson has resigned the administration of the estate, and has been allowed a certain sum on account of commissions thereon, and has paid over the balance of account to bis successor as administrator of the will, such successor is not entitled to the allowance of any further commissions until the final settlement of the estate; and it cannot be presumed in support of an allowance of commissions at the time of the tendering of his resignation as administrator, exceeding in addition to the amount allowed his predecessor the total commissions allowable under section 1618 of the Code of Civil Procedure, that any allowance was made to him for extraordinary services not claimed in the account.</p> <p>Id.—Payment for Services of Experts —Discretion- of Court.—The allowance of money paid by the administrator to expert accountants for examining the books of a partnership, of which the decedent was a member, for the purpose of litigation, is a matter committed to the sound discretion of the court.</p> <p>Id.—Money Paid by Legatees.—Where it appears that a portion of the money credited the administrator for the payment of accountants was furnished by the legatees, for which a receipt had been given to one of the legatees toward payment of expenses in experting the books, if the administrator does not explain the receipt, or show that the money evidenced by the receipt was used to pay for services in addition to those specified in the account, his credit should be reduced by the amount of the receipt.</p> <p>Id.—Physician Called as Witness—Improper Allowance. —Where a physician was called to attend as a witness on motion for a receiver in an action instituted by the administrator, he is only entitled to the statutory fees allowed to witnesses, and a credit of $50 paid to him for one day’s attendance cannot be allowed to the administrator.</p> <p>Id.—Allowance for Services of Attorney—Improper Direction of Payment.—The fees of counsel are to be allowed out of the estate to the executor or administrator like other necessary expenses incurred in the course of administration, and it is erroneous to direct that payment be made out of the estate to the attorneys.</p> <p>Id.—Value of Attorney’s Services—Conflicting Evidence—Proposition of Compromise.—Where there is conflicting evidence as to the value of the services rendered the estate by attorneys, and the amount allowed by the court finds support in the evidence, such amount will not be disturbed; and the fact that the attorneys did not agree with other counsel for the administration as to the policy to be pursued, and insisted on a proposed compromise, which, if effected, would have given the estate little more than the expenses of the action, does not deprive them of the value of their services, if it does not appear but that the course they recommended comported with the proper discharge of professional obligation, and if, in the light of the event, it appears to have been to the interest of the estate.</p> <p>Recalling Remittitur—Appeal—Jurisdiction.—When the remittitur has been duly and regularly issued, without inadvertence, the supreme court loses jurisdiction of the cause, and has no power to recall it, except in a case of mistake, or of fraud or imposition practiced upon the court.</p>

<p>Laguna Survey in San Francisco—Dedication op Street—Delineation upon Map—Alcalde Grants—Public User.—The delineation upon the map of the Laguna survey in San Francisco of a space corresponding to a street, with numbered lots on each side thereof, created the easement of a right of way in favor of the grantees’ lots abutting thereon, and indicated an intention on the part of the town to dedicate the space as a highway.</p> <p>Ed.—Surrender os Easement—Abandonment op Highway.—The grantees of the lots may lose or surrender the easement created for them, and the public can also abandon or discontinue a highway after its dedication has become complete.</p> <p>Id.—Power op Legislature — Revocation op Street.—A street when dedicated becomes the property of the whole state, which by its legislature can deal with or dispose of it at its pleasure, and may revoke it in part or in whole.</p> <p>Id.—Change op Streets—Van Ness Ordinance—Adoption op Van Ness Map—Cessation op Highway.—The adoption of the Van Ness map by the Van Ness ordinance of the city of San Francisco, and its confirmation by the legislature, caused the streets delineated thereon to become open public highways, and where such map shows the change of a street from the space delineated upon the map formerly kept in the alcalde’s office, known as the Laguna survey, the space designated upon the map of that survey ceased to be a public highway.</p>

<p>Appeal from a decree of distribution of the Superior Court of Contra Costa County and from orders for a family allowance and settling the final account of the executor. Joseph P. Jones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court rendered in case No. 15301, ante, p. 369, and in the opinion of the court rendered in this case.

