Volume 110 — California Reports

<p>Trust—Statute of Frauds—Verbal Agreement.—A verbal agreement between a mother and son that he and his family should live with her on premises which she had bought and paid for with her own money, and that he should have the title thereto after her death, provided that he would pay the taxes and insurance on the property and keep the house in good repair, and would furnish her with all necessary care and with hoard and lodging during her life, does not, upon the performance of the conditions, raise a constructive trust which is excepted from the rule that a trust in realty can only he created by an instrument in writing, and the alleged verbal agreement cannot be enforced as against a mort, gage executed by the mother for money loaned, although the mortgagee had notice of the verbal agreement.</p> <p>Id.—Deposit of Deed in Escrow—Parol Evidence of Conditions.—In an action to foreclose the mortgage to which the son was a party, evidence is admissible to show that the mother executed to him a deed of the property prior to the mortgage, and placed it in the hands of another person as a depositary, to be delivered after her death, and that the mortgagee had notice of the execution and deposit of the deed at the time he received his mortgage; and parol evidence is admissible to show all the -facts and conditions upon which the deed was deposited.</p> <p>Id,—Validity of Deed Delivered in Escrow—Intention of Grantor— Question of Fact.—The essential requisite to the validity of a deed transferred in escrow under such circumstances is, that when placed in the hands of a third party it has passed beyond the power of the grantor for all time, and that question is to be determined by the grantor’s intention in the matter, and is a question of fact to he solved by the light of all the circumstances surrounding the transaction.</p>

<p>Criminal Law—Trial by Jury—Police Court—Vagrancy.—The legislature may provide for summary proceedings in the police court, with- , out a jury, in cases of such petty offenses as were thus provided for in certain early English statutes, and in cases which are intrinsically of a similar nature and degree, and vagrancy is one of such offenses, for a summary trial of which without a jury the legislature might provide by a general law. ',</p> <p>Id.—Right to Jury Trial—Error—Appeal—Jurisdiction—Habeas Corpus.—There is no valid statutory provision for a trial of a case of vagrancy without a jury; but the- denial of a trial by jury in such a case, in the police court is merely error to be corrected on appeal, and does not go to the jurisdiction of the court, and cannot be inquired into on habeas corpus.</p> <p>Id.—Waiver of Jury Trial—Review upon Habeas Corpus.—A jury trial may be waived in any civil case and in all criminal cases not amounting to a felony; and in any case in which a jury trial may be waived, and in which a jury trial is not a necessary constituent part of the court, the refusal of the court to allow a jury is mere error, and cannot be reviewed upon habeas coi-pus.</p>

Motion in the Superior Court to dismiss an appeal from the judgment of the Superior Court of the City and County of San Francisco. D. J. Murphy, Judge. The facts are stated in the opinion.

<p>Promissory Note—Signature op Surety apter Loan op Money—Consideration. — Where the payee of a note parts with his money or the faith of a promise by the borrower that he will procure the signature of a surety to the note, the surety is bound, although he does not sign the note until the money is advanced.</p> <p>Id.—Surrender op Joint Note—Consideration por Individual Note. Where there is a sufficient consideration for a joint note signed by one ■ of the makers as a surety, the surrender thereof to the surety is a sufficient consideration for the individual note of the surety to the payee.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County. J. H. Budd, 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 and from an order denying a new trial. A. A. .Sandeeson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Insolvency—Petition of Creditors—Sufficiency of Pleading—Fraudulent Transfer.—Under section 8 of the Insolvent Act, which prescribes what facts the petition of creditors against an insolvent debtor shall set forth, a petition alleging a transfer of the property of the insolvent with intent to hinder, delay, and defraud his creditors, and setting forth the name of the grantee, with the circumstances of time, place, and general description of the property sold, is sufficient, and is not demurrable because the allegations of fraud are not made more specific; and where the petition also alleges that the respondent, being insolvent, and in contemplation of insolvency, sold and conveyed a stock of merchandise, in the petition described, it sufficiently states an act of insolvency on the part of the respondent, entitling the creditors to an adjudication of his insolvency.</p>

<p>Appeal—Test of Jurisdiction—Justice’s Court—Sum Demanded— Costs Exceeding Three Hundred Dollars—Dismissal.—Where the demanded sum is less than three hundred dollars, the jurisdiction of the justice's court and also the appellate jurisdiction of the supreme court must be tested by the sum demanded in the complaint, and the costs of the action in the justice’s court and in the superior court, upon appeal therefrom, are merely incidental to the action, and cannot be made the subject of an appeal to the supreme court, although the costs allowed may amount to more than the sum of three hundred dollars, and an ap. peal therefrom must be dismissed.</p> <p>Id.—Non appeal able Order—Special Order after Judgment—Appeal from Justice’s Court.—A special order after judgment refusing to strike out a cost bill in the superior court, in a case appealed from the justice’s court, is not appealable to the supreme court, although thf cost bill amounts to over three hundred dollars.</p>

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

Application in the Supreme Court for a writ of prohibition to the Superior Court of Los Angeles County. J. W. McKinley, Judge. The facts are stated in the opinion of the court.

Application in the Supreme Court to review and prohibit the execution of an order of the Superior Court of the City and County of San Francisco requiring a receiver to sell the property of petitioner. J. C. B. Heb-bard, Judge. The facts are stated in the opinion of the court.

Application in the Supreme Court for certiorari to review an order of the Superior Court of the City and County of San Francisco adjudging petitioner guilty of contempt. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court.

<p>Foreclosure of Mortgage—Pledge — Collateral Security—Trust— Evidence—Harmless Ruling.—In an action to foreclose a mortgage ■ and a pledge of water stock, in which the complaint alleges the execution of a promissory note by the defendant to the plaintiff, payable on demand, with provision for a reasonable attorney’s fee in case of suit, and an assignment of shares of water stock as security therefor, and that as further security the defendant afterward executed and delivered to a third party a note and mortgage for a larger sum, which was assigned to the plaintiff, and it was sought to foreclose the mortgage so assigned, and the pledge of the water stock, for the amount only of the original note, and for a reasonable attorney’s fee, and the answer of the defendant denied that the mortgage was executed to secure the payment of the original note held by plaintiff, but alleged that it was executed in trust to the payee thereof to take up and deliver three notes of the defendant, aggregating the principal sum named in the mortgage, one of which was the note in suit, and that the trust was violated by the mortgagee, and the mortgage transferred to the plaintiff without the knowledge and consent of the defendant, in violation of said trust, the collateral note and mortgage are admissible in evidence under the issues tendered; and where the court found in favor of the plaintiff upon all of the issues, and foreclosed the mortgage for the amount of the original note and interest, the mortgagor could not be prejudiced by rulings upon the admission of evidence respecting the mortgage, and as to whether the mortgagee had failed to take up the notes as alleged by the defendant.</p> <p>Id. — Mistake in Findings and Judgment — Failure to Foreclose Pledge — Amendment — Jurisdiction. — In an action to foreclose a mortgage and a pledge of water stock, where neither the conclusions of law, nor the order for judgment, nor the judgment as entered make any disposition of the stock which was pledged as security for the debt, the trial court has no jurisdiction, after the entry of judgment foreclosing the mortgage, to amend the findings and judgment so as to provide further for a foreclosure of the pledge.</p> <p>Id.—Decision against Law—New Trial—Appeal.—The failure of the court to order and adjudge the foreclosure of the pledge of water stock is an error of law which may be assigned by the defendant as a decision against law in his motion for a new trial, and such erroneous decision could only be corrected in the court below by granting the motion for a new trial; but where the fact that the pledge of the water stock was made, and that it preceded the mortgage security foreclosed, is admitted by the answer, the appellate court may, upon appeal, order a modification of the judgment so as to include an order of sale of the water stock, and to order it to be first sold, unless the defendant should otherwise direct.</p>

