Volume 114 — California Reports

<p>Negligence—Latent Defect in Platform in Front of Dwelling— Injury to Carrier of Heavy Trunk—Owner not Liable.—Wher6 a servant of a transfer company was injured by the breaking of a platform in front of a private dwelling, while carrying a heavy trunk on his back, which he had refused assistance in carrying, and the evidence shows without conflict that the front steps, including the platform, were built seven or eight years before the accident by a competent and skilled carpenter and builder, and was well constructed and of good materials, which would ordinarily wear sixteen or twenty years without repair, that it had been repainted every year, and that it appeared to the owner and those who had passed over it to be perfectly sound and safe up to the time of the accident, and that the owner had no knowledge that it was unsound, unsafe, or defective until after the accident, the owner is not liable for the injury.</p> <p>Id.—Concealed Defects of Workmanship—Ordinary Wear and Tear-Extraordinary Care.—Those latent defects which are either concealed in defective workmanship, or are incident to the ordinary wear and tear of houses, are among the casualties which no man can avoid without that extraordinary care and vigilance which the law does not impose.</p> <p>Id.—No Duty to Inspect Platform—Partial Decay Underneath.— Where the platform was constructed in a good and substantial manner, and gave no indication of being unsafe or unsound up to the time of the accident, the owner of the dwelling was under no legal obligation to have the platform inspected from time to time, and is not liable for a defect in the platform which was secret and unknown to him, and which was incident to the ordinary wear and tear of the platform, and was owing to partial decay underneath the plank which broke, and of the stringer on which it rested, of which partial decay he had no knowledge or notice.</p> <p>Id.—Hypothetical Instruction—Question of Fact.—An instruction whiqji merely applies the law to hypothetical facts, and submits to the jury the question whether the facts hypothetically stated are true, is not an instruction as to question of fact.</p>

<p>Criminal Law—Homicide— Murder in Perpetration op Larceny and Burglary—Withdrawal op Plea—Plea op Guilty—Death Penalty-Motion for Second Withdrawal—Discretion.—Where a defendant, accused of homicide, after having confessed that the murder was willfully committed while in the perpetration of larceny and burglary, asked leave to withdraw his plea of not guilty, and to substitute a plea of guilty—which was granted—and, upon hearing of the evidence to determine the degree of the crime, a sentence of death penalty was imposed by the court, it is not an abuse of discretion to refuse to permit the defendant to withdraw his plea of guilty and substitute another plea of not guilty, the case being such as not to call for a lesser punishment than that imposed by the court.</p> <p>Id.—Speculation upon Clemency op Judge.—The defendant cannot be permitted to speculate upon the clemency of a judge by substituting'a plea of guilty for a plea of not guilty, with a right to retract if, before sentence, he finds that his expectation will not he realized.</p> <p>Id.—Determining Degree op Grime—Evidence—Intoxication—Character of Dependant — Continuance.—Where the defendant pleads guilty of the murder, and the nature of the case shows that it was deliberate and premeditated, evidence that defendant was intoxicated is valueless, as also evidence of defendant’s previous good character, and it is not improper to refuse to continne the cause for the giving of such evidence for the defendant.</p>

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

Application in the Supreme Court for the restoration of W. B. Treadwell to the roll of attorneys. The facts are stated in the opinion of the court.

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

<p>Pleading—Common Counts Consistent with Code.—The common counts are not inconsistent with the provision of the code that a complaint must state the facts constituting the cause of action in ordinary and concise language, and may be used to state a cause of action under the code.</p> <p>Id.—Monet Paid Out and Expended for Defendant—Demurrer—Certainty—Date of Cause of Action—Items of Account.—A count of a complaint averring that the defendant is indebted to the plaintiff in a specified sumen account of moneys theretofore, at the special instance and request of defendant, paid, laid out, expended, loaned, and advanced to and for the defendant by the plaintiff, and that defendant had not paid the plaintiff any part or portion of said sum, is not subject to a general demurrer, nor to a special demurrer for ambiguity or uncertainty in not stating when the cause of action accrued, or in not setting forth the items of the account.</p> <p>Id.—Statute of Limitations—Demurrer—Answer.—The defense of the statute of limitations cannot he raised by demurrer, unless it clearly and affirmatively appears upon the face of the complaint that the cause of action is barred, and if it does not so appear the defense must be raised by the answer.</p> <p>Id.—Payment of Accommodation Notes—Time of Payment not Appearing in Complaint—Notes Apparently Barred.—A count of a complaint alleging the payment by the plaintiff of accommodation notes executed by plaintiff at defendant’s request, which does not state the time of payment of the notes, does not show on its face that the cause of action is barred by the statute of limitations, nor does the fact that the notes were apparently barred when the suit was commenced show that the cause of action is barred by the statute.</p>

Motions in the Supreme Court to dismiss appeals from a judgment of the Superior Court of the City and County of San Francisco. The facts are stated in the opinion of the court.

