Volume 113 — California Reports

<p>Negligence—Injury to Minor—Failure to Instruct—Appeal—Conflicting Evidence.—In an action to recover damages for injury to a minor, upon the ground of negligence in putting him at a dangerous task, without knowledge or experience on his part of the dangers incident thereto, ana without warning or instructing him how to avoid such dangers, a verdict and judgment for the plaintiff will not be disturbed upon appeal, where there is a substantial conflict in the evidence, and there is evidence tending to sustain the verdict, to which the jury and the judge of the court below gave credence, notwithstanding there is a preponderance in the number of the witnesses for the defendant.</p> <p>Id.—Negligence of Master through Fellow-servant—Instructions— Pleading__Where there is no averment of the negligence of a fellow-servant in the answer, and the only material issue is as to whether the plaintiff was set to work while the dangerous machine was in motion, without knowledge, warning, or instruction as to the danger, the only negligence involved in the issue is the negligence of the master in failing to give such warning or instruction, for which the master is responsible, notwithstanding the immediate instrumentality through which such negligence occurred was the act of a fellow-employee of the plaintiff; and, under the pleadings and evidence, instructions predicated upon the principle that a master is not liable when the injury is suffered through the negligence of a fellow-servant, are properly refused.</p>

<p>Corporations—Transfer of Certificates of Stock—Delinquent Assessments—Lien upon Shares—Identity of Stock—Transfers Subject to Lien.—-A corporation has a lien upon the shares of stock for the payment of delinquent assessments thereon; but it has no lien upon the .certificates of stock, which are merely evidence of ownership of the shares, and has no right to prevent a transfer of such certificates, on account of a delinquent assessment upon the shares; but the shares remain subject to the lien, and the new owner takes subject thereto; nor is the identity of the stock affected by the transfer; and the corporation can enforce its delinquent assessment upon the shares liable therefor, no matter how many transfers have been made subsequent to the assessment.</p> <p>Id.—Certificate of Stock not Negotiable — Transfer Subject to Equities — Bona Fide Purchaser not Protected.—A certificate of stock is not a negotiable instrument; and, in analogy to other non-negotiable instruments, a purchaser would take subject to all equities in favor of the corporation; nor does the fact that the purchaser did not know of a delinquent assessment at the time of demanding the transfer affect the validity of the assessment, nor the liability of the stock therefor.</p> <p>Id.—Conversion of Stock—Refusal of Transfer—Liability of Corporation— Evidence of Value—Delinquent Assessments.—A corporation is liable for a conversion of stock which it refuses to transfer on the books of the corporation to a purchaser thereof; and the existence of unpaid delinquent assessments upon the stock is no defense to an action for such conversion, though proof of them is admissible as affecting the value of the stock,</p>

<p>Appeal from a judgment of the Superior Court of Mariposa County. John M. Corcoran, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action upon Promissory Note—Defense—Material Alteration—Place of Payment—Discharge of Sureties.—Where no place of payment is designated in a note executed in this state, it is payable only in this state, and, where a note so drawn, after being indorsed, was altered so as to make it payable at a designated hank in the state of New York without the knowledge or consent of the indorsers, the alteration of the note is material, and will discharge the indorsers whether they he considered as indorsers or guarantors.</p> <p>Id. — Stockholders as Sureties for Corporations. — The fact that the altered note was given by a corporation, and that the indorsers were stockholders in the corporation, does not affect the rule that they are discharged from liability on the note by a material alteration of it without their consent, and the fact that they were indirectly benefited in proportion to the stock owned by them at the time of the loan is immaterial, where they are sued upon the note, and not upon their statutory liability.</p> <p>Id.—Alteration Made by Agent of Corporation — Liability of Cop.PORATION.—The corporation cannot avail itself of the defense of a material alteration of the note as to place of payment, when such alteration was6 made by the agent of the corporation before delivery of the note to the payee.</p>

<p>Appeal from a judgment of the Superior Court of Stanislaus County. William 0. Minor, Judge.</p> <p>The facts are stated in the opinion. i.</p>

<p>Appeal from an order of the Superior Court of Fresno County denying a motion to recall and quash an execution. Stanton L. Carter, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Water Right—Appropriation by Alien—Pre-emption of Land not Involved—Right of Appropriator.—The fact that an alien could not initiate title to government land does not affect his right to make a valid appropriation of water, the tests of such appropriation being merely priority of possession and beneficial use, without regard to the competency of the appropriator to pre-empt the place of intended use, and, if the appropriation of the water be considered as a mode of acquiring real property by purchase, the right of the alien to hold it is good, until “office found,” and private individuals cannot treat his appropriation as void.</p> <p>Id.—Rights of Prior Appropriator Limited bv Beneficial Use— Subsequent Appropriator.—The rights of a prior appropriator of water are limited by his beneficial use, and not by the original capacity of his ditch; and, where he has ceased to use only a specified quantity of the water, or has limited his regular use of it for irrigation to certain days of the week, all of the water not used is subject to a subsequent appropriation by another.</p> <p>Id.—Misplaced Finding of Fact—Extent of Water for Domestic Use.—A finding of the extent of the water to which the defendant was entitled for domestic use, does not lose its force as a finding of fact because misplaced among the conclusions of law.</p> <p>Id.—Place of Use—Right of Change.—It is error to limit the place of use of water for domestic purposes at any particular point on the land of the appropriator, as he may change the place of use at- will, provided ■he does not increase the quantity of flow to which he is entitled.</p>

<p>Action to Enforce Trust—Verdict of Jury Advisory—Direction of Verdict.—An action to enforce a trust being a case in equity, a verdict of the jury is merely advisory to the court, and it is not error for the court to direct a verdict for the defendant in such a case, even though the evidence may be conflicting.</p> <p>Military Reservation—Title of San Francisco—Act of Congress of 1870—Deed of Commissioners of Funded Debt.—The title of the city of San Francisco to lands included in ¡¡the military reservation was not originally in the city, hut upon the conquest of California vested in the United States, and such lands were reserved from acquisition by private individuals by a valid executive act, and the portion of them acquired by the city were, by act of Congress of 1870, granted to the city in trust for persons who were then in actual possession of them, by themselves or their tenants, or who had been deprived thereof by the military authorities, or by intruders or trespassers, and a conveyance from the commissioners of the funded debt in 1852 passed no title to such lands to their grantee.</p> <p>Id.—Deed from City under Act of 1870—Fraud—Statute of Limitations—Rights of Minors.—Where a deed was executed by the city to one who claimed to he in bona fide possession of presidio lands under the act of 1870, any fraud practiced upon the city in the obtaining of the deed having been committed in 1870, the grantors of plaintiffs were chargeable with knowledge of such fraud, and the cause of action, being barred as to them, is barred as to minors claiming under them.</p> <p>Id.—Presumptions Attending Deed—Performance of Official Duty— Collateral Attack by Stranger.—A deed from the city under and pursuant to the act of Congress of 1870, like a patent, is prima facie evidence that the officers performed their duty in issuing it, and that it ■ was issued to the rightful claimants, and these presumptions can he attacked only by one who connects himself with the title, and cannot be attacked by a stranger or one in hostility to the title, but, as against him, the presumptions are conclusive.</p> <p>Id.—Evidence—Part of Official Map of Military Reservation—Authentication by Legal Custodian—Prima Facie Evidence.—That portion of the official map of the military reservation which includes the lands in controversy and the boundaries of the reservation, is admissible for the purpose of showing that such lands are included within the boundaries, nor is it necessary to introduce the whole map in evidence; and the map is sufficiently authenticated by the certificate of the legal custodian thereof, reciting the facts showing that he is such custodian, and his certificate is prima facie evidence of his official character and right to the custody of the map, and of his authority to make such certificate.</p> <p>Id.—Harmless Ruling—Fact Proved by Other Evidence—Admission of Pleading.—The ruling of the court in admitting the map in evidence, if erroneous, could not be prejudicial to the plaintiffs, where there was sufficient independent and uncontradicted evidence to show the location of the laud, and the deed of the city to the defendant which was introduced in evidence by plaintiffs showed the land to be within the reservation, and plaintiffs had pleaded in their complaint that the land was granted by the United States to the city in trust, and had failed to connect themselves with the government title.</p> <p>New Trial—Newly Discovered Evidence.—A new trial should not be granted for newly discovered evidence which is cumulative, or which might have been procured at the trial by reasonable diligence, and of which the moving party must have been fully advised as to its materiality and bearing upon the case.</p>