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

Application in. the Supreme Court for a writ of prohibition to restrain the Superior Court of San Diego County from hearing an appeal from the Justice’s Court of San Diego Township. George Puterbaugh, Judge. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of the County of Sacramento and from an order denying a new trial. A. P. Catlin, 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, and from an order denying a new trial. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of Sutter County granting a new trial. E. A. Davis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage by Deed Absolute—Redemption—Excessive Interest— Equitable Relief.—In order to redeem from a deed absolute in form, which was intended as a mortgage, the mortgagor must pay the rate of interest agreed upon in the note which was given for the indebtedness secured by the deed, although such interest is largely in excess of the current rates prevailing at the date of the note, and equity can grant no relief against such interest because merely of the excessive rate, in the absence of proof of other circumstances tending to show actual fraud, or oppression and overreaching, warranting the inference of undue advantage.</p> <p>Id.—Contract for Interest—Equity Bound by the Law.—In this state parties may agree in any contract in writing for the payment of any rate of interest, and it must be allowed, according to the terms of the agreement, until the entry of judgment, and courts of equity are as much bound by the laws of the land as courts of law.</p> <p>Id.—Hard Bargain.—The fact that a bargain is a very hard or unreasonable one is not sufficient per ee to induce a court of equity to interfere with the contract.</p> <p>Id.—Statute of Limitations—Condition of Redemption.—The fact that the debt is barred by the statute of limitations does not absolve the mortgagor who would redeem the mortgaged property from paying the debt as a condition of redemption.</p> <p>Id.—Action to Quiet Title—Form of Judgment Allowing Redemption—Remedy for Outlawed Debt—Dismissal—Bar of Plaintiff’s Right.—In an action to quiet the title of the plaintiff to land which had been conveyed to the defendant as a mortgage security to pay a note which had been barred by the statute of limitations, although the plaintiff cannot have his title quieted while the money for which the mortgage was given remains unpaid, and the court may provide by its judgment for the payment of the amount due, yet the defendant cannot have any affirmative remedy for his outlawed debt, and the only proper judgment would be that upon the failure of the plaintiff to pay the amount remaining unpaid upon the mortgage debt within a time specified by the court, the action should be dismissed, and it is erroneous to adjudge that upon the failure of the plaintiff to pay that amount, all his right and title to the mortgaged premises shall cease and determine, and that the title of the defendant thereto shall be good and valid, and that plaintiff shall be barred from asserting any claim, interest, or title to the premises.</p> <p>Id.—Waiver of Statute or Limitations—Estates of Deceased Persons—Power of Administrator.—An administrator will not be permitted to waive the statute of limitations upon a claim which is barred by the statute of limitations, and he does not waive such claim, nor the presentation of it against the estate, by bringing an action to quiet the title of the estate as against one to whom the decedent had conveyed his land to secure a debt which is barred by the statute of limitations.</p>

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

<p>Water Rights—Appropriation—Excess op Water—Finding against Evidence.—Where the plaintiff claims the waters of a creek by virtue of a prior appropriation, and the defendant by a subsequent diversion and prescriptive right, a finding that, during the time the defendant has diverted the water, an excess has flowed in the creek above the ca. paeity of both ditches, is not sufficiently supported by the mere observation of the trial judge who visited the premises once near the close of the rainy season, just prior to the judgment, where the other uncontradicted evidence adduced upon the trial shows that all of the water of the creek was taken in one of the ditches during one season.</p> <p>Id.—Rights op Appropriator op Water—License—Easement—Congressional Grant.—An appropriator of water which is conveyed across the public domain is a licensee of the general government; hut when such part of the public domain passes into private ownership, it is burdened by the easement granted by the United States to the appropriator, who holds his rights against the land under an express grant of Congress by the act of 1866.</p> <p>Id.—Acquisition of Prescriptive Right.—A prescriptive right cannot be acquired against the United States, and can be acquired only by one claimant against another private individual; and one who claims a right by prescription must use the water continuously, uninterruptedly, and adversely for a period of at least five years, after which time the law will conclusively presume an antecedent grant to him of his asserted right.</p> <p>Id.—Construction op Code—Extinguishment op Servitude Acquired by Enjoyment—Prescriptive Right.—Section 811 of the Civil Code, which provides that when a servitude is acquired by enjoyment, disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment extinguishes the servitude, deals only with the extinguishment of servitudes resting upon prescriptive right, and not of one conferred by express grant from the United States to a prior appropriator.</p> <p>Id.—Disuse op Water Appropriated—Forfeiture op Right—Period op Disuse—Construction op Code.—Section 1411 of the Civil Code, which declares that the appropriation of water must he for some useful or beneficial purpose, and that, when the appropriator, or his successor in interest, ceases to use it for such purpose, the right ceases, deals with the forfeiture of the right by nonuser alone as distinguished from abandonment; and, by analogy, this section must he construed as making a cessation of the use by the appropriator work a forfeiture of his right, -• where there is a failure to make any beneficial use of the water for a period of more than five years, and, in such case, a subsequent appro- ■ priator for a beneficial use acquires a right to the water.</p>

Petition in the Supreme Court for a writ of mandate to the board of supervisors of the City and County of San Francisco. The petition was filed to enforce a veto by the mayor of a rate of taxation fixed by the board of supervisors, and to compel them to act a second time in fixing the rate of taxation in subordination to the veto of the mayor.

<p>Petition in the Supreme Court for a writ of prohibition to the Superior Court of the City and County of San Francisco. James M. Troutt and James M. Sea-well, Judges. '</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Improvement—Protest of Owners—Construction of Statute. Under the Street Improvement Act of 1885, as amended in 1891, the city council has authority to order the grading or other improvement of one of two adjoining ungraded blocks intervening between and bounded at each end by graded blocks, notwithstanding the protest of the owners of a majority of the frontage of the property fronting on the proposed work or improvement; and it is not necessary that the whole intervening unimproved space must have been improved under one resolution of intention and one contract; but the council has authority to order the whole or any part of the intervening ungraded blocks to be graded or improved, regardless of objections by owners of lots fronting on the proposed improvement.</p> <p>Id.—Completion of Work—Slight Defect—Appeal to Council.—The only remedy for a slight defect in the work at the time of its acceptance by the superintendent of streets, in leaving a narrow strip ungraded, which was afterward graded by the owner of the lot, is by an appeal to ■ the city council, and it cannot be objected to in an action to recover a street assessment for work done under the contract.</p> <p>Id.—Publication of Resolution of Intention—Insertion on Sunday. ' Under section 3 of the Street Improvement Act, requiring the resolution of intention to be published by two insertions in one or more daily, semi-weekly, or weekly newspapers published and circulated in the city, the publication of the resolution on Saturday and Sunday consecutively in a daily newspaper published aud circulated in the city, is a liberal compliance with the statute, which does not except Sundays, and the publication is sufficient.</p>

<p>Appeal from a judgment of the Superior Court oí Sacramento County. A. P. Gatlin, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Wager—Repudiation before Decision—Recovery from Stakeholder. Where a wager upon, the result of a horserace is repudiated, and notice of the repudiation given to the stakeholder before the race is run and the wager decided, the stakeholder is bound to deliver the stake deposited with him by the party repudiating the wager to such party, and he may recover the same from the stakeholder, though subsequently paid over to the winning party.</p> <p>Id.—Pleading—Insufficiency of Denial,—Where the complaint avers that notice of repudiation was given before the race was run, an answer admitting that the notice was given, but stating that the defendant cannot positively say whether it was received prior to the time when the event occurred, or prior to the time when the wager was decided, does not deny the averment of the complaint that he had notice of the repudiation before the race was run, and before it was known, or could have been known, whether plaintiff had won or lost the wager.</p> <p>Id.—Conjunctive Denial.—A conjunctive denial of several distinct allega, tions of the complaint, connected by the conjunction “and,” is not a denial of any one of them.</p> <p>Id.—Evidence—Regulations of Turf.—The regulations and usages of the turf are subject to the laws of the state, and it is not admissible to prove that the words “play or pay,” in a written agreement of wager upon a horserace, mean that, after the stakes were placed, neither party could repudiate the wager without the consent of the other, even though one of the horses should die before the day set for the race.</p>

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

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

Appeals from a judgment of the Superior Court of the City and County of San Francisco and from an order granting a new trial. A. A. Sanderson, Judge. The facts are stated in the opinion.

<p>Insolvency—Transfer out of Usual Course of Business—Presumption of Fraud—Rebuttal—Conflicting Evidence.—In an action by an assignee in insolvency to recover merchandise transferred by the insolvent to the defendant, the fact that the transfers were not made in the ordinary course of business of the insolvent renders them prima facie fraudulent; but the presumption of fraud is subject to rebuttal, and where there was evidence on behalf of the defendant which tended to show that he had no information of the insolvent condition of the grantor, and that the prices paid and agreed to be paid were the full and fair value of the property purchased, and that he has offered to make deferred payments to the assignee, such evidence, if believed, is sufficient to rebut the presumption of fraud; and where the evidence is conflicting, the credence to be allowed to the evidence for the defendant is-for the trial court to determine, and a decision by the trial court that-the defendant made his purchases in good faith and without fraudulent, intent, and for a sufficient consideration, will not be disturbed upon appeal.</p> <p>Id.—Fraudulent Intent of Vendor — Omission to Find.—Where the-findings exonerate the vendee of the charge of fraud, the intent of the-vendor becomes immaterial, and an omission to find as to whether the insolvent was guilty of a fraudulent intent in the transfer to the vendeeis not an omission to dispose of a material issue.</p> <p>Id.—Fraud of Seller—Innocent Purchaser.—A transfer by an insolvent debtor cannot be vacated because of the fraud of the seller in which the purchaser had no part, and of which he had no notice.</p>