J. C. B. Hebbard, Judge. •¡The facts are stated in the opinion of the court, and in the opinion rendered on the former appeal, reported in 33 Pacific Reporter, 496.

B. N. Smith, Judge. The instruction referred to in the fourth subdivision of the opinion of the court was as follows: “In order to justify the homicide, the danger menacing the defendant must have been present, apparent, and imminent, and the killing must have been done under a well-founded belief that it was absolutely necessary for the defendant to kill the deceased at that time to save himself from great bodily harm.

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

Motion to dismiss appeals from a judgment of the Superior Court of the City and County of San Francisco and from an order dissolving an injunction. The facts are stated in the opinion of the court.

<p>Criminal Law—Order Setting Aside Information Non appealable. An appeal cannot be taken by the people from an order setting aside an information; and such an appeal will be dismissed by the appellate court of its motion for want of jurisdiction, although the objection is not raised by respondent.</p>

<p>Appeal from an order of the Superior Court of the City and Comity of San Francisco setting aside an information. Edward A. Belcher, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from a judgment of the Superior Court of Santa Barbara County. W. B. Cope, Judge.</p> <p>The facts are stated in the opinion.</p>

B. T. Williams, Judge presiding. The accused was charged with the crime of presenting a false and fraudulent claim against the county of Kern. Further facts are stated in the opinion of the court,

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

Lux, widow of Charles Lux, deceased, during the settlement of the estate. George H. Buck, Judge. The facts are stated in the opinion of the court.

<p>Estates of Deceased Persons—Allowance to Widow—Disbursements by Executors without Previous Order — Receipts from Other Property of Deceased.—The fact that payments were made by the executors for the support of the widow of the deceased, without previous order or allowance of the court, does not deprive the executors of the right to a credit therefor to the extent that the court may find that such advances were reasonable and proper; nor does the fact that the widow received other moneys from other property of the deceased, preclude the sanctioning of the disbursements by the executors for her support, where the court finds that taking that fact into consideration the allowance paid by the executors was reasonably and properly advanced to the widow as a family allowance for her use-and support.</p>

<p>Prostitution—Letting for Purpose of.—Under section 316 of the Penal Code, every person who lets any apartment or tenement, knowing that it is to be used for the purpose of assignation or prostitution, is guilty of a misdemeanor.</p> <p>Id.—Partnership—Accounting.—A partnership formed to carry on th-> business of letting furnished apartments for the purpose of prostitution is illegal, and neither partner can maintain an action against the other for an accounting of the business; and the fact that the tenements were located in a portion of the city mainly inhabited by prostitutes, who were permitted to remain there by the police, is immaterial.</p>

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

T. E. Jones, Judge. This action was brought on the 16th of August, 1892,. to quiet title to a certain mining claim. On the 12th of May, 1892, the defendant had filed its application for a patent to the claim in the United States land-office, and on the 18th of July, 1892, the plaintiff had filed its adverse claim in such land-office.

<p>Criminal Law—G-rand and Petit Larceny—Instructions.—In a prosecution for grand larceny, in which the defendant was charged with having stolen from a house various articles of personal property of the aggregate value of more than fifty dollars, it is error for the court to refuse to instruct the jury of their right to convict of petit larceny,</p> <p>■ where the evidence only traced into or through the possession of the defendant certain of the stolen articles, of an aggregate value of less than fifty dollars, and the circumstances of the case were such that the other articles might have been stolen by some other criminal acting independently of him.</p>

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

<p>Appeal from an order of the Superior Court of Siskiyou County refusing to dissolve an injunction. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Appeal from a judgment of the Superior Court of Tuolumne County dismissing a complaint in intervention. G-. W. Nicol, 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. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion, of the court.</p>

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

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

Application to the Supreme Court for writ of mandate to the governor of the state. The facts are stated in the opinion of the court.