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Heb-bard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Right of Administration—Revocation of Letters with Will Annexed—Construction of Code.—Where letters of administration with the will annexed have been granted to the public administrator, any relative of the decedent who has a preferred right to administer, and who is competent, may obtain the revocation of the letters and the issuance of letters of administration with the will annexed to himself, under the provisions of section 1383 of the Code of Civil Procedure, and succeeding sections, which must be construed as applying to a case where the decedent has left a will as well as to cases of intestacy.</p> <p>Id.—Judicial Construction of Statute—Revision.—A judicial construction of a statute which has been revised and re-enacted in its old form in the code must be presumed to have been intended by the legislature to be construed as it was construed before the revision, where no sufficient reason appears for changing the construction.</p> <p>Id.—Discretion as to Revocation of Letters.—The discretionary power given by section 1354 of the Code of Civil Procedure to remove or retain an administrator with the will annexed in the case therein specified, does not apply where the petition for the removal of the administrator with the will annexed is based upon a right to administer conferred upon the petitioner by the statute, and to cases in which section 1383 applies, where the petitioner is not incompetent by reason of some statutory disqualification, the court has no discretion to deny the petition.</p> <p>Id.—Competency of Chinese Petitioner—Sufficiency of Understanding.—Where the petitioner for the revocation of letters of administration to the public administrator is the son of a Chinese decedent, proof that the petitioner could not speak the English lauguage, and was not instructed as to the constitution of the state, does not show that the petitioner has not sufficient understanding to he competent to receive letters of administration; and where other evidence shows that the petitioner is a man of intelligence and education, he cannot be held to be incompetent for want of sufficient understanding.</p> <p>Id.—Prior Adjudication—Petition by Executor to Revoke Letters Issued During Minority. —Where the petitioner has made a prior application, under section 1354 of the Code of Civil Procedure, to revoke letters issued during his minority, be having been named as executor, which application had been simply denied, without any reason assigned, and without any finding of fact, such denial does not imply a finding of incompetency, and does not constitute a prior adjudication of a want of understanding as against a subsequent application under section 1383 of the Code of Civil Procedure.</p>

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

<p>Appeal from a judgment of the Superior Court of Sacramento County. Matt. T. Johnson, Judge.</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. Walter Van Dyke, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Disqualification of Judge—Ownership of Stock by Relative.—In an, action by a bank upon promissory notes, where it does not appear that , the judge owned any of the stock of the bank", and it does appear that , his uncle, who at one time had owned two shares of the stock, had sold it before the commencement of the action, the judge is not disqualified . from trying the action.</p> <p>Existence of Corporation—Averments of Complaint and Answer— Contradictory Findings.—Where the complaint avers that the plaintiff is a corporation, and the defendant avers the same fact in the answer,, a general finding that the averments of the complaint are true and the averments of the answer untrue will not require a reversal of the judgment for contradictory findings, there being no issue as to the existence of the corporation.</p> <p>Demand for a Jury—Deposit of Jury Fees—Rule of Court.—The court may require the party demanding a jury to deposit the fees for the jury, in accordance with a rule of the court.</p> <p>Execution of Note—Misspelling of Name—Indorsement.—In an action upon a note executed by the defendant payable to his own order, and which was indorsed by him in blank, the fact that in signing the note at the bottom he left a letter out of his name can make no difference, where it appears that he executed the note, and that in the indorsement the name was properly spelled by him.</p> <p>Id.—Note Payable to Bearer.—A note payable to the order of the maker, and indorsed by him, becomes in effect a note payable to the bearer,, and passes by delivery, and any one to whom the note is delivered be. comes the legal holder of it, and is entitled to bring an action thereon,.</p>

<p>Water Rights—Basement—Measure of Right.—The right to take water from the land of another for use on the premises of the person taking it is an easement founded on a grant, or on prescription which supposes a grant, and the right is measured by the terms of the grant, or by the prescriptive use.</p> <p>Id.—Secondary Easements—Trespass.—The owner of the easement'has secondary easements, such as the right to enter upon the servient tenement and make repairs, and to do such things as are necessary for the full exercise of the right; but these secondary easements can be exercised only when necessary, and in such a reasonable manner as not to needlessly increase the burden upon the servient tenement, and the easement does not give its owner the right to commit a trespass upon the servient tenement, or to exercise the easement to suit his own pleasure.</p> <p>Id.—Remedy of Servient Owner—Filling up of Ditch.—Where the owner of the easement commits a trespass upon the servient tenement, and attempts to change the servitude in an improper manner by the extension of a ditch thereupon without right, and without the consent of the owner, the servient owner has. the privilege of taking the remedy into his own hands, and may fill up the extension of the ditch.</p>

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

<p>Practice—Execution—Supplementary Proceedings—Property Claimed by Third Person.—Under the provisions of the Code of Civil Procedure relating to proceedings supplementary to the execution, the court has no jurisdiction to order the grantee of the judgment debtor, who claims title to the property conveyed, to surrender it or to subject it to the satisfaction of the judgment.</p>