<p>Judgment against Assignee of Insolvent — Payment to Assignor oi> Claimant — Finding of Fact among Conclusions of Law—Conolusiveness upon Appeal.—Where judgment was rendered against an assignee for the benefit of creditors of an insolvent stockbroker, in favor of an intervening creditor, for the difference between the amount realized by the assignee from the sale of stocks belonging to the intervenor’s assignor, and a sum of money deducted therefrom on account of moneys received by such assignor, the finding that such sum was to be deducted from such amount is a finding of fact, although placed after the conclusions of law; and, in the'absence of the evidence presented thereon in a statement or bill of exceptions, such finding of fact is conclusive upon, appeal.</p> <p>Id.—Unauthorized Modification of Judgment. — After the court has rendered judgment in accordance with its findings, neither the findings nor the judgment can be changed except through a motion for a new trial, or upon appeal, and the court loses all power to change its findings of fact after the entry of judgment, in the absence of a motion for a new trial, and has no power, in the absence of such motion, to modify the judgment drawn from the findings of fact as made.</p> <p>Id.—Stipulation for Modification of Judgment—Statement of Attorney.—Where some of the parties to the action stipulated for a modification of the judgment, but the attorney for the appellant expressly' refused to sign any stipulation, and merely verbally expressed the willingness of his client to obey the order of the court, such statement is not the equivalent of a stipulation, and does not prevent his client from objecting upon appeal to the want of authority in the court to modify the judgment.</p> <p>Id.—Authority of Attorney to Bind Client—Presumption—Knowledge of Client’s Instructions.—Although, as a general rule, a stipulation of an attorney will be presumed to have been authorized by the client, yet, when the adverse party, as well as the court, is aware that the attorney is acting in direct opposition to his client’s instructions or wishes, the reason of the rule ceases, and the court ought not to act upon the stipulation, nor can the adverse party claim the right to enforce a judgment rendered by reason thereof.</p> <p>Id.—Consent to Modification of Judgment—Authority of Attorney. For the purpose of prosecuting and defending an action the authority of an attorney ordinarily terminates with the entry of judgment except for the purpose of enforcing it, or seeking to have it set aside of reversed; and, when the judgment has once been entered under the direction of the court, the rights of the client have been determined, and the attorney ceases to have any authority to consent to its modification, to the prejudice of the client, without his consent.</p> <p>Appeal—Dismissal—Proof of Service of Lost Notice—Supply of Record.— Where a motion is made to dismiss an appeal upon the ground that the transcript fails to show that the notice of appeal was served upon the respondent, the appellant in reply thereto may file as a portion of the record a certified copy of proceedings in the superior court, showing that the original notice of appeal has been lost, and that it has been established to the satisfaction of that court that the notice of appeal set forth in the printed transcript was duly served, and a written admission of the service made by the attorney for the respondent indorsed upon the same, and that said notice of appeal was filed in the office of the clerk of that court; and that the court thereupon made an order directing that a copy of the notice of appeal, together with the affidavit showing its original filing and service, be filed nunc pro tunc; and the substituted papers made upon such order of the court are entitled to the same weight as the originals.</p>

<p>Quieting Title—Evidence—Townsite Patent—Trust for Occupants —Proof of Occupancy—Deed of Superior Judge not Conclusive. In an action to quiet title, where the land in controversy is part of a •townsite, which was surveyed and platted under section 2387 of the Revised Statutes of the United States, and a patent was issued therefor to the superior judge, in trust for the occupants, which trust was administered by the superior judge under the act of the legislature of California, approved March 30, 1868, and the amendments thereof, a •deed of'the superior judge to the plaintiff, in so far as it includes land which had never been in the occupancy of the plaintiff, but which is shown to have been, at the time of the patent and prior to the application therefor, in the occupancy of the defendant, is not conclusive against the defendant; and the defendant is entitled to prove his occupancy and his right thereto as against the plaintiff.</p> <p>Id.—Offer of Evidence—Improper Method—Presumption of Consent —Erroneous Ruling.—Although a mere general offer of evidence to prove a variety of things, without producing the witnesses or evidence whereby they are to be proved, is an improper method of presenting offered evidence, yet, where no objection is made to the form of the offer upon the ground that the offer was an improper method, but objection is only taken to the evidence offered, it will be presumed upon appeal that the method used in making the offer was by consent; and, if the evidence offered is improperly rejected, the judgment will be reversed for the erroneous ruling.</p>

<p>Homestead—Tenancy in Common—Subsequent Conveyance of Title. A homestead cannot be created upon land held in cotenancy, in favor of one of the cotenants, and where a homestead is declared upon land so held, it is invalid, and cannot become a homestead by a subsequent conveyance from the other cotenant.</p> <p>Id.—Invalid Declaration of Homestead—Conveyance by Husband.— Where a declaration of homestead is invalid by reason of a cotenancy existing at the time of the declaration, the title of the husband in the community property is not thereby affected, and can be conveyed by a deed from himself alone, without acknowledgment.</p> <p>Id.—Proof of Deed—Goby Annexed to Answer—Failure to File Affidavit—Admission of Execution and Genuineness.—Where a copy of a deed from the plaintiff to the defendants is annexed to the answer of the defendant in an action to quiet title, if no affidavit denying its genuineness and due execution is filed, the same are deemed admitted, and it is not necessary for the defendant to offer the deed in evidence.</p>

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

Writ of review in the Supreme Court to review the action of the Superior Court of San Joaquin County in ordering the sale of partnership property in the hands of a receiver. J. K. Law, Judge. The facts are stated in the opinion of the court.

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

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

<p>Contract—Commission on Purchase of Land—Indivisible Condition.— A written contract, by the terms of which the promisor agrees to pay a stipulated commission after the expiration of a certain time from the date of the delivery to him of a deed to an undivided half interest in a particular tract of land, is indivisible, and the promisee does not acquire a pro tanto right to the commission upon the delivery to the promisor of a deed for a less interest in the land.</p> <p>Id. —Pro Tanto Right to Commission.—Conceding that a pro tanto right to such commission might result from the conveyance of a less interest in the land to the promisor, such right could not mature until after the expiration of the time limited by the contract for the payment of the stipulated commission.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco refusing to dismiss a proceeding to determine heirship. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a decree of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person, and from an order refusing a new trial. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Determination of Heirship—Proceeding in Rem—Construction of Code.—It seems that the proceeding and decree provided for in section 1664 of the Code of Civil Procedure were intended by the legislature to be in rem, and conclusive against all persons, and the unquestioned basis for the decree of distribution which was to follow.</p> <p>Id,—Decree of Distribution—Contest by Claimant—Admissibility of Proceedings to Determine Heirship.—Where an heir who has instituted prior proceedings under section 1664 of the Code of Civil Procedure petitions for a subsequent distribution of the property, and sets forth the proceedings as a basis for the decree, if a claimant who did not appear, and was not named in such proceedings, appears and contests the distribution, and joins issue upon the fact of such proceedings, the proceedings are admissible in evidence under the issues, in proof of the averments denied by the contesting claimant, without regard to the question of their conclusiveness.</p> <p>Id.—Kinship of Claimant—Conclusiveness of Finding.—Where the finding of the superior court is against the kinship of the contesting claimant to the decedent, and to the effect that she has no interest in , the estate, and the testimony in favor of the claimant is of an exceedingly slight and flimsy character, the conclusion of the trial judge will not be disturbed upon appeal, but it will be considered that she has no interest in the estate, and is not concerned with its distribution.</p>