<p>Negligence—Master and Servant—Unsafe Appliance—Unfastened Pin—Knowledge of Superintendent—Responsibility of Employer. An employer must furnish his employees reasonably suitable and safe machinery and appliances, and keep them in repair and order, and cannot delegate such duty; and a superintendent or foreman of the employer who sets up a machine with an unfastened pin, rendering it defective and unsafe through the absence of a key to hold the pin in place, acts as the representative or agent of the employer, and his knowledge of the defect is the knowledge of the employer, who is responsible for his negligence, and for a resulting injury to a servant from the falling out of the pin.</p> <p>Id,—Contributory Negligence—Ignorance of Servant—Risk not Assumed.—A servant put to work on a machine which is in a defective and unsafe condition, without opportunity given him to examine the machine, has a right to rely on the machine being in a right and safe condition, and, unless he knew, or ought to have known, of the danger to which he was exposed by working near the machine, he cannot be said to have recklessly exposed himself to such danger, or to have voluntarily assumed the risk of "working there.</p> <p>Id.—Employer’s Knowledge of Use of Machine.—It is immaterial whether the employer owned the machine or knew personally of its use before the accident occurred, where it appears that he paid for its transportation and for the use of it by a superintendent whose use of it was the employer’s use, and whose knowledge of its defects was the knowl. edge of the employer.</p> <p>Id.—Refusal of Instructions—Oontribotory Negligence—Knowledge of Danger.—It is not error to refuse an instruction requested by the defendant, which did not include as one of the conditions upon which plaintiff could not maintain his action that he knew, or might have known, that his employment involved danger to himself.</p> <p>Id.—Instructions Substantially Given—Improper Statements.—It is not prejudicial error to refuse instructions when ail that is material in them, and applicable to the case, is stated in the instructions given; and any statement in an instruction which is not a statement of any rule of law, or which is not applicable to the facts of the case, is properly refused.</p>

<p>Appeal from a decree of distribution of the Superior Court of San Joaquin County. Joseph H. Budd, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Execution—Insolvency—Priority of Right to Proceeds.—The lien of .an execution creditor upon personal property in the hands of the sheriff, and the right to a sale thereof in satisfaction of his judgment, is not affected by the subsequent adjudication of the judgment debtor as an insolvent, and the appointment of the sheriff as receiver of his estate</p> <p>Id.—Intervention by Assignee.—In an action by a sheriff, claiming as a receiver of an insolvent debtor, to recover from a purchaser the price of personal property sold, in which the purchaser sets up a prior right to the proceeds of the sale as an execution creditor of the insolvent, the assignee of the insolvent may intervene, but in his complaint in intervention must allege the fact of the assignment to him, and establish it by evidence.</p> <p>Id.—Accounting by Receiver.—Upon a recovery by the plaintiff in such an action he would recover as receiver, and the assignee in insolvency would be entitled to have him account for the proceeds in the insolvency proceeding, without resorting to a separate action in equity.</p>

Waldo M. York, Judge. The main facts are stated in the opinion rendered on the former appeal, reported in 97 Cal. 296. Further facts are stated in the opinion of the court rendered on this appeal.

<p>Deeds—Cancellation—Evidence—Findings.—In an action by a surviving wife to set aside certain deeds made by her husband to another woman, held, upon a review of the evidence, that the findings of the lower court, that the grantee named in the deeds had only paid a consideration for the purchase of an undivided half interest in the property conveyed» was sustained.</p>

<p>Writ of mandate from the Supreme Court to the Superior Court of Fresno County. E. W. Eisley, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Counties—Supervisors—Employment op Attorney.—The board of pervisors of a county has power to employ an attorney for the purpose of collecting a claim due it from the state.</p> <p>Id.—Claim against County—Waiver op Informalities.—The board of supervisors may, under certain circumstances, allow a claim against the county, although the formalities necessary to bind it were not originally employed. Tims, in respect to a matter concerning which the board had original power, it may, provided the service has been rendered, or the money expended for the benefit of the county in a manner authorized by law, cure informalities or irregularities in pro. cedure by a subsequent ratification and recognition of its liability.</p> <p>Id.— Contract with Public Officials—Increase op Compensation.— Where a board of supervisors employed its clerk, who was under a regular salary paid by the county, to collect a claim against the state for a commission on the amount collected, and the clerk obtained the employment under an agreement with the district attorney that he would perform the services, and the compensation should he divided, the contract is void as being an attempt to increase the compensation of a public official during his term of office, and also because it is contrary to that public policy which prohibits public officers from having any personal interest in public contracts.</p>

