Volume 111 — California Reports

Motion in the Supreme Court to dismiss an appeal from a judgment of the Superior Court of Nevada County. John Caldwell, 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 and from an order denying a new trial. W. T. Wallace, 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. William T„ Wallace, 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, amending a minute order and setting aside a judgment. Wm. T. Wallace, Judge.</p>

<p>Street Improvement—Permission for Private Grading—Publication of Ordinance—Void Contract.—Under the street law of 1885 as amended in 1889, and under section 68 of the Consolidation Act of the city and county of San Francisco, in order that the owner or owners of lots fronting upon any street in the city and county, the width and grade of which has been established by the city council, shall be permitted to perform the work of grading the street at his or their own expense, it is necessary that the ordinance or resolution of the board of supervisors, granting the privilege therefor, shall, after introduction in the hoard, he published in the mode prescribed by the Consolidation Act, for at least five days before final action by the board; and a resolution not so published is inoperative and can confer no authority upon lotowners to grade or in any way disturb the street in front of their premises, and any contract made by them with the consent of the street-superintendent to do the work of grading is void and of no effect.</p> <p>Id.—Obstruction or Street—-Public Nuisance—Injunction.—Where a lotowner is engaged without authority in the grading of a street in such a manner as unlawfully to obstruct the free passage or use of the street in the customary manner, his acts constitute a public nuisance, which, may be enjoined by the city.</p>

Petition in the Supreme Court for writ of mandate 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.

<p>Appeal — Findings — Insueeiciency oe Evidence — Nonappearanoe oe Respondent.—Where an appellant attacks the findings on the ground that they are not supported by the evidence, and the respondent fails to appear and point out, either orally or by brief, where in a voluminous record the evidence may be found in their support, the appellate-court will assume that there is no such evidence, and for that reason will order a new trial as to such respondent.</p> <p>Id.—New Trial—Order Granting—Appeal from Judgment.—An order of the trial court granting a new trial, until affirmed on appeal, or until the time to appeal therefrom has expired, does not have the effect of vacating the judgment, so as to prevent an appeal from being taken therefrom.</p> <p>Id.—Granting New Trial Pro Tanto—Form oe Order.—In granting a new trial pro tanto as to certain particular issues, the trial court should by its order recite with great certainty and in terms the issues upon which the new trial is to be had; and the practice of granting a new trial as to the issues covered by certain numbered findings is condemned.</p>

<p>Pleading.—Statement of facts in complaint held sufficient to show liability of vendors of chattel for injury resulting to third person from latent defect in the chattel.</p> <p>Id.—Warranty—Breach of Contract—Unknown Defect—Priority.—, When a tradesman sells or furnishes for use an article which is actually unsound and dangerous, hut which he believes to be safe, and warrants accordingly, he is not liable for injuries resulting from the defective or unsafe condition to a person who was neither a party to the contract with him, nor one for whose benefit the contract was made.</p> <p>Id.—Sale with Knowledge of Concealed Defect—Privity not Required—Liability for Tort.— One who sells an article which he knows to be dangerous because of concealed defects, without notice of its nature and qualities, commits a wrong, independent.of the contract, and is liable under the law of torts to any other person who is not him* self in fault, though not in privity of contract with him, for any injury which may reasonably be contemplated as likely to result, and which does in fact result therefrom.</p> <p>Id.—Bed not Ordinarily Dangerous—Negligence — Misrepresentations op Defect.—The fact that a bed is not ordinarily a dangerous instrument, though important to be considered, in case of mere negligence, cannot aid a vendor whó has represented a folding bed sold by him to be safe, when known by him to be really unsafe, but would in such case rather enhance the wrong of such misrepresentation by rendering the danger more insidious.</p> <p>Id.—Culpable Intervening Cause—Knowledge op Purchasers.—In order to render the purchasers of the unsafe and defective folding bed a culpable intervening cause, so as to relieve the vendors from liability for injury to their tenant, it must be proved that the purchasers knew of the defect in the structure of the bed.</p>

<p>Action to Recover Liquor License — Evidence — Passage of County Ordinance—Record—Borden of Proof.—In an action to recover a liquor license imposed by a county ordinance, the passage of the ordinance is proved prima facie by producing in evidence the ordinance book from the custody of the clerk, containing "the record of the ordinance, showing that it was passed at a regular session of the board of supervisors, by a specified vote, and that the record is properly authenticated by the signatures of the chairman and clerk, together with evidence showing its due publication; and though the regularity of the proceedings for the adoption of the ordinance is denied by the answer, the burden of contradicting the record by showing that it was not passed as stated in the record is upon the defendant.</p> <p>Id.—Power to License and Regúlate?—Prohibition. — The power to license and regulate the sale of liquors for the purposes of revenue is distinct from the power to prohibit such sale; and an ordinance which in terms proceeds under the power to regulate and to impose a license tax, but in its effect amounts to an exercise of the power of prohibition, cannot be upheld.</p> <p>Id.—Reasonableness of Ordinance — Prohibitory Character — Question of Law—Pace of Ordinance.—Whether an ordinance be reasonable and consistent with the law or not, is a question for the court, and not for the jury; and the question whether an ordinance providing licenses for revenue is unreasonable and prohibitory in its nature is to be determined by the court from the face of the ordinance, and it must be upheld, unless, as matter of law, the court can say that it is so unreasonable in character as to transcend the proper exercise of the right by the law-making power.</p> <p>Id.—Varying Circumstances—Inadmissible Evidence — Effect upon Defendant’s Business.—The validity of an ordinance providing liquor licenses for revenue, is not a question of fact, depending upon the varying circumstances of each particular case, or upon the effect of the regulation upon the business of the defendant or other persons; and evidence is inadmissible to show that the effect of the ordinance is to prohibit the business of the defendant, or that of other retail liquor dealers in the county.</p>

R. McGarvby, Judge. The facts are stated in the opinion in this case, and in the opinion of the court rendered upon the former-appeal, and repeated in 98 'Cal. 323.

<p>-Corporations — Banks — Liability of Stockholders — Constitutional Law.—The stockholders of a banking corporation organized under the constitution of 1849 could not be exempted by statute from individual and personal liability for any portion of its debts and liabilities; and section 27 of the act of April 11th, 1862, in so far as it attempted such exemption, is in conflict with section 36 of article IV of the constitution of 1849, and could have no validity or effect.</p> <p>Id. —Validity of Incorporation—Independent Provisions of Statute. An unconstitutional exemption of the stockholder of a banking corporation from individual and personal liability, is an independent provision, not in its nature and connections essential to the general object anil scope of the act of 1862 for the formation of banking corporations, and may be stricken out without prejudice to the other portions thereof, and does not vitiate the other portions of the act, or affect the validity of corporations formed under its provisions.</p> <p>Id.—Power to Change Law as to Liability of Stockholders—Obligation of Contracts.—The constitution of 1849, having provided that all general laws and special acts for the- formation of corporations might be altered from time to time or repealed, the legislature and the people of the state had power to change the law as to the liability of stockholders, without violating the provision of the constitution of the United States prohibiting the impairment of the obligation of contracts.</p> <p>Id.—Change of Constitution—Civil Code—Incorporation Prior to Code.—-A banking corporation organized under the law of 1862, is subject, as respects the liability of its stockholders, to the provisions of the new constitution of 1879, and also to the provision of the civil code on that subject, although such corporation did not elect to continue its-existence under the code.</p> <p>Id.—Liability of Stockholders of Savings Banks—Exemption—Power of Legislature.—Neither the constitution of 1849 nor the constitution-of 1879 authorizes any exemption from personal and individual liability of the stockholders of savings banks; and it is beyond the power of the legislature to exempt them from such liability.</p> <p>Id.—Action against Stockholders—Evidence—Refreshing Memory of Depositor from Pass-book.—In an action against the stockholders of a banking corporation, to enforce their individual and personal liability for unpaid deposits, a depositor, testifying to the balance of account as a witness, may refresh his memory from the pass-book as to deposits made and amounts drawn out, where it appears that the eutrie® of deposits were made in the presence of the witness and under his direction, and that the entries of the amounts drawn out were made under his direction, and that he knew at the time that the balance stated was correct.</p> <p>Id.—Admissibility of Pass-books.—The pass-books of depositors, being admissible in evidence against the corporation, as proof of its indebtedness to the depositors, are also admissible in evidence in an action against the stockholders of the bank to enforce their individual and personal liability for the balance due upon such books.</p> <p>Id.—Corporation Agent of Stockholders—Evidence—Declarations-of Agent.—A corporation is the agent of its stockholders to make such contracts and incur such liabilities as are authorized by law and by its. articles of incorporation; and its contracts thus made hind the stockholder as respects their individual liability for its indebtedness; and any admissions or declarations made by the corporation within the scope of its agency, and as part of the res gestee, may he proved against tliestockholders as principals.</p> <p>Id.—Suspension of Bank—Interest on Balance Due Depositors.— Although ordinarily interest is not payable on the amount due when a bank pass-book is balanced; yet, when the bank has suspended business and refuses to pay its depositors, the amount of such balance is. an account stated, and the bank thereafter detains moneys received to their use to the amount of such balance, and is liable for interest thereon.</p> <p>Id.—Ownership of Stock—Admission in Pleadings—Evidence.—Where-the complaint alleges that the defendant was the owner of a specified number of shares of stock in the hank at all the times mentioned therein, and this allegation is not denied in the answer, the ownership of such-, stock when the debts in suit were contracted is admitted, and no evidence thereof is required.</p>