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

<p>Appeal from a judgment of the Superior Court of the County of Yuba and from an order denying a new trial. E. A. 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 Los Angeles County. J. W. McKinley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Trinity County. T. E. Jones, Judge.</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. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Sonoma County. S. K. Dougherty, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Guardianship — Settlement op Accounts of Mother with Minors_ Adult Child Improperly Included—Unprofitable Investment_ Sale Procured by Adult Child—Different Modes of Accounting. Where the estate of a decedent was distributed one-half to his widow, and the other half to the three minor children, and the widow, as mother of the minor children, without letters of guardianship, took charge of the persons and estates of the minors, and with the money-belonging to the minors purchased real estate for their benefit in good faith, which was afterward sold at a loss, upon the settlement of a subsequent legal guardianship of two of the minor children, the other child being an adult daughter, for whom no guardian was ever appointed, and who had become of age before the property was sold and who had brought an action for partition and procured the sale thereof, and voluntarily accepted her share of the proceeds of the sale, and who was not a formal party to the accounting with the two minor children, should not be included in the accounting with them, and any accounting had with her should be settled upon a different basis from the accounting with them, she not being entitled to be credited, as are the minors, with one-third of the original sum received from the estate of their father with interest thereon, but only with her one-third of the proceeds of the sale; and no items of credit or charges to her should appear in the accounting with the minor children.</p> <p>Id. — Allowance to Mother as Quasi Guardian — Maintenance of Minors—Expenditures—Trust—Accounting in Equity.—Where the mother of minor children has acted in good faith for their benefit without letters of guardianship, she is chargeable in equity as a quasi guardian, or trustee of their estates, and an accounting and settlement of such trust, after the issuance of letters of guardianship, is in the nature of an accounting in equity, to be determined upon equitable principles; and the court has jurisdiction in such accounting to allow reasonable and proper credits to her for maintenance of the minor children, and for expenditures incurred on their account, prior to the letters of guardianship.</p> <p>Id.—Allowance out of Property of Minor—Income—Principal.—A court of equity will allow'all reasonable payments for the maintenance and education of an infant made by the person in whose hands his property is held, out of the income of the property, if his father is dead or unable to support him; and where the income is insufficient for his maintenance and education, equity will break into the principal.</p> <p>Id.—Allowance to Mother for Past Maintenance—Separate Estate —Criterion.—A mother will be allowed in equity for the past main, tenance of her children, from the death of the father, out of the estate of the children, though she has a separate estate; and the criterion for determining whether a past maintenance should be allowed to her is whether a chancery court would have authorized it in advance.</p> <p>Id.—Accounting of Trust—Statute of Limitations.—In the" accounting and settlement of a voluntary trust with the mother as quasi guardian of minor children, the expenditures made by her for the benefit of the children must be deemed in equity as having been made out of their funds, and as constituting an equitable offset to the liability of the trustee who could not plead the statute of limitations in defense to the liability; and it cannot be objected that an allowance for their maintenance and for expenditures incurred for them prior to letters of guardianship is barred by the statute of limitations.</p> <p>Id.—Discretion as to Amount of Allowance.—The amount of an allowance for maintenance of minor children is in the discretion of the court, and will not be disturbed upon appeal where no abuse of discretion appears. '</p> <p>Id.—Prior Allowance during Legal Guardianship—Further Allowance upon Accounting of Trust.—The fact that there was an allow, anee during the existence of a legal guardianship, out of the money in the hands of the guardian, for the support of the minor children by the mother, does not preclude a further allowance to her upon an accounting by her of her trust during the preceding years in which she is charged with the principal sum received by her as the children’s share of the estate of their deceased father, with interest thereon.</p> <p>Id. — Expenditures upon Beal Estate of Minors.—Where the minors are credited in the account of the quasi guardianship with their full share of the rents of real estate belonging to them, they are justly chargeable with their proportion of the expenditures incurred by their mother, in good faith, in the improvement of the property, and in the payment of necessary expense for taxes, insurance, and repairs.</p> <p>Id.—Allowance of Attorney’s Fees—Discretion.—The allowance of a reasonable amount of attorney’s fees to the mother of the children is within the discretion of the court.</p> <p>Id.—Probate Court—Accounting of Trust in Equity—Jurisdiction— Waiver of Objection.—Where the accounts of the mother as quasi guardian of the children prior to the letters of guardianship are settled in the probate court, and all objections to its jurisdiction are expressly waived at tiie hearing, although the account was entitled in the matter of the guardianship of the estates of the minors, the accounting is in its nature an accounting in equity by the mother of the minors as trustee of their estates, and will be upheld and treated as such upon appeal.</p> <p>Id.—Settlement of Accounts of Mother with Minors.—In the settlement of the accounts of the mother with the minors each minor should be credited with his share of the principal of the moneys received by the mother, and interest thereon, and also with his share of the proceeds of the sale of personal property, and of the rents of the real estate, and the mother should be credited with the share of each minor in the whole expense incurred by her in respect of his proportionate share, and with his share of the allowance made by the court for the support of the minors, both prior and subsequent to the guardianship, and with his proper share of attorney’s fees allowed by the court, and she should also be credited with the sum paid to the guardian of each minor on account of proceeds of the sale of the house and lot in which she had invested the funds of the minors, and any payments made by her to the estate of the minors.</p>

<p>Appeal from a judgment of- the Superior Court of Alameda County and from an order denying a new trial. F. W. Hen shaw, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Odd Fellows — Expulsion of Member for Contempt — Restoration— Mandamus.—Where a member, who signed the written constitution and by-laws of an Odd Fellows’ lodge, has been expelled, in accordance with the provisions of the by-laws, for a violation thereof on his part, and for contempt in refusing to appear before a committee appointed to try charges against him, in pursuance of the constitution and by-laws of the lodge, mandamus will not lie to restore him to membership.</p> <p>Id.—Right to Sick Benefits—Remedy in Lodge—Jurisdiction of Courts—Defense.—Although the courts have jurisdiction to hear and dispose of a complaint against a lodge for refusal to allow sick benefits, yet, where the laws of the lodge provide a remedy for the grievance complained of, that remedy must first be pursued and exhausted; and the failure to pursue that remedy is a perfect defense to an action in any state court.</p> <p>Id.—Specification of Charges against Member.—The charges against a member of a lodge for a breach of its laws are sufficiently specific when they apprise the member of the nature of the charges, and enable him to prepare for his defense.</p> <p>Id.—Contract of Member—Waiter of Right to Object to Report of Committee—Default—Conolusiveness of Report.—A member who has signed the by-laws of a lodge, which provide that a member may be expelled for contempt in failing to appear before a committee to stand trial upon charges, and that in such case the report of the committee shall be conclusive, waives any right of objection to the report of the committee, by intentional default in refusing to appear before it to answer to the charges made against him.</p> <p>Id,—Unreasonable By-law—Waiver of Objection by Contract.—What might be bad or unreasonable as a by-law, as being against common right, may be good as a contract; and a man may part with or waive a common right voluntarily, of which it would be impolitic and unjust to deprive him by a by-law passed-without his assent.</p>

<p>Landlord and Tenant—Lease—Appraisement op Building—Failure op Appraisers to Agree—Application to Court—Contract por Interest.—Where a lease provided for the erection of a building by the lessee, and for payment by the lessor of two-thirds of the appraised value of the building at the expiration of the term, and that the amount of the appraisement should bear interest at the rate of two per cent per month, compounding monthly until paid, and should be a lien and encumbrance upon the premises, and there was a failure of an appraisement through no fault of the lessor, but by reason of the appraisers failing to agree upon the value or upon a third party to complete the appraisement, and the lessor subsequently applied to the court for an appraisement of the building, after the expiration of the term of lease, the lessor is not chargeable with the conventional rate of interest from the date of the expiration of the term, but is only chargeable with interest from the date of the determination of the suit for appraisement by the court.</p> <p>Id.—Construction op Lease—Liability of Lessor—Tender.—The lease in such case should be construed as intended to prevent default on the part of the lessor, and to insure a prompt performance of the conditions of the lease; and where there was no default of the lessor, and he was unable to pay any appraised value at the expiration of the lease, or to make any tender thereof, he is not chargeable with the stipulated interest from the expiration of the lease to the entry of judgment in an action to secure a judicial appraisement.</p> <p>Id.—Interest as Damages—Compensation for Wrong—Certainty-Construction of Code.—Interest cannot be allowed as damages, under the Civil Code, except as compensation for the unlawful act or omission of another, and in cases where the damages are certain or capable of being made certain by calculation, and the right of recovery is vested upon a particular day.</p> <p>Id.—Settlement op Account—Allowance op Interest.—Where a plaintiff comes into court seeking a settlement of an account with the defendant, the sum allowed bears interest only from the day of its judicial ascertainment, under section 1917 of the Civil Code.</p> <p>Id.—Delay op Action—Failure op Lessee.—Where the lessee failed to avail himself of the right to a speedy determination and payment, by appealing to the court for an appraisement, his failure to do so cannot be urged as a ground for an award of interest in an action which the lessor was finally compelled to bring against him, though such action Was not instituted until six months after the expiration of the lease.</p>

<p>Findings—Agreed Statement of Facts.—Where the court, in the decision of a case, adopts the facts stipulated by the parties in an agreed statement, as the facts of the case, and bases its judgment thereon, such agreed statement takes the place and serves all the purposes of a formal finding by the court; and no other or more formal findings are required.</p> <p>Id. — Agreed Statement Equivalent to Admissions in Pleadings. — Where the parties stipulate in writing as to what the facts are, and file such stipulation in the action, it is in all substantial respects the equivalent of admitting them in the pleadings; and it is only where the facts are in issue that findings thereon by the court are necessary in any case.</p> <p>Id.—Frivolous Appeal—Damages.—Where it is evident that an appeal is frivolous, and taken purely for delay, the appellant will be mulcted in damages.</p>

<p>Negligence—Injury from Street-car — Contributory Negligence — Careless Stepping upon Track—Nonsuit.—In an action to recover damages for personal injuries received by plaintiff from collision with a moving cable-car, the act of the plaintiff in stepping backward upon the track in front of the moving car, without noticing an approaching car upon the track some ten feet distant, and in plain view, is contributory negligence, as matter of law, proximately contributing to the injury; and a nonsuit is properly granted upon that ground.</p> <p>Id.—Duty of One Who Crosses Railroad Track—Standard of Negligence.—One who crosses a railroad track is required to be on his guard, and, as the law now stands, the standard is fixed that one must look up and down the track, and anything short of that is negligence.</p> <p>Id.—Right of Way of Street-car.—A street-car has, from necessity, a right of way over that portion of the street upon which alone it can travel, paramount to that of persons and ordinary vehicles, though this superior right is not exclusive, and does not prevent others from driving or passing across or along its tracks at any place or time, when by so doing it will not materially interfere with the progress of the cars.</p> <p>Id.—Passage of Cars—Duty of Citizen.—It is the duty of the citizen, whether on foot or in vehicles, to give unobstructed passage to the cars, which cannot turn out or leave the track, and which are operated by companies chartered, presumably, for the convenience of the public.</p>

Arpead from a judgment of the Superior Court of Alameda County and from an order denying a new trial. W. E. Greene, Judge. The facts are stated in the opinion of the court.

J. S. Hoyes, Judge. The facts are stated in the opinion of the court, with the exception of the alleged defect in the summons, in respect of which the facts appear in the last syllabus.