<p>Appeal from an order of the Superior Court of San Diego County granting a new trial. E. S. Torrance, Judge.</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. J. M. Troutt, Judge.</p> <p>The facts ate 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. B. Ñ. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>¡Public Officers—Auditor—License Collector— Sureties.—It is no part of the official duties of a county auditor to receive from the license tax-collector money collected by him for license taxes due the county; and, if he does so, and fails to account therefor to the county treasurer, the sureties on his official bond, conditioned for the faithful performance by him of all “ official duties required of him by law,” are not liable for the ■defalcation.</p> <p>Id.—Official Doty to Account for County Moneys.—Section 16 of article XI of the constitution, to the effect that all moneys belonging to or collected for the use of the county coming into the hands of any officer thereof shall be immediately deposited with the treasurer, does not make the obligation of the auditor to pay such money to the treasurer an “official duty,” within the meaning of such bond. The constitutional provision only relates to those officers who rightfully or officially receive money for the county.</p> <p>Id.—Money Had and Received.—The money so received by the auditor belongs to the county, and may be recovered by it in an action against him for money had and received.</p>

<p>Public Officers — Auditor — License Collector—Statute of Limitations.—While it is no part of the official duties of a county auditor to receive from the license tax-collector money collected by him for license taxes due the county, yet, if he does so, he is liable to the county therefor in an action for money had and received. Such liability is barred in. two years, under subdivision 1 of section 339 of the Code of Civil Procedure.</p>

<p>Contracts—Subscription to Street Railroad—Escrow—Rescission— Notice.—Where notes were made to secure the payment of a subscription in aid of a proposed street railroad, in consideration of the construction thereoi on a specified route passing through the land of the maker of the notes, and the notes were deposited in escrow with a third party, to be delivered, upon performance of the conditions specified in the contract, to the person constructing the road, a mere notice to the person holding the notes in escrow that the maker had rescinded the subscription contract on the ground that the terms thereof had not been complied with, without any notice of such rescission or of his intention to rescind to the person agreeing to construct the railroad, cannot operate as a rescission thereof.</p> <p>Id.—Delivery or Notes—Construction of Contract—-Time, when not OR Essence.—Where the conditions of the subscription in aid of the street railroad were that one-half thereof, represented by two months’ notes, was to be paid when the grading was done and the iron was on the ground, and the balance, represented by four months’ notes, was to be paid on the completion of the road on the first day of its operation, and the conditions upon which the notes were placed in escrow were similar, all conditions precedent, not expressly enumerated, are excluded, and an agreement in the contract that the road should be extended to a specified point “within four months, weather permitting,” not being expressly made a condition precedent, nor declared to be of the essence of the contract, is not to be construed as making the time therein specified of the essence of the contract.</p> <p>Id.—Delivery of Notes—Order of Agent—Waiver of Condition. — An agent having a power of attorney sufficient to authorize him to order the notes to be delivered may waive any condition as to the construction o£ the road within the time mentioned in the contract, by a written order that the notes in escrow should be delivered to the constructor of the railroad at the time of its completion, where there is no averment or proof of mistake of the agent or principal, or of any fraud in the transaction.</p> <p>Id.—Failure of Consideration—Time for Completion of Road—Settlement of Subscription.—Where the notes were delivered upon the completion of the road, and the time of its completion was not made of the essence of the contract, the delivery of the notes precludes any plea of failure ór partial failure of the consideration expressed in the contract in reference to advantages to be derived from the extension and operation of the road; and, in the absence of fraud or mistake, the delivery of the notes upon the completion of the road is a conclusive settlement of all obligations of both parties arising from the subscription contract, and a delay of three and a half months in completing the road at the time of the settlement must be considered as of no injurious consequence, or as excusable.</p> <p>Id. — Decline in Market Value of Land—Recoupment—Insufficient Pleading—Exclusion of Evidence.—An answer, in an action upon the notes, averring that there was a decline in the market value of the land between the written date of the contract and the completion of the road, but not averring that such decline occurred during the period within which the road was to have been constructed by the terms of the contract, nor that the delay in constructing the road caused any decline in the market price of the land, nor that the defendant would have sold his land at any price even if the road had been completed within the contract period, is insufficient to sustain any recoupment of damages on account of delay, and the court may properly exclude proof of its averments.</p>