<p>Insane Person—Poreolosure—Judgment—Appointment of Guardian— A judgment in an action to foreclose a mortgage against an insane person, which was rendered without the appointment of a guardian, although irregular, is not void, and cannot be collaterally attacked as asainst a bona fide purchaser of the mortgage premiums at the foreclosure sale.</p>

<p>Practice—Striking out Answer—Judgment—Refusal to>Give Deposi- • tion.—Atrial court is justified in striking out the answer of, and rendering judgment against, a defendant, who willfully refuses to give his deposition. Such matter is within the discretion of the trial court, and its action in restoring the answer will not be reversed on appeal, provided the court possessed the power to make the order at the time and in the manner pursued by it.</p> <p>Id.—Appeal—Jurisdiction of Trial Court.—Pending an appeal by a defendant from a judgment so rendered against him, and from an order refusing to set the same aside, the trial court loses jurisdiction of the cause, and has no authority, of its own motion, to set the judgment, aside.</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>Counties.—Power oe Supervisors—Erection of Jail—Plans and Specifications—Basis for Bid—Injunction by Taxpayer.—The supervisors of a county have authority under section 25 of the County Government Act to erect a jail, under a contract let to the lowest responsible bidder, provided plans and specifications therefor have been first adopted by the board prior to the sixty days’ notice of the bidding, upon which the bids are to be based; but they have no authority to let a contract upon plans and specifications to be drafted and submitted by the bidders, thereby preventing competition in bidding, and giving the board an opportunity for favoritism; and the carrying out of a contract so let may be enjoined at suit of a taxpayer.</p>

<p>County Officer—Treasurer—Moneys Unlawfully Expended—Pleading.—In an action upon the official bond of a county treasurer to recover for money alleged to have been unlawfully paid out by him from the treasury, an allegation of an allowance by the board of supervisors of a claim against the county “for assisting the recorder and auditor of said county in the performance of the duties of his office,” sufficiently shows the illegality of the claim; and a further allegation that the treasurer paid a warrant drawn for the amount of the claim is sufficient, in the absence of anything appearing to the contrary, to authorize the presumption, under section 114 of the County Government Act, that the warrant showed on its face the illegality of the claim for which it was drawn..</p> <p>Id,_Action on Bond.—Such an action is based upon a written contract, and not upon a penal statute.</p> <p>Id.—Jurisdiction of Superior Court.—The superior court has jurisdiction of such an actiou, where the aggregate amount sued for is three hundred dollars and over, although the amount claimed in each count of the complaint is less than that sum.</p>

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

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

<p>Street Improvements—Description op Work.—Grading—Macadamizing.—Where a street has been previously graded and macadamized, a subsequent resolution of intention for its improvement which describes the proposed work as “ grading ” and “ macadamizing ” instead of “ regrading” and “remacadamizing,” is sufficient.</p> <p>Id.—Assessment—Appeal to Supervisors.—Where a lot which is properly assessable for a street improvement is assessed for more than its lawful proportion, the remedy of the owner is by appeal to the board of supervisors. If he fails to do so, the error is waived.</p> <p>Id.—Recording Contract.—The failure of the superintendent of streets to record the contract at the proper time, does not affect the rights of the contractor.</p>

<p>Estates of Deceased Persons—Possession of Assets—Ancillary Administration. —The administratrix of the estate of a deceased pp on, who is appointed in this state in ancillary proceedings, is entitler" Recover from the domiciliary administrator, who is temporarih ;is Í jurisdiction, the possession of a certificate of deposit in an \t national bank situated in this state, which the receiver therec. - fused to allow as a valid claim the bank.</p>

<p>Estates of Deceased Persons —Possession of Assets—Aucillary Ad. ministration.—Judgment reversed on the authority of McCully v. Cooper, ante, p. 258.</p>

<p>Libel—Discharge for Reprehensible Conduct—Conflicting Evidence —Review upon Appeal.—In an action for libel in falsely publishing that plaintiff was discharged from employment for reprehensible conduct, where the evidence is conflicting upon the main issues of fact, as to whether plaintiff was discharged as an employee, and as to whether the alleged libelous matter was true, a verdict in favor of the plaintiff will not be disturbed upon appeal.</p> <p>Id.—Evidence—Cross-examination of Defendant—Truth of Libelous Matter.—A defendant accused of libel, when called as a witness for the plaintiff, cannot be asked on cross-examination as to the truth of the alleged libel, where nothing was asked him in chief about its truth.</p> <p>Id.—Hostility of Witness—Attachment upon Note.—When a witness has already testified that he is unfriendly with one of the parties, it is not prejudicial error to refuse to permit him to be asked if such party had not sued him on a note and attached his property.</p> <p>jd.—Cross-examination of Plaintiff on Rebuttal — Advertisement after Suit.—On cross-examination of plaintiff at the close of rebuttal, it is not competent to ask him for the first time whether he had not published an advertisement in another paper after the commencement of the suit, and after a second publication of the alleged libel by the defendants.</p> <p>Id.—Libelous Matter—Special Damage.—The publication of a false statement that the plaintiff was discharged from his employment for reprehensible conduct, is libelous per se, as tending naturally to expose him to obloquy, and to injure him in his occupation, and no averment or proof of special damage is required in such case, such proof being only required when the libelous meaning of the publication is covert, and not apparent on the face of the language used.</p> <p>Id.—Construction of Language used—Province of Judge and Jury.— When the language of an alleged libel is unambiguous, it is the province of the judge to determine its construction, and where it is capable of two constructions, the jury are to determine in what sense it is used.</p> <p>Id.—Harmless Error in Instruction.—An instruction submitting to the jury the determination of the meaning of publications which are libelous peí' se, is harmless error, where the verdict is for the plaintiff, and when the court instructed thie jury that the publications alleged to be libelous were to be taken in the sense that is most natural and obvious, and in that sense in which those persons to whom the publications should come would be most likely to understand them. In such case the instruction was as favorable for the defendants as if the judge had himself construed the language.</p> <p>Id.—Refusal of Instructions Elsewhere Given.—It is not prejudicial injury for the court to refuse instructions requested by the defendants which were, so far as correct, fairly included in the instructions given by the court.</p>

<p>Appeal—Law of the Case—Question of Fact—Adverse Possession.— The decision of the appellate court upon a former appeal that the evidence was sufficient to warrant a finding of adverse possession and a title by prescription, in the defendant, is of a question of fact, and the decision thereof does not become the law of the case, but upon a second trial, the jury might upon the same or additional evidence find the issue differently; and it is error for the court upon the second trial to take that question away from the jury, and to direct them, as the law of the case, to bring in a verdict for the defendant.</p>

Habeas Corpus to review a judgment of conviction rendered in the Superior Court of Orange County. J. W. Towner, Judge. The facts are stated in the opinion of the court.

<p>Adverse Possession—Prescriptive Right—Payment oe Taxes Essential.—Under section 325 of the Code of Civil Procedure, as amended May 31, 1878, the payment of the taxes by the adverse holder is a necessary element in the establishment of title by means of adverse possession; and a payment of taxes on a designated parcel of land is not effectual to complete a prescriptive right to land not included within that designation.</p>

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

<p>Married Women—Deed—Separate Property.—Land conveyed to a married woman by a deed reciting that it was conveyed “as the separate estate of the grantee,” is presumptively her separate property and not , community property.</p> <p>Id.—Exchange of Lands.—Land conveyed to a married woman, in ex- ■ change for other land which was owned hy her, becomes her separate property.</p> <p>Deed—Description—Reference to Map—Highway.— A deed specifically describing the property conveyed as-certain numbered lots on a designated map only carries the land delineated on such map as included within the boundaries of the lots; and land adjoining such lots which once formed part of a highway, but which had been vacated as such at the time of the execution of the deed, does not pass by the conveyance.</p> <p>Religious Corporation—Possession—Presumption.—A religious society organized as a corporation, which assumes the actual use and control for the purposes of a church of premises which prior to its incorporation had been deeded to trustees of the religious society which formed the corporation, will be presumed to hold possession of the premises as a corporation, although no formal act or resolution of the corporation for taking possession is shown, and although it controls the premises through agents other than the legal officers of the corporation.</p>

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

<p>Election Contest—Appeal—Bill of Exceptions—Affirmance of Judg. MENT.—When the hill of exceptions taken upon an election contest fails to show error, or to show all that occurred at the trial in respect to the counting of ballots, the judgment of the court.below will not here-versed because the court declined to recount the votes, after they had been once counted, and a tally kept by two clerks and the court reporter, all of whom agreed in the tally, and the court being satisfied that no mistake had been made.</p> <p>Id.—Written Party Designation of upon Ballot—Distinguishing Mark.—Where a name is written upon the ballot by the voter, he is authorized to add a party or independent designation to the name, as a descriptio persones, and as part of the designation of the person voted for and authorized by statute, and such designation is not a distinguishing mark prohibited by statute.</p> <p>Id.—Construction of Election Law.—The provisions of the election law are not directory, but mandatory; yet they are to be liberally construed.</p>