<p>Negligence — Attorney and Client — Drawing or Will — Improper Action by Legatee.—A legatee named in a will cannot maintain an action to recover for alleged negligence of an attorney employed by the testator to draw the will, in so drawing it as not to express legally the desires or direction of the testator as to the exclusion of grandchildren, by which exclusion the legatee would have been benefited, and in further causing the legatee to become one of the subscribing witnesses, thus rendering the will void as to him; and a complaint of such legatee seeking to recover damages from the attorney for such alleged negligence does not state a cause of action.</p> <p>Id.—Liability or Attorney for Negligence Limited to Client—Priority of Contract.—Where an attorney has been guilty of no fraud or collusion, nor of any malicious or tortious act, he is liable only to the client employing him for any injury arising from mere negligence, however gross, and cannot be held liable to a third party with whom he had no privity of contract.</p> <p>Id.—Breach of Contract—Right of Third Party.—A third party has no right to maintain an action for injuries resulting from a breach of contract between two contracting parties.</p> <p>Id.—Limit of Actionable Negligence—Duty.—The limit of the doctrine relating to actionable negligence, in the absence of fraud and collusion, is that the person causing the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss; and if there is no such duty no action can be maintained, no matter how great the loss of the plaintiff may be.</p> <p>Id.—Contract for Benefit of Third Person—Construction of Code. Section 1559 of the Civil Code, which authorizes a third person to enforce a contract made by one person with another for his benefit, applies/ only to cases where the contract is made expressly for the benefit of the/ third person, and not where the third person is or may be incidentally or remotely benefited as a result of the contract.</p> <p>Id.—Distinction between Will and Contract.—The terms of the contract of employment of an attorney to draft a will are distinct from the terms of the will; and the fact that the will may be intended for the benefit of a third person does not make the contract of employment of the attorney a contract made expressly for his benefit.</p> <p>Id.—Intention of Testator—Effect of Will—Right of Legatee not Vested—Ultimate Injury—Damnum Absque Injuria.—The intention of a testator that the legatee should be benefited by being provided for in his will in a particular way, if carried out, could not create a vested right until the death of the testator, and until that event the will would remain ambulatory, and the provision for the legatee could be at any time changed or withdrawn; and any ultimate consequential injury to the legatee by the negligence of the attorney in not drafting the will according to the testator’s intention, however great it may be, is damnum, absque injuria, against which the courts cannot relieve.</p>

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

<p>Street Work—Private Contract—Action by Assignee—Pleading— Evidence—Variance—Uncertainty op Contract.—In. an action to foreclose a lien for street work under a private contract, which had been assigned to the plaintiff, where the contract and the contents of the lien are pleaded merely according to their legal effect, and the complaint counts upon a contract to grade the south half of a street between certain cross streets, a contract offered in evidence which merely provides for the grading of one-half of the street, but is silent as to which half is to be graded, it is too uncertain and indefinite to be admissible in evidence under the allegations of the complaint.</p> <p>Id.—Right of Lien not Assignable—Work Done by Assignor—Omission op Material Finding. — Although a perfected lien may be assigned, the mere right to a lien in the present or future is not assignable; and in an action by an assignee to foreclose a lien, where the evidence established without contradiction that part of the work of grading upon which plaintiff claims alien was performed by his assignor before the assignment, and the answer raises an issue upon that question, such issue is material, and a failure to find thereon is ground of reversal of a judgment in favor of the assignee.</p> <p>Id.—Conditional New Trial Order—Remission op Part op Recovery —Silence op Record—Presumption.—Where the court below denied a motion for a new trial upon condition that plaintiff should remit ten per cent of the amount of his recovery, if the record is silent as to the cause of the remission, it cannot he presumed that the reduction was on account of labor performed by the plaintiff’s assignor, where the evidence shows that a portion of the work was never completed, and the remission might have been made on that account.</p> <p>Id.—Evidence — Release bv Contractor at Time of Contract.—A paper executed simultaneously with the contract relied upon by the plaintiff, in which the contractor certified that he had no claim upon the defendant for any work performed on the street in question by another person named, or by himself or assigns, in doing the balance of grading on the street, is admissible in evidence for the purpose of showing that it was the intention- of the contractor to release the plaintiff from all liability.</p> <p>Id.—Object of Contract—Nominal Signature—Knowledge of Contractors—Fraud—Province of Court.—If the contract was signed by the defendant only as a nominal party to enable the parties in interest to secure a sufficient number or proportion of the landowners on the block to obtain a permit from the superintendent of streets to make the improvement, and this was done with the knowledge and consent of the other contractors, it would not be a fraud upon them; but if it was a secret or side agreement between the contractor and defendant, made in fraud of the rights of the other contracting parties, the court may investigate and determine that question.</p> <p>Id.—Rights of Assignee—Knowledge of Release.—An assignee of the contract for street work takes such contract cum onere, subject only to the duty of defendant to notify him of any conditions not specified in the contract itself, and the mere fact that the plaintiff was not aware of a release of the defendant at the time he took an assignment of the contract is of no moment.</p> <p>Id.—Notice of Lien—Substantial Compliance with Statute.—Where a notice of lien as filed complies substantially with the requirements of the statute it is sufficient.</p>

<p>Criminal Law—Bribery—Sufficiency of Indictment.—An indictment charging a defendant with willfully and feloniously giving a bribe to a member of a board of supervisors, with intent to corruptly influence him in a certain matter, but not containing any averment of any act or acts bringing the alleged conduct within the legal- meaning of bribery, and not stating the particular circumstances of the offense charged, is insufficient, and a demurrer thereto should be sustained.</p> <p>Id.—Averment of Bribery—Conclusion of Law.—A general averment in an indictment that the defendant bribed a certain person to do a certain thing is the averment of a legal conclusion only.</p> <p>Id.—Following Language of Statute—Exception to Rule — Circumstances Constituting Offense.—The general rule that an indictment is sufficient if it substantially follows the language of the statute prohibiting the offense charged does not apply to a case where particular circumstances of the offense are necessary to constitute a complete offense, but only applies when such statute defines or describes the acts which constitute the particular offense; and it is not sufficient to follow the general words of section 165 of the Penal Code, providing that “every person who gives or offers a bribe” to one of several officers named, etc., is punishable in a certain manner; but it is essential that the acts constituting the bribe, as defined in subdivision 6 of section 7 of the Penal Code, be specified with reasonable certainty, so as to enable the defendant to answer the specific charge described in section 7 as constituting the offense of bribery.</p>

<p>Contracts—Transfer of Stock—Undue Influence—Exclusive Remedy — Rescission — Damages not Recoverable.—Where a plaintiff has been led solely through the undue influence of the defendant to transfer stock in a corporation to the defendant for an inadequate consideration, the exclusive remedy in such a case is a prompt rescission of the contract, or an offer to rescind it, so as to put the other party in statu quoy and if he fails to rescind promptly, he thereby affirms the contract, and. cannot maintain an action for damages upon the ground of undue influence in procuring the transfer.</p> <p>Id.—Distinction between Fraud and Undue Influence—Remedy.— Where a contract was induced by fraud, the injured party may affirm the contract and recover damages in an action for deceit according to the terms upon which he was led to believe that he was contracting; but where the terms of the contract are perfectly understood, but assented to only because of the exercise of duress, menace, or undue influence, an affirmance being necessarily of the terms of the contract as they were understood when it was made, if those terms are fully complied with, there is nothing due upon the contract, and there can be no cause of action for damages.</p> <p>Id.—Effect of Undue Influence—Transfer not Void, but Voidable. A contract of transfer is not rendered void by undue influence, but is only voidable upon restoration of the consideration paid at the option of the party aggrieved; and by failing to exercise the option to rescind it within a reasonable time, the contract is affirmed.</p>

<p>Appeal from orders of the Superior Court of Butte County revoking the probate of a will and denying a motion for a new trial. John C. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Writ of prohibition from the Supreme Court to the Superior Court of the City and County of San Francisco. A. A. Sanderson, Judge. The facts are stated in the opinion of the court.

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

<p>Appeal from an order of the Superior Court of Santa Clara County granting letters of administration. W. J. Lorigan, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Jury Trial—Right of 'Peremptory Challenge—Waiver.—It is proper practice to have twelve jurors in the box before requiring the parties to exercise their peremptory challenges, and then to call another juror whenever a peremptory challenge shall have been exercised; and then the parties are to challenge alternately, and if one of them does not exercise his right of challenge in his turn, after the other party has ex. pressed his satisfaction with the full panel, he cannot afterward be allowed another peremptory challenge.</p> <p>Action for Assault and Battery—Evidence—General'Reputation of Defendant.—In a civil action for assault and battery, evidence of the general reputation of the defendant for peace and quiet is not admissible.</p> <p>Id.—General Rule in Civil Actions — Evidence of Good Character —Exceptions.—The general rule is that, in civil actions, evidence of the good character of the defendant is not admissible, and the exceptions consist mostly of cases where the character of some person is the very issue involved; but an action for assault and battery is not one of the exceptions.</p> <p>'Id.—Evidence of Conversation—Examination in Chief.—The rule that upon cross-examination the whole of a conversation may be brought out in regard to which there has been any evidence in chief does not authorize a party whose witness is testifying in chief to ask the witness to state the whole of a conversation, which may involve a mass of matter not relevant; and a refusal of the court to permit such statement is not prejudicial, as the party has the right to call the attention of the witness to any further relevant declarations.</p>