Appeal^ from an order of the Superior Court of the City and County of San Francisco granting a writ of assistance in an action for divorce. James M. Troutt, Judge. ■The facts are stated in the opinion of the court.

<p>Action on Note — Attachment by Creditor op Plaintiff— Garnishment op Dependant — Stay op Proceedings. —A proper method of procedure for a garnishee who is sued by his creditor upon a note, after a garnishment has been served upon him at suit of an attaching creditor against the plaintiff, is to bring to the attention of the court, by affidavit or other appropriate means, the facts of the garnishment, and to apply for a stay of proceedings until the action of the attaching creditor has been disposed of,- or, if the court allows the action against the garnishee to proceed to judgment, the garnishee may apply for a stay of execution upon enough of the debt to cover the amount of the garnishment.</p> <p>Id.—Defense to Note—Attorneys’ Fees—Costs—Credit toon Judgment.—The garnishment of the defendant by an attaching creditor of the plaintiff is not a defense to an action by the plaintiff upon a note given for the debt which was the subject of the garnishment; and where such matter is pleaded by way of defense, and no stay of proceedings is applied for, it is proper to render judgment for the full amount of the-note, and for attorney’s fees stipulated therein, and costs of suit; but. the court should permit the defendant on proper notice to show what, payment he has made or is compellable to make, on account of the attachment, and should direct satisfaction of the judgment to that ex-, 'tent.</p> <p>Id.—Effect of Establishing Garnishee’s Liability before Judgment1 —Contingent Allowance of Fees and Costs.—It seems that if the-liability of the garnishee to pay the plaintiff’s debt to his attaching creditor is established before judgment is rendered at suit of plaintiff' against the garnishee, the defendant ought not to suffer from plaintiff’s , failure to pay his own debt, and the right of plaintiff to recover attorney’s fees and costs should be made contingent on his own successful defense of the action in which the debt due to him was attached.</p>

<p>Criminal Law—Dismissal of Indictment—Mistake of Clerk—Vacation of Entry.—Where an indictment was improperly dismissed by the entry o£ an order of dismissal through a mistake of the clerk, in supposing that the case was included with a number of other criminal ' actions which were ordered to be dismissed, the court has jurisdiction to vacate the order of dismissal entered by the clerk.</p> <p>Id.—Jurisdiction to Correct Records—Determination of Fact as to Mistake or Inadvertence Conclusive.—A court has power to cause its records to correctly set forth the orders which it has actually made, as well as to set aside an order which it has made through inadvertence or mistake; and if the question of mistake or inadvertence is disputed, the decision of the judge upon any controverted fact is not open to review.</p> <p>Id. —Pencil Order — Filing of Formal Order — Procurement of Defendant—Knowledge of Vacation of Order.—A pencil order of dismissal does not acquire any additional force by reason of the subsequent filing of a formal order attested by the clerk, without the knowledge or consent of the court, on the procurement of the defendant, after knowledge on his part that an order had been made by the court vacating the order of dismissal.</p>

<p>Criminal Law—Perjury—Indictment—Swearing of Defendant—Positive Averment Required.—An. indictment for perjury which contains no positive averment that the defendant was sworn, and that the person who administered the oath had authority therefor, is insufficient; and it is not enough that that fact may be supplied by intendment, or implication, or be stated argumentatively, or by way of recital or inference from the language of the indictment.</p>

<p>Criminal Law — Attempt to Commit Grand Larceny—“Bunco” Game.—Where one accused of an attempt to commit grand larceny is shown to have made an effort in pursuance of a preconceived plan to deprive another person of a large sum of money by the use of the confidence game known as “bunco,” he is properly found guilty of the offense charged, though such plan failed of consummation.</p>

Appeal fíom a judgment of the Superior Court of Tulare County and from an order denying a new trial. Wheaton A. Gray, Judge. The facts are stated in the opinion of the court.

<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.</p>

<p>Demurrer — Power to Pass Judgment—Appeal — Presumption.—Although the court has no power to pass final judgment in a cause until a demurrer is disposed of, yet, where the record upon appeal from the judgment does not show' that a demurrer interposed was not disposed of, it will be presumed against error that it was disposed of.</p> <p>Id.— Demurrer Without Merit—Harmless Error.—Where the demurrer was without merit, any error in failing to pass upon it is without prejudice.</p> <p>Benefit Association—Action Upon Certifícate to Widow—Contest of Children—Interpleader—Regularity of Certificate—Admission by Association.'—In an action against a benefit association upon a certificate issued to the widow of a deceased member, where the association paid the money into court and asked that the children of the deceased member be allowed to appear and contest, snch action is an admission on the part of the association that the certificate sued upon was issued in accordance with its regulations, and that any failure of the insured member strictly to comply with all of its requirements and regulations in procuring the issuance of such certificate was waived by it; and denials by the children that the certificate was issued to plaintiff in accordance with such regulations, or that the insured complied with all of such requirements and regulations, raises no material issue,</p> <p>Id.—Rights of Beneficiaries—Vested Interest—Expectancy—Revocation-Power of Insured to Change—Fraud of New Beneficiary. Beneficiaries named in a policy taken out by a member of a benefit association, who has the power, by the rules of the association, to name or change the name of his beneficiaries, have no vested right or interest in the certificate, unless secured by contract, but have only a mere expectancy of an incompleted gift, which is revocable at the will of the insured, and which cannot become vested as a right until fixed by his death, and cannot be defrauded of that in which there is no vesteil right; and no law confers upon beneficiaries, having no vested interest by contract, any right to assail a change of beneficiaries by the insured on the alleged ground of fraud of the new beneficiary in procuring the certificate.</p> <p>Id.—Acts of Insup.ed Member — Equity.—As between beneficiaries making conflicting claims, equity will give complete effect to the acts of the insured member of a benefit association, and will not heed a demand to have those acts nullified.</p>

<p>Assumpsit—Pleading—Common Count—Money Deposited for Use of Plaintiff—Special Contract—Pledge—Variance.—While the common counts are in some cases sufficient under the code, they are insufficient in those cases where they were insufficient under the old system of pleading; and an action of assumpsit for money deposited with the defendant for the use of the plaintiff will not lie where the money was deposited by way of pledge as security for the performance of a special contract izi writing, which is still open and unexecuted in part, and nob rescinded by mutual consent, but, in such case, it is necessary to declare specially upon the written contract; any modification thereof and proof of such special contract under the common count is a material variance, and a motion for a nonsuit should be granted therefor upon the ground that the cause of action alleged in the complaint is not proved and that the allegations and proofs do not agree.</p> <p>Id.—Nature of Contract Immaterial.—It is immaterial whether the written contract should be construed as one of employment or one of purchase and sale, where the money sued for was deposited as security for the performance of the contract, and was applicable to whatever relation was in fact created by it, and covers every injury the defendant may have suffered from failure of the plaintiff to perform it.</p> <p>Id.—Agreement to Return Property in Good Condition.—Where the written contract or pledge .expressly provided that the money deposited was “ to secure the return of all property hired by said party of the second part as aforesaid, in good order and condition,” and it appears that the plaintiff had not returned such property, effect must be given to such express provision, and the plaintiff is bound by the terms of the contract, and can urge that it is a hardship to be compelled to pay for losses not attributable to his want of ordinary care.</p> <p>Id.—Interest on Deposit.—Interest on money deposited as security is not recoverable from the date of the deposit, but can be allowed only on such sum as plaintiff may be entitled to recover, after the refusal of a lawful demand for its repayment.</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>Mining Claim—Lien of Laborer—Foreclosure—Evidence—Foreign Corporation—Acts and Declaration of Managing Agent—Prima Facie Proof—Counterproof—Finding of Agency—Sufficiency of Evidence.—In an action to foreclose the lien of a laborer upon a mining claim, when the proof showed that the laborer was employed by a foreman appointed by one who was acting as superintendent of the mine, which was the property of a foreign corporation, although the evidence failed to show direct authority from the corporation to the person acting as superintendent, or a direct ratification by it of his acts, and although in general an agency cannot be established by the declarations and acts of the alleged agent, yet, under the provisions of section 1183 of the Code of Civil Procedure, evidence of the open and continued acts and declarations of any person having charge of the property upon which the labor was done, is competent prima facia to warrant his being held to be the agent of the owner for the purpose of enforcing a lien upon the property, though the owner might overthrow this by proof of his want of knowledge and nonemployment of the alleged agent, coupled with a showing that he had exercised ordinary care in the premises; but, in the absence of such counter-proof, the prima facie evidence is sufficient to support a finding of agency.</p> <p>Id.—Default of Mining Company—Appeal by Subsequent Lienholder —Identical Claim of Agency.—Where the mining company made default in the action to foreclose the lien of the laborer upon the mine, and the appeal from the judgment in favor of the plaintiff is prosecuted by a subsequent lienholder, whose claim is also founded upon the sufficiency of proof of the identical agency of the managing agent of the mine, which against the plaintiff it is disputing and seeking to overthrow, yet without producing counter-proof to plaintiff’s evidence of the conduct and declarations of the managing agent, the findings of the court in favor of such agency cannot be set aside upon such appeal.</p>

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

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

<p>Water Rights — Appropriation — Action for Diversion—Cross-complaint of Riparian Claimant—Insufficient Pleading.—In an action by an appropriate of a water right to enjoin diversion of the water, a cross-complaint by the defendant, claiming riparian rights in the water diverted, but which nowhere shows by statement of facts that defendant owns or holds by right any lands which are riparian to the creek from which the plaintiffs’ appropriation was made, but which merely avers that he owns three lots, and has possession and control of three other lots, without averring that he possesses or controls them by right, and states that the creek flows “ through the natural channel thereof, over and across the land of defendant, as aforesaid,” without stating that it flows across the lots owned by him, does not state a cause of action or ground of cross-complaint, and a demurrer thereto should be sustained.</p> <p>Id.—Presumption against Pleader—Possession of Riparian Lands Without Right.—It must be presumed against the pleader that he has made an allegation as strong as he could make it; and where he avers mere possession and control of certain lots, without averring or stating facts showing that he has possession of them by right, and avers that the creek in dispute flows over his lands, without averring that it flows over lands owned by him, it must be presumed that he has taken possession of such lots without right, and that the water only flows over those lots in which he has no right.</p> <p>Id.—Trespasser Without Riparian Rights.—Though a trespasser on public lands is for some purposes deemed the owner, yet when one asserts riparian rights as against an upper appropriate of water, he must show some right, inchoate or otherwise, to the land.</p> <p>Id.—Diversion of Water Through Ditch of Plaintiff — Riparian Rights—Improper Subject of Cross-complaint.—Where the injury complained of is direct interference by the defendant with the ditch of the plaintiff, so as to divert the water from such ditch at a point where it passed over or near the lands of the defendant, no riparian rights of the defendant in the creek from which the water was appropriated would justify such interference with plaintiffs’ ditch, and the assertion of such riparian rights does not arise out of the transaction set out in the complaint, nor is it connected with the subject of the action, and it is not a proper subject of cross-complaint.</p>

<p>Municipal Corporations—Control or Sidewalks—Removal or Shade Trees — Nuisance—Conclusive Determination or Council—Evidence.—The common council of a municipal corporation, under a charter giving it the general care, custody, and control of streets, etc., and to define, prevent, and remove nuisances, has power to cause the removal of shade trees which have been growing in the sidewalk of a public street, and their determination that such trees constitute an obstruction to the street which may be removed as a nuisance is not open to review by the courts, where there is no clear abuse of discretion, nor is evidence admissible to show that the trees are not an obstruction.</p> <p>Ed.—Degree or Obstruction not Material.—It is not essential to the power of the council to remove the shade trees that they should completely obstruct the walk; but the public is entitled to the free and unobstructed use of the entire street and sidewalk; and the degree of obstruction requiring removal of the trees is a question for the city to determine in the absence of an abuse of discretion.</p> <p>Id.—Form or Order for Removal—Ordinance.—The mere form of an order declaring the trees a nuisance, and directing the superintendent of streets to remove them, is not material, nor is an ordinance required for that purpose.</p>

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

<p>Delinquent Tax List—Authority for Publication—Tax Collector-Supervisors. —The tax collector has no authority to contract for the publication of the delinquent tax list; hut the only authority for such publication is vested, by section 3766 of the Political Code, as amended in 1895, in the supervisors, who must contract with the lowest bidder after ten days’ public notice; nor does the neglect of the supervisors to perform their duty vest authority in the tax collector to contract for its publication.</p> <p>Id.—Illegal Claim against County—Injunction Suit by Taxpayer.—. A taxpayer may maintain a suit to enjoin the county auditor perpetually from drawing Ms warrant upon the county treasurer in favor of a publisher of the delinquent tax list who had no contract with the board of supervisors for such publication.</p>

<p>Action upon Notes by Endorsee—Insufficient Counterclaim against Payee—Notice of Assignment—Construction against Pleader— Judgment upon Pleadings.—In an action upon promissory notes brought by an indorsee thereof, an answer stating no other defense than alleged counterclaims against the payee of the notes, but not alleging facts showing that the counterclaim arose before defendant had notice of the assignment of the notes to plaintiff, is to be construed most strongly against the pleader, and raises no issues which can be considered in the case; and it is not error for the court to grant judgment in favor of plaintiff upon the pleadings.</p>

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

<p>Criminal Law—Furnishing Liquor to Indian — Demurrer to Information—Duplicity.—An information under section 397 of the Penal Code, charging that the defendant did, on a specified date, “furnish and cause to he furnished intoxicating liquor” to an Indian named, is not demurrable on the ground that it charges two offenses.</p> <p>Id.—Pleading — Single Count—Series of Acts Constituting Single Offense.—When a statute enunciates a series of acts, either of which separately or all together may constitute the offense, all of such acts may be charged in a single count, for the reason that notwithstanding each act may by itself constitute the offense, all of them together do no more, and likewise constitute but one and the same offense.</p>

Petition to the Supreme Court to reinstate an appeal after judgment of affirmance. The facts are stated in the opinion of the court.

<p>Petition to the Supreme Court to reinstate an appeal after judgment of affirmance.</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. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Official Bond of Treasurer—Common-law Liability—Action Against Sureties—Defense—Bailment—Bobbery.—The official bond o£ a city-treasurer, conditioned that he shall faithfully perform the duties of his office required by law, which requires him to safely keep all moneys coming into his hands, adds nothing to his common-law liability, as a bailee for hire of the money intrusted to his care, and it is a defense to an action against the sureties on the bond, that the moneys for the loss of which the action was brought were taken from his possession by robbers, by irresistible force and violence.</p>

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

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

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

<p>Foreign Corporation —Liability of Stockholders—Special Remedy .—Limitation of Liability.—A special statutory remedy given by the laws of another state, for enforcing the statutory liability of the stockholders of a corporation organized under its laws, limits the liability, and where such remedy is not afforded by the laws of this state, the liability of the stockholders of such corporation cannot be enforced in this state against resident stockholders thereof.</p>

<p>Criminal Daw — Forgery — Misspelling of Forged Indorsement — Idem Sonans. — The fact that a defendant charged with the forgery of an indorsement of the name of a payee of a negotiable promissory note misspelled the name forged does not affect the crime of forgery, where the doctrine of idem sonans applies, and the fraudulent purpose and the felonious intent are as clearly manifested and as completely executed as they would have been if the spelling of the forged name had been entirely correct.</p> <p>Id. — Impeachment of Witness—Competency of Judgment-roll of Another County.—An original judgment-roll of another county, offered to impeach a witness, is not rendered incompetent by reason of the fact that it was illegally taken from the clerk’s office of such county without an order of court allowing its removal; nor does its compe-, tency as evidence in any way depend upon the means by which it is brought to the court where it is offered in evidence.</p>

<p>Husband and Wife—Decree for Permanent Maintenance of Wife and Child—Modification—J urisdiotion. —The superior court has jurisdiction to modify a decree for permanent maintenance of a wife and child, when living together, by diminishing the allowance made for her separate support and maintenance, and increasing the allowance made for the support and education of the child, when subsequently required to attend a hoarding school at increased expense.</p> <p>Id.—Change of Disposition of Decree—Analogy to Divorce Jurisdiction.—The court has power to change the disposition of a decree for permanent maintenance, the remedy being enforced after analogies drawn from the divorce jurisdiction.</p> <p>Id. — Action of Court — Presumption—Pecuniary Condition of Parties—Petition for New Modification of Decree.—Upon a petition for a new modification of a decree for permanent maintenance, it must he presumed that the court took into view the pecuniary condition and requirements of the parties, and their relative claims to equitable consideration, both in rendering its original decree and in modifying the same; and a modified decree is not to be subsequently assailed upon a petition for a new modification thereof, for matters occurring before its rendition, where there is no showing of mistake, inadvertence,■ surprise, or excusable neglect.</p> <p>Id.—Remedy for Arrears of Payment.—Where the husband is in arrears of payment directed by the court, the proper course is to proceed against him for contempt in failing to obey the decree; and no further order to pay is needed.</p> <p>Id.—Petition for Modification of Decree—Discretion.—A petition for the modification of a decree for permanent maintenance, or for a new modification thereof, is a matter addressed to the discretion of the court, and its action will not be disturbed, except for abuse of discretion.</p>

<p>Pledge—Stock of Corporation—Transfer upon Books—Injunction.— A pledgee of the stock of a corporation, when the contract is silent upon the subject, has no right to have the stock transferred to his name before maturity of the debt; and an injunction will lie at suit of the pledgor to prevent such transfer.</p> <p>Id.—Validity of Pledge—Entry upon Books—Protection of Pledgor— Rights of Pledgor.—A transfer of stock upon the hooks of the corporation is not essential to the creation of a valid pledge of the stock, but the pledgee has the right to cause a proper entry of the transaction between himself and his pledgor to be entered upon the hooks of the corporation for his protection, under section 324 of the Civil Code, though he is not authorized to divest the pledgor of the rights incident to his ownership of the pledge, by surrender and cancellation of the pledged certificate, and the issuance of a new certificate in the name of the •pledgee.</p>

Appeal Itrom a judgment of the Superior Court of the City and County of San Francisco and from an order denying a newX Añal. William T. Wallace, Judge. The facts are stated in the opinion of the court.

Hearing in the Supreme Court upon writ of habeas corpus to the sheriff of the City and County - of San Francisco to review a commitment for contempt by the Superior Court of said city and county. J. B. C. Heb-bard, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Filing Information—Dismissal of Prosecution.—Under section 1382 of the Penal Code, the prosecution of a defendant who has been held to answer, by a committing magistrate, for a criminal offense, must be dismissed, if no information is filed against him within thirty days after the commitment, and no good cause for the contrary is shown by the people.</p> <p>Id,—Failure of Magistrate to Return Paters.—The fact that the papers in the case were retained by the committing magistrate, and were not returned to or filed in the office of the clerk within the thirty days, did not prevent the filing of the information or constitute good cause against the dismissal of the prosecution.</p>

J. C. B. Hebbard, Judge. The main facts are stated in the opinion rendered upon the appeal from the judgment—106 Cal. 506—and further facts are stated in the opinion of the court upon this appeal.

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

<p>Practice — Failure to Serve or Return Summons — Dismissal op Action.— Subdivision 7 of section 581 of the Code of Civil Procedure, providing for the discontinuance and dismissal of actions unless the summons has been issued within one year, and served, and return thereon made within three years after the commencement of the action, or unless appearance has been made by the defendant within said three years, is prohibitory and mandatory, and is not unconstitutional so far as it is made applicable to pending suits.</p> <p>Id.—Appearance op Dependant.—A defendant, by taking from the plaintiff and filing a stipulation extending his time to answer, and by accepting and acting upon an agreement contained therein to grant successive extensions in consideration of certain payments made, does not appear in the action, within the meaning of said section 581; and such facts will not operate to prevent a dismissal of the action for a failure to return the summons within the time limited by the section.</p> <p>Id.—Administrator cannot Waive Statute.—The administrator of the estate of a deceased person being prohibited from allowing or paying any claim against the deceased which is barred by the statute of limitations, cannot, by appearing and answering a supplementary complaint in an action originally brought against the deceased, in .which the summons was not returned within the time limited by the statute, waive the objection.</p>

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

<p>Malicious Prosecution—Conflict of Evidence—Appeal.—A verdict for the plaintiff in an action of malicious prosecution will not be disturbed on appeal, on the ground that the evidence fails to show a want of probable cause and malice, if the evidence thereon is conflicting.</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 E. Murphy, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Street Improvements—Construction of Sewer—Lack of Outlet — Jurisdiction of Municipal Board — Enforcement of Assessment —Failure to Protest.—It is the duty of a municipal board to provide means of disposing of the sewage of the city, and it is their province to determine whether sewers are needed, and what districts will be benefited thereby; and, if there can be no outlet provided into the ocean or some other permissible place, the board must dispose of it in some other mode, and may gather it for that purpose; and their determination as to the necessity of the construction of a sewer, and what district will be benefited by it, cannot be assailed in an action to enforce an assessment therefor, on the ground that no outlet was provided for the sewage, where no protest was made against the work on that ground before the board.</p> <p>Id.—Assessment in Proportion to Benefits — Presumption—Method of Calculation.—An assessment for a sewer will be presumed to have been made in proportion to benefits, and the superintendent of streets will be presumed to have done bis duty in distributing the burden as the statute requires, unless the assessment shows the contrary; and it is not necessary that the assessment should disclose his method of calculation; but, if the estimate of benefits appears to be rational, it is not for the court to determine whether it is the best.</p> <p>Id.—Conclusiveness of Assessment—Appeal to Board.—If the method of assessment adopted by the superintendent of streets in distributing the burden is wrong, the property owner must appeal to the hoard; and, in the absence of such appeal, the assessments made by him are conclusive, unless the board is wholly without jurisdiction, or the procedure has been departed from in some other manner.</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. Charles W. Slack, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Ejectment—Findings—Ultimate Facts—Ownbbship—Right of Possession.—In an action of ejectment, ownership or seisin in fee, and the right to the possession, are ultimate facts, and not conclusions of law, and findings of them are sufficient, without specifying the source of title or the means of its acquisition.</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 iii 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. M. Sea well, 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. James M. Tjroutt, Judge.</p> <p>' The facts are stated in the opinion of the court.</p>

<p>Summons — Service on President of Corporation — Judgment by Default—Motion to Vacate—Question of Fact—Support of Finding—Discretion.—Upon a motion to vacate a judgment by default against a corporation, upon the ground that there was no service of the summons upon the corporation, and that the one to whom the summons was delivered was not the president or other officer of the corporation, the question whether he was such is a question of fact for the court below, and a finding that he was president of the corporation at the time of the service will be sustained when the evidence upon the issue is substantially conflicting and not so one-sided as to show an abuse of discretion in making the finding.</p> <p>Id.—Defense to Action Immaterial.—When the motion to vacate the judgment by default is not based upon mistake, inadvertence, surprise, or excusable neglect, which might be relieved under section 473 of the Code of Civil Procedure, but is made on the ground that the court has no jurisdiction to render any judgment by reason of failure to serve the summons, the question whether the facts stated in the application to vacate the judgment constitute a defense to the action, is immaterial, and cannot be considered.</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. Charles W. Slack, Judge.</p>

<p>Mechanics’ Liens—Materials Furnished to Materialman.—One who has a contract with the contractor to furnish all the mill work required for the erection of a building, consisting of manufactured material to be delivered at the building, is a materialman only, and not a subcontractor, and one who furnishes doors, sashes, blinds, and other stock material to such materialman cannot claim a lien upon the building for the materials so furnished.</p> <p>Id.—Material Variance as to Contract.—Where the notice of lien states that the contract was that the claimant of the lien was to be paid what the materials were reasonably worth, and that the subcontractor was to deliver to the claimant, upon acceptance of the building, an order for the amount due, to be accepted by the original contractor and the owner of the building, and the evidence was that the person named as subcontractor bought the materials at a fixed price, without any agreement as to an order, or as to payment from the contract price, there is a material variance as to the contract.</p>

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

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

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

<p>Appeal from Jüdqment—Review of Evidence—Lapse of Time—Rendition of Judgment.—Where an appeal from the judgment is taken more than sixty days after rendition of the judgment, which takes place, within the meaning of section 939 of the Code of Civil Procedure, when the findings are filed, and judgment is ordered, the evidence . cannot be reviewed upon such appeal; and, where the judgment is not entered in time to allow an appeal therefrom to be taken within sixty days from its rendition, the evidence can be reviewed only upon motion for a new trial.</p> <p>Will—Devise of Partnership Interest—Community Property—Pretermitted Heir — After-born Child. — A will devising all of the partnership interest of the testator in firm property, exclusive of real estate, to his copartners, the interest of the testator in the partnership being community property, does not carry the wife’s interest therein, neither does it carry the interest therein inherited by an after-born child of the testator, who is pretermitted from the will, not having been provided for nor mentioned therein.</p>

<p>Mutual Aid Society—Property Rights of Members—Jurisdiction of Courts. —The code of this state recognizes voluntary associations organized for mutual aid and benevolence, and courts have jurisdiction to protect the property rights of members of such associations.</p> <p>Id.—Exclusion of Member—By-laws—Notice of Proceeding—Opportunity to Defend—Mandamus—Reinstatement.—Where a member has been excluded from a mutual aid society in accordance with reasonable by-laws, the courts will not ordinarily interfere; but where there are no by-laws applicable to the difficulty, the court will inquire whether or not an expelled member has had a reasonable notice of the proceeding which resulted in his expulsion, and a fair opportunity of presenting his defense in accordance with the general principles of right and justice, and, if not, mandamus will lie to compel the association to reinstate the excluded member.</p>

W. H. Grant, Judge. The, action was brought to recover the sum of one thousand dollars upon a subscription by defendant to a “prospectus” for the building of an opera house and pavilion in Auburn, Placer county, to be built by a corporation to be formed for that purpose, having a capital stock of twenty thousand dollars, consisting of a thousand shares at twenty dollars per share, the subscription to be called in on installments, and the names of the subscribers with the…

W. Gr. Lorigan, Judge. The main facts are stated in the opinion rendered upon the former appeal (89 Cal. 115), and further facts are stated in the opinion of the court upon this appeal.

<p>Taxation—Railroad Bonds—Mortgage or Property out or State.— Railroad bonds which are held in this state by the owner have their situs here and are taxable in this state, notwithstanding they are secured by mortgage of railroad property situated out of the state.</p> <p>Id.—Situs or Credits—Domicile or Creditor. —Credits have their situs at the domicile of the creditor, and are taxable at the place of his domicile, nor is the debt for purposes of taxation affected by the fact that it is secured by mortgage of property situated in another state.</p> <p>Id.—Constitutional Law—Exemption rrom Taxation.—Where the constitution requires the taxation of bonds, it is not in the power of the legislature to exempt them.</p> <p>Id.—Illegal Part or Tax—Penalty ror Delinquency—Raise or Assessment by State Board—Recovery Back or Payment. — Where the legal part of a tax cannot be separated from the illegal part, both the illegal tax and the whole of the penalty paid for delinquency may be recovered if paid under protest, but when the illegal part of the tax consists of an illegal raise by the state board of taxes upon bonds above their face value, there is no difficulty in ascertaining and tendering the amount legally assessed thereupon, and in such case there can he no recovery of penalty except upon the illegal part of the tax, where there was no tender of the legal part of the tax prior to delinquency.</p>

William T. Wallace, Judge. Appellant was indicted by the grand jury of the city and county of San Francisco for the commission of the crime of arson. He was tried and convicted. A motion for new trial was made and denied.

<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. M. Seawell, 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>Creditor’s Bill—Void Transfer—Assignment for Benefit of Other Creditors — Proceedings Supplementary to Execution.—A creditor’s bill will lie in favor of a judgment creditor, after the return of an execution unsatisfied, to set aside a void transfer of the personal property of his debtor, which was intended as an assignment for the benefit of other creditors, to the exclusion of the plaintiff; and, in such case, the plaintiff is not required to pursue the statutory remedy of proceedings supplementary to execution, such remedy not being adequate to reach the property in the hands of the transferee, who asserts title under the transfer adversely to the plaintiff.</p> <p>Id.—Consideration of Void Assignment—Findings.—Where the court finds facts showing that an attempted assignment was made for the ben- ■ efit of part of the creditors of a debtor, and is void under the statute governing assignment for the benefit of creditors, the question of the consideration of the assignment is immaterial, and no finding need be made thereon.</p>

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

Certiorari from the Supreme Court to review and annul an order of the Superior Court of San Diego County refusing to dismiss an appeal from the Justice’s Court of San Diego Township. W. L. Pierce, Judge. The facts are stated in the opinion of the court.

<p>Wills—Contract for Testamentary Disposition—Specific Performance-Uncertainty—Oppressiveness—Rights of Third Persons.— A man may make a valid agreement binding himself to dispose of his property in. a particular way by last will and testament, and a court of equity will enforce such an agreement specifically by treating the heirs as trustees> and compelling them to convey the property according to the contract, if it be certain in its terms, and not oppressive, and the rights of innocent third parties are not involved; but if the contract be vague and uncertain, or the remedy sought is harsh or oppressive, or unjust to innocent third parties, equity will withhold its assistance.</p> <p>Id.—Parol Contract with Niece—Subsequent Marriage of Uncle— Quantum Meruit.—Where an uncle made a parol contract with his niece to come and live with him, and care for him, and that he would bequeath to her all of the property which he might own at the time of his death, and he married before his death, the wife being ignorant of the contract, which was vague and uncertain as to the,services to be rendered by the niece, such contract cannot be specifically enforced against the widow after the death of her husband; but the niece must resort to an action of quantum meruit.</p>

<p>Sale of Mining Claims—Accounting and Compromise between Co-owners—Action to Annul Settlement — Nonsuit.—Where several mining claims and parts of claims were sold together, and a dispute arose as to the respective interests of the co-owners of the claims, and as to the disposition to be made of the proceeds of the sale, and also as to items of expense incurred, which disputes were finally settled and adjusted, and the money distributed, upon a full accounting had, and compromise made, between them, with full knowledge of all the facts, such settlement cannot be set aside at the will of either party, but only upon a showing of fraud, mistake, or undue influence, and, where no such showing is made, the plaintiff, in an action to set aside the settlement and to open up the account, is properly nonsuited.</p> <p>Id.—When Nonsuit Should be Granted—Appeal—Presumption—Discretion.—The judge presiding at a trial by jury should grant a nonsuit where a verdict in favor of plaintiff should be set aside for want of evidence to support it, and, in the absence of a jury, where the evidence is insufficient to support a judgment for the plaintiff, and where a nonsuit is granted, it is to be presumed that the judge acted on this principle, and his action will not be disturbed on appeal where there is no reason for holding that he abused his discretion in concluding that the evidence was insufficient.</p>

<p>Foreclosure of Mortl .ue—Answer and Cross-complaint—Insufficient Amendment—Assignment of Insurance Policy as Security. In an action to foreclose a mortgage, a proposed amended answer and cross-complaint setting up an assignment to plaintiff of an insurance policy on the mortgaged premises, and a loss by fire, and alleging that defendants had made proof of loss, and had requested plaintiff to collect the insurance to be applied on the mortgage note, which plaintiff had refused to do, and that there was a conspiracy between plaintiff and the insurance company—does not state any defense to the action, nor any cause of action by way of cross-complaint, that can be litigated in the foreclosure suit—bub the controversy between the parties must be determined in another action, and it is not error to refuse leave to file the proposed amended pleadings.</p> <p>Id.—Rights op Pledgee—Constructioít op Code.—A pledgee may recover a debt for which a pledge is given, without first exhausting the subject of the pledge, and under section 726 of the Code of Civil Procedure, the defendant cannot compel an adjustment of a pledged insurance policy in an action to foreclose a mortgage ; nor does section 3433 of the Civil Code apply to such a case.</p>

<p>Evidence—Attorney and Client — Privileged Communications—Negotiations in Attorney’s Presence.—Where an attorney is acting for both parties in a negotiation, or where two persons are negotiating together in the presence of the attorney of one of them, the communications made in the hearing of both parties are not privileged, but the attorney may be compelled in a suit between the parties to testify as to all that was said and done by them in his presence.</p> <p>Id.—Sufficiency of Proof — Erroneous Instruction.—In a civil case, it is error to tell the jury that there must be evidence sufficient “to convince their minds” of any fact necessary to be shown by either party, the weight of evidence or preponderance of probability being sufficient to establish a fact in a civil case.</p>

W. T. Hasten, Judge. Defendants were accused, by information, of the crime of altering the brand on a certain steer, with intent to steal the same. Defendant Richter moved the superior court to set aside the information on the grounds that before the filing of the said information he had not been legally committed by a magistrate: 1.

<p>Criminal Law—Setting Aside Information—appeal—Nonappealable Order—Dismissal.—An order setting aside an information accusing a defendant of a felony is not appealable, and an appeal by the people therefrom must be dismissed.</p>

<p>Attachment—Sale of Pledged Property—Security Rendered Valueless—Construction of Code.—Where property pledged as security for a debt has been sold pursuant to the authority given hy the pledgor to the pledgee, and the net proceeds applied upon the debt, the security has become valueless as a security by the direction and authority of the pledgor, and not by the act of the pledgee, within the meaning of section 537 of the Code of Civil Procedure, and an attachment will lie in an action to recover the remainder of the debt.</p> <p>Id.—Private Sale of Pledgee—Agreement—Waiver of Notice — Maxim.—Where the pledgor has authorized the pledgee to sell the pledged property at private sale only without notice to the pledgor, any notice of such sale is thereby expressly waived, and under the maxim conventio vincit legem, the agreement of the parties overcomes the provision of the law requiring a sale at public auction upon usual notice.</p>

<p>Order Granting New Triad—Discretion—Review upon Appeal—Conflict of Evidence.—The superior court is authorized to grant a new trial if, in its opinion, the verdict is against the weight of evidence, although the evidence is conflicting; and, when one of the grounds of a motion for a new trial is insufficiency of the evidence, its action in , granting a new trial is the exercise of a legal discretion, which will not be reviewed upon appeal, unless it is made to appear that its discretion was abused.</p> <p>Id.—Specification of Grounds of Order—-Presumption upon Appeal— Grounds of Motion.—The code does not require the court to specify the grounds which govern its action in granting or refusing a new trial; and its action in granting a new trial is to be reviewed upon the record upon which the order was made, and-will be sustained if the matters contained in the record would, under any circumstances, authorize it to grant a new trial; and it will be presumed, on appeal, that it was granted for insufficiency of the evidence, where such ground was specified in the motion for new trial.</p>

<p>Appeal from a judgment of the Superior Court of Contra Costa County. Joseph P. Jones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Deed—Gift from Husband to Wife—Delivery to Third Party— Vesting of Title—Record after Decease of Husband.—Where a deed of gift of real and personal property was made by a husband to his wife, and delivered to a third, party for her benefit, with instructions to record it after his decease, but with the intention to vest title in the wife to the property conveyed, as of the date of its execution, such delivery of the instrument is valid and sufficient to vest title in the wife to all the real and personal property described therein.</p> <p>Id.—Intention of Grantor—Question of Fact—Support of Finding.— While the intention of the grantor in making such deed is all-important in determining the question of its validity, as carrying title to real or personal property, yet such intention is a question of fact for the jury under the law, and where they have found such intention in favor of the grantee, their finding will not be disturbed upon appeal when there is evidence to support it.</p> <p>Id.—Gift of Personal Property—Note—Title of Wife—Payment to Husband—Deposit in Bank.—-Where the deed of gift from the husband to the wife, conveyed to her certain real property described, and all of his personal property of every description, “including chattels, stocks, money, notes, bonds, mortgages, and other evidence of indebtedness,” the delivery of the deed to a third party with intent to vest title in the wife, passed to the wife the title to each note then payable to the husband, and relinquished all right or control over the same by the husband, and the wife is entitled to a payment thereafter made tó the husband upon the note, though such payment was deposited by the husband in bank in his own name prior to his death, and his administrator cannot recover the same, as against her.</p> <p>Id.—Parol Evidence of Intention—Declarations of Husband.—The intention of the husband to make a present gift to his wife by a deed delivered to a third person, may be proved by Ms own declarations, whether made before or after the transaction.</p> <p>Id.—Power of Grantor before Delivery—Effect of Written Instructions.—-Prior to the actual delivery of the deed, the grantor may change the character of the delivery originally contemplated, and has the right to destroy and nullify the instrument itself; and written instructions contained in the instrument in reference to the disposition of the deed are not conclusive evidence of the grantor’s intention, such as to preclude parol evidence of his declarations as to his intention.</p> <p>Id.—Attorney and Client—Privilesed Communications—Delivery of Deed.—A conversation between the husband and his attorney in reference to the delivery of his deed of gift to his wife to a third person, and instructions by the attorney as to such delivery, given mostly in the presence of the wife, are not privileged, and the husband’s attorney may testify to the same on behalf of the wife.</p>

<p>Appeal from an order of the Superior Court of Kern County changing the place of trial. A. R Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Mortgages—Priority of Record of Subsequent Lien—Notice—Knowledge of Bank Cashier—Agency for Depositor—Presumption.— Where the cashier of a bank negotiated a prior mortgage in favor of a depositor of the bank, and the mortgage was left in his possession, and interest on the loan was received by him and placed to the credit of the mortgagee on the books of the bank, and on his pass-book, the cashier’s knowledge of the prior mortgage will be presumed to continue, under such circumstances, and to affect the bank with knowledge of the prior mortgage, at the date of a subsequent mortgage to the bank on the same property, which was first recorded, in the absence of proof that the previous transaction was not then present to the mind of the cashier.</p> <p>Id.—Agency of Bank—Presumption — Action of Cashier—Negotiation of Loans for Depositors—Charter of Bank.—Where the charter of a bank stated that it was to act as agent in the investment of funds, and to transact any business that may be done by a financial agent, it cannot be presumed that its cashier, in negotiating a loan upon mortgaged security in favor of a depositor, acted as agent of the mortgagee, but it must be presumed that he was acting for the bank where he was in the habit of negotiating loans for it, and the bank, in such case, is bound to know of the mortgage in favor of the depositor.</p> <p>Id.—By-laws of Bank—Customary Action of Cashier — Estoppel of Bank.—Although the by-laws of the bank provided that the concurrence of the president and cashier were required in the negotiation of loans, yet, where it was customary for the cashier to negotiate loans without consulting the president, the bank cannot be permitted to say that it did not negotiate a loan which was negotiated through its cashier alone.</p>

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

<p>Appeal from a judgment of the Superior Court of Alameda County and from an order granting a nonsuit. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the Superior Court of Napa County. E. D. Ham, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Ejectment—Pleading—Allegation of Defendant’s Title—Cross-complaint.—In an action of ejectment, an answer by a defendant affirmatively setting up title in himself in detail is to be construed as a general denial of the plaintiff’s title, and not as a cross-complaint requiring an answer from the plaintiff.</p> <p>Execution—Redemption—Certificate of Sheriff.—In order to render effectual a redemption of real estate sold under execution, the issuance by the sheriff of a certificate of redemption is not necessary.</p> <p>Id.—Redemptioner—Successor in Interest—Grantee of Judgment Debtor.—The grantee of a judgment debtor, whose land has been sold under execution, is not a “ redemptioner” in the sense in which that word is used in section 705 of the Code of Civil Procedure, and, in order to redeem from the execution sale, need not comply with the conditions imposed by that section on “redemptioners.” Such grantee is a “successor in interest "of the judgment debtor, as' that phrase is used in section 701 of that code, and is entitled to redeem in the same manner as the judgment debtor.</p> <p>Id.—Sheriff’s Deed—Recitals.—A recital in a sheriff’s deed, given to the execution purchaser, “that there had been no redemption from the sale,” is not conclusive upon a grantee of the judgment debtor who had made a valid redemption. The grantee may attack such deed in an action of ejectment, without resorting to equity to have it set aside.</p>

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

<p>Practice—Bill of Exceptions—Statement of Evidence. —Where the weight or effect of evidence is to be considered, as upon motion for a new trial on the ground of the insufficiency of the evidence to justify the verdict or finding, it is the duty of counsel for the moving party to incorporate in his proposed bill of exceptions all of the evidence which he deems material. If he omits to do so, and amendments are inserted in the proposed bill at the instance of the adverse party, to the effect that he introduced evidence “ tending to prove” certain facts in support of the verdict or finding, and in pursuance of a stipulation of the parties the bill is settled in that form, the appellate court will hold the statement of the evidence sufficient to show a material conflict, and will refuse to grant a new trial on the ground of its insufficiency to justify the verdict or finding.</p> <p>Execution Sale—Personal Property.—An execution sale of several articles of personal property in one lot, instead of separately, although irregular, is not void.</p> <p>Id.—Vacating Sale—Liability of Sheriff.—A sheriff who sells personal property under execution, which is immediately taken possession of by the purchaser, is only liable, upon such sale being set aside, for his failure to retake the property.</p>

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

<p>Wills —Construction—Bequests to Orphan Asylums—Designation by Probate Judge.—A provision in a will directing certain property of a testator to be sold and the proceeds to be “ equally distributed among the different orphan asylums of the city and county of San Francisco,” and requesting that they “be designated by the judge of the probate court,’” is to be construed as asking the court to designate all the orphan asylums in the city and county, and the probate judge has no right to select some to the exclusion of others.</p> <p>Id.—Judge as Trustee of Power—Discretion. —The probate judge cannot, at the same time, act as trustee of a power under the will, and as a judge; and where discretionary powers are such as would not belong to the court because of its jurisdiction over the subject matter of the trust independent of the authority of the will, the court will not exercise it, and cannot confer such discretion on a trustee.</p> <p>Id.—Probate Jurisdiction of Superior Court — Department in San Francisco.—There is no probate court of the city and county of Saa Francisco, but the superior court has jurisdiction of probate matters, and there is no law authorizing the designation of any one department of said court for probate jurisdiction; but each of the twelve judges has jurisdiction in probate matters.</p> <p>Id.—Designation of Orphan Asylums—Judicial Functions—Power of Selection—Delegation to Court—To determine what institutions are orphan asylums of San Franciscco, involves the exercise of judicial functions; but to select certain orphan asylums in accordance with no rnle laid down in the will, is not the exercise of judicial functions, and such power cannot be imposed upon a court by a testator.</p> <p>Id.—Nature of Orphan Asylum — Name.—The fact that the phrase " orphan asylum” does not appear in the name of an institution which has orphans among its inmates, is of no consequence, nor is it essential that its business should be confined to the reception of orphans, if it in fact received orphans and provides a home and protection for them.</p> <p>Id.—Orphan Asylums of City and County — Asylums Outside City Limits.—The fact that San Francisco people may maintain orphan asylums situated outside of the limits of the city and county of San Francisco, and that they may receive most of their inmates from San Francisco, does not make them orphan asylums of the city and county, within the meaning of a will providing for such asylums, but the home for orphans must be within the city limits.</p> <p>Id__Boys and Girls’ Aid Society — Charter for Orphan Asylum — Reformatory.—Although the Boys and Girls’ Aid Society of San Francisco has a provision in its charter for the maintenance of an orphan asylum, it cannot be considered such, since it has not in fact maintained it, but is in its nature a reformatory.</p> <p>Id..—Legacies Vest at Death of Testator—Time of Distribution Im. material — New Claimants.—Legacies vest as of the death of the testator, Bnd not at the time of the distribution of his estate, and orphan asylums existing at the time of his death are those to be included in a bequest in aid of orphan asylums, and no new claimants who were not conducting orphan asylums at his death could share in the fund.</p>

<p>Negligence—Damages—Indebtedness Incurred for Physician—Expenditure—Pleading—Evidence — Variance.—In case of personal injury of a plaintiff through the negligence of the defendant, under a proper .pleading the injured party may recover for such necessary medical expenses as he may have become liable to pay, though not in fact paid before suit brought; but where the complaint avers that plaintiff has necessarily expended a specified sum in doctor’s bills, he cannot prove that he has incurred a physician’s bill, or recover the amount thereof under such pleading.</p>

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

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

<p>Criminal Law—Trial—Conduct of District Attorney—Discretion of Judge.—Much must he left to the discretion of the trial judge in determining whether a district attorney oversteps the bounds of legal propriety in the conduct of the prosecution; and, unless it clearly appears to the contrary, the judgment of the trial court that his conduct has wrought no prejudice to the defendant will not be set aside; and his conduct must not merely be brusque, but must militate against justice, and the fair and orderly conduct of judicial proceedings in criminal eases, and must amount to willful error, persisted in for an illegitimate purpose, followed by injustice to the prisoner, before the appellate court will interfere.</p> <p>Id. — Statements by Court in Ruling upon Evidence — Province of Jury—Instruction.—Statements of evidence made by the court in ruling upon the admission of evidence are not in the nature of instructions to the jury with reference to the evidence, and are not an invasion of the province of the jury, and it is not to be assumed that they will be influenced by it; and where the court instructs the jury when the cause is submitted to disregard any statement of fact made by the court, and to determine all questions of fact from the evidence alone, such instruction removes all apprehension of prejudicial results to the defendant from the statements of the court.</p> <p>Id.—Impeachment of Defendant as Witness—Character of Defendant—Presumption—Instruction.—Where the defendant offers himself as a witness, his testimony is subject to the same rules as that of any other witness, and he may be impeached in the same mode as any other witness.</p> <p>Id. — Charge of Larceny — Cross-examination of Defendant’s Witnesses—Reputation as to Honesty and Integrity—Specific Acts. Upon trial of a charge of larceny, it is proper to permit the prosecution to cross-examine witnesses called in behalf of the defendant to sustain 'his reputation, in reference to his reputation for honesty and integrity; and they may be cross-examined with reference to specific acts for the purpose of overcoming the effect of their testimony upon direct examination. .</p> <p>Id.—Judicial Notice—Time of Rising of Moon—Affidavits—Review upon Appeal—Presumption.—The court will take judicial notice of the time when the moon ■ rose on a particular night, and it may inform itself from any source of information; and it is not competent to assail the correctness of an instruction to the jury upon that subject by affidavits contradictory of the correctness of the statement of the court; and, in the absence of manifest error, the fact as stated by the trial court will be presumed correct on appeal, and appellant must show affirmatively that the court erred in its statement.</p> <p>Id.—Order of Proof—Discretion.—The order of proof is in the discretion of the trial court, and the admission of evidence out of its proper order is not ground of reversal upon appeal.</p> <p>Id.—Statements in Presence of Defendant—Hearsay. — Statements made by a third person in the. presence of the defendant, and to which the defendant replied, are not hearsay, and are admissible against him.</p> <p>Id.—Recall of Jury—Instruction in Absence of Defendant’s Counsel. It is not error to recall the jury, and to give an instruction in the absence of defendant’s counsel, where they cannot be found after search, if the defendant himself is present, and the court directs an exception in his behalf.</p>

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

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

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

<p>Appeal from an order of the Superior Court of the City and County of San Francisco denying a motion for an order directing that moneys on deposit in court he delivered over tcf'the agent of the defendant bank to he distributed among the stockholders of the bank. 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 Alameda County. F. B. Ogden, Judge,</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County. W. E. Greene, F. W. Henshaw, and John Ellsworth, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Appeal from an order of the Superior Court of San Joaquin County distributing the estate of Joseph B. Boody, deceased. Joseph H. Budd, Judge.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. Charles W. Slack, Judge.</p>

<p>Bill of Exchange—Payment by Check.—A check does not constitute payment unless it is so understood; hut when a check is given in payment by the drawer of a bill of exchange, which, upon the delivery of the check, is marked “paici” at request of the drawer of the bill, and delivered up to him, this shows a distinct understanding by both parties that the bill of exchange has been paid by the check, and the money paid cannot thereafter be recovered by the drawee of the bill of exchange, and, if he stops payment of the check, the .holder of it may recover from him the amount thereof.</p>