<p>Statute of Frauds — Parol Gift of Real Estate — Improvements — Relief in Equity.—If a parol gift of real estate has been made in prcasenti, and the donee has entered under the gift, and has made permanent' improvements upon the realty, and the circumstances are such that it would be an injustice upon the donee if he were thereafter to be deprived of the property by reason of imperfections in the gift, equity will treat the acts of the donor and donee as being such performance of the gift as to take the contract out of the statute of frauds, and lend its aid to enforce the title.</p> <p>Id.—Pleading — Parol Promise to Convey — Executory Contract — Improvements must Exceed Rental Value.— If the pleading does not show a gift in prcesenli, but an entry and the making of valuable and lasting improvements under a parol promise to convey, the cause of action is not to perfect a parol gift incompletely made, but to enforce a parol executory contract to convey land, and it is essential in order to take such contract out of the statute of frauds, that expenditures in the nature of lasting and permanent improvements must have been made upon the faith of the promise, so as to enhance its value over and above its rental value, and if the total expenditures do not exceed the value of the use and occupation of the land, and the improvements are made rather to suit the convenience and taste of the occupant, than to enhance the value of the realty, equity will not enforce the promise.</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 a judgment of the Superior Court of the •'City and County of San Francisco and from, an order denying a new trial. William T. Wallace, Judge.</p> <p>The facts are stated in the opinion of the Court.</p>

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

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

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

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

Application in the Supreme Court for a discharge ■ from custody on a writ of habeas corpus. The facts are stated in the opinion of the court.

Application in the Supreme Court for a writ of prohibition to the Superior Court of San Joaquin County. Ansel Smith, Judge. The facts are stated in the opinion of the court.

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

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

<p>Appeal from a judgment of the Superior Court of Ventura County. B. T. Williams, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Attachment—Security of Debt — False Affidavit — Security Rendered Valueless—Amended Complaint — Dissolution of Attachment.—An affidavit for attachment must truly state what the statute requires to be stated, nor can a false or defective statement in the affidavit be supplied by an amendment of the complaint; and where the affidavit falsely states that the debt has not been secured by any mortgage, lien, or pledge of personal property, and does not state that security had been given, and that it had become valueless, an amended complaint setting forth an assignment of stock as security for the debt, and that the stock had been sold pursuant to a power conferred, and the proceeds applied to the debt, cannot supply the place of an affidavit stating the facts, and the attachment is properly discharged.</p>

<p>Constitutional Law — Legislative Control of Municipal Funds — Relief of Claimant against Municipality — Local and Special Legislation.—The legislature has no power to control municipal funds for any other than municipal purposes, nor can it make or direct an appropriation thereof for the relief of a claimant against the municipality who has no enforceable claim against it, nor pass any special or local law directing money to be paid to any individual out of the funds of a particular municipality, whether the payment be in satisfaction of an, enforceable obligation or not, or whether the claim be liquidated or unliquidated, or be judicially determined to be a valid claim or not, such-law being in violation of section 25 of article IV of the constitution,, forbidding local and special legislation.</p>

N. A. Dorn, Judge. The defendants were the owners of the steamer “Protection,” and claimed the right to land passengers and freight at the wharf leased to the plaintiff upon tender of the maximum dockage fixed in the lease. Further facts are stated in the opinion of the court.

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

' J. R. Webb, Judge. The main facts are stated in the opinion. The instructions numbered 9, 10 and 11, alluded to in the opinion as having been asked by the defendants and refused by the court, were as follows: “ 9.

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

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

<p>Criminal Law—New Trial—Newly Discovered Evidence—Affidavit of Prosecuting Witness—Confession of Perjury—Discretion.— People v. Tallmadge, No. 138, ante, p. 427, affirmed as to the discretion of the trial court in refusing a new trial for newly discovered evidence, upon an affidavit oí a witness for the prosecution that he had perjured himself at the trial.</p>

<p>Corporation—Business of Distilling—Payment of Federal Taxes— Contribution between Shareholders.—Under section 3251 of the Revised Statutes of the United States, all the stockholders of a corporation, as individuals, are jointly and severally liable for federal taxes upon the spirits distilled by the corporation, which is engaged in the business of distilling brandy and proof spirits; and where some of the stockholders have been compelled to pay and have paid the whole of such taxes, they are entitled to maintain an action to compel other stockholders to contribute their proportionate share of the payment thus made.</p> <p>Id.—Seizure of Distillery—Costs of Procuring Release—Pleading. Costs paid by stockholders, for procuring a release of the distillery belonging to the corporation after seizure of it by officers of the United States government, cannot be made the subject of contribution from other stockholders; but where they are not allowed in an action for contribution, the averment of them in the complaint is immaterial.</p> <p>Id.—Judgment in Action to Enforce Taxes—Parties—Evidence.—A judgment rendered in an action to enforce federal taxes against the plaintiffs, admitted in evidence merely for the purpose of showing that the plaintiffs were compelled to pay the taxes, is not the bar of an action for contribution, and is not objectionable because the defendants were not parties thereto.</p>

<p>■Criminal Law—Obtaining Property by False Pretenses—Construction of Code—Land not Included in Offense.—An information of the crime of obtaining property by false pretenses, under section 532 of the Code, which describes the property charged to have been thus obtained as certain parcels of land, states no offense, under that section, which, in view of the history of the crime, and of the contemporary construction given to statutes of like purpose and effect in England and the United States, was not designed to include an instance of defrauding another of real estate, but was designed and aimed solely at protecting personal property, and in aid of the laws against larceny.</p>

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

<p>Damages—Detention of Personal Property—Compensation.—In an action to recover the possession or value of personal property wrongfully detained by the defendant, and damages for its detention, the plaintiff is entitled to such damages as would compensate him for all the detriment proximately caused by the wrong complained of.</p> <p>Id.—Right to Damages—New Trial—Finding against Evidence— Specification of Insufficiency — Presumption upon Appeal. — When a new trial was granted for insufficiency of the evidence to justify the decision that the plaintiff was not entitled to recover damages for the detention of his property by the defendants, that being the only point made by the motion, a specification in the statement on motion for a new trial that “the evidence being wholly undisputed and uncontradicted as to the damage, the decision of the court should have been for such an amount as would compensate the plaintiff,” is sufficient to support the order granting a new trial, and it will be presumed upon appeal from an order that all the material evidence on the question of damages was embodied in the statement, and that the only issue raised by the motion was fairly and fully presented to the consideration of the court.</p>

<p>Insolvency—Fraudulent Transfer—Construction of Statutes.—Section 55 of the Insolvent Act deals only with transfers made by the insolvent with design to give preference to a creditor, and does not apply to transfers made to persons other than creditors, with intent to defraud creditors; but such a transfer is void under section 3439 of the Civil Code, by which every transfer of property made with intent to defraud any creditor is void, and may be avoided at the instance of creditors, or of the assignee of the insolvent debtor, whether made to a creditor or to one who is not a creditor.</p> <p>Id.—Transfer to Third Person—Intent to Defeat Insolvency Act— Special Verdict—Support of Judgment—Recovery by Assignee in Insolvency.—In an action involving the validity of a transfer of merchandise made by an insolvent debtor to a third person, a special verdict which shows that the debtor was insolvent when the goods were transferred, and that the transferee then had reasonable cause to believe that he was insolvent, and was making the transfer to defeat the Insolvency Act, that the transfer was made to prevent the property from coming to the assignee in insolvency, and to prevent it from being ratably distributed among the creditors of the insolvent, and with a view to defeat the Insolvency Act, but was not made with a view to give preference to any creditor or person having any liability to the insolvent, and that there was no intention that the property received in exchange for that transferred should not go into the hands of the assignee in insolvency, or be ratably applied to the debts of the insolvent, sufficiently support a judgment setting aside the transfer, and awarding the property to the assignee in insolvency, under section 3439 of the Civil Code.</p>

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

Motion to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco, settling the accounts of the administrator of the estate of a deceased person. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

<p>Estates of Deceased Persons—Right to Letters of Administration.— Under section 1365 of the Code of Civil Procedure, the public administrator is entitled to letters of administration upon the estate of an intestate, as against a relative of the deceased who is not entitled to any share in the distribution of the estate.</p>

Petition in the Supreme Court for a writ of mandamus to the Superior Court of the City and County of San Francisco. A. A. Sanderson, Judge. The facts are stated in the opinion of the court.

Petition in the Supreme Court for a writ of mandate to the Secretary of State.

Application in the Supreme Court for a writ of mandate to compel the county clerk of Stanislaus County to file a certificate of nomination. The facts are stated in the opinion of the court.

Application in the Supreme Court for a writ of mandate to the Registrar of Voters of the City and County of San Francisco.

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

<p>Appeal—Order Sustaining Demurrer.—An order sustaining a demurrer to a complaint can only be reviewed upon an appeal from the final judgment.</p> <p>Ferry — Restriction upon Establishment of—Constitutional Law. Section 2853 of the Political Code, providing that “No toll-bridge or ferry must be established within one mile immediately above or below a regularly established ferry or toll-bridge,” is uot in conflict with article I, section 21, of the constitution, prohibiting the granting of special privileges or immunities, nor with article IV, section 25, subdivision 19, prohibiting special laws granting any special or exclusive right, privilege, or immunity, nor with subdivision 25 of such section, prohibiting special laws chartering or licensing ferries, bridges, or roads.</p> <p>Id.—Assignment of Franchise—Injunction—Pleading.—In an action by the assignee of a ferry franchise to enjoin the defendant from maintaining a ferry within a mile from one carried on by the plaintiff, the complaint need not specifically allege the consent of the board of supervisors to the. assignment. An allegation of the ownership of the franchise by the plaintiff is sufficient.</p> <p>Id.—Tenant in Common of Franchise.—A tenant in common of a ferry franchise, in the sole possession thereof, may maintain an action to enjoin a defendant from conducting a ferry within a mile from the one carried on by him.</p>

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

<p>Action foe Loss of Animals — Unfenced Railroad Track — Title to Land—Transfer from Justice’s to Superior Court—Appellate Jurisdiction.—An action brought in justice’s court for the loss of animals of less value than three hundred dollars, killed upon the unfenced track of the defendant’s railroad, in which issue is taken as to plaintiffs’ ownership of the land through which the railroad passed upon which the animals were killed, is properly transferred from the justice’s to the superior court, as being within its original jurisdiction; and the supreme court has appellate jurisdiction over the entire cause, though the points raised upon the appeal do not affect the matter giving jurisdiction to the superior courts.</p> <p>Id.—Amendment of Complaint in Superior Court.—The superior court has jurisdiction in such action, to allow au amendment to the complaint, when the amended complaint, as well as the original, shows upon its face that the title or possession of real estate is involved in the action, and such amendment may be allowed in other respects, to the same extent as if the action had been commenced in the superior court.</p> <p>Id.—Notice of Motion to Amend—Leave Without Notice—Harmless Ruling.—Notice should be given of a motion for leave to file an amended complaint, but where, for aught that appears in the record upon appeal, the motion should have been granted had due notice been given, the granting of leave to amend without notice is without prejudice.</p> <p>Id.—Pleading — Killing of Animals at Station in Highway — Absence of Duty to Fence Track.—A complaint for the loss of animals killed upon a railroad track which alleges that the animals strayed without the fault of plaintiff upon the track and grounds of defendant at a railway station, and that, at or near where they were killed, there is a public highway transsecting defendant’s railway, shows on its face that there was no duty or right of the defendant to fence its road upon the highway where the animals were killed.</p> <p>Id.—Insufficient Averment of Absence of Fence.—An averment in an amended complaint that “defendant’s railway is not fenced on either side thereof,”relates only to the date of the filing of the amended complaint, and is not sufficient as an averment that the railway was unfenced at the time when the animals were killed.</p> <p>Id.—Uncertainty—General and Specific Allegations of Negligence. Where the complaint for the loss of the animals averred generally that defendant so carelessly and negligently„ran and managed its cars and locomotive as to kill and destroy the animals,. and also specifically alleged failure of the defendant to fence its track, and its failure to ring, or cause to be rung, a hell at or near the public highway, the complaint is deurrable for uncertainty as to whether the cause of action is based npon the alleged negligent acts in the management of the train, or upon failure of the defendant to fence its track or right of way.</p>

<p>Appeal from, a judgment of the Superior Court of Kern County. A. R. Conklin, Judge.</p> <p>The facts are stated in the opinion.</p>

<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 of the court.</p>

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

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

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

Clara County denying a motion to set aside an order of sale of defendant’s premises. W. G. Lorigan, Judge. The facts are stated in the opinion.

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

Prohibition from the Supreme Court to the Superior Court of the City and County of San Francisco-William T. Wallace, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law — Attempt to Commit Rape — Evidence—Testimony of Young Child— Curing of Error