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

<p>Criminal Law—Burglary—View of Premises After Submission of Cause—Request of Defendant—Discretion.—The court has discretion, upon request of the defendant, to grant an order permitting the jury to view the premises at which a burglary was alleged to have been committed after the submission of the cause to the jury, where such request is made because of a statement that the jury were unable to agree without it.</p> <p>Id.—Change of Defendant’s Action—Motion for Discharge—Indignant Statements of Judge—Influence upon Jury.—"Where, after the statement of a juror that the jury were unable to agree without a view of the premises, defendant requested that a view might be had, and consented to a separation of the jury until morning for that purpose, at which time he moved for his discharge on account of the separation of the jury, which motion was denied, whereupon the judge made indignant statements to the jury about the change of defendant’s action, and told them to retire for deliberation, five minutes after which they returned a verdict of guilty, the conclusion is justified that they were improperly influenced by the manner and statements of, the judge, and that they inferred that the defendant did not really desire a view of the premises, and that such view would have added to the evidence of his guilt; and a new trial should be granted.</p> <p>Id.—Effect of Separation of Jury—Consent of Defendant not a Waiver—Discharge—New Trial.—After the jury have retired to deliberate upon their verdict, they must be kept together; and the court has no power to permit their separation, nor can the consent of the defendant or his counsel operate to empower or excuse the court in violating the express provisions of the statute; but such separation is not ground for a motion to discharge the defendant, though it is of itself, and without any showing of improper conduct on the part of the jury or any of them, during their separation, a sufficient ground for granting a new trial.</p> <p>Id.—Evidence—Impeachment of Defendant—Deposition upon Preliminary Examination.—The deposition of the defendant taken upon his preliminary examination, properly certified by the shorthand reporter, as required by the code, is admissible in evidence upon the trial to impeach his testimony, his attention having been first called to it; and the provision of section 6S6 of the Penal Code permitting such deposition to be read upon the trial only where the witness is dead or insane, or absent from the state, does not prevent its use to impeach a witness who is present.</p>

<p>Appeal from an order of the Superior Court of the Gity and. County of San Francisco granting a new trial. Eugene R. Garber, Judge.</p> <p>The facts are stated in the opinion.</p>

Petition in the Supreme Court for a writ of mandate to the auditor of the City and County of San Francisco, The facts are stated in the opinion of the court.

Certiorari from the Supreme Court to review an order of the • Superior Court of the City and County of San Francisco, adjudging petitioners guilty of contempt. A. A. Sanderson, Judge. The facts are stated in the opinion of the court.

<p>Corporation—Directors must be Stockholders—Purchase oe Corporate Property—Trust.—Under section 305 of the Civil Code, a person not a stockholder in a corporation does not become a de jure director by being elected to that office, nor by retaining the possession of stock which is put in his name after such attempted election; nor does he become a de facto director if he never assumed to act or represented himself as a director, and repudiated the office after being notified of his election. Such a person does not, by purchasing the corporate property at an execution or tax sale, become charged as a trustee for the corporation.</p>

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

<p>Street Railroads—Mortgage — Terminal Grounds Used for Purposes of Road—Foreclosure—Findings.,—Grounds owned by a street railroad company at a terminus of its road, and used by it as a pleasure resort in connection with its road, and for the sole purpose of increasing the travel thereon, are included in a mortgage by it of its lines of railway and the real property “that it now owns or that it, may hereafter acquire for use or adapted to use on or about its said lines of railway.” And a finding in accordance therewith, in an action to foreclose such mortgage, is not vitiated by a further finding that such grounds are an “appurtenance” of said railroad. In such finding the word “appurtenance” should be construed as being used in the sense of an “addition” or “ appendage” of the railroad.</p> <p>Id.—Evidence.—In an action to foreclose such mortgage, parol evidence is admissible to show that such grounds were acquired by the railroad company for use and adapted to use “ on or about its lines of railway.” Id.—After-acquired Property.—A mortgage may be given on property to he acquired by the mortgagor after the execution of the mortgage.</p>

<p>Election Contest —Limitation of Time for Filing Statement—Construction of Code—“Return Day.”—The “return day” of election described in section 1115 of the Code of Civil Procedure, within forty days after which an elector, desiring to contest the right of any person declared elected to an office, must file his statement with the county clerk, must be construed to be the first Monday after the election, upon which the hoard of supervisors is directed to meet to canvass the returns! and when the statement is not filed within forty days thereafter, the court has no jurisdiction, of the contest, though it be filed within forty days after the entry was made in the records of the board declaring the election of the officer whose election is contested.</p> <p>Id.—Statutory Right—Public Policy,—The right to contest an election is purely statutory, and must he determined by the terms of the statute! nor is it given merely to enable a candidate to vindicate his rights, but is given to any elector! and public policy requires that it should be inaugurated speedily, and before the commencement of the term of the person declared elected.</p>

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

<p>Corporations — Ratification of Mortgagee-Evidence—Authenticated Copy of Resolution of Directors—Presumption.—In an action to foreclose a mortgage against a corporation, a certified copy of a resolution of its board of directors duly attested by the signatures of the president and secretary, under the corporate seal, showing a ratification of the mortgage in suit by authority of the board of directors, is admissible in evidence, as being presumptively the act of the corporation; and it is not necessary to produce the record of such resolution, nor to show that no record thereof had been kept; and in the absence of any countervailing proof, the recitals of such certified copy are binding upon the corporation.</p> <p>Id.—Mortgage—Conveyance upon Condition—Option to Pay in Lands and Water Rights—Default—Election to Foreclose.—Where a corporation, to secure its indebtedness evidenced by note, conveyed its property to plaintiff, upon condition that if it should, within a specified period, convey or cause to be conveyed to him certain other described lands and water rights, the conveyance should be void, whereupon plaintiff was to pay one dollar per acre therefor, and the corporation was to clear and plow the laud in a manner suitable for seeding and cultivation, upon the completion of which work plaintiff was to pay a further sum per acre, such instrument is a mortgage, merely giving the corporation the option to pay the indebtedness in land and water rights within the specified period; nor is the plaintiff required to perforin any act to put the corporation in default, but upon its failure to make such conveyance or to pay the indebtedness within such period, the plaint:ff may elect to foreclose the mortgage, and is not required to make any tender or demand any conveyance of the land and water rights, even if he had a right under the contract so to do.</p> <p>Id.—Independent Covenants.—By the terms of the contract plaintiff was only required to pay one dollar per acre, on condition that the land and water rights were conveyed by the corporation within the time limited; and the covenants in regard to the clearing of the land and the payment of an additional price per acre, and the making of the deeds, were independent and in no sense contemporaneous or dependent conditions or covenants, nor could plaintiff be required to pay or tender such further payment until after the making of the conveyances.</p>

<p>Criminal Law—Embezzlement—Ownership of Monet—Sale of Goods— Agency—Authority to Collect—Notice of Discharge—Variance. Where a defendant accused of the embezzlement of money had been the agent of a company, with authority to sell goods and collect bills, and had sold goods as such agent to the one named in the indictment as the owner of the money embezzled, and had collected the money from him at a time subsequent to his discharge from employment as such agent, there is no fatal variance between the indictment and the proof, although the one to whom the goods were sold was not notified of the agent’s discharge, and could compel the company to credit him with the money. But if the defendant was in fact the agent of the company when the money embezzled was collected he could not be convicted under the indictment.</p> <p>Id.—Demand for Return of Money.—It is not necessary, in order to sustain a conviction for embezzlement of the money, as the property of the one from whom the collection was made by the defendant without authority after his discharge from employment, that such person should have made a demand on the defendant for the return of the money.</p> <p>Id.-*—Evidence op Other Embezzlements—Receipts op Money.—Evidence is admissible to show that the defendant charged with embezzlement had been guilty of other embezzlements from the company of which he had been the agent, and in connection with such proof, receipts of money given by the defendant to its other customers, though not sufficient of themselves to show embezzlement, are admissible in evidence on that issue.</p> <p>Id.—Re-examination — Evidence not Given on Cross-examination.— Where, upon- cross-examination of the prosecuting witness, a paper was presented to the witness by defendant’s counsel, who asked him to identify two items in it, but did not offer the paper or the items in evidence, it is erroneous to allow the prosecution on re-examination to offer the paper in evidence in explanation of the two items, against the objection of the defendant.</p> <p>Id.—Improper Cross-examination of Dependant.—It is improper to allow cross-examination of the defendant about any matter to which he has not testified in chief.</p> <p>Id. —Rebuttal — Reiteration op Testimony for Prosecution. —Witnesses for the prosecution should not be allowed to reiterate their testimony under the guise of rebuttal.</p> <p>Id.—Instructions—Credibility of Dependant.—It is the better practice to give no instruction as to the credibility of the defendant as a witness in his own behalf; although if an instruction is given in general terms as to the credibility of a defendant as a witness, in the form sanctioned in the case-of People v. Cronin, 34 Cal. 191, and in subsequent cases, it is not ground for reversal; but, when, the language used is such as strongly to snggest to the jury that in the case then before them the defendant testified falsely, or to intimate that such is the opinion of the court, the judgment cannot stand; and when the language used by the court in commenting on the testimony of a defendant is materially different from that used in the Cronin case, the judgment must be reversed, unless this court can see that the difference has not been prejudicial.</p>

Petition in the Supreme Court for a writ of certiorari' to review and annul an order of the Superior Court of the county of Placer suspending the powers of the petitioner as administratrix of the estate of Joseph Byrne, deceased, and appointing Jonathan Fulton as special administrator thereof. J. E. Peewett, Judge. The facts are stated in the opinion of the court.