<p>Antenuptial Settlement—False Representations as to Character of Wife—Validity of Settlement.—An antenuptial settlement, made in contemplation of marriage, is based upon a sufficient consideration, and where the marriage has been consummated, and the relation of husband and wife has been maintained for several years, the antenuptial settlement cannot be set aside upon the ground that the wife personally, and by her friends and agents, falsely represented that she was a virtuous, worthy, chaste, and moral woman, whereas she was in fact a woman of unchaste and immoral character.</p> <p>Id.—Validity of Marriage — Previous Unchaste Conduct—Public Policy—Maxim.—Previous unchaste conduct, although concealed, does not invalidate a marriage; but public policy opens marriage as the gate, way for repentance and virtue, and the maxim caveat emptor governs in regard to a marriage settlement.</p>

<p>Quieting Title—Husband and Wife—Homestead—Separate Property of Wife—Parties—Joint Tenancy.—In an action to quiet title brought by a wife, in respect of her separate property, the husband is not a necessary party, although a homestead had been declared upon the premises for the joint benefit of herself and her husband; and it is immaterial whether the homestead he considered as creating a joint tenancy or not, the wife being permitted to sue alone for the enforcement or protection of any right which she may have in her separate property, even if the right be that of a joint tenant only.</p> <p>Id.—Gift from Son to Mother—Contract in Restraint of Alienation —Void Condition.—Where a son purchases land which is conveyed to his mother as a gift, a subsequent contract reciting such acquisition of the land by her, and that the purchase money for the same was furnished as a gift by the son, and containing a covenant that the land should not be sold or conveyed without his consent, and that he was to be the manager thereof for her benefit, and that upon her death it was to he divided between her lawful heirs, is void as imposing a restraint upon alienation repugnant to the interest created in the property, and a subsequent conveyance from the mother to her daughter in consideration of love and affection, to the exclusion of her son, conveys the entire title to the daughter.</p> <p>Id.—Public Policy—No Estoppel by Invalid Contract.—The restraint sought to be imposed upon" the mother’s power of alienation being void as against the policy of the law, the daughter’s assent thereto by her signature to the contract cannot estop her to allege its invalidity.</p>

<p>Action upon Notes—Denial op Consideration—Plea op Special Agreements—Findings.—In an action upon several promissory notes, where the court finds that they were executed by the defendant in consideration of a loan by plaintiff to the defendant, and that no part of the principal or interest due on the notes has been paid, the findings sufficiently cover issues raised by the answer as to want of consideration of the notes, and by plea of special agreements to the effect that, as to one of them, he was not to be obliged to pay it until he should be able, and that, as to another, it was given with the understanding that a joint maker with him was the person that was to pay that note.</p> <p>Id.—Failure to Find upon Issues—Want op Evidence.—A failure to find upon issues, a finding upon which would merely have the effect of invalidating a judgment fully supported by the findings made, will not be held ground for reversal, where it is not shown by statement or bill of exceptions that evidence was submitted in relation to such issues.</p>

<p>Agency—Authority of Agent—Contract for Granite Coping—Change of Specifications.—Where an agent was authorized to have a granite coping constructed around a cemetery lot of the principal, of the same quality of material as that of the coping around another lot, and the work was done like the other coping, and of the same quality of material, and the principal expressed satisfaction with it before it was completed, it is immaterial that the agent named a different kind of granite in the plans and specifications for the coping, and afterward assented to the change of the contract to the same kind of rock as that used in the other coping.</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. Euoene R Garber, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

. Appeal from a judgment of the Superior Court of the County of Humboldt and from an order denying a new trial. G. W. Hunter, Judge. The facts are stated in the opinion of the court.

<p>Police Commissioners of San Francisco—Appointment and Removal— Power of Governor.—No term of office of police commissioner was fixed by the act of April 1, 1878, known as the McCoppin act, and no authority was given to the appointing power after making the appointments except to fill vacancies; and the governor cannot appoint a police commissioner in the absence of a vacancy, or create and fill a vacancy by removing an incumbent, and appointing one to succeed him.</p> <p>Id.—Case Affirmed.—The case of People ex rel. Hinton v. Hammond, 66 Cal. 655, affirmed.</p>

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

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

<p>Constable’s Sale—Return of Purchase Monet—Liabilitt of Sureties upon Bond.—Upon a constable’s sale of real estate the constable cannot impeach his return as to the amount of money received by him for the property, and he and the sureties upon his official bond are liable for the full amount returned as having been received, although he did not receive the money in fact, but accepted a check for a large part of the money which was never paid.</p> <p>Id.—Bid bt Purchaser for Judgment Creditor—Defense not Pleaded. The constable and his sureties cannot rely upon the fact that the purchase was made by the purchaser as the agent for the judgment creditor, with the understanding that only enough was to be paid to satisfy the executions held by the constable, where no such defense is pleaded in the answer, and there is no offer to amend the pleadings to present such defense.</p>

<p>Estates oe Deceased Persons—Allowance oe Attorney’s Pees—Expert Witnesses—Consent oe Heir.—Upon the allowance of attorney’s fees in the probate court for services rendered to the administrator of a decedent, although the evidence of attorneys is competent, the trial court is not bound to fix the amount of the fee in accordance with their opinions; and where the allowance made is less than the estimate of any expert witness who testified, and was consented to by the attorney for the sole heir interested in the estate, it will not be disturbed upon appeal.</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. John Hunt, 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 Clara County and from an order denying a new trial. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insolvency — Partnership— Sufficiency of Petition — Jurisdiction.— Although a petition in insolvency by partners does not directly allege that the petitioners are partners, the absence of such direct allegation is not jurisdictional, where the fact sufficiently appears that they are partners, taking the petition as a whole.</p> <p>Id.—Appeal by Creditor from Adjudication—Sufficiency of Pleading.—Upon appeal by a creditor from an adjudication in insolvency upon petition of insolvent partners, any crudities or bad grammar used by the petitioner are not fatal to the jurisdiction, and will not vitiate the pleading.</p> <p>Id.—Showing of Insolvency—Valuation of Partnership Assets — Excess of Partnership Assets over Liabilities.—The fact that it appears from the petition that the valuation of the partnership assets exceed the liabilities of the partnership, does not prove the solvency of the copartners at the time of the filing of the petition; and where the petition discloses that the partners individually are hopelessly insolvent and unable to pay the debts and liabilities of the partnership, the petition sufficiently discloses insolvency within the purview of the Insolvent Act.</p> <p>Id.—Debtor, When Insolvent.—A debtor is insolvent when he is unable to pay his debts from his own means as they become due.</p>

<p>Partnership —Action upon Note—Judgment by Default against Part of Defendants.—In an action upon a partnership note against three persons charged to have constituted the partnership, whose name is signed to the note, judgment may be entered by default against two of the defendants, although the action does not prevail as to the third defendant.</p> <p>Id.—Several Judgment—Joint Contract—Change of Common Law— Construction of Code.—Section 578 of the Code of Civil Procedure, which authorizes a judgment to be given for or against one or more of several plaintiffs, and for or against one or more of several defendants, abrogates the rule at common law that, in an action up.on a joint contract, the plaintiff must recover against all or none; and the rule established by that section includes as well cases in which some of the defendants have made default, as cases in which all of the defendants have appeared and answered, the only limitation being that in case of default the relief shall not exceed that which the plaintiff shall have demanded in his complaint.</p> <p>Id.—Several Liability of Partners.—The liability of partners upon a partnership note is several, as well as joint, and in a prayer for judgment upon such note against the defendants, the court is authorized to enter a several judgment against any of them.</p>

<p>Estates of Deoeased Persons—Accounts of Executor—Necessary Repairs and Improvements.—Although, as a general rule, executors and administrators are not required nor permitted to make permanent improvements upon the property of the estate in their charge, in the way of erecting new buildings and structures; yet that rule does not apply where repairs and improvements are absolutely necessary to keep the premises in good tenantable condition, and the improvements are rendered necessary by the requirements of a city ordinance over which the executrix has no control, and were made in good faith to the increase of the value of the property; and, in such case, the executrix should be allowed for the repairs and improvements upon the real estate belonging to the estate.</p> <p>Id.—Principle of Equity—Reasonable Expenditures by Executor.— Where the estate has received the full benefit of expenditures, which have been reasonably made by an executrix, it is inequitable to hold that the executrix is not entitled to reimbursement; and the acts of an executor or executrix in the administration of the trust are to be adjudged according to the rules and principles of equity.</p> <p>Id.—Permission of Court—Allowance of Account. — Although it is better practice for an executor first to procure the permission of the probate court to make a needed improvement, before proceeding thereto, yet this is not an indispensable condition to the allowance of the demand in the settlement of the executor’s account, where it appears that the expenditures were just and reasonable, and were made in the interest of the estate.</p>