<p>Criminal Law—Murder—Jury—Special Venire—Bias of Sheriff.— A deputy sheriff is not disqualified, under section 1064 of the Penal Code, from summoning a special venire of jurymen in a trial for murder merely because he believed that the defendant had committed the homicide, if he had no opinion as to whether or not the killing was justifiable, there being no real contention in the case that the defendant did not do the killing.</p> <p>Id.—Trial of Challenge to Panel—Examination of Sheriff as to Bias.—On the trial of a challenge to the panel, on account of the bias of the officer who summoned them, it is not improper, under section 1076 of the Penal Code, to ask such officer whether, if he were impaneled and sworn as a juror to try the case, he could and would give the defendant a fair and impartial trial, notwithstanding such officer did not base his opinion upon public rumor or newspaper statements.</p> <p>Id.—Evidence—Feeling of Witness.—A witness for the state, who had been previously prosecuted for killing the father of the defendant on the occasion at which the defendant committed the homicide for which he was being tried, cannot be asked, for the purpose of showing his feeling as a witness, whether on such previous trial he had employed counsel to defend himself.</p> <p>Id.—Impeachment of Witness.—In laying the foundation for the impeachment of the defendant, the prosecution asked a witness whether he was acquainted with the defendant’s general reputation in the community where he lived “for truth, honest, or integrity.” The defendant made no objection to the form of this question, but did object to the following question asked the witness as to what such reputation was. The court overruled the objection. Held, that as the court’s attention had not been called to the technical defect in the form of the first question, in the use of the word “or” for “and,” and as the defendant had ample opportunity on cross-examination to find out what qualities the witness was testifying about, the ruling was not erroneous.</p> <p>Id.—Improper Conduct of Prosecuting Attorney.—The attorney for the prosecution should not ask inadmissible questions for the purpose of exciting suspicions in the mind of the jurors prejudicial to the defendant, nor repeat a question to which an objection has been sustained, nor, during the trial, make remarks unjustly injurious to the defendant.</p> <p>Id.—Conflict of Evidence—Appeal.—Where the evidence as to whether a homicide was justifiable or not is conflicting a judgment of conviction of murder in the second degree cannot be interfered with on appeal.</p>

<p>Appeal from a judgment of the Superior Court of Placer County. Matt. F. Johnson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. A. P. Gatlin, Judge.</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. W. H. Clark, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a decree of distribution of the Superior Court of Alameda County. W. B. Greene, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of Sacramento County. A. P. Gatlin, Judge. 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>Contracts—Assent—Agreement for Writing — Reciprocal Stipulations—Signature by One Party.—When it is a part of the understanding between the parties to a contract that the terms of the contract are to be reduced to writing, and signed by both parties, the assent to its terms must be evidenced by the signature of both parties, or it does not become a binding obligation upon either, especially where the proposed contract contains reciprocal stipulations and covenants upon the part of each party as a consideration for the acts of the other.</p> <p>In.—Part Performance—Estoppel.—The fact that the party not signing the contract proceeds with full knowledge of its terms partially to perform it does not estop him to deny the binding obligation of the contract.</p> <p>Id.—Acceptance of Offer—Completion of Contract—Voluntary Compliance.—To render a proposed contract binding there must be an accession to its terms by both parties, and a mere voluntary compliance with its conditions by one party who had not previously assented to it does not render the other liable for it.</p> <p>Id.—Mutuality of Estoppels.—Estoppels must be mutual; and the party failing to sign the contract cannot be estopped by a voluntary compliance with a part of its conditions, where the party signing the same cannot be held bound under the proposed contract, but can repudiate it at any time.</p>

Cross-appeals from a judgment of the Superior Court of Los Angeles County and from orders denying a new trial. W. H. Clark, Judge. The facts are stated in the opinion of the court.

. Hearing in the Supreme Court upon writ of habeas corpus to the Police Court of the' City of Los Angeles. M. T. Owens, Police Judge. The facts are stated in the opinion of the court.

Gr. W. Nicol, Judge. The minute-book referred to in the opinion of the court was the minute-book of the Yosemite Mining Company referred to in the deposition of the defendant, in whose deposition was.embodied excerpts from the minute-book.

<p>Wills—Revocation—Writing!.—Under section 1297 of the Civil Code, the mere execution of a subsequent revocatory will ends the first will, and such first will is not revived by the revocation of the last will unless it. is revived by the terms of such revocation; and where a will expressly revoking a former will is, in terms, revoked by a third will, the revocation or cancellation of the last will cannot revive the first will without a writing expressly reviving it under the first subdivision of section 1292' of the Civil Code.</p>