<p>Sales—Purchase of Fruit—Agency for Corporation—Ratification— Estoppel.—Where fruit was purchased in the name of an incorporated 0 company'by one assuming to act as its agent, and who signed a contract therefor in its name, and the vendor addressed a letter to the company in reference to the purchase, requesting to know if the purchaser was their agent and if the contract was correct, and was informed by the managing agent that the purchase was made on their advice, but they •were not aware that it was made in their name, but that they would haudle the fruit, and that the writer would visit the vendor’s section in a week or two, and arrange the matter satisfactorily with him then, and such managing agent did within a few days thereafter visit the neighborhood where the vendor lived, but said nothing to him, and allowed him to act upon the contract by delivering the fruit thereunder, without repudiating it, the facts sufficiently show a ratification of the contract by the corporation; and the corporation became estopped from denying the contract, or the effect of the assurances of its managing agent, which induced the vendor to deliver the fruit under what he had a right to believe was a valid contract.</p> <p>Id.—Ratification may be Implied.—It is not necessary that the ratification of a contract should be in express terms in order to bind the principal; but it is sufficient if it is fairly inferable from the words or conduct of the principal, and like the act of conferring an antecedent authority, ratification may be either express or implied.</p> <p>Id.—Knowledge of Details of Purchase—Duty of Principal to Make Inquiry—Negligence.—A principal who is informed of a written contract of purchase, made in his name by one assuming to act as his agent, and who is requested by the vendor to state whether the agent had authority to make it, and whether the contract is correct, is put upon inquiry as to the terms of the contract; and it is negligence for him not to take the precaution to obtain a copy of it from the vendor, before giving him assurance that it could be carried out, and in such case he cannot plead want of knowledge of the details of the contract to prevent the effect of a ratification implied from such assurance.</p> <p>Id.—Estoppel in Pais—Inducing Change of Position.—An estoppel in pais is a right arising from acts, admissions, or conduct which have induced a changed position in accordance-with the real or apparent intention of the party against whom it is alleged; and where a person by word or conduct induces another to act on a belief in the existence of a certain state of facts, he will be estopped as against him to allege a different state of facts.</p>

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

N. A. Dorn, Judge. The district attorney, on cross-examination of the defendant, asked' him: “Where had you been that day, before you met Mason and killed him?” To this question the defendant objected that it was not cross-examination. The district attorney then said, in the presence and hearing of the jury: “I propose to show that he was drinking beer all morning,” to which remark the defendant took exception.

<p>Pledge—Transfer by Pledgee—Bona Fide Purchaser — Replevin — Finding of Qualified Interest — Statement—Presumption upon Appeal.—Although a pledgee of personal property, having bills of sale absolute in form, can pass a full title to a bona fide purchaser thereof for value without notice of the pledge; yet where, in an action of claim and delivery for such property by the transferee against the original owner, the jury has found that the plaintiff has only a qualified interest in the property to the extent of the indebtedness of the defendant to the pledgee, it will he presumed upon appeal taken by the defendant, that the evidence warranting a finding that the sale did not pass absolute title to the plaintiff, was omitted from the statement.</p> <p>Id.—Adverse Claim by Lienholders—Loss of Lien—Rule Inapplicable to Pledgee —Right of Purchaser from Pledgee.—As a general rule, a lienholder who refuses upon proper demand to deliver property without setting up his lien thereon, or who bases his refusal upon a claim other than that of lien, waives his right to claim a lien after action commenced; and if one having a lien claims absolute ownership in a replevin suit his lien is lost, and he cannot claim any rights as a lienor, unless his claim is honestly and mistakenly pressed, in which case he may have his lien upon abandoning the false claim of ownership; hut the general rule as to the waiver or loss of lien by a claim of ownership does not apply in the case of the pledgee, who may sell or assign either the property or his interest in the pledge to a bona fide purchaser, who will he allowed to hold property until the extinguishment of the original obligation, as a transferee of the rights of the pledgee.</p> <p>Id.—Complaint in Replevin — Claim of Ownership — Sufficiency of Pleading.—A complaint in replevin which alleges ownership and possession of the property claimed on and after a specified date, though it is insufficient as against a special demurrer, in not alleging ownership at the commencement of the action in specific terms, is not subject to a general demurrer, it being by fair intendment implied from the complaint that tlie plaintiff claimed ownership and right of possession at the time of the commencement of the action.</p>

Motion in the Supreme Court to recall a remittitur issued upon dismissal of an appeal from an order of the Superior Court of Santa Clara County revoking and annulling letters of guardianship.. John Reynolds, Judge. The facts are stated in the opinion of the court.

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

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial. J. B. 0. Hebbard, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Partition — Order Confirming Sale — Appeal — Parties—Conclusiveness upon Purchaser—Defective Title.—An order confirming a sale in partition is appealable by the purchaser, who becomes a quasi party to the suit, and becomes conclusive upon him upon his failure to appeal therefrom; and he becomes thereby legally hound to complete the purchase, notwithstanding objections made by him to defects in the title.</p> <p>Id.—Order of Resale at Risk of Purchaser—Notice—Motion—Appeal. Upon the refusal of a purchaser to complete a sale in partition which has been confirmed, the court may order the property resold at the purchaser’s risk; and the purchaser is hound by such order, if he has notice of it, and if not, he should move to vacate or modify the order, and should take an appeal upon the denial of his motion.</p> <p>Id.—Action for Deficiency—Evidence—Differing Terms upon Sale and Resale.—The purchaser at the first sale, which was confirmed without appeal, when sued for the deficiency arising upon a resale, cannot prove that the terms of the first sale were for a title free from defects, for the purpose of showing that he never became liable as a purchaser; but he may prove such terms, and that the second sale was made expressly at the purchaser’s risk of defects in the title, for the purpose of showing that the conditions of the two sales were different, and that the resale was not a just or legal mode of ascertaining his liability for the deficiency.</p> <p>Id.—Presumption—Knowledge of Purchaser—Power of Officer—Misleading ¡Representations.—The courts do not hold purchasers to presumptive knowledge of the limits of the power of an officer in making a sale; and where they are misled by his representations as to the state of the title, or of the incumbrances thereon, they are hound by the rule of caveat emytnv.</p> <p>Id.—Adequacy of Price upon Resale—Confirmation—-Presumption— Estoppel.—Where a larger price was bid upon an original sale, owing to the terms of sale expressly providing for a perfect and valid title, and the price bid upon a resale, which was confirmed, was much less, owing to the terms of sale being expressly at the purchaser’s risk; and no fact or circumstance other than the differing conditions of sale tends to accoun t for the difference in price, it must be presumed that all the difference between the two bids was induced by the terms of the second sale; and where the owners did not object to the confirmation of the second sale upon the ground that the price obtained was inadequate, they arc estopped from denying the adequacy of the price obtained under the conditions of sale; nor can the referee malting the sales deny the terms and conditions of the contract made by him with such purchaser.</p>

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

<p>Growing Crop—Levy op Attachment—Insufficient Return.—A growing crop must be attached as personal property not capable of manual delivery, by leaving with the person in possession thereof a copy of the writ, and a notice that such property is attached, pursuant to subdivision 5 of section 542 of the Code of Civil Procedure, and a constable’s return, of an attachment showing that he attached such crop by taking it into his custody, is insufficient to show a valid levy of the attachment.</p> <p>Id.—Attachment Proceedings Statutory.—Proceedings by attachment are statutory and special, and the provisions of the statute must be strictly followed, or no rights will be acquired thereunder.</p> <p>Id. —Proof of Levy—Finding—Conflicting Evidence—Appeal.—Where the constable was called to supplement his return by testifying that he served the copy of the writ and notice required by the statute upon the person who was in possession of the growing crop; and such person, on the other hand, testified positively that no notice of attachment whatever was served upon him, a finding, in view of the conflicting evidence, that no notice of attachment was served, will not be disturbed upon appeal.</p> <p>Id.—Chattel Mortgage—Levy of Execution.—Where a valid chattel mortgage exists upon a growing crop prior to a levy of execution, and there is no valid attachment lien prior to the chattel mortgage to which a sale under execution can relate, there can he no valid levy of execution upon the crop, without paying off the chattel mortgage as provided by section 2969 of the Civil Code.</p>

Prohibition from the Supreme Court to the Superior Court of the County of Merced, to restrain the prosecution of the state bank commissioners, in the matter of an accusation of willful neglect of official duties. J. K. Law, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Train Wrecking—Information—Duplicity—Throwing out Switch—Boarding Train with Intent to Rob.—Under section 2IS of the Penal Code, relating to train wrecking and the punishment thereof, an information charging a defendant with feloniously throwing out a switch with intent to derail a passenger train at a certain station, and then and there feloniously boarding a passenger train at said station, with intent then and there to rob said passenger train, does not charge two offenses, and is not subject to the charge of duplicity.</p> <p>Id.—Statute Punishing Either of Several Acts—Conjunctive Pleading—Different Intent not Material.—When a statute forbids and makes punishable the doing of either of several acts, an indictment or information on such a statute may allege in a single count conjunctively that the defendant at the same time did as many of the forbidden things as the pleader chooses, and the pleading will not be double; but the offense will be established at the trial by proof of any one of them; and it is immaterial that a different intent may accompany one of the acts from that accompanying the other acts specified.</p>

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

Motion to dismiss an appeal from an order of the Superior Court of the city and county of San Francisco, vacating an order appointing a guardian ad litem, and from an order dismissing the petition filed by said guardian ad litem, for the revocation of the probate of the will of Anna M. Hathaway, deceased. Charles W. Slack, Judge. The facts are stated in the opinion of the court.

<p>Municipal Corporations —Appointment of City Marshal—Certiorari —Nonjudicial Action—The appointment of a city marshal by a city council to fill a vacancy is not a judicial act, and cannot be reviewed by' certiorari.</p> <p>Id.-—Declaring Vacancy — Failure to Qualify — Judicial Inquiry — Power of City Council.—A city council has no power to remove a city marshal, or by any judicial inquiry to declare a vacancy; but if he fails to qualify such failure ipso Jacto creates a vacancy, and on being informed of the fact the board can fill the vacancy without declaring it; and so declaring as part of the order appointing a successor does not indicate a judicial inquiry and determination, re viewable by certiorari.</p>

<p>Criminal Law — Forgery — Signature of Receipted Bill as Agent without Authority—False Pretenses.—The signature of a receipted bill, signed in the office of the debtor, by one fraudulently acting as collector without authority, who signed the name of the creditor, in liis own liandwriting, and appended initials thereto, to indicate that he signed it as agent, without attempting to simulate the handwriting of the creditor, is not an act of forgery, there being no false making or counterfeiting of the instrument, but merely a false assumption of authority and- the obtaining of money under false pretenses.</p> <p>Id.—Definition of Forgery—Subjects—Counterfeiting—False Making—Code, how Differing from Common Law. — The code differs from the common law as to the enumeration of what instruments are the subjects of forgery; but does not differ from the common law as to what constitutes forgery of instruments which are the subjects of forgery; and to constitute such crime there must he a forging or counterfeiting, which is the “ false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.”</p>

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

<p>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. Trout, 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. J. C. B. Hebbard, 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>Street Improvement—Contract to Construct Sewer—Permit from Street Superintendent—Illegality—Implied Condition.—A contract to construct a sewer in front of a lot, without a permit from the street superintendent, being in violation of a city ordinance, and constituting a misdemeanor, is unlawful, and cannot form the basis of a civil action, but the agreement will be construed, where the contrary is not expressed, as implying a condition that the permit shall be obtained, and as being an inchoate agreement, which would become valid and binding only in case such permit should be issued.</p> <p>Id.—Nonperformance of Contract — Agency—Contract by Third-Party.—One who contracts to construct a sewer must obtain a permit to himself to perform the work; and where he had no authority to do the-work, and did not personally perform the contract, or construct the sewer, he cannot hold the lotowner liable thereon or enforce a lien against him by reason of having given a power of attorney to a third party, who had already contracted to construct the sewer on the entire block, under a. permit from the street superintendent.</p>

<p>Appeal from a judgment of the Superior Court of San Luis Obispo County and from an order denying a new trial. V. A. Gregg, 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. 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 San Diego County and from an order denying a new trial. W. L. Pierce, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Santa Cruz County. J. H. Logan, Judge.</p> <p>The facts are stated in the opinion of the court»</p>

D. J. Murphy, Judge. The facts are stated in the opinion of the court. The certificate of the engineer therein referred to was to the effect that the grading had not been done to the official line and grade.

<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. Charles W. Slack, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Foreclosure of Trust Mortgage—Decree of Sale—Duty of Trustees— Delay of Sale—Rights of Bondholder and Owner—Order for Execution.—Where a trust mortgage to secure bondholders is foreclosed by the trustees, and there is no provision in the decree for delaying the sale of the mortgaged property, it is the duty of the trustees to proceed without unreasonable delay to have the decree executed, and upon their failure to do so, it is the duty of the court, upon the application of a defendant who is a large bondholder and the owner of the mortgaged property, and interested in the execution of the decree, to direct that its execution he proceeded with.</p> <p>Id.—Position of Trustee—Control of Court.—Trustees who foreclose a mortgage for the benefit of bondholders have no personal interest in prosecuting the suit or in enforcing the decree, and are only instruments in the hands of the court, after bringing themselves within its jurisdiction, for the enforcement of the trust, and are peculiarly within the power and control of the court.</p> <p>Id.—Ex Parte Order for Execution—Motion to Recall Order.— Whether the court erred in granting an ex parte order, without notice to the trustees, or without the.ir consent, for the enforcement of the decree, upon application of a bondholder who is owner of the mortgaged premises, is not material, where the trustees are heard upon a motion to recall the order or to stay its execution; and if the latter motion is properly denied they are not prejudiced by the first order.</p> <p>Id.—Delay of Sale to Enhance Bids—Uncertain Combination of Stockholders—Enforcement of Degree.-—Where the condition of the country affecting the value of the mortgaged property was well known, and ample time has elapsed after the decree was entered to consummate any combination of stockholders to enhance bids upon the property, if such consummation were practicable, the uncertainty of any such combination or agreement being effected is too great to justify further delay in enforcing the decree of sale.</p> <p>Id.—Confirmation of Sale—Power to Order Resale—Prevention of Competition.—The court has power to refuse to confirm a sale under the decree, 'and may set it aside and order a resale, where special circumstances have prevented competition, and assurance is given that upon a resale a better price can be obtained sufficient, to justify the delay and additional expense.</p>

Petition in the Supreme Court for a writ of mandate to the supervisors of Sacramento County. The facts are stated in the opinion of the court.

Walter Van Dyice, Judge. The case was submitted in the supreme court by stipulation of attorneys upon the brief of the respondent and the opinion of the judge of the superior court. The facts are stated in the opinion of the court.

<p>Action- for Libel—Venue—Change of Place of Trial—Residence of Codefendant—Consent to Change.—An action for libel is one which, under section 359 of the Code of Civil Procedure, the plaintiff has a right to have tried in the county in which the defendants or some of them reside; and where one of the defendants is a resident of the county in which the action is brought, a motion by another nonresident defendant to change the place of trial to the county of his residence is properly denied, notwithstanding the resident defendant consents in writing that the place of trial be changed as prayed by his eodefendant. '</p> <p>Id.—Waiver of Venue—Burden of Proof.—The right to have a cause tried in a particular county is one which a party may ivaive either expressly or by implication, and where the complaint is silent as to the residence of the defendant, the burden of proof is cast upon him to show the county of his residence if he would secure a change of venue; and where there are several defendants, he who would procure a change of venue must show that none of them are residents of the county in which the action is brought; and where the record fails to show such proof, a motion by one defendant for such change is properly denied.</p> <p>Id.—Oral Stimulation—Admission of Residence at Hearing—Action of Court—Estoppel.—Although an executory stipulation, when denied, cannot be proved otherwise than by an agreement in writing filed with the clerk, or by agreement entered upon the minutes of the court, yet where the record shows that it was admitted at the hearing of a motion to change the place of trial that one of the defendants resided in the county where the action was brought, there was no occasion for other proof of the admitted fact, and such admission having been acted upon by the court, and embodied in a bill of exceptions, cannot be traversed upon appeal.</p>

<p>Appeal from a judgment of the Superior Court of San Luis Obispo County and from an order denying a new trial. V. A. Gregg, 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. Edw. A. Belcher, 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 Kern County and from an order denying a new trial. A. R. Conklin, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of San Bernardino County granting a new trial. John L-Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Fire Insurance —Ownership of Insured Premises—Condition in Policy—Application Made Part of Policy—Waiver of Condition.— Where a policy of fire insurance is based upon the condition that the insured is the owner in fee simple, hut contains a provision that the application is to be considered a part of the policy, and such application shows clearly that the insured is not the owner in fee simple, the insurer by accepting the risk upon the application waives the condition in the policy as to the title, and cannot set up the want of such fee-simple title to defeat an action on the policy.</p> <p>Id.—Insurable Interest—Equitable Right.—It is not necessary that the insured person have a legal interest in the property insured; hut an equitable interest is sufficient, and it is not requisite that there be a valid equitable title, provided the insured has possession and use, and has a direct pecuniary interest in the preservation of the property, and will suffer a pecuniary loss as an immediate and proximate result of its destruction.</p> <p>Id.—Contract of Sale—Option to Purchase—Extent of Insurable Interest.—One who is in the full possession and enjoyment of property under a contract of sale of the premises by the owner, upon which he has paid part of the purchase price, with an option to complete the purchase, upon the completion of which he would he entitled to a conveyance of the legal title, has an insurable interest in the property; hut his insurable interest is limited to the amount advanced by him upon the option, at the date of the insurance..</p>

<p>Appeal from a judgment of the Superior Court of Kern County and from an order denying a new trial. A. R. Conklin, Judge.</p> <p>The facts are stated in the opinion.</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>Submission of Controversy—Agreed Case—Subject of Civil Action. There can be no proper submission of a controversy upon an agreed case, under section 1138 of the Code of Civil Procedure, unless the agreed case shows a question in difference between the parties which might he the subject of a civil action.</p> <p>Id.—Title to Lands—State Patent—Claim of United States Homestead.—An agreed case, showing that the defendant has acquired title to certain lands under a state patent, and that the plaintiff, being qualified, has duly claimed the land as a homestead under section 2289 of the Revised Statutes of the United States, giving reasons for such claim and for the invalidity of the patent, many of which are based upon facts not set forth in the agreed case, and stipulating that if the patent is valid the title should be sustained, whereas, if it is void, the plaintiff's claim to enter the land as a homestead is proper, but not showing that either of the parties is in possession or seeks to gain or withhold the possession, nor stating any facts showing that plaintiff has any right to question the patent under which defendant claims title, does not state any controversy which is the subject of a civil action in the courts of this state.</p> <p>Id.—Insufficient Affidavit—Reality of Controversy—Good Faith.— An affidavit for the submission of a controversy without action must' show that the controversy is real, and that the proceedings are in good faith to determine the rights of the parties; and an affidavit which, instead of showing that the controversy is. real, states that “the statement of the case” is “a real controversy,” and, instead of stating that the proceedings are in good faith, states that the “contention” is in good faith, is insufficient to authorize the court to entertain the submission.</p>

Motion to dismiss appeals from a judgment of the Superior Court of San Joaquin County and from an order denying a new trial. Ansel Smith, Judge. The facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of the City and County of San Francisco denying a petition for the revocation of letters testamentary to the executors of the will of Louis Graber, deceased. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Insolvency—Transfer of Business by Insolvent—Action by Assignee — Prima Facie Showing—Rebuttal—Conflicting Evidence.—The transfer of a mercantile business by an insolvent debtor to one of his creditors, in satisfaction of the debt, within one month previous to the filing of a petition in involuntary insolvency against the debtor by his other creditors, is prima fade evidence of fraud, and that the transferee had reasonable cause to believe the debtor insolvent; but this prima fade evidence may be rebutted by any competent evidence; and where the jury find that no fraud was practiced upon the provisions of the Insolvent Act upon conflicting evidence, its verdict will not be disturbed upon the ground that a prima fade ease was made for recovery by the assignee.</p> <p>Id.—Instructions—Intention of Transferee to Defraud—Honesty and Fairness.—Instructions that in order to entitle the assignee to recover it must appear that the defendant bought the stock of goods with intent to defraud the other creditors, and that if the conduct of the defendant can be reconciled with fairness and honesty, the jury must find a verdict for the defendant, are prejudicially erroneous, there being no element of actual fraud necessarily involved in the case, and it being a legal fraud, in violating the provisions of section 55 of the Insolvent Act, that renders the transfer void, regardless of any question of honesty, fairness,'good faith, or fraud in fact.</p> <p>Id.—Reason to Know Insolvency—Transfer Out of Usual Course of Business.—An instruction that if the defendant at the time of the purchase of the stock of goods did not know of the insolvency of the debtor, or had reason to know the same, hut was ignorant that he owed more than he could pay, the jury must find for the defendant, is erroneous in omitting to include the question of 'whether the transfer was made out of the usual course of business.</p>

<p>Appeal from an order of the Superior Court of Tulare County settling the account of a guardian. N. W. Cross, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Obtaining Property Under False Pretenses—Insufficiency of Evidence—Direction of Verdict—New Trial—Discretion.—Upon the trial of a defendant accused of obtaining money under false pretenses, where the court was of the opinion that the evidence was insufficient to justify a verdict of conviction, and in its instructions advised the jury to acquit the defendant, it has discretion to set aside a verdict of conviction, as being contrary to the evidence, and to grant a new trial on that ground; and its discretion in so doing will not be interfered with upon appeal in the absence of a very clear showing of abuse of discretion; nor is it material that the evidence was wholly that of the prosecution, and was not conflicting, nor that it might have a legal tendency to prove all the material facts, if the court is of the opinion that the guilt of the defendant was not proved beyond a reasonable doubt.</p>

<p>Estates of Deceased Persons—Notice to Creditors—Time for Pre= . SENTATION OF CLAIMS—INVENTORY—VALUE OF ESTATE—PAROL EVIDENCE.—Athough the administrator of the estate of a deceased person estimated the value of the estate at less than ten thousand dollars, which was also subsequently shown by the inventory and appraisement of the estate, and in his notice to creditors required them to present their claims within four months, yet iu an action upon a rejected claim presented after that period had elapsed, there having been no decree of due publication of notice to creditors, and no judicial determination of the value of the estate, the plaintiff may show by oral evidence that the value of the estate at the time of the first publication of the notice was more than ten thousand dollars, and that he was therefore entitled to the period of ten months within which to present his claims.</p>

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

order of the Superior Court of the City and County of San Francisco denying a new trial. William T. Wallace, Judge. The facts are stated in the opinion of the court.

<p>Riparian Rights—Irrigation—Use op. Pomps.—A riparian owner has the right to divert a reasonable quantity of the water of the stream for the purpose of irrigation, and it is immaterial whether the same is diverted by means of ditches or is raised upon the land by the use of pumps.</p> <p>In.—Method of Obtaining Water Immaterial.—The mere method of obtaining the water with which to irrigate has nothing to do with the process of irrigation, or with the meaning of the word; and the reasonableness or lawfulness of any given diversion of water is in nowise affected by the mere mode of diversion, so long as the rights of others are not infringed.</p> <p>Id.—Basis of Right to Irrigate—Extent of Right—Altitüde of Land Immaterial.—The right of riparian proprietors to use water for the purpose of irrigation is based upon the need of water upon the land; and assuming the need to exist equally as to all riparian land, the respective rights of the proprietors to divert water for this purpose must be in proportion to their respective ownerships upon the stream; and in no case can one riparian proprietor be deprived of his just proportion of water merely because his laud by reason of its altitude or level above the stream cannot be irrigated by the force of gravity, or by the same method employed on some other land.</p> <p>Id.—Final Determination of Rights—Necessary Parties.—A final and satisfactory adjustment of the respective rights of irrigation of riparian owners cannot be had without the presence" of every person having any right in the stream, and all the facts which can possibly hear upo'n the question should be laid before the court.</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 of the court.</p>

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

<p>Application for mandamus to the Superior-Court of the City and County of San Francisco. J. C. B. Her-bard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Fire Insurance — Insurance upon Stock of Merchandise — Printed Condition as to Gasoline—Evidence—Gasoline Sold as Part of Stock.—Where a policy of insurance against loss by fire covered, in writing, a stock of merchandise “such as is usually kept in a country store," and a printed condition in the policy rendered it void, “any custom of trade or manufacture to the contrary notwithstanding,” if gasoline should be kept, used, or allowed upon the premises, “unless otherwise provided by agreement indorsed herein, or added hereto,” evidence is admissible to show that gasoline is one of the articles of merchandise usually kept in a country store, and that the insured was in the habit of selling it at retail as part of his stock of merchandise, and it properly follows from such proof that gasoline was part of the subject of insurance, and that the insured did not violate the policy by keeping it in stock.</p> <p>Id.—Construction of Policy—Writing Controls Printed Parts—Uncertainty.—A policy of fire insurance is to be interpreted like any other contract, so as to give effect to the mutual intention of the parties, and when it is partly written and partly printed, the written parts control the printed parts, and in case of repugnancy between the two, the printed parts must be disregarded; and the contract is to be explained by reference to the circumstances under which it was made, and in case of uncertainty is to be interpreted most strongly against the party who caused the uncertainty to exist.</p> <p>Id.—Presumed Knowledge of Insurer.—When the fire insurance company agreed to insure a stock of merchandise “such as is usually kept in country stores, ” it mmt he presumed to have known the character o£ merchandise usually kept in country stores, and that gasoline was one of those articles, and that its policy covered all such merchandise.</p> <p>Id.—Judicial Notice—-Evidence—Proof of Circumstances — Aid of Interpretation.—The court has no judicial knowledge of the character of merchandise usually kept in country stores, and evidence is proper upon that point to enable the court, in interpreting the language of the policy, to understand the matter to which it relates, and the circumstances under which it was made.</p> <p>Id.—Misrepresentation—Capacity of Building—Statement of Agent —Instruction.—When the insurance policy provided that it should be voidif the insured has concealed or misrepresented any material fact or circumstance concerning the insurance, or the subject thereof, and the written application states that the building to be insured contained less than fifteen rooms, and the proof showed that it contained more than twenty rooms, but also showed that the statement in the application was written therein by the insurance agent upon information obtained at his own instance, and that the applicant signed it without reading it, and without knowledge that the statement had been made, an instruction is proper that if the applicant made a written representation that the building contained less than fifteen rooms, they should find for the defendant, but if they should find that the facts contained in the application respecting the number of rooms were obtained by the defendant from another source, and that the applicant personally made no representation in the matter, and signed the application without knowing what it contained as to the number of rooms, it did not constitute a defense.</p> <p>Id. — Signing Instrument without Reading It—Inapplicable Rule. The rule that one who signs an instrument which contains terms of obligation upon himself is not absolved from such obligation by show ing that he signed the instrument without reading it, has no application where the instrument signed contains no words of obligation, and the clause invoked against the signer does not purport to be a statement made by him, or in answer to a question put to him.</p> <p>Id. — Policy not Referring to Application — Extrinsic Evidence —' Knowledge of Applicant.—Where the policy of insurance does not refer to the application, or incorporate its contents into the conditions of the policy, and it is sought by extrinsic evidence to connect the two instruments, and make the contents of the one dependent upon the contents of the other, the evidence should be very clear that the statements in the application relied on to defeat the action upon its policy was made by the applicant, and that at the time of making them the applicant knew that they were to form the basis of the policy to be issued to him.</p>

Motion to dismiss an appeal from a judgment of the Superior Court of the County of Santa Barbara. John L. Campbell, Judge. The facts are stated in the opinion of the court.

<p>Vendor and Purchaser—Violation of Contract by Vendors—Action by Purchaser—Money Had and Received.—Where vendors who had jointly agreed to sell lots to several purchasers, upon monthly payments, payable at the office of their agents, disagreed between themselves, and one of them gave notice to each of the purchasers to make no more payments under the contract until further notice, and the other vendor notified them each to make payments only to him, and the agents of the vendors to whom the money was payable under the terms of the contracts refused to receive payments thereunder, such action constituted a violation of the contracts by the vendors, and sufficiently indicated to the purchasers that the vendors would no longer be hound by the terms of the contracts, and one of the purchasers, to whom the other purchasers had assigned their several rights of action, may maintain an action for money had and received by the vendors, to recover the moneys paid under the contracts by the several purchasers.</p>

Motion to dismiss appeals from an order of the Superior Court of the City and County of San Francisco, refusing to vacate a judgment, and from an order granting a writ of assistance. A. A. Sanderson, Judge. The facts are stated in the opinion of the court.

<p>Insolvent National Bank—Assessment by Comptroller of Currency — Liability of Stockholders— Action by Receiver — Pleading— Averment of Nonpayment.—In an action by a receiver of an insolvent national bank, appointed under the laws of Congress by the comptroller of the currency, against one of its stockholders, to enforce an assessment made by the comptroller, the complaint sufficiently alleges nonpayment of the assessment at the time of the commencement of the action, as against a general demurrer, by an averment that “ the defendant, though demanded, has failed and refused to pay said assessment, or any part thereof. ”</p> <p>Id.—Averment of Necessity of Assessment — Direction of Suit by Comptroller.—An averment that the comptroller made the assessment against the s! ockholders, and directed the action to be brought, is a sufficient averment, as against a general demurrer, that he had determined the necessity of such action, and that lie had decided when he made the assessment that it was necessary to enforce the personal liability of stockholders to pay the debts of the bank.</p> <p>Id.—Conclusiveness of Comptroller's Action—Striking Out Improper Defense. —The action of the comptroller in making an assessment upon the stockholders of an insolvent national bank is conclusive upon the stockholders, and cannot be controverted in a suit against a stockholder to enforce the assessment; and an averment in an answer in such suit that the comptroller in making the assessment acted without due information of the assets and liabilities of the bank, and that an assessment one-half as great would have been sufficient, sets forth no defense, and is properly stricken out.</p> <p>Id.—Stock Held Subject to Law.—The owner of stock in a national bank holds it in view of and subject to the provisions of the law under which the bank is organized.</p> <p>Id.—Instructions—Direction to Find for Plaintiff.—Where there is no substantially conflicting evidence as to .facts determinative of tile case, or such facts are admitted, the judgment will not be reversed on account of an instruction to the jury to find for the plaintiff; though such practice is hazardous, and can be sanctioned only in the clearest cases.</p> <p>Id.-—Transfer of Stock—Knowledqe of Transferee—Indorsement of Certificates.—Although a man cannot he made liable to the creditors of a bank, where stock is transferred to his name on the books without his authority or knowledge, yet where stock is transferred from the name of the wife of the president of a bank to the name of its vice-president, who ought to know of his relations to the bank, and who upheld its credit, and indorsed the certificates thus transferred to him by signature of his name in his own handwriting, he is conclusively chargeable with knowledge that the certificates were issued to him.</p> <p>Id.—Ownership of Stock—Fraudulent Transfer—Liability to Oreditors.—One in whose name stock stands upon the books of the bank with his knowledge or consent is, as to the creditors of the hank, the owner of the stock; and it is immaterial that the transfer to him, and his indorsement of the certificates, was procured by the president of the bank for a fraudulent purpose.</p>

<p>Corporations—Insolvency—Unpaid Subscription to Stock—Transfer of Stock to Avoid Liability to Creditors.—A stockholder in an insolvent corporation cannot avoid his liability for an unpaid subscription upon stock held by him, by assigning it without consideration to an insolvent person; and a judgment creditor of the corporation who has had execution issued against the corporation and returned nulla bona may attack the Iona fides of such assignment, and enforce the subscription against the original holder of the stock to the extent of his judgment.</p> <p>Id.—Judgment for Conversion of Stock by Corporation—Estoppel— Liability of Stockholders.—A judgment in favor of the assignee of such stock against the corporation for damages for conversion of the stock, on account of the refusal of the corporation to transfer the stock to the assignee upon its books, is not an estoppel, which can prevent a judgment creditor of the corporation from assailing the bona fides of the assignment; nor can the corporation after its insolvency, by converting . the stock, relieve the stockholder of liability thereupon to its creditors, whatever may be the motive which induced the act of conversion.</p>

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

<p>Mandamus from the Supreme Court to the Superior Court of Sacramento County. Matt. F. Johnson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Railroads — Extension of Track Through Streets of City — Sale of Franchises to Highest Bidder — Construction of Statute — Absence of Bona Fide Competition.—The act of Miarch 23, 1893, requiring the sale of railroad franchises in the streets of cities to the highest bidder, must be construed as applying only to cases of street railroads where bona fide competition is possible; and is not to be construed to require the city trustees to sell to the highest bidder a franchise applied for by a steam railroad for the extension of its track through the streets of the city en route between its termini, in which case there can be no bojia fide competition, and the effect of competing bids might be merely to prevent the road from passing through the city. Id.—Reasonable Construction of Statutes.—The construction of statutes must be reasonable; and where it is evident that the legislature could not have intended the consequence of a literal construction which leads to an absurdity, such literal construction cannot obtain.</p> <p>Id.—Mandamus to Board of Trustees. — Mandamus will lie to compel the board of trustees of the city to act upon the merits of the application of a steam railroad to extend its track through the streets of the city, without subjecting the franchise applied for to sale to the highest bidder.</p>

<p>Judgment—Vacating Default—Inexcusable Neglect of Corporation— Failure of President to Employ Attorney.—Where the summons and copy of the complaint were served upon a defendant corporation by delivery thereof to its secretary, who, within five days after the service, delivered the papers to the president, who observed their date, but neglected to inquire when they were served, and instead of delivering them to his attorney, kept them in bis possession, waiting for the attorney to come in, until after the default had been entered, the corporation is guilty of inexcusable neglect, and its motion to vacate the default and judgment is properly denied.</p> <p>Id.—Power of Clerk to Enter Judgment—Action for Trespass.— The authority of the clerk to enter a judgment by default is limited to actions arising upon contracts for the recovery of money or damage" only, and he has no power to enter a judgment by default in an action of damages for a trespass.</p> <p>Appeal—Amendment of Judgment—Suspension of Power of Court.— Pending an appeal from a judgment, the court in which the judgment was entered has no power to amend or correct it.</p> <p>Id.—Dismissal—Defective Transcript—Undertaking—Filing Certificate to Supply Defect—Entry in Another Appeal.—-An appeal will not be dismissed for a defect in the transcript, in inserting a copy of the undertaking, instead of the certificate required by section 395 of the Code of Civil Procedure, if such certificate is on file at the hearing of the motion to dismiss the appeal; and it is immaterial that the certificate is entered in another appeal taken in the same cause under a different number, to which the certificate also relates, and such certificate will be taken as part of the record in the appeal in which the motion is made.</p>

<p>Act Regulating Sale of Franchises—Counties—Constitutional Law —Sufficiency of Title.—The act of March 23, 1893, “providing for the sale of railroad franchises in municipalities, and relative to granting of franchises,” and requiring franchises to he “awarded to the highest bidder, ” sufficiently embraces in the latter clause of the title the subject matter of the issuance and salé of franchises by counties through their hoards of supervisors, though such counties are not properly within the designation of municipalities.</p> <p>Id.—Act not Repealed by County Government Act.—The act of March 23, 1893, providing for the sale of franchises to the highest bidder, was not repealed by subdivision 40 of section 25 of the County Government Act, which went into effect the following day, giving to boards of supervisors the general power to fix the terms, conditions, and restrictions upon which franchises will be granted, since full force and effect may be given to both statutes.</p> <p>Id.—Repeal by Implication not Favored.—The law looks with disfavor upon repeals by implication, and will not sustain such repeal where there is no such inconsistency as tó call for a determination that the earlier provision was repealed by the later.</p> <p>Id. — Construction of Statute — Sale to Highest Bidder —Cash Payment — Agreement for Percentage not a Legal Bid.—The act of March 23, 1893, providing for a sale of franchises to the highest bidder, without stating other terms and conditions of sale, means, by implication, that the franchise must he sold for cash, nor does the law permit a bid in any other kind of property than money; and an agreement to pay a percentage of the gross receipts of the road, when in operation, cannot he received as a legal hid or tender under the act.</p> <p>Id.—Franchise for Electric Railroad—Mandamus—Showing as to Highest Bidder.—In order to entitle a bidder for a franchise for an electric railroad under the act of March 23, 1893, to maintain a petition for a mandamus to compel the awarding of a hid to him, he must show himself to be the highest bidder for cash, and it is not sufficient that he has offered to pay a higher percentage of the gross receipts of the railroad, if another bidder has made a higher cash offer.</p>

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

Petition for a writ of mandamus from the Supreme Court to the county auditor of Los Angeles County. The facts are stated in the opinion of the court.

<p>Water Rights—Hydraulic Mining—Easement for Tailrace—Right of Wat under Act of Congress.—The use of water for the purpose of carrying off the tailings, and the construction of a ditch to aid therein, are as essential to the successful conduct of hydraulic milling, as is the first use to which the water is put in washing down the natural hank; and the title to an adjoining mine passes under patent from the United States subject to the easement of the right of way for a ditch nsed, in accordance with local mining customs, as a tailrace from a hydraulic mine across the patented ground prior to the patent under the provisions of sections 2339 and 2340 of the Revised Statutes of the United Slates.</p> <p>Id.—Mining Customs—Evidence—Pleading.—In support of title, evidence of mining rules and customs may be given under the general issue, without specially pleading such rules and customs.</p> <p>Id. —Easement for Drainage—Ditches for Mining Purposes—Construction of Act of Congress.—The easement for the tailrace of a hydraulic mine is not an easement for drainage within the meaning of section 2338 of the Revised Statutes of the United States, excluding easements for drainage from the purview of the act of Congress; but is a right to the use of water for mining purposes and for the construction of ditches for such purposes within the meaning of sections 2339 and 2340 of said statutes.</p> <p>Id.—Contest of Mining Patent—Estoppel of Former Judgment-Pleading.—Where the holder of a mining patent suing as plaintiff relies upon an estoppel of a former judgment against the predecessors of the defendants in support of his title, rendered in a contest of the application for the patent, it is proper that he should plead such estoppel, and it is error to strike it from the complaint, when properly pleaded.</p> <p>Id.—Insufficient Proof of Estoppel—Judgment of Nonsuit—Claim of Easement.—Where, in the contest of plaintiff’s application for a patent, the predecessor of defendants instituted a suit opposing the application in so far as it affected the strip of land which embraced the ditch claimed by him, and transferred by him to the defendants, and was nonsuited upon a motion stating as grounds therefor that the plaintiff in the action merely had an easement' over the laud of defendant and that his rights were fully protected under section 2339 and 2340 of the Revised Statutes of the United States, such judgment of nonsuit can be no estoppel against a claim by his successors in interest that they are the owners of such an easement.</p> <p>Id.—Use of Easement—Maxims — Slight Injury from Tailrace — Injunction.—An casement must be used in such a manner as to impose as slight a burden and damage as possible, under the application of the maxim sic utere tuo ut alientan non ¡tedas; but where a tailrace of a hydraulic mine is an easement upon patented mining ground, the fact that the running of the tailings through the tailrace in the ordinary course of mining caused a small portion of the ground alongside of the ditch to cave down and wash away, and caused the tailrace to cut farther into the bedrock, but without material or appreciable injury to plaintiff, the rule de minimis applies, and the owner of the patented ground is not entitled to an injunction.</p>

Petition in the Supreme Court for a writ of mandamus to the controller of state. The facts are stated in the opinion of the court.

<p>Principal and Agent—Liability of Agent—Enforcement of Pledge —Action for Accounting—Sufficiency of Pleading.—A complaint in an action by a corporation against one who had acted as its agent, which shows that he had had entire control of its business at Los Angeles, and that by various acts of misconduct, specially described, he caused losses to the corporation and became liable to it in large sums of money, the true amount of which cannot be ascertained and determined without an accounting by the agent of the administration of his trust, and that he had transferred to the corporation certain property as security for any amount which might be found due and owing from him to the corporation, states a sufficient cause of action for the enforcement and foreclosure of the lien of the pledge and for an accounting in equity, as necessary to the determination of the amount for which the lien may be enforced.</p> <p>Id,—Averment of Acts of Misconduct—Demurrer—Misjoinder of Causes of Action—Uncertainty.—The action being for an accounting of his trust by an agent, touching matters peculiarly within his knowledge, the averments of numerous acts of misconduct by the agent, each causing loss to the principal, do not state separate causes of action, and the complaint is not demurrable for misjoinder of causes of action, nor for uncertainty in not stating more particularly how each item of alleged liability of the agent arose or when it was created or its precise amount; nor is the character of the complaint, as one for an accounting, changed by the averment that before the commencement of the action an investigation had shown that the corporation plaintiff had suffered a loss of upward of a specified sum.</p> <p>Id.—Insufficient Tender.-—A tender of a sum less than the amount found due is not available as a defense.</p>

<p>Appeal—Review—Objection of Respondent.—Where the respondent has taken no appeal, his attack upon the findings and conclusions o£ law cannot he considered; and the only objections which can be reviewed are those urged by the appellant.</p> <p>Mining Claims — Forfeit ore —Annual Expenditure — Ejeo l’ment. — Where the owner of a mining claim is wrongfully ousted, and work' is done upon the claim by the parties in possession, until an action of ejectment is brought and successfully maintained by the owner, the defendants in such action cannot insist that the mining claim was -forfeited by reason of the failure of the owner, during the time of their hostile possession, to perform the annual expenditure upon the claim required by the Revised Statutes of the United States.</p> <p>Id.—Abandonment—Evidence—Pleading—Quieting Title.—Abandonment of a mining claim need not be specially pleaded, but may be given in evidence under a denial of title, and may he proved by the plaintiff in an action to quiet title to a mining claim, to rebut a title, set up by the defendant under an earlier location.</p> <p>Id. —Proof of Abandonment—Finding against Evidence.—Abandonment of a mining claim is proved by evidence that the claimant remove ’ from the claim to mine in another part of the country, where he re - mained for two years, and that he declared that he had abandoned tl. claim, and would never return there again to work, and by the test - mouy of the claimant himself that he had abandoned it, unless it shor.l- - he developed into a paying property; and a finding, in view of such evidence, that he had not abandoned the claim, is against evidence.</p> <p>Id.—Conditional Abandonment not Recognized.— The law does no. 'recognize a conditional abandonment, but an abandonment must be regarded as absolute, if existing at all.</p> <p>Id.—Time of Absolute Abandonment.—If the intention to abandon lias been formed and once acted upon, the abandonment is as absolute, if it exists for a moment, as though it continued for years.</p>

<p>Libel—Privileged Publication—Pleading.—In an action against a newspaper for libel, the defense that the publication was privileged is one which, to be availed of, must be pleaded.</p> <p>Id.—Report of Public Proceeding—Arrest for Rape—Publication of Hearsay as to Details.—The publication of the details of a damaging statement, gathered by a reporter partly from a prosecuting witness who had arrested a business man upon an affidavit, stating generally that he had committed the crime of rape upon her person, without setting forth any circumstances or details of the alleged offense, and principally from hearsay of neighborhood friends aiid gossips, is neither a privileged report of any public official proceeding, or of anything said in the course thereof, nor is it in any respect a privileged publication, though made without express malice, in belief of its truth.</p> <p>Id.—Absence of Express Malice—Compensatory Damages.—Where a libelous publication is false in fact, but is made without express malice,- or malice in, fact, the plaintiff is not entitled to recover punitive damages; but, in such case, malice in law still remains, and if the pub- * lieation is a libel per se, the plaintiff is entitled to recover compensatory damages.</p>

<p>Appeal from a judgment of the Superior Court of San Benito County and from an order denying a new trial. H. A. Dokn, 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. F. E. Spencee, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Water Rights—Percolating Water—Diversion through Tunnel— Right of Owner of Soil.—The principles of law which govern the right to waters flowing upon the surface of the earth are inapplicable to waters which percolate through the soil; and such percolating waters, so long as they are in a condition of percolation, and do not form part of a defined stream, belong to the owner of the land regardless of the material through which they percolate, whether it be loose sand or sandstone, and such owner may, by a tunnel, intercept and develop such waters, and divert and appropriate them to his own use.</p> <p>Id.—Direction of Percolation—Seam of Clay—Right of Diversion from Adjacent Land.—The fact that the course of percolating waters is arrested by a seam of clay, and that they percolate through porous sandstone lying close to the seam of clay, along such seam, in a definite direction toward adjacent lands, does not affect the exclusive dominion over such percolating waters by the owner of the soil, and his mere diversion of such direction does not change their character as percolating waters; nor does he violate the rights of the owner of the adjacent lands by diverting and appropriating such waters, so as to prevent them from reaching the adjacent lands, or so as to destroy advantages therefrom previously enjoyed by the adjacent proprietor.</p> <p>Findings—Inferences of Fact—Appeal—Presumption—Support of Judgment.—The inference of one fact from another must be made by the trial court, unless such inferred fact is a necessary conclusion from the findings made; and if the facts found are such as might authorize different inferences therefrom, it will he presumed upon appeal that the inference made by the trial court was one that will uphold rather than defeat the judgment.</p>

W. E. Greene, Judge. The facts are stated in the opinion of the court and in the opinion rendered upon the fornier appeal, reported in 92 Cal. 1.

<p>Criminal Law—Robbery — Property of Foreign Corporation—Evidence—Proof of De Facto Corporation.—Where an information for the crime of robbery charges that the property taken was the property of a corporation organized under the laws of the territory of Colorado, and doing business in the state of California, evidence of a de facto corporation is sufficient to sustain the charge as laid, and it is not essential to prove a legal incorporation under the laws of the territory.</p> <p>Id.—Proof of Ownership—Possession—Agency.—In the absence of evidence to the contrary, in larceny or robbery, proof of possession of the stolen property by the person from whom it was taken is sufficient evidence of ownership; and proof that it was taken from the possession of the agents of the corporation to whom it is alleged to belong, is sufficient proof of its ownership, the possession of the agents of the company being the possession of the company.</p> <p>Id.—Declarations of Conspirator — Hearsay — Extrajudicial Admissions—Proof of Robbery.—Evidence of the statements of a coconspirator, made during the life of the conspiracy, are admissible against the other conspirator; hut declarations made by such coconspirator . after the crime has been committed, are hearsay, and inadmissible, nor can the existence of a robbery be proved as against the defendant by the extrajudicial admissions of a coconspirator, made after the commission of the offense.</p> <p>Id.—Error not Cured—Testimony of Conspirator—Instruction.— Error in admitting the declaration of a coconspiratoi^ made after the commission of the robbery as to the details of the robbery is not cured by the fact that such coconspirator testified to the same statements, nor by an instruction of the court to disregard any statements or confessions of the accomplice other than his sworn testimony.</p> <p>Id.—Distrust of False Witness—Erroneous Instruction.—If is error to instruct the jury that it is their duty, as matter of law, if they believe a witness to be willfully false in one part of his testimony, to reject all of his testimony.</p> <p>Id.—Instruction not Justified by Evidence.—The court should not give an instruction which is not justified by any evidence.</p>

<p>Criminal Law—Perjury—Insufficient Complaint—Failure to Aver Jurisdictional Facts-Motion to Set Aside Information.—A complaint for perjury alleged to have been committed in a criminal proceeding in a recorder’s court which fails affirmatively to state facts showing that the recorder’s court had jurisdiction of the subject matter of the action in which the oath was taken, or that the offense charged in that action was committed within the jurisdiction of the recorder’s court, is insufficient as a basis for an examination or commitment for the crime of perjury, and a motion to set aside an information for such crime, upon the ground that the defendant had not been legally committed by a magistrate, should be granted.</p> <p>Id.—Information Limited by Complaint.—-The complaint lodged with the magistrate constitutes the basis of the prosecution, and the defendant may be informed against and tried for any offense charged in the com- ■ plaint, or included therein, but beyond that limitation the prosecution cannot go, and if the complaint is insufficient to charge a public offense, no information thereon can be sustained.</p> <p>Id. —Test or Scpficienot of Complaint.—The complaint must show that the defendant has been guilty of some designated offense; though it need not necessarily charge the offense with all the technical nicety of an indictment or information; but it must state the essential elements of the crime to a common certainty.</p>

The claim of lien of the plaintiff Samuel N. Grubb was dated December 13, 1892, and was for a balance of account then claimed to be due and unpaid for labor before that time performed and materials furnished in the construction of the building. The claim was verified December 15, 1892, and was filed April 19, 1893, nine days after the completion of the building. Further facts are stated in the opinion of the court.

<p>Railroads—Breach of Contract to Carry Passenger—Election of "* Actions.—Where a railroad company breaks its contract to carry a passenger to the place of destination designated on the ticket, the passenger may either bring an action simply for breach of the contract, or may sue in tort in an action on the case for wrongful acts committed in violation of the contract, and in violation of defendant’s duty as a common . carrier, which it assumed upon entering into the contract.</p> <p>Id.—Different Acts of Tort by Different Agents-t-Fot the purpose 'k of the right of action for the tort of the railroad company, it is not material that different acts of tort were committed by different agents of the railroad company; and the liability of the railroad company is the same where one conductor took up the ticket of the passenger, and required a change of cars without giving to the passenger any evidence of the right of passage, and the conductor upon the other train excluded the passenger for failure to exhibit such evidence, as if both acts had been done by one conductor.</p> <p>Id.—Taking uf Ticket—Duty of Railroad Company.—It is the duty of a railroad company to see that, in taking up the ticket of a passenger, the passenger is not thereby deprived of the right to a passage upon its cars.</p> <p>Id.—Instruction—Measure of Care Required of Railroad Company ' toward Passengers.—It is proper to instruct the jury that the measure of care which a railroad company must exercise toward its passengers to see that they are provided with the means of continuing their journey is more than ordinary care; and it is not error to hold that this requires extreme care and diligence.</p> <p>Id.—Conduct of Conductor—Humiliation of Passengers — Indignity —Question fop. Jury.—It cannot be said, as matter of law, that the conduct of the conductor, in expelling a female passenger who had paid her fare, was not insulting or violent, or that she was not thereby subjected to humiliation and indignity, but the question is properly subo mitted to the jury under instructions from the court.</p> <p>Id.—Evidence—Nervous Condition of Passenger—Shook to KTervous System from Expulsion — Instruction — Element of Damage.— Where a female passenger is wrongfully expelled from the cars, evidence is admissible to show her nervous condition, and that she was subject to insomnia and nervous shocks and paroxysms, if placed under great mental excitement, and that by reason of the excitement connected with the humiliation of her expulsion from the car, there had been a recurrence of insomnia and nervous paroxysms; and it is proper to instruct the jury that if they found that plaint,ff was wrongfully expelled, under circumstances inflicting feelings of indignity and insuit, they might consider the injured feelings of plaintiff, the indignity en-one in her condition of life and standing in the community would experience, together with any bodily harm or suffering occasioned; and to award such an amount of damages as will compensate her for such humiliation, suffering, and other detriment. dured, her mental suffering, the humiliation and wounded pride which</p> <p>Id.—Mental Suffering—Aggravation of Damages.—Although mental suffering alone will not support an action for damages, yet it constitutes an aggravation of damages when it naturally ensues from the act complained of.</p> <p>Id.—Injury to Bervous System—Physical Suffering.—A shock or injury to the nervous system occasioned by a tort must he regarded as a physical injury producing suffering to the body rather than to the mind, though the mind may he at the same time injuriously affected.</p> <p>Id.—Character of Mental Excitement Immaterial—Cause of Bxrvous Injury—Question of Fact—Damages.—'ihe character of the mental excitation by which the physical injury to the nervous system is produced is immaterial; and the act which caused the condition of mental excitation is the proximate canse of the in jury, where it appears that the bodily harm is the direct result of the excited condition; and the question whether the indignity and humiliation suffered by the passenger from the act of expulsion caused the nervous paroxysm and subsequent injury to her health,- is a question of fact to be determined by the jury, and, if satisfled that it was so caused, they are authorized to include in their verdict whatever damages she had thus sustained.</p> <p>Id.—Knowledge of Defendant Immaterial—Unanticipated Result of Bkcligence — Batural Consequences.—Itis immaterial wins-her. the defendant or its agent knew of the susceptibility of the plaintiff to it could not or did not in fact anticipate such a result of its negligent act, it must be exonerated from liability for such consequences as ensued; iuiate consequences, not only that certainly would, but that probably might, flow from its wrongful act. nervous disturbance, and it is not for the defendant to say that because and it must be taken to know and contemplate all the natural andprox-</p> <p>Id.—Prudence of Plaintiff—Walk from One Station to Another— Resulting Injury—Question for Jury.—Where the evidence shows that after plaintiff had paid for her ticket she had no funds left, and that when she was expelled from the car at one station, she attempted to walk back three miles to another station where her sister in law was residing, the court properly left it to the jury to determine whether she acted prudently in so doing; and if so that the injury sustained by liei from such walk was a proper element of damage to be recovered; nor would the court he justified in directing the jury not to allow componsation for any injury sustained by the walk, upon the ground that if she had waited a few hours she could have gone upon the cars.</p> <p>Id.—Pleading—Acts Constituting Wrong—Refusal to Strike out Probative Facts—Harmless Ruling.—The plaintiffs were justified in setting forth in their complaint the several acts of the defendant which constitute the wrong for which they sought redress; and any possible error in not striking out probative facts contained in the allegations thus made is a technical error, without prejudice to the defendant, and is not ground for reversal after the case has been tried upon its merits.</p> <p>Id. —Demurrer to Complaint—Ambiguity and Uncertainty — Elements of Damage—Amounts not Specified.—The complaint of the plaintiff, setting forth a single ground of recovery for violation of defendant’s obligation for through carriage of plaintiff to her destination, is not subject to a demurrer for ambiguity and uncertainty merely because the damages caused thereby consisted of various elements set forth in the complaint, without designating any amount of damage caused severally by the indignity suffered, or by the humiliation or injury to plaintiff’s health, these elements of damage not being capable of computation, but the amount thereof is tobe determined by the jury in the exercise of an intelligent discretion,</p> <p>Id.—Insufficient Denials—Want of Information and Belief—Presumptive Knowledge op Cortoratioh.—Denials for want of information and belief are insufficient, and may he properly stricken from the answer, where the facts are presumptively within the knowledge of the defendant; and when the defendant is a corporation, it cannot place its denials upon such ground, if the matters denied are presumptively within the knowledge of any of its officers, even though the officer verifying the answer was himself without any information or belief upon the subject.</p> <p>Id.—Striking out Denials—Ruling Without Prejudice.—Where a ruling striking out some of the denials of an answer has been obviated by an amended pleading, and the defendant has not been precluded by the ruling from defending the action in any particular upon which it relied, the ruling is without prejudice, will be disregarded, and will not justify a reversal of the judgment.</p> <p>Id.—Excessive Damages—Remitter of Exoess.—Where the circumstances do not call for exemplary damages, but only for a full and fair compensation for the injury, and the evidence and circumstances are such as to show that the jury must have been influenced by other considerations than the testimony before them in arriving at the amount of damages allowed by them, and that such amount is excessive, the judgment will be reversed unless the plaintiff shall remit the excess.</p> <p>Id.—Amount of Excess.—The evidence considered, and a verdict for damages in the sum of fourteen hundred dollars for the wrongful expulsion of a female'passenger held to be excessive to the extent of one thousand dollars.</p>