<p>Divorce—Personal Action — Abatement — Death after Judgment— Jurisdiction.—An action to procure a judgment of divorce is a purely personal action, which cannot survive the death of either party, and where the plaintiff in such action dies subsequent to the entry of a judgment decreeing a divorce in her favor, the court is deprived of all power to review its action and determine her right to a divorce.</p> <p>Id._Publication of Summons — Application to Answer to Merits— Construction of Code.—The fact that the summons in the action for ■ divorce was served by publication, does not authorize the court to set aside a judgment of divorce, after the death of the plaintiff, to allow the defendant to answer to the merits of the action under section 473 of the Code of Civil Procedure, as that section has no application to a ease in which by the death of the plaintiff the action is abated, and all opportunity of controverting its merits has been removed.</p> <p>Id.—Question oe Property—Absence of Issue—Jurisdiction to Open Judgment—Review.—The court has no jurisdiction to open the judgment of divorce, for the determination of property rights between the plaintiff and the defendant, after the death of the plaintiff, where the complaint, as well as the judgment, is silent upon the subject of property; and, in such case, there being no issue upon that subject, the action cannot be revived, for the purpose of having the rights of property adjudicated.</p> <p>Id.—Effect of Decree—Community Property—Tenancy in Common— Independent Action. — In the absence of any issue as to property rights, or any reference thereto in the decree of divorce, the parties to the suit become tenants in common of the community property; and the death of the plaintiff after the entry of judgment does not impair the right of the defendant therein; but this right must be enforced in an independent action, in which all who may have an interest therein should be made parties, and it cannot be determined by reopening the decree of divorce subsequent to the death of the plaintiff.</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 a judgment of the Superior Court of the County of Alameda and from an order denying a new trial. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates oe Deceased Persons—Succession—Next of Kin of Decedent — Aunts and Uncles of Whole Blood—Construction of Code.— Under subdivision 6 of section 1386 of the Civil Code, which provides that “ if the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin in equal degree,” the next of kin in equal degree, in such case, are the aunts and uncles of the decedent, and, if they are of the whole blood, the estate must go to them in equal shares, regardless of the source from which the estate was derived.</p> <p>Id.—Blood of First Purchaser Applicable only to Kindred of Half Blood.—Section 1386 of the Civil Code has no allusion to the blood of the first purchaser, and makes no attempt at any distinction founded upon the sources from which the estate of the decedent may have been derived; and section 1394, which deals entirely with cases of kindred of the half blood, does not qualify or change the rule of section 1386, respecting kindred of the whole blood, who, if next of kin, share in all the estate of the decedent, no matter from what source it comes.</p>

<p>Corporations—Interest op Stockholders.—A stockholder in a private corporation for profit is not in any proper sense the owner of the property of the corporation; but he has a direct interest in the corporation, and a right to participate according to the amount of his stock in the surplus profits on a division, and ultimately, on its dissolution, in the assets remaining after payment of its debts.</p> <p>Id.—Tax upon Distillery Business—Liability op Stockholders—Contribution.—Under the law of Congress, the stockholders of a corporation engaged in the use of a distillery are all jointly and severally liable for the tax imposed upon the corporation under section 3241 of the Revised Statutes, and, being jointly and severally liable for such tax, are liable to contribute their proportion to other stockholders, who have paid the tax in full for which all are liable.</p> <p>Id.—Right to Contribution — Statute op Limitations.—A co-obligor acquires a right to contribution as soon as he pays more than his share of obligation, but not until then; and, consequently, the statute of limitations does not begin to run until such payment is made; and the liability of a co-obligor to contribution, where not founded upon an instrument in writing, is governed by the first subdivision of section 339 of the Code of Civil Procedure, and is barred in two years.</p> <p>Id.—Findings—Immaterial Omission.—A failure to .find upon a plea of the statute of limitations is not material where the other facts found are sufficient to support the judgment, and are not assailed for insufficiency of evidence.</p> <p>Id.—Practice—Addition to Findings—Conclusion op Law—Immaterial Error.—After the findings have been filed, and a judgment Mitered thereupon, the court cannot properly cause to be filed an omitted finding upon the statute of limitations; and the judgment should not be reversed upon that ground where a finding upon that issue is but a conclusion of law from the other facts found.</p>

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

<p>Street Assessment—Lien in Invitum—Strict Compliance with Statute—Equities of Claimant.—In order to fix upon property the lien of a street assessment, every requirement of the statute that could be of benefit to the person to be charged with the lien must be strictly complied with; nor can the equities of the claimant be regarded where there is no such compliance.</p> <p>Id.—Necessity of Written Contract—Absence of Specifications—Void Contract—No Lien for Proper Work.—The statute requires the contract to be in writing, and signed by the contractor; and, where the contract signed does not define the work to be done, nor refer to any specifications in which it is described, there is no valid contract for the work, and therefore no valid lien of a street assessment, although the work may have been done strictly in accordance with the specifications referred to in the advertisement for bids.</p> <p>Id.—Insufficiency of Bond—Obligation of Sureties—Correction of Contract upon Appeal.—The bond required of the contractor, to be valid, must be conditioned that the contractor will perform the contract entered into by him, and a defect in the contract as to specifications for the work cannot be corrected by an appeal to the board, which cannot provide sureties for its performance, without which there can be no binding contract; and the original sureties are entitled to stand upon the letter of the original contract, and cannot be bound by any correction thereof upon appeal.</p>

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

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

Motion in the Supreme Court to dismiss an appeal from an order denying a new trial in the matter of the application of Christopher B. Ryer for partial distribution of the estate of Washington M. Ryer, deceased. Walteb H. Levy, Judge. The facts are stated in the opinion of the court.

<p>Appeal from orders of the Superior Court of the City and County of San Francisco settling the final account of an executor and decreeing distribution of the estate of a decedent. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Accounts of Surviving Partner—Action by Heirs—Settlement with Administrator.—The heirs of a deceased person are not the proper parties to maintain an action for an accounting and settlement of a partnership between the decedent and a surviving partner or his representatives, and they have no legal capacity to do so; but the surviving partner is required to account not with the heirs, but with the executor or administrator of the deceased partner, regardless of whether the partnership assets consist of real or personal property, or both.</p> <p>Id.—Laches—Stale Demand — Settlement of Partnership.—Where a deceased partner died thirty years before the commencement of an action by his heirs against the administratrix of the surviving partner to compel a settlement of the partnership, and it appears that his widow, the mother of the plaintiff, died seven years after the death of their father, and that no administration was ever had upon the estate of either of them, and that no demand was made upon the surviving partner during his lifetime for a partnership accounting by any one, and the complaint in such action does not aver that the widow did not know of the partnership, nor plead any facts and circumstances showing that discovery of the partnership could not have been sooner made by the plaintiffs, and that plaintiffs have not neglected nor slept upon their rights, the complaint is a stale demand and shows no equity.</p> <p>Id.—Knowledge of Partnership by Mother of Plaintiffs—Pleading— Admission.—Where the complaint does not aver that the widow, mother of the plaintiffs, did not know of the partnership, the complaint must be construed as admitting that she did know thereof.</p> <p>Id.—Joint Eight of Action—Effect of Knowledge—Bar of Ancestor and Heirs.—Where a right of action is joint, knowledge which would bar it as to one of the plaintiffs would bar it as to all, whether in law or in equity; and, where a right of action is barred as to the ancestor, it is also barred as to Ms heirs; and the long silence and inaction of the mother of the plaintiffs, for seven years after the death of her husband, in connection with the fact that no claim was ever made upon the surviving partner by any one for thirty years, renders the demand of plaintiffs stale, though they were minors at the time of the father’s death.</p> <p>Id.—Death of Original Parties—Scrutiny of Pleading—Showing of Diligence.—After the lapse of a long time, and after the death of all the original parties, equity, for the peace of society, scrutinizes a bill for an accounting with great particularity, and is not satisfied to retain it unless the fullest possible credible showing of diligence is made by the applicants for relief; and it is not sufficient to allege innocence at one time, and discovery at another, but the facts and circumstances must be pleaded, in order that the court may determine whether the sources of knowledge availed of were not at all times open to the plaintiffs, whether they were negligently overlooked, whether other circumstances should not earlier have put plaintiffs upon discovery, and what was the nature of the concealment practiced, if any, stating whether it consisted in mere silence, or was accompanied by active misrepresentation and fraudulent deception.</p> <p>Id.—Amendment of Pleading—Discretion—Request—Presumption.— Leave to amend a defective complaint, while addressed to the discretion of the court, should be liberally granted to subserve the ends of justice; and, in any ordinary case of absence of averment, or of insufficient averment, it is an abuse of discretion to refuse leave to amend; but, where there is no right to maintain the bill, and no request is made for an amendment, error will not be presumed in not allowing it.</p>

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

<p>Easement—Water Ditch—Servitude.—A water ditch constituting an independent property disassociated from the land over which it passes, though it may be an easement in gross, is a servitude upon the land.</p> <p>Id.—Unity of Title—Extinguishment of Servitude.—When the owner of the land over which the ditch passes becomes the owner of the ditch, the servitude is extinguished by unity of title during the time that such unity of title may continue.</p> <p>Id. —Ditch Appurtenant to Distinct Mining Claims.—Where a ditch, as an artificial watercourse, is apparently necessary to the working of two distinct mining claims owned by the owner of the ditch, it becomes an appurtenance to each of the mining claims.</p> <p>Id.—Mortgage upon One Claim—Severance of Tenements—Easement of Wav.—The execution of a mortgage upon one of the two mining claims to which the water ditch is an appurtenance, creates, potentially, a severance of the tenements to which the ditch is appurtenant, and where the ditch crosses the mortgaged claim to the other mining claim to which the ditch is also appurtenant, and which is not included in the mortgage, an easement of way for the ditch over the mortgaged claim is reserved in the mortgage by implication of law in favor of the other mining claim.</p> <p>Id.—Subsequent Mortgage upon Easement — Foreclosure of First „ Mortgage—Disclaimer—Extinguishment of Lien.—A subsequent mortgage of the other mining claim covers the easement reserved by implication of law in the former mortgage; and in a suit to foreclose the former mortgage the subsequent mortgagee may assert a lien on the easement of way for the ditch over the first mortgaged claim; but by disclaiming any interest in the land which is the subject of that suit, the j 'dgment of foreclosure of the prior mortgage founded on such disclaimer, aid the sale and deed thereunder, extinguishes the lien of the subsequent mortgagee on every part of the first mortgaged claim, including the easement of way and the section of the ditch lying above that claim which, as an appurtenance thereof, was included in the disclaimer; and a purchaser at a sale under foreclosure of the second mortgage acquires no interest in the ditch beyond the boundary of the claim subsequently mortgaged.</p>

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

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

J. V. Coffey, Judge. The administrator, John Purcell, was charged with retaining twelve hundred dollars from the sale of a one-half interest in a threshing machine, belonging to Henry Welch, for which he failed to account.

<p>Criminal Law—Voluntary Confession—Preliminary Proof.—Where a witness testifies to a confession made by the defendant under circumstances which show that it was impossible that there could have been an inducement offered by the witness to the defendant to make the confession, and the evidence further shows a motive of the defendant to make it, which was suggested by no one, and that his purpose was to enforce silence by a threat which immediately followed the confession, the failure of the court to institute a preliminary inquiry to determine whether the confession was voluntary before admitting it in evidence, is not prejudicial.</p> <p>Id.—Murder in the First Degree—Punishment—Discretion of Jury— Instruction.—Discretion is given to the jury in regard to the punishment in case they find a defendant guilty of murder in the first degree; and the court cannot direct or advise them upon the subject further than to inform them of their province; and it is not error to refuse to instruct them as to bow they should usé the discretion given them.</p> <p>Id.—Improper Language of District Attorney—Instruction of Court. Where the district attorney makes improper reference to evidence offered and ruled out, if the court immediately instructs the jury that they have nothing to do with such evidence, and that the case must be determined entirely from the testimony received without reference to other things they may have heard, the improper remark of the district attorney, though deserving a rebuke from the court, is not ground for a reversal of the judgment of conviction.</p> <p>Id.—Proof of Venue—Residence of Deceased.—Where it is testified that the deceased resided in the county, and it is plainly implied that she resided at the house in front of which her body was found, and into which it was carried, the venue is sufficiently proved.</p> <p>Instructions—Evidence Stricken Out—Duty of Defendant.—If the defendant desires specific instructions as to the effect of evidence stricken out, he should ask for them.</p>

Cross-appeals from an order of the Superior Court of the City and County of San Francisco declaring satisfied and extinguished a judgment for damages and interest thereon, and restraining execution upon said judgment, and denying a motion for an order declaring the judgment satisfied and extinguished as to the costs of the action in favor of the plaintiff and against the defendants. Charles W. Slack, Judge. The facts are stated in the opinion of the court.

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

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

<p>Appeal from a judgment of the Superior Court of Lassen County. W. T. Hasten, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Tulare County and from an order denying a new trial. Wheaton A. Gray, 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 Clara County. W. G. Lorigan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco denying a motion to vacate a judgment, and for a perpetual stay of execution thereupon. William T. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Criminal Law—Misdemeanor in Office—Appellate Jurisdiction — Dismissal.—A proceeding by accusation for alleged misdemeanors in office, under section 772 of the Penal Code, is a criminal proceeding not prosecuted by information or indictment, and is not within the appellate jurisdiction of the supreme court, and an appeal from the judgment rendered therein will be dismissed.</p> <p>Id.—Removal from Office—Fine—Judgment in Favor of Informer.— If the charges are substantiated, the fact that in such proceeding the court must enter a decree that the party accused be deprived of his office, and also enter a judgment in favor of the informer for the sum of five hundred dollars, does not make the demand a case at law for an amount greater than three hundred dollars within the appellate jurisdiction of the supreme court; but such judgment is for a fine, and the fact that it is payable to the informer, rather than into the county treasury, is wholly immaterial, and the provision therefor is purely incidental to the main purpose of the act, which is to secure the removal of the officer guilty of unlawful conduct.</p> <p>Id.—Quo Warranto—Title to Office.—An accusation for misdemeanor in office is in no sense a proceeding in the nature of quo warranto, nor is the title of the office in issue therein.</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. A. A. Sanderson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Sale of Liquor Saloon — Payment upon Procurement -of License — Recovery of Deposit — Pleading.—Where personal property, consisting of all of the goods owned by the vendor in a retail liquor saloon, is sold for an agreed price, and as a further and separate agreement ■between the parties, the purchaser agrees to deposit with third parties an additional sum to be paid to the vendor upon the procurement of the right to sell and carry on a retail liquor business within the saloon, a complaint by the assignee of the vendor to recover the amount of the deposit is insufficient if it does not aver that the vendee procured the right to carry on the business, or could carry on the business without the procurement of the license, or that by his own neglect or default he had failed to secure the privilege.</p> <p>Id.—Construction of Contract—Condition as to Obtaining License. Such contract of sale is to be construed as an agreement to pay a fixed price for the personal property owned by the vendor in the saloon, and to pay the additional sum when and if the vendee obtained a license to> conduct the business; and if he succeeded, his liability was complete, but if he failed, then he owned the property for which he had paid the price, and the transaction was at an end.</p>

Motion to dismiss an appeal from a judgment of 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>Sale—Good Will—Written Contract— Estoppel op Married Woman AS Vendor.—Where a husband and wife join in the sale of a business and goodwill, and they both covenant and agree with the vendees that neither of them will engage in or carry on a like business in the city where the business was conducted, the wife is estopped by the written contract of sale executed by her from denying her interest or title in the business or goodwill sold.</p> <p>Id.—Evidence op Ownership—Conplict.—Where the evidence showed that the wife assisted her husband in carrying on the business sold, that they were apparently conducting it together, and that the business was community property, such evidence, taken in connection with her execution of the contract of sale jointly with her husband, is evidence tending to show ownership in her; and the testimony of the defendants that she was not interested in the property or the sale simply raised a conflict, which it was the province of the trial court to determine.</p> <p>Id.—Stipulation por Liquidated Damages—Evidence—Breach op Contract.— A contract for the sale of a business and goodwill, containing a covenant of the vendors not to engage in a like business in the same city, may properly stipulate a specified sum as liquidated damages for breach of the covenant, and such stipulation is not to be construed as a penalty; hut the evident intention of the parties must control, and the plaintiff is not required to prove anything more than a breach of the contract in order to recover the stipulated damages.</p> <p>Id.—Recovery by Remaining Partner—Construction of Contract.— Where the covenant not to engage in business was made with the vendees as partners, and expressly provided that in case of dissolution of the partnership the covenant should inure to the benefit of the remaining partner, and, in case of a sale of the business by the partnership, should inure to the benefit of their assigns, the provision cannot be limited to a stipulation to pay the partners jointly, or the assigns of both of them; but it inures by its terms to the remaining partner in case of dissolution of the firm, and such remaining partner may recover the stipulated damages without an assignment from the firm.</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. A. A. Sanderson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Assignment op Claim—Notice—Subsequent Settlement with Assignor. Where a claim for goods, wares, and merchandise, sold and delivered to a corporation, has been assigned to another person, and notice of the assignment given to the corporation, a subsequent settlement of accounts with the assignor cannot relieve the corporation from its liability for the debt previously transferred to the assignee.</p> <p>Assumpsit—Bill op Particulars—Time op Delivery—Objection to Evidence.—Where a demand is made upon the plaintiff in an action of assumpsit for a bill of particulars, and such bill is delivered six days after the demand, and more than forty days before the trial an objection made upon the trial to the reception of any evidence upon the ground that the bill of particulars had not been served within five days after the demand, no objection having been made to the sufficiency of the account as furnished, the objection to the reception of evidence is properly overruled.</p> <p>Id.—Construction op Code—Discretion op Court.—The object of section 454 of the Code of Civil Procedure, requiring a party to deliver to his adversary within five days after the demand a copy of an account sued upon, or be precluded from giving evidence thereof, is to protect the adverse party from embarrassment upon the trial, by enabling him to demand and obtain in advance a detailed statement of the items charged against him, and the trial court has a sound discretion whether to exact the penalty of precluding the plaintiff from giving evidence thereof or not; and if the demand is not complied with, the prescribed penalty may be exacted for refusal or gross neglect; but if the demand» ant receives a sufficient copy long enough before the trial to enable him to examine it and prepare his defense, so far as he is concerned the statute has fulfilled its usefulness.</p> <p>Id.—Objection Previous to Trial.—Where a party receiving a bill of particulars, which is for any reason objectionable, proposes to object to the introduction of evidence thereunder, he may not wait until the trial, but previous to the trial must move for and obtain an order excluding the evidence.</p>