Volume 112 — California Reports

<p>Pleading—Objections to Complaint—Waiver by Amendment. —The filing of an amended complaint supersedes any previous complaint, and is a waiver of any error in sustaining a demurrer to a previous complaint, or in striking out a portion of a previous complaint as being irrelevant and redundant.</p> <p>Id.—Demurrer to Special Defense—Appeal from Judgment—Presumption.—Where an appellant, appealing from the judgment upon the judgment-roll alone, without setting forth the evidence, seeks to reverse the judgment for error in, overruling a demurrer to a special defense set forth in the answer, it will be presumed in favor of the judgment that it did not depend upon that defense, and that no evidence was introduced in support of it; and it devolves upon the appellant to make the contrary appear upon the record.</p>

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

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

<p>Estates of Deceased Persons—Appointment of Administrators db Bonis Non—Improper Refusal of Court — Conveyance by Heirs. Wliere the administration of an estate has become vacant, and the estate has not been fully administered, it is the duty of the court to appoint an administrator to complete the administration; and the court cannot properly refuse to do so, upon the ground that the heirs have parted with their interest in the property, nor can it dispense with the usual and orderly administration of the estate, or determine the question of title as between the estate and persons claiming adversely to it.</p> <p>Appeal—Amici Curlse—Control of Litigation — Diminution of Record—Appointment by Lower Court.—Counsel appearing as amici curim have none of the right of an adversary in control of the litigation, and are not authorized to suggest a diminution of the record; nor are their rights or liberties enlarged by their anointment as amici curioc by the lower court, which has no authority to make such appointment.</p>

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

Charles W. Slack, Judge. The facts are stated in the opinion of the court, rendered upon the former appeal (Little v. Caldwell, 101 Cal. 555,557,558; 40 Am. St. Rep. 89), and in the opinion of the court upon this appeal.

<p>Accommodation Note—Collateral Security—Tender by Surety_Insolvency of Codebtors—Exoneration from Liability.—The makers of an accommodation note given as collateral security for the payment of the note of a principal debtor to a bank stand in the position of sureties for the principal debtor; and where one of them tendered payment of the principal debt to the bank, and asked for a transfer of the note for the purpose of suing the principal debtor and the other sureties, who were then solvent, the refusal of such tender by the bank, accompanied by a declaration that the bank preferred to keep the note, and make it out of the other parties, operated to exonerate the party making the tender from further liability in case of the subsequent insolvency of the principal debtor and of the other sureties.</p> <p>Id.—Deposit of Tender not Required—Obstacle of Creditor to Remedy of Surety.—A surety tendering the amount of the debt for which he is surety, in order to enable him to pursue his remedy against his co-debtors, upon the refusal of the creditor to accept it, is not required to keep the tender good, but he is exonerated as completely by its refusal, as if the creditor had, without his consent, extended the time of payment, there being the wrongful interposition of an obstacle to the remedy of the surety to protect his interest.</p> <p>Id.—Offer of Evidence—Insolvency—Finding—Presumption upon Appeal.—Where the court finds as a fact without apparent objection that the surety making the tender offered to prove that the principal debtor and his codebtors were solvent when the tender was made and refused, and that subsequently they and each of them became insolvent, and have continuously since been insolvent, and the court excluded the offered evidence upon the ground that it was irrelevant, incompetent, and immaterial, to which ruling exception was taken, such finding cannot be disregarded as having no place in the record, and it must be assumed, for the purpose of appeal from the judgment by such surety, that the facts were as the appellant offered to prove them to be.</p>

E. S. Torrance, Judge. The plaintiff sued as receiver of the Consolidated Bank of San Diego.

<p>Appeal from a judgment of the Superior Court of Sierra County. Stanley A. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Conditional Sale of Personal Property—Assignment by Vendor— Power of Attorney—Passage of Title—Stranger to Contract,— Where the owner of personal property has made a conditional sale thereof, reserving the title in himself, until full payment of the purchase money, for which he has received a note, a mere assignment of the contract of sale to a trust company, with power to fulfill the contract, and to collect all money thereon, without making to it any transfer of the note, or any bill of sale of the property, is in the nature of a power of attorney, and does not pass title of the property to the trust company, or authorize it to sell or transfer the property to a third person, and such third person is not a party or privy to the contract of sale, but is a stranger thereto.</p> <p>Id.—Evidence—Oral Agreement with One Vendee—Parol Evidence Against Stranger. —A stranger to a written instrument cannot invoke the rule that paroi testimony cannot be given to vary or contradict the terms of the instrument; and, as against a stranger to a written contract of conditional sale made to three persons, in which title was reserved to the vendor until full payment of purchase money, it may be shown by one of the vendees that he had an oral agreement with the vendor that if he made one-third of the payment of the purchase money he should have one-third of the property, and that such oral agreement had been fully performed on his part.</p> <p>Id.—Oral Modification of Written Contracts.—A contract in writing may be altered by an executed oral agreement, and evidence is admissible to show such an executed agreement and the circumstances attending it.</p> <p>Id.—Consideration of Release and Transfer—Question of Law.— When it appears that plaintiff accepted a release and transfer from two of the vendees, it is competent for the third vendee to show, as against the vendor, what was the consideration of such release and transfer, the effect thereof upon the third vendee being a question of law.</p>

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

<p>Collection or License Taxes—Payment to Tax-collector—Power of Supervisors.—The board of supervisors of a county has power to impose license taxes for purposes of revenue, and to provide for their collection by suit or otherwise; and though it has no power to create the office of license tax-collector, it may authorize license taxes to be paid to the county tax-collector.</p> <p>Id.—Doty of Tax-collector—Permissive Ordinance.—Where the tax-collector is authorized to receive license taxes under a county ordinance, though its language is merely permissive, it is the official duty of the tax-collector to receive them.</p> <p>Id.—Receiving License Taxes an Official Punction—Private Contract—Power of Board of Supervisors—Invalid Claim against County.—The act of receiving or collecting license taxes is an official function to be performed only by a county officer invested for that purpose with a part of the sovereign power of the state; and the board of supervisors has no power to make a contract with a private individual to collect license taxes for an agreed compensation, and such compensation cannot be enforced as a valid claim against the county.</p> <p>Id.—Statutory Power of Tax-collector—County Government Act-Political Code.—Under section 154 of the County Government Act which has never been repealed, and which requires the tax-collector to perform “such" duties as are prescribed by the Political Code, he is required to perform duties “of like kind” with those prescribed by the Political Code, and the duty to collect license taxes on business being “of like kind” with the duty to collect taxes upon property, though not identical with it, is included within the purview of that section of the County Government Act,</p>

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

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

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

<p>Constitutional Law—Liberty of Speech—Theatrical Representation of Facts of Criminal Case—Jurisdiction—Certiorari.—An order of the superior court forbidding the representation upon the theatrical stage of the facts of a criminal case, pending the trial of such case, is an infringement of section 9 of article I of the constitution of this state, which protects the right of the citizen to freely speak, write, and publish his sentiments, without censorship over him, he being responsible only at the hands of the law for an abuse of that right; and such order, being in excess of the jurisdiction of the superior court, will be annulled upon certiorari.</p> <p>Id.—Injunction—Equity—Jurisdiction—Restraint of Libel.—The jurisdiction of equity to restrain a publication rests only upon the protection of rights of property in that which is sought to be published; and equity has no jurisdiction to restrain any publication of a literary work upon the mere ground that it is of a libelous character, and tends to the degradation or injury of the reputation or business of the plaintiff.</p> <p>Id.—Contempt—Practice.—It is not proper practice for a court to command a person not to commit a contempt of court; though the court has ample power to protect itself in the administration of justice after a contempt has been committed.</p>

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

<p>Appointment of Guardian—Jurisdiction Local—Absence op Children from State—Domicile Immaterial.—The jurisdiction to op. point a guardian for infants, under the American system, is entirely local, and the superior court has no jurisdiction to appoint a guardian for infants who are absent from the state, and the fact that their domicile is in the state is immaterial, and is no test of jurisdiction to appoint a guardian for them.</p> <p>Id.—Award op Children to Mother—Publication op Summons—Vacation of Decree.—A decree rendered upon publication of summons, in an action brought by a mother to secure the custody of the children who have been removed from the state by the father, awarding to the plaintiff the exclusive custody of the children, is without jurisdiction, and should be vacated upon motion of the defendant.</p>

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

<p>Appeal from a judgment of the Superior Court of Fresno County. Stanton L. Carter, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Motion to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Waldo M. York, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Quieting Title—Disputed Boundary—Location of Half-section Line— Excess in Length of Section—Nonsuit.—In an action to quiet title, where the controversy was as to the location of a half-section line which bounded plaintiff’s land upon the north and defendant’s land upon the south, and it appeared that there was an excess of 80.50 feet in the length of the section from north to south, and both parties claimed a measurement from the south line of the section, the defendant claiming that the disputed boundary should be located only 2,640 feet, or half of a true section, north of such south line, while plaintiff’s proof tended to show that the survey of the section had located the half-section line 35.83 feet further to the north, and there was no proof tending to show that any other survey had been made which located the half-section line: Held, that if the subdivision line in dispute had been run and marked upon the ground, it must be adhered to, and that, in the absence of any survey fixing the line, the law would fix it at the actual center of the section, 42.25 feet north of the line claimed by defendant, and that it was error to grant a nonsuit of the plaintiff upon defendant’s motion.</p>

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

<p>Negotiable Paper—Action opon Promissory Note—Indorsement after Maturity—Defense—Offset—Counterclaim—Payment—Pleading —Demurrer.—In an action upon a promissory note, where the answer pleaded that the note was indorsed to the plaintiff after maturity, and denied consideration of the note, to the extent of one thousand dollars, and averred that before indorsement of the note, the payee was indebted to the defendants in the sum of one thousand dollars, for money paid, laid out, and expended, and for work and labor done by them for said payee, at his request, in that sum, while he was the holder of the note, which sum was and is an offset and payment on account of the note, and that the same had not been paid, though demanded; and, further, that one thousand dollars was paid on account of the note before transfer to the plaintiff, who had notice thereof, and that plaintiff was the son of the payee, and that the transfer to him was without consideration, for the purpose of defrauding the defendants, although that portion of the answer constituting a counterclaim is fatally defective, ambiguous, unintelligible, and uncertain, by improperly uniting and mingling distinct causes of action in one count, yet, as the plea of payment, notice to plaintiff, and transfer of the note without consideration, as made in the answer, constituted, pro tanto, a valid defense to the action, a demurrer to the entire answer was improperly sustained.</p> <p>Id.—Striking Out Immaterial and Irrelevant Part of Answer-Fraudulent Transfer of Property.—The answer having'admitted the making of the note, and shown on its face that there was an amount due thereon sufficient to cover the cross-demands of the defendants, it was immaterial to them or to their case whether or not plaintiff and the payee of the note had procured a fraudulent transfer of all or any part of the property of the payee; and the portion of the answer averring such fraudulent transfer was irrelevant matter, having no proper place-in the pleading, and was properly stricken out under section 453 of the Code of Civil Procedure.</p>

<p>Claim and Delivery—Pleading—Ownership at Time of Suit Brought. A complaint in an action of claim and delivery of personal property, must show the ultimate fact that plaintiff was the owner or entitled to the possession of the property at the time of the commencement of the action; and it is not sufficient to aver that he was the owner or entitled to possession at some period prior to that time.</p> <p>Id.—Insufficiency of Complaint—Objection upon Appeal.—The objection that the complaint of the plaintiff does not state facts sufficient to constitute a cause of action, may be taken at any time, and be taken for the first time upon appeal from the judgment.</p>

<p>Appeal from an order of the Superior Court of Placer County directing the sale of real estate. J. E. Prewett, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Street Assessment—Invalidity—Promise to Pay—Consideration—Additional Work.—Although a street assessment cannot be legally enforced for failure to get an order extending the time for the completion of the work, yet an action will lie upon a promise to waive defects and pay for the same, in consideration of the contractor doing additional work, and such promise is valid, and based upon a sufficient consideration of detriment to the contractor and benefit to the lotowner, to be enforceable like any other legal obligation.</p> <p>Id.—Pleading—Illegality of Contract—Matter of Defense.—Where the complaint upon such street assessment shows that the additional work was ordered by the board of trustees of the city, it does not show that the contract to do such work was unlawful under section 602 of the Penal Code, and section 1667 of the Civil Code, as being for a “digging” in the street without proper license; and if there was any unlawfulness in the contract, it should be pleaded as matter of defense.</p> <p>Id.—Several Counts of Complaint—General Verdict.—Where there are several counts in the complaint, and a general verdict is rendered, the complaint is sufficient to support the verdict and judgment, where each count is sufficient as against a general demurrer, and each count appears to be for the same cause of action.</p> <p>Id.—Evidence—Assignment of Assessment—Action by Assignee upon Promise—Estoppel of Assignee.—Where the plaintiff sues as assignee of the contractor, upon the promise of the defendant to pay the assessment, an assignment of the assessment, diagram, warrant, etc., is competent evidence, as tending to show an assignment of the obligation sued upon; nor can the defendant object to the sufficiency of the assignment, where it appears to be sufficient to protect him as against the assignor; and where the record shows that it was intended to carry the promise to pay the assessment, with the assignment of it, and that the contractor, by his action and conduct and recognition of the sufficiency of the assignment, is estopped to question its sufficiency, the judgment should not be reversed for failure sufficiently to prove the assignment.</p> <p>Id.—Instructions—General Exception Insufficient.—A general exception “to the instructions asked for and allowed by the court on the part of the plaintiff, ” is insufficient; but it is necessary that there should be, at least, a particular exception to each of the instructions, by number or other designation.</p> <p>Ed.—Issues—Proof of Nonpayment.—Where there is no affirmative plea of payment in the answer, and the denials that any sum remains unpaid are coupled with denials that any sum was ever due, and the defense was that nothing was ever due, aud there is no pretense that the defendant ever paid anything, and there is nothing in the record to show that the case was tried upon a theory of the sufficiency of the issues upon the question of payment, a judgment for the plaintiff will not be reversed for want of proof of nonpayment of plaintiff’s demand.</p>

<p>Corporations—Refusal of Bank to Transfer Shares—Conversion— Election of Remedy.—Where a banking corporation has refused to transfer stock upon its books, the assignee may elect to treat this as a conversion of the shares by the bank, and sue it for their value; or he may sue in equity to compel registration of the transfer, and recover damages as an alternative, nor is the latter remedy exclusive of the former.</p> <p>Id.—Ownership by Bank of Shares Converted.—The fact that the bank becomes the owner of the shares converted, where a recovery is had for the conversion, is not ground for refusing the remedy for such recovery, as the authorized capital is not reduced by such ownership, and the shares are not extinguished, and may be re-issued by the bank.</p> <p>Id.—Indebtedness of Stockholder to Bank—Transfer by Bank—Subsequent Conversion.—Where a rule of the bank forbids a transfer of stock while the stockholder is indebted to the bank, a refusal of the-bank to transfer the stock on that ground is not a conversion; but if the bank transfers its claim of indebtedness against the stockholder, it loses its lien upon the stock, and it is no longer authorized to refuse the transfer, and is liable for conversion of the stock, upon a subsequent demand and refusal to transfer it upon the books.</p> <p>Id.—Measure of Damages for Conversion—Delay in Prosecution.— Where there has been great delay in the prosecution of an action for the conversion of shares of stock, and there is no finding that the action was prosecuted with reasonable diligence, the measure of damages is limited to the value of the stock at the time of the conversion, with interest, and no recovery can be had of a higher value at the time of trial.</p> <p>Id.—Recovery of Dividends—Pleading—Cause of Action—Demand.— The plaintiff cannot recover dividends upon the stock converted when he has not alleged any demand for such dividends, nor sought to recover them as a separate cause of action, and they cannot be added to the measure of damages for conversion of the stock.</p>

<p>Appeal from a judgment of the Superior Court of Tulare County and from an order denying a new trial. W. W. Cross, Judge.</p>

<p>Negligence—Operation of Electric Railway by One Man—Runaway of Oar—Expert Evidence—Custom.—In an action for the death of a person injured through the runaway of ati electric car on a down grade, by reason of the fact that the car was left in the operation of a single man, who was compelled to leave the car to adjust the trolley at a switch, and who, through a fall to the ground, was unable to regain the car, expert evidence is inadmissible to show that, according to the experience and general custom of electric street railway companies, one man was sufficient to operate an electric car, although the witnesses could speak from their observation of the fact that certain roads did operate certain ears with but one man in charge.</p> <p>Id.—Opinion of Railway Companies—Ultimate Fact of Negligence— Province of Jury.—Where evidence as to a custom of electric railway companies amounts to the opinion of such companies as to the ultimate fact of negligence in the employment of a single man to attend an electric car, who is required to leave it when in motion, such evidence is not admissible; but such ultimate fact is matter to be inferred by the jury from the evidence, without the aid of expert or opinion evidence.</p> <p>Id.—Immaterial Evidence—Relative Number of Women as Passengers—Harmless Ruling.—A question asked of the defendant’s witness upon cross-examination, for the purpose of showing that more women than men were accustomed to ride upon the electric cars where the injury occurred to the woman for whose death the action was brought, should properly be excluded as immaterial; hut the admission of such evidence is harmless where it appears that it could not and did not affect the question of negligence, or prejudicially affect the defendant.</p> <p>Id.—Action by Husband for Death of Wife—Evidence—Damages— Loss of Service to Children—Value to Plaintiff—Instructions. In an action by a husband for the death of his wife, caused by the runaway of an electric car, evidence is admissible to show that his wife was manager of his household, and did all the work, and cared for, trained, and educated the children, and attended to their moral welfare, as tending to show the value of the wife’s services to the plaintiff; and although no injury sustained by the children can be compensated in such action, it is not error to refuse to instruct the jury that they cannot consider the loss of service or protection which the plaintiff’s children suffered by reason of the injury to his wife, as they have a right to consider the value of such services to the plaintiff, and it must be assumed that they did not consider them for any other purpose, especially where the court expressly instructed them that they were to award only the actual pecuniary damage sustained by the plaintiff, and no more.</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.</p>

<p>Landlord and Tenant—Oral Léase — Cash • Rent—Reservation of Title to Crop—Construction of Contract—Secret Lien—Attachment.—An oral lease of land for a fixed annual cash rental, with an understanding that the title to the crop was to remain in the landlord during the term, and that the crop was to be hauled to the nearest warehouse and stored in the name of the landlord, who was to receive the cash rental from the sale thereof, and render the overplus, if any, to the tenant, is to he construed, as a whole, as intended to give security to the landlord for payment of the cash rental, and to create a secret lien upon the growing crop, as such security, without complying with the chattel mortgage law; and the oral provision for title in the landlord must fail, in view of the intention of- the parties for security, as evidenced by the whole contract; nor can the secret lien stand as against an attachment levied on the growing crop as the property of the tenant by his creditor.</p> <p>Id.—Terms of Contract Not Conclusive.—No clause in a contract in terms locating the title to the property forming the subject matter of the contract in one of the parties is controlling upon a court, as against the provisions of the contract, taken as a whole, locating the title in the other party; nor is there anything in the name given to a contract, which can bind or control the court; but the true construction of the contract is to be determined by the legal effect of it considered as a whole, in view of the ruling intention of the parties, gathered from all the language used.</p>

<p>Negligence — Explosion of Gas Generator — Employment of Inexperíen ced Men—Absence of Proper Instructions.—In an action to recover damages for personal injuries caused by the explosion of a gas generator, where it appears that the plaintiff was inexperienced, and that the explosion was caused by the defendant allowing the plaintiff and another inexperienced man to tighten the nuts on the bolts upon the gas generator with an increasing pressure of gas, without proper warning to them of the danger, and of the care and skill required to make the pressure an equal strain upon all the parts of the generator^ a verdict for the plaintiff will not be disturbed upon appeal.</p> <p>Id.—Unforeseen Cause—Liability of Defendant.—The fact that the cause of the accident was unforeseen, and that the defendant did not know that it would probably occur, cannot relieve the defendant from liability resulting from the employment of unskilled and inexperienced workmen to do a dangerous task, without proper warning and instruction as to the danger, and as to the proper manner of doing the work.</p> <p>Id. —Instruction—Province of Jury—Matters of Fact Hypothetically Stated.—An instruction does not invade the province of the jury as to matters of fact, where it states facts hypothetically which are within the issues, and instructs the jury to find for the plaintiff or for the defendant, according as they may find, by a preponderance of evidence, whether such facts are proved or not, and does not refer to the evidence as sustaining, or tending to sustain, any fact.</p> <p>Id.—Fellow-servants—Engineer in Control as Manager—Instruction.—It is not error to refuse to instruct the jury that an engineer having sole charge of the generator in the absence of the superintendent and general manager, and under whose direction the work of tightening tfe bolts was done by inexperienced men, was a fellow-servont of the plaintiff, it appearing that such engineer had the same power to control the men, in the absence of the general manager, that the latter had when he was present.</p>

<p>Mortgages—Deed as Security—Assumption of Prior Mortgage—Liability for Deficiency.—The rule thatfwhere the grantee of mortgaged premises undertakes as part of the consideration of the conveyance to pay the grantor’s debt to a mortgagee, the mortgagee can enforce the obligation as having been made for his benefit, and have a personal judgment for deficiency against him upon foreclosure of the mortgage, does not apply where the deed is intended as a. mortgage security for a debt of the grantor to the grantee; and, in such case, a promise by the subsequent mortgagee to the owner of the premises to assume and pay the prior mortgage is simply a transaction between the immediate parties to the agreement, which cannot be enforced by the prior mortgagee, nor is he entitled to any personal judgment for deficiency upon foreclosure of the prior mortgage against such subsequent mortgagee.</p>

<p>Husband and Wife—Deed to Wife—Separate Property—Presumption.—By a grant, bargain, and sale deed from the husband to the wife, expressing a money consideration, the wife presumptively becomes seised of the land as of her separate estate.</p> <p>Id.—Homestead on Wife’s Property—Death of Wife—Succession of Husband.—Where a homestead is declared upon the separate property of the wife, by the act of the wife, subject to a mortgage thereupon, in the event of her death the title thereto becomes vested in the husband, subject to the lien of the mortgage.</p> <p>Id.—Administration upon Homestead — Jurisdiction of Superior Court — Erroneous Action—• Collateral Attack.— The superior court has jurisdiction over the homestead for the purposes specified in section 1475 of the Code of Civil Procedure; and, where the court, from ignorance of fact, inadvertence, or mistake of law, makes an order not authorized by the statute, its proceedings, however erroneous, are not without jurisdiction, and cannot be collaterally attacked.</p> <p>Id.—Failure of Record to Disclose Fact of Homestead—Action of Administrator—Jurisdiction to Order Sale.—Where the record of administration does not disclose the fact that there was a homestead upon the land administered upon, it has jurisdiction upon the face of the record to order a sale of the land to pay liens thereupon and expenses of administration; and, where the administrator, who had the-title to the homestead, failed to disclose his interest therein, and petitioned the court for such order of sale, he cannot question the jurisdiction of the court to make such order.</p> <p>Id.—Delay in Bond of Administrator—Prior Letters and Oath of Office—New Letters not Required—Validity of Sale.—The fact that an administrator did not present his bond for approval until several days after the issuance of letters to him, and the taking of the oath of office, does not require the issuance of new letters after the bond is given, nor vitiate proceedings for the sale of land instituted by him subsequently to the approval of the bond.</p> <p>Ed.—Defects in Proceedings for Sale—Vacation of Order—Irregular Order and Bond.—Where the court has once acquired jurisdiction to order a sale of real estate, any defects, errors, or irregularities in the proceedings, in the exercise of its jurisdiction, however gross, cannot render the order of sale invalid; and the fact that the order first made was vacated, and that the land was sold under a subsequent order entered without any new order to show cause, or any continuance, and that the bond was given under the first order, and none was given under the second order, will not vitiate the sale as against a collateral attack.</p> <p>Id.—Estoppel of Owner to Question Title of Purchaser—Retention of Purchase Money—Void Sale.— Where the administrator, who petitioned for the sale, had title to the land, but asserted in the probate proceedings that the title to the land was in his deceased wife, and, after procuring the sale thereof, received the purchase money and applied it to the payment of a valid lien thereon, for which he was personally liable, and to the payment of the funeral expenses and costs of administration which he had incurred, and conveyed the property to the purchaser, and put him in possession, he is estopped to question the title of "the purchaser, while retaining the purchase money, even though the proceedings for the sale may have been void for want of jurisdiction.</p> <p>Id.—Purchase from Estopped Owner—Knowledge of Facts.—A plaintiff who purchased the title of an owner who is estopped to claim title as against the defendant, with knowledge of the facts upon which the estoppel is based, is in no better situation than his grantor, and is hound by the estoppel.</p> <p>Id.—Quieting Title—Findings—Stipulated Facts—General Finding —Conclusion of Law—Reversal uponAppeal.—A general finding in an action to quiet title, to the effect that plaintiff is the owner and that the claim of the defendant is without right, is a conclusion of law, where all the facts respecting the title are embodied in a stipulation, which the court adopts as a finding; and, in such case, the appellate court may reverse the judgment, and order judgment for the defendant, upon the findings, when the stipulated facts warrant such reversal.</p>

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

<p>Trusts—Mistake in Distribution of Estate—Express Trust—Lettee to other Heirs—Error as to Legal Interest—Enforcement oe Trust.—Where, through a mistake of fact, in ignorance of the existence of other heirs, the real property of a deceased person was wholly distributed to the grantee of a sister of the decedent, who was adjudged th he sole heir, and such grantee, upon subsequently discovering that a brother of the deceased was living in Ireland when the distribution was made, addressed a letter to his widow, expressing an intention to concede to the heirs of such brother, then deceased, one-half of the estate,, supposing that to be his proper share thereof, whereas, in truth, his interest would have been limited to one-third of the estate, such letter declares an express trust in favor of his heirs, but the expressed interest of one-half of the estate is to be controlled by the evident intention to concede to such heirs the same legal interest which would have been given to the brother of the decedent in the first instance, had distribution been properly made; and such trust is properly enforced to the extent of one-third interest in the real property distributed to the person declaring the trust.</p> <p>Id.—Involuntary Trust—Conolusiveness of Degree of Distribution —Heirship—Collateral Attack.—The children of another deceased sister of the decedent, in whose favor no express trust was declared by the distributee of the estate, cannot enforce an involuntary trust against the distributee, the decree of distribution being conclusive as to the heirship of the estate as against any collateral attack.</p>

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

<p>Appeal from an order of the Superior Court of Alameda County ordering an administrator to account, and from an order refusing to settle a bill of exceptions. W. E. Greene, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal—Judgment Denying Probate oe Will—Dismissal.—An appeal from a judgment denying probate to a will which is not taken until more than sixty days after its entry must be dismissed.</p> <p>Id-—New Trial—Denial oe Probate—Service of Notice on Nonappearing Heirs.-—An appeal from an order denying a new trial of a contest for the probate of a will, taken by the proponent of the will, will not be dismissed for the failure of the appellant to serve the notice °i appeal on certain heirs at law of the decedent, who did not appear or become parties to the proceeding in the lower court.</p> <p>Will — Undue Influence — Declarations oe Testator — Evidence.— Where a will is contested on the ground of undue influence, or other like cause, not drawing into question mental capacity of the testatrix at the time of its execution, neither her prior nor subsequent declarations are admissible to show either that the influence was exercised or that it affected her actions. Nor are her subsequent declarations of dissatisfactian with the will competent to show that it had been executed through any undue influence.</p> <p>Id.—Evidence—Treatment by Beneficiary.—On the trial of such a contest evidence that a person alleged to have exerted undue influence was penurious is inadmissible, as are also the declarations of the testatrix with reference to the treatment of her by her husband, who was the sole beneficiary under the will.</p> <p>Id.—Instructions not Applicable to Facts.—Instructions which in the abstract are correct statements of the law as to the circumstances from which undue influence may be inferred, or as to the different conditions under which its exercise may be looked for, are misleading and erronepus when there is no evidence introduced on the contest of any such circumstance or condition.</p>

<p>'Streets — Abutting Owner — Change oe Watercourse — Injunction —Compensation.—An abutting owner upon a street of a city, whether he owns the fee in the street or has only an easement for its use, may enjoin the city from so changing a natural watercourse as to damage his property by preventing a free access to and use thereof, unless compensation for such damage is first made to, or paid into, court for him.</p> <p>Ib.—Joinder oe Parties.—Several abutting owners, whose respective lots would be similarly damaged by the threatened change of the watercourse, may join in an action to enjoin the change; but, in order to recover damages, they must sue separately.</p>

<p>Counties—Contract Payable in Installments—Liability in Excess op Revenue—Constitutional Law.—A contract by a county for work to be done in the future, to be paid for in installments as the work progresses, where the installments payable in any one year do not exceed the revenue of that year, does not, at the time of entering into the contract, create any debt or liability for the aggregate amount of the in- ' stallments to be paid under it, but ouly creates such debt or liability as may arise from year to year in separate amounts as the work is per= formed; and such contract is valid, and not within the prohibition of section 18 of article XI of the constitution, and of sections 8 and 36 of the County Government Act of 1891, by which a county is forbidden to “incur any indebtedness or liability in any manner, or for any purpose, exceeding in any year the income and revenue provided for it for such year.”</p>

<p>Appeal from a judgment of the Superior Court of San Diego County. E. S. Torrance, Judge.</p> <p>The”facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of San Luis Obispo County. V. A. Gregg, Judge.</p> <p>The facts are stated in the opinion.</p>

Application in the Supreme Court for a writ of man- . date to the president of the City Council of Los Angeles» The facts are stated in the opinion of the court.

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

<p>Divorce—Habitual Intemperance—Pleading—'Waiver of Ground for Special Demurrer.—A complaint for a divorce upon the ground of habitual intemperance of the defendant, which states a cause of action, cannot be held bad on the ground of uncertainty, where no special demurrer was interposed to the complaint upon that ground.</p> <p>Id.—Finding—Conflicting Evidence—Appeal.—A finding that the defendant was habitually intoxicated will not be disturbed upon appeal, where there is a substantial conflict in the evidence, and there is some evidence tending to sustain the finding.</p> <p>Id.—Extreme Cruelty — Evidence — Declarations—Conversation of Parties..—In an action for divorce upon the ground of extreme cruelty, brought by the wife against the husband, the declarations of the wife, made in the presence of her husband and of a witness, as to acts of ill-treatment anil cruelty toward her by her husband, and his conduct and declarations in response thereto, are proper evidence on the issue of cruelty.</p> <p>Id.—Disposition of Community Property.—Evidence—Offer of Compromise—Admission of Character of Property.—Upon the issue as to the character of the property to be disposed of by the court, in an action by the wife for divorce on the grounds of the extreme cruelty and habitual intemperance of the husband, a paper signed by the husband, in which he offered to divide the property, and described it as commu. nity property, is admissible in evidence against him as a declaration or admission of its community character, though the offer was made by way of compromise, the declaration not being essential to the purpose of the compromise, or to be regarded as a concession made for that purpose, but being the statement of an independent fact.</p> <p>Id.—Divorce for Extreme Cruelty—Equity of Division of Property— Discretion of Superior Court.—The discretion of the superior court in disposing of the community property, where a divorce is granted for the extreme cruelty of the husband, will nob be interfered with upon appeal, where there is no palpable abuse of discretion, though the disposition may seem somewhat harsh and inequitable, if the discretion rested primarily with the appellate court.</p>

<p>Mortgage — Homestead — Reformation of Description — Mistake of Mortgagee Known to Mortgagor.—Where a mortgage executed in due form by the husband and wife upon the homestead did not include all of the homestead premises which the husband and wife had agreed to mortgage, and the mortgagee accepted the mortgage under the mistaken belief that it included all the land agreed to be mortgaged, and the husband and wife knew that he so mistakenly believed, and that he was deceived in so believing, and that he accepted the mortgage with such mistaken belief, the mortgagee is entitled, under section 3399 of the Civil Code, to have the mortgage reformed so as to express the intention and agreement of the parties, and to have it foreclosed upon the homestead as thus reformed.</p> <p>Id.—Contract of Married Woman — Execution — Rights and Remedies. —Although a married woman is not bound by any instrument not executed by her in the manner prescribed by the statute, yet, when she has duly executed a contract, she bears the same relation to it, and to rights and remedies under it, as any other contractor; and her contract so executed is subject to reformation; and the fact that the contract to be reformed is a mortgage by the hu^and and wife upon the homestead is immaterial, provided the mortgage is executed by them in the manner prescribed by statute.</p> <p>Id.—Mistaken Description—Failure to Include Property.—An action lies to reform a mistaken description in a properly executed instrument; and, for the purpose of such action, there is no difference between a description which does not include all the property intended to be conveyed and a description which is defective in any other respect.</p> <p>Id.—Reformation op Mortgage—Sufficiency of Security—Pleading. A mortgagee is entitled to all the security for which he contracted; and a complaint in an action to reform a mistaken description of the land mortgaged by the inclusion of other land agreed to be mortgaged, need not aver that the mortgage, as mistakenly made, was insufficient security.</p>

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

<p>Evidence—Receipt of Telegram—Presumption.—When a telegram has been sent, it is a presumption of fact that it was received by the person to whom it was sent, and the fact that it was sent is admissible evidence tending to show that it was received; bub its receipt may be disproved.</p> <p>Id.—Prepayment of Telegram—Waiver of Objection.—Where no objection is made to the introduction of a telegram as evidence, on the ground that no proof is made that it was delivered to the telegraph company for delivery, or that it was prepaid, and no attempt is made to show the facts in the case, on cross-examination of the witness, objections cannot afterward be urged upon those grounds.</p> <p>Id.—Res Gestae—Declarations of Vendor.—Where the vendor of personal property is present when the property is moved by his vendees, the declarations of the vendor as to his object in moving the property, made before the removal is complete, are admissible in evidence as part of the res gestee, and for. the purpose of throwing light upon the character of the transaction, and enable the jury to determine whether the sale was bona fide, or with the express intent to defraud his creditors.</p>

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

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

Appeals from a decree of final distribution, from an order refusing to suspend the decree of distribution, and from an order denying a motion for distribution to trustees. John Ellsworth, Judge. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Stanislaus County and from an order denying a new trial. William' 0. Minor, Judge.</p> <p>The facts are stated in the opinion.</p>

Hearing in the Supreme Court upon writ of habeas corpus to the marshal of Chico, Butte County. The facts are stated in the opinion of the court.

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

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

S. IC. Dougherty, Judge. The facts are stated in the opinion of the court rendered upon the former hearing in Bank reported in 38 Pac. Rep. 986, and in the present opinion of the court upon rehearing.

<p>Action fob Conveyance and to Quiet Title—Partition—Boundary of Grant—Mutual Mistake—Corrected Division Line—Statute of Limitations—Recovery of Real Property.—Where part of the lands included in partition deeds which were intended to make an equal division of the lands owned by the parties, but which, by mutual mistake, included lands outside of the boundaries of a Mexican grant, of which the lands owned by them formed a part, and, upon discovery of the mistake, the owners employed a surveyor to make an equal division between them of the lands lying within the grant, and a fence was built between them upon part o£ the division line thus established, the remainder of the division line being marked by a furrow, but no correction was made in the partition deeds, an action subsequently brought to compel a conveyance to the corrected division line, and to quiet title to the land up to that line, is, in effect, an action to recover real property, and is subject to the limitation of five years prescribed by section 318 of the Code of Civil Procedure, and is not governed by the limitation of three years from the discovery of the mistake,1 prescribed by subdivision 4 of section 338 of that code, the mistake being merely incidental to the action for the recovery of the property.</p>

<p>Appeal from an order of the Superior Court of San Joaquin County settling the accounts of executors. J„ K. Law, Judge, Presiding.</p> <p>The facts are stated in the opinion.</p>

<p>Vendor and Purchaser—Contract of Sale—Independent Covenants— Payment at Fixed Date—Conveyance after Patent—Foreclosure of Right of Purchaser. —Where the purchaser of land from a railroad company contracted unconditionally to pay the remainder of the purchase money on or before a fixed date, and to pay interest thereon annually in advance, and the railroad company only agreed to convey upon the receipt by it of a patent for the land sold, and to repay the moneys paid only in case it be finally determined that patent shall not issue, and proceedings for a patent were pending and undetermined in the United States laud department when the remainder of the purchase money fell due, the covenants for the payment of interest annually and of the residue of the principal are independent of the covenant for a conveyance, and the railroad may bring an action to compel the payment of money due under the contract, and, in default of payment, to foreclose the right of the purchaser under the contract, without the tender of a conveyance; and the fact that the residue of the purchase money falls due pending the trial does not preclude the foreclosure, or require the tender of a conveyance, before the issuance of the patent.</p> <p>Id.—Performance by Plaintiff, When not a Condition Precedent.— If a day be appointed for payment of money, or a part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or the act is to b.a performed, an action may be brought for the money, or for not doing such other act, before performance by the plaintiff; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent.</p> <p>Id.—Mutuality of Contract—Consideration.—The contract to pay the purchase money absolutely is not void for want of mutuality or consideration where the vendor claiming title to the land, which had not been perfected by patent, agreed to convey when a patent should he obtained, and to permit the purchaser to enter into possession aft once, and agreed to repay the purchase money without interest in the event of an ultimate failure to obtain a patent.</p> <p>Id.—Action to Foreclose not a Rescission.—The bringing of an action to foreclose the rights of the purchaser in the contract does not operate as a rescission of the contract, or entitle the purchaser to a return of the money paid under the contract.</p> <p>|d._Form of Decree—Alternative of Payment or Foreclosure.—A decree of foreclosure giving the purchaser the alternative of paying within a fixed period or suffering foreclosure of his rights as purchaser is in accordance with equity.</p>

Writ op Habeas Corpus from the Supreme Court to the sheriff of the City and County of San Francisco, holding the petitioner under commitment from the Police Court of said city and county, upon a judgment of conviction, for keeping open a barber-shop on Sunday afternoon, June 16, 1895. 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. Walter BL Levy, 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 Bernardino County. George E. Otis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trusts—Patent to Homestead Claimant—Equitable Rights of Purchaser of Mexican Grant—Act to Quiet Land Titles—Ejectment —Supplemental Answer and Cross-complaint — Demurrer.—In an action of ejectment, where the plaintiff’s right of recovery was based upon a homestead entry and receiver’s receipt, a supplemental answer and cross-complaint by the defendants, setting forth the issuance of a patent to the plaintiff pending the_ action, and seeking to enforce a trust therein as against the plaintiff, upon the alleged ground that the defendants are the successors in interest of a bona fide purchaser from a Mexican grantee, whose grant was subsequently rejected, and setting forth all the facts required for the protection of such purchaser under section 7 of the act of Congress of July 23, 1866, to quiet land titles, and alleging that, at the hearing before the land department, all of these facts were established by competent evidence, without conflict, and that the decision of the land department that the patent should issue to the plaintiff was based wholly upon an erroneous construction of the law that defendants were not entitled thereto, states a sufficient ground for the enforcement of a trust against the plaintiff, and a demurrer admitting the facts thus alleged is improperly sustained.</p> <p>Id.—Question of Fact for Land Department—Good Faith of Purchaser—Possession and Improvement—Contested Facts—Conclusion of Law as to Undisputed Facts.—Whether the predecessor of the defendant did, in fact, purchase the land for a Valuable consideration in good faith, or whether he believed that the land purchased was included within the original limits of the Mexican grant, or whether after his purchase, he used and improved the land, and continued in the actual possession of the same, according to the lines of his purchase, are questions of fact for the land department to determine, and its decision upon those questions of fact, if contested, is conclusive upon the courts, though if it has made an erroneous conclusion of law upon undisputed facts, its action is open to review.</p> <p>Id.—Jurisdiction of Land Department—Decision as to Patent, how Far Conclusive—Error of Law—Equitable Relief.—Upon the issuance of a patent by the United States, the decision of the land department upon all the facts necessary to the issuance of the patent, is, in the absence of fraud, mistake, or imposition, conclusive, and any errors of judgment, in reference to the weight of evidence or the credibility of the witnesses, as well as the inferences or conclusions which the officers may draw from the testimony before them on contested questions of fact, are conclusive upon the courts; but if, in making their decision, they have erred in the construction of the law applicable to the facts, or by any mistake of law have given to one the land which, upon un disputed facts, should have been given to the contestant, a court of equity will grant relief against such mistake by disregarding the erroneous ruling of law, and will decree that the person who has received the patent holds it in trust.</p>

<p>Construction of Olographic Will — Name of Husband Appended — Residuary Legatee.—Where there is no residuary legatee named in the body of the concluding portion of an olographic will, made by a wife, but underneath, and at the left-hand corner of the will, are written the words “my husband,” with his name appended, the will will be construed as making him the residuary legatee, where the phraseology of the concluding part of. the will is consistent with the intent to make him such legatee, and not consistent with the intent to make the legatee last named in the body of the will a residuary legatee.</p> <p>Id. —Order of Words—Transposition—Supply of Omission.—The order in which the words of a will are written is not determinative of the testator’s intention, and the order will be transposed if thereby the intention of the testator can be ascertained; and a word that has been manifestly omitted, and is essential to an understanding of the intention of the testator, will be supplied.</p> <p>Id.—Subscription of Olographic Will.—The statute does not require that an olographic will shall be subscribed by the testator at the end thereof; and it is sufficient if it be signed by him, and the signing may be at the beginning, or in any part of the document.</p> <p>Id.—Evidence—Unfriendly Treatment of Testatrix by Husband.— Evidence of unfriendly treatment of the testatrix by her husband is not admissible, and cannot authorize a conclusion that she intended to exclude him from a share in her estate; nor is evidence admissible of his friendly conduct toward her.</p> <p>Appeal—Proof of Service of Notice—Motion to Dismiss.—Where a motion is made to dismiss an appeal for failure of the transcript to show a service of the notice of appeal upon the administrator of the decedent’s estate, a supply of proof of such service at the hearing of the motion is sufficient answer to the motion, and the ground of the motion is thereby obviated.</p>

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

<p>Vendor’s Lien—Sale of Equity—Possession as Security—Conveyance to Vendee—Mortgage — Bona Fide Encumbrances.—Where the vendor of an equity arising under an unfulfilled contract of purchase agreed with the vendee that a deed should be executed to the vendee, upon payment of the residue of the purchase money due to the original vendors, besides a cash payment to the vendor of the equity, and that, possession should be retained by the vendor until the residue of the agreed price should be ’paid in full, as evidenced by note of the vendee, to the vendor, such agreement for possession is an exclusive security, and the vendor has not a vendor’s lien upon the premises, such as a court of equity will create to secure the purchase money; and where money was borrowed by the vendee to make the cash payments required to obtain the deed, and a deed was executed to the vendee by the original vendors, and joined in by the vendor of the equity, whereupon a mortgage was immediately executed by the vendee, without knowledge of the •vendor, to the lender of the money, who did not know that the vendor of the equity had not been paid in full, such mortgagee is protected as a bona fide encumbrancer against the claim of the vendor for the unpaid purchase money.</p> <p>Id.—Effect of Possession — Conveyance by Possessor — Presumption —Inquiry.—When one in possession of land makes an absolute conveyance of it, the presumption is that he did so upon an adequate consideration; and unless there is some circumstance which indicates the contrary, persons may deal with the grantee on that supposition, and ■are not under obligation to inquire further of the possessor.</p> <p>Id. — Deed by Vendor To Third Person—Transfer of Possession.— 'When the vendor of an equity, who retained the possession of the premises as security for unpaid purchase money, executed a deed of the premises to a third person and transferred to him the possession of the •premises, the vendor, if originally entitled to a vendor’s lien for the unpaid purchase money, could not thereafter enforce such lien.</p> <p>Appeal—Rehearing in Bank — Minute Order — Jurisdiction of Supreme Court—Case Affirmed.—In re Jessup, 81 Cal. 408, affirmed as to the jurisdiction of the supreme court in Bank to grane a reliearing by an order of the court entered upon the minutes.</p>

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

<p>Eire Insurance—Express Warranty—Watchman—Stoppage of Mill. Where a policy of fire insurance upon a sawmill contained an express warranty that during such time as the mill was idle, or not in operation, one or more watchmen should be on duty constantly day and night, and that if the mill should be shut down for more than thirty days, notice should be given to the company, and permission to remain shut down obtained and indorsed on the policy, else it should become null and void, upon breach of such warranty by failure to keep a watchman on duty during the night when the mill was idle, and keeping it shut down more than thirty days prior to loss by fire, without notice and permission as required by the terms of the policy, there can be no recovery upon the policy for such loss.</p> <p>Id. —Materiality of Statement or Promise—Performance of Promise. Where there is an express warranty the question whether the fact stated or stipulated for be material to the risk or not is of no consequence, one of the very objects of the warranty being to preclude all controversy about its materiality or immateriality, or reasonableness, and, if the warranty be a statement of fact, it must be literally true, or, if it be a stipulation that a certain act shall or shall not be done, it must be literally, or at least substantially, performed, and it is immaterial to what cause noncompliance is attributable.</p> <p>Id.—Code Provisions—Effect of Negligence—Breach of Warranty, Although under the Civil Code, in' the absence of an express warranty, an insurer is not exonerated by the negligence of the insured, or of his agents, nor by breach of an immaterial provision, yet the policy may declare that a violation of specified provisions shall avoid it, and mere negligence cannot abrogate the provisions of the code upon the subject of breach of warranty.</p> <p>Id.—Insufficient Service of Watchman.—To have a watchman who in the night-time only visited the insured mill twice, and who, during the rest of the night slept in a house from which the mill was only partially visible, is not a substantial or sufficient compliance with a requirement of the policy that a watchman should be on duty constantly day and night.</p> <p>Id.—Shutting Down of Mill Without Permission—Shipping of Lumber —Opinion Evidence.—Where the evidence shows that the mill was idle and not running for more than thirty days prior to the loss by fire, it is shut down within the terms of the policy, requiring written permission to remain shut down for more than thirty days, and the opinion of a witness that it was not shut down as long as they were shipping lumber can have no effect as expert evidence to establish the contrary.</p> <p>Id.—Nonsuit—Verdict against Law.—Where the evidence of the plaintiff in an action upon an insurance policy shows a noncompliance, or an insufficient compliance, with the terms of an express warranty in the policy, a nonsuit should be granted, and a verdict for the plaintiff is a verdict against law.</p>

<p>Appeal from a judgment of the Superior Court of Calaveras County. C. V. Gottsohalk, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Foreclosure of Mortgage—Attorney’s Fees—Pleading—Evidence.—. The complaint in an action to foreclose a mortgage need not aver, nor need the plaintiff prove as a condition precedent to the recovery of attorney’s fees, that the plaintiff had employed an attorney to prosecute the action, or the amount agreed to be paid such attorney; but it is sufficient to show at the trial that the percentage allowed in the mortgage for attorney’s fee is a reasonable fee in the case, and, if there is no countershowing, the court is justified in awarding that amount.</p> <p>Id.—Judicial Notice — Presumption of Employment of Attorney.— The court will take judicial notice that the attorney for the plaintiff, whose name is signed to the complaint for the foreclosure of the mortgage, is an attorney of the court; and his signature to the complaint authorizes the presumption that he has been employed by the plaintiff to prosecute the action, and that the plaintiff has become liable to pay him a reasonable fee for his services.</p>

<p>Appeal—Order for Judgment upon One Issue—New Trial of Other Issues—Time for Entry of Judgment—Construction of Decision. Where, upon a former appeal, the cause was remanded to the superior court with directions to enter a j udgment as of the date of a former judgment for a specified sum, with interest from that date, upon one of the issues in the case, and to retry the canse upon other issues, the decision of the appellate court is to be construed as contemplating but one final judgment in the cause, and the judgment ordered to be entered should not be entered before the new trial is had, but should form part of the final judgment in the cause, to be rendered after the close of the new trial.</p>

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

Motion to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge. The facts are stated in the opinion of'the court.

<p>Debd.Intended as Mortgage—Action to Redeem—Parol Proof—Finding—Sufficiency of Evidence—Discretion.—In an action to have a deed absolute in form declared a mortgage and to redeem the same, after an accounting of rents and profits, the plain language of the deed should not be varied by paroi testimony, unless the evidence is strong and satisfactory; but where the court and a jury to which special issues were referred are satisfied with the proof, their finding will not be disturbed, although it may seem to the appellate court questionable whether the evidence is sufficient to support the finding, if it cannot be said that the court and jury abused their discretion in finding the evidence sufficient.</p> <p>Id.—Form of Decree.—In an action to redeem from a deed intended as a mortgage it is not proper to enter a decree foreclosing the mortgage, but the decree should limit a reasonable time within which plaintiff must pay the balance found due, and direct that in default of such payment within the time limited the action should be dismissed.</p>

A. P. Gatlin,. Judge. The action was brought to foreclose six several liens for street improvements in the city of Sacramento.

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

<p>Banks —Fledge — Special Deposit — Insolvency — Preference of Pledgor.—Where a special deposit of money was made with a bank as a pledge, to secure it from loss for the furnishing of bail, the title to the deposit remains in the pledgor, and, after cessation of the liability to secure which the pledge was given, an action will lie to recover the sum deposited, and in case of insolvency of the bank, the pledgor is not remitted to the rights of a general creditor, but may recover the entire sum deposited out of the assets of the bank.</p> <p>Id.—Wrongful Commingling of Funds — Estoppel.—The bank cannot plead its own wrongdoing to its own advantage; and the fact that moneys specially deposited in the bank by- way of pledge were afterward wrongfully commingled and used as funds of the bank, without the knowledge or consent of the pledgor, cannot he urged by the bank in defense as effecting any change in the contractual relations and rights of the parties.</p> <p>Id. — Finding — Money in Bank Vaults.—A finding that the money pledged “went into the bank vaults through the regular channel,” is not a finding that the special deposit was commingled with other funds, but is to be construed as a finding that the money went into the bank ' vaults as a special deposit in the regular manner.</p> <p>Id.—Certificate of Deposit — Receipt.—Where a special certificate was issued to the pledgor upon the making of the deposit, showing on its face that it was “payable only on release of bonds,” which the deposit was intended to secure, the certificate is in nature a mere receipt, expressing briefly the contract of pledge; and such certificate does nob make the holder a general creditor of the bank.</p> <p>Id. —Interest upon Deposit—Demand.—Interest can only be allowed upon a special deposit from the date of a wrongful refusal or failure to pay the same upon demand.</p>

<p>New Trial—Sufficiency of Proposed Statement—Skeleton State- • mbnt.—A proposed statement, on motion for new trial, should be a fair one, but nothing should be inserted therein in extenso but that which is pertinent to the questions made by the moving party, and necessary for their proper consideration, -and a proposed statement should not be rejected because it contains reference to documentary evidence, with the remark “[here insert],” notifying the opposite party that it is to become part of the statement; and though such reference in an engrossed statement would render it a skeleton statement, a proposed statement is not to he rejected, or settlement thereof refused on that account.</p> <p>Id.—Extension of Time—Stipulation—Jurisdiction of Cotot.—An extension of time to prepare and serve a proposed statement by stipulation of the parties does not affect the jurisdiction of the court to •extend the time for a period of thirty days from the expiration of the stipulated time.</p> <p>Id.—Construction of Stipulation—Waiver of Motion.—A stipulation extending time to the defendants to prepare, serve, and file their proposed statement, agreeing that defendants will use their utmost endeavors to have the statement of the case settled by the judge, ■ and will, at as early a day as possible, have their transcript on appeal printed, is not to be construed as an agreement that they would waive their right to prepare the statement and move for a new trial, if “they failed to serve their statement by the day named in the stipulation.</p> <p>Id.—Form of Order Extending Time—Immaterial Error in Description.—An order made after the time had been extended by stipulation to prepare a “ statement on motion for new trial,” which erroneously designates a further extension of time as being “to prepare, serve, and file their statement of the case, and affidavits on appeal to the supreme court, ” could not mislead the opposite party, and errors which do not mislead must be disregarded. i</p> <p>Id.—“Filing ” of Proposed Statement—Construction of Stipulations and Orders.—Stipulations and orders, including an extension of time to “file,” as well as to prepare and serve the proposed statement, are not to be construed as intended to require that the proposed statement should be filed before it was settled, or that it should he settled and filed within the time limited for its preparation and service.</p> <p>Id.—Failure to File Stipulations and Orders—Consent to Omit Filing.—The failure to file stipulations and orders extending the time to prepare and serve a statement- of the case until shortly before the hearing of the motion cannot be urged as a ground for dismissing the motion, where the counsel for the opposite party stipulated that orders and stipulations extending time need not be filed.</p> <p>Id.—Construction of Code.—Section 283 of the Code of Civil Procedure, authorizing an attorney to bind his client by agreement filed with the clerk, or entered upon the minutes of the court, and not otherwise, is to be construed as herring to executory agreements, and not to those which have been wholly or partly executed, or under which it would be inequitable to insist that the stipulation was invalid.</p> <p>Id.—Service of Statement on Holiday—“Judicial Business.”—The service of a proposed statement is not invalid or void because made on Sunday or on a legal holiday, although it might be served on the next day, nor is such service “judicial business” within the meaning of section 5 of article VI of the Constitution.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County and from an order denying a new trial. Matt. F. Johnson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Trust — Acknowledgment — Notice oe Repudiation — Statute of Limitations—Failure to Insist upon Accounting—Laches.—Where the owner of stock in a corporation, upon departing from the state, transferred the stock in trust to an intimate friend, that he might represent it for him, and vote it at corporate elections, and there were express acknowledgments of the trust upon each failure to account for dividends upon the stock, with a promise to account therefor, and no repudiation of the trust was brought home to the knowledge of the beneficiary, the statute of limitations was not set in motion; nor would the mere failure of the beneficiary to insist upon a strict accounting of dividends for a period of eight years during the lifetime of his friend constitute such loches as would bar the enforcement of the trust against his representative.</p> <p>Id.—Attachment Suit against Trustee—Pledge — Interpleader— Judgments—Parties—Beneficiary not Estopped.—Neither a judg. ment in an attachment suit against the trustee, in which all' the stock standing in his name was attached by his creditor, nor another judgment in an action of interpleader brought by the administrator of a pledgee of such stock, with whom it had been deposited upon release oi the attachment as a pledge to await the result of the attachment suit, against tile attaching creditor and the administrator of the trustee, in which it was determined that the stock belonged to his estate subject to the payment of the judgment in favor of the creditor, can bind or estop the beneficial owner of the trust stock, who was not a party to either suit, and had no notice thereof, nor does their existence without his knowledge tend to show loches on his part.</p> <p>[d.—Loches, when not Imputable to Beneficiary—Want of Notice-Absence of Injustice—Faithless Trustee not Aided.—Laches is not imputable to a beneficiary when he has no notice or knowledge of facts putting him upon notice of a repudiation of the trust; nor when there is no word or act or omission on his part which has given the trustee the right to suppose that the beneficiary had surrendered his ownership, or led him to change his position, or imposed upon him any injustice; nor can it he invoked to aid a faithless trustee in consummating a wrong, nor as a check upon the right of a person to impose confidence and trust in another.</p> <p>[d.—Delay after Death of Trustee.—A delay of two and a half years after the death of the trustee to enforce the trust against his administrator, is not unreasonable, nor can it raise the bar of the statute, nor justify the claim of a stale demand.</p>

Application to a justice of the Supreme Court for admission to bail pending an appeal from the Superior Court of the City and County of San Francisco from a judgment of conviction of forgery. William T. Wallace, Judge. The facts are stated in the opinion.

' Appeal from an order of the Superior Court of Humboldt County adjudging the insolvency of a debtor. G. W. Hunter, Judge. The facts are stated in the opinion of the court.

<p>Broker’s Commissions—Sale of Real Estate — Statute of Frauds — Parol Extension of Time.—By section 1624 of the Civil Code, an agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation or commission is invalid, unless it is in writing; and the time of performance of a written contract authorizing such a sale within a specified time cannot be extended by paroi agreement; nor can such paroi agreement be deemed an executed paroi agreement. altering the written contract, within the meaning of section 1698 of the same code.</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>Corporations—Bonds of Railway Company—Foreclosure of Trust Deed—Injunction—Action by Stockholders—Conspiracy to De- ■ fraud—Matter of Defense—Intervention.—An action will not lie at the suit of stockholders in a railway corporation to enjoin the foreclosure of a trust deed given to secure its bonds, on the alleged grounds that any demand upon the corporation to bring such action would be fruitless, and that by conspiracy and collusion of the directors of the railway company with a construction company, each having a majority of the same directors, the bonds had been fraudulently, and without consideration, transferred to the construction company, and to other defendants, and to enjoin further transfer of such bonds, and compel the delivery of them up for the benefit of the railway company, as no such independent action would lie in favor of the railway company, and the facts alleged are available to it as matter of defense in the foreclosure suit, and, by way of cross-complaint, therein to aid the defense; and, in case the corporation would not prosecute such defense in good faith, the stockholders have the right to intervene in the foreclosure suit, and to cause all the necessary parties to be brought in for the prosecution of such defense and the proper obtaining of affirmative relief therein in aid of the defense.</p>

<p>Employment — Agreed Salary — Conditional Interest in Business — Construction of Contract—Partnership—Corporation—Liability of Employer.—A contract by the exclusive owner of a business fertile services of an employee under an agreed salary of three hundred and fifty dollars a month, which also assigns to the employee one-tenth interest in the business, which was proposed to he conducted by a corporation in which the employee was to have one-tenth of the stock, and which makes his interest conditional upon ten years’ faithful and exclusive service in the matter of the employment, and to he forfeited and revert to the employer upon breach of the condition, provided that in case of his death after faithful service, and before the expiration of five years, one-half of such interest should go unconditionally to his heirs, is a contract of employment, and does not constitute a partnership between the parties, or make the agreed salary depend on the profits of the business, and the employer is personally liable upon the contract of employment, notwithstanding the incorporation.</p> <p>Id.—Action’ upon Contract—Failure of Service—Readiness to Perform.—In an action upon a contract of employment at an agreed monthly salary for a fixed period, where it appears that there was no discharge from the employment, but that there was a failure of service owing to the fault of the employer, notwithstanding the employee was ready and willing to perform the contract, it is no defense that the plaintiff did not perform his duties thereunder, but the contract of employment is binding, and the agreed salary may be collected by the employee.</p> <p>Id.—Remedy upon Contract of Employment—Discharge of Employee —Nonperformance—Pp.evention.—In case of breach of a contract of employment by discharge of the employee, the proper remedy is an action of damages for such breach; but, where the employee is not discharged, and does not voluntarily leave the employment, or relinquish his claims under the contract, an action will lie upon the contract in favor of the employee for the agreed salary, notwithstanding his nonperformance of the agreed services, where such nonperformance was owing to the failure or neglect of the employer to furnish continuous employment, or to his prevention of performance by the employee.</p>

<p>Appeal from a judgment of the Superior Cou'rt of Los Angeles County and from an order denying a new trial. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Rape of Girl under Fourteen—Pleading—Language of Statute—Force—Want of Consent.—An information against a defendant accused of rape committed upon a girl under fourteen years of age is sufficient where the offense is charged substantially in the language of the statute; nor is it necessary in such case to allege force by the defendant and want of consent of the child, these being immaterial factors in the offense, and not required to be proved.</p> <p>Id.—Proof of Offense—Testimony of Prosecutrix—Corroboration.— The public statement of the prosecutrix as to the guilt of the defendant, and the corroborating fact that the defendant was seen coming from her room at an unseemly hour, are sufficient to sustain a verdict against the defendant.</p> <p>Id.—Instructions—Failure to Caution as to Testimony of Prosecutrix.—The failure of the court in its instructions to caution the jury as to the danger of convicting the accused upon the sole testimony of the prosecutrix would not constitute reversible error in any case, without request of the defendant therefor; hut such an instruction is not proper where the testimony of the prosecutrix is corroborated by other evidence, and the court, in such case, should go no further than to intimate to the jury that the testimony of the prosecuting witness should be carefully scanned.</p> <p>Id.—Sexual Penetration—Instructions not Misleading.—An instruction that “any penetration,” however slight, is sufficient in a case of rape, is not misleading for omission of the word “sexual,” where the instructions taken as a whole clearly disclosed to the jury that it was sexual penetration only that was referred to.</p> <p>Id.—Instructions Asked by Defendant—Review upon Appeal.—The defendant cannot be heard to complain upon appeal of error in instructions given at his request.</p> <p>Id.—Proof of Other Acts—Absence of Exceptions—Harmless Error. Evidence of other acts of intercourse of the defendant with the prosecuting witness, besides the specific one charged, is harmless if erroneous, where the materially objectionable features of the evidence were not objected to or any exception reserved by the defendant, and where further evidence of a similar nature was stopped by the judge in a manner indicating to the jury that it should consider only the act charged, and where it further appears that the other evidence in the case was clearly sufficient to establish the act charged.</p>

<p>Appeal from a judgment of the Superior Court of Sacramento County. A. C. Hinkson, 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. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action upon Guaranty—Sale of Eruit in Boxes—Net Return per Ton—Opinion Evidence—Estimate of Weight.—Where pears in boxes, called forty-pound boxes, were sold upon commission without any weighing, or any agreement that the fruit should he measured by the nominal capacity of the boxes, in an action upon a guaranty of a net return of fifteen dollars per ton,witnesses engaged in the business of packing fruit may testify to their opinion that the boxes, if well packed, held more than forty pounds each.</p> <p>Id.—Competency of Expert Witnesses—Objection upon Appeal.—. Where no objection was raised at the trial to the competency of witnesses called to estimate the weight of fruit in boxes, objection thereto cannot be urged upon appeal for the first time.</p> <p>Id.—Irrelevant Evidence—Customs—Expense of Transportation— Express Contract of Guaranty.'—Evidence of the custom of growers to pay the expense of getting their fruit to the defendant’s packinghouse, is not admissible when the action is upon an express contract of guaranty for a net return to the plaintiff, and not upon a contract resting in implication or presumption, and there being no proof that the parties dealt with reference to such custom.</p> <p>Id.—Impeachment of Witness—Weakness of Memory.—A witness cannot be impeached by independent evidence of another witness that he is a person of weak memory, and his memory can only be impeached by cross-examination, if he is not affected by mental derangement.</p> <p>Id.—Books of Bank—Incompetent' Testimony of Cashier—Error without Prejudice.—It is error to permit the cashier of a bank to state what the books showed on a certain date, where he has no personal knowledge on the subject; but such error is without prejudice where the fact thus proved was of no consequence.</p> <p>Id.—Action by One Partner upon Partnership Claim—Waiver of Objection.—It cannot be objected merely that the evidence shows that the plaintiff had a partner who was interested with him in the demand sued on, who was not joined as a party to the action, where no such objection was raised by the pleadings, but such objection is waived by the failure to plead it.</p> <p>Id.—Inapplicable Instruction—Account Stated.—A request by the defendant for an instruction as to an account stated between the parties, is properly rejected as inapplicable to the evidence, when the testimony for the defendant shows that plaintiff did not consent to the account rendered by the defendant, but objected to it on the ground that a sum certain had been guaranteed to him.</p> <p>Id.—Request for Instruction as to Statement of Counsel—Error not Shown in Record.—The refusal of a request by defendant for certain instructions in order to prevent the jury being misled by statements of counsel for plaintiff in their closing argument, cannot be considered, where the statements of counsel alluded to are not contained in the record.</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. Edward A. Belcher, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates oe Deceased Persons—Determination oe Heirship — Res Judicata—Distribution.—A party to proceedings for the determination of the heirship of a deceased person, instituted under section 1664 of the Code of Civil Procedure, is concluded by such determination, in the distribution of the estate; and where the decision of the court in such proceedings is against the claim of heirship or interest of such party in the estate, and such decision is affirmed upon his appeal therefrom, he cannot afterward be heard to affirm the contrary upon appeal from a decree of distribution of the estate.</p> <p>I'd. — Construction of Oode—Determination of Kinship—Jurisdiction. In determining claims to heirship under section 1664 of the Oode of Civil Procedure, the court has jurisdiction to determine the degrees of kinship of each of the claimants, and where a claimant is found to bear no kinship whatever to the deceased, a finding and judgment to that effect is properly within the jurisdiction of the court, and within the issues to be determined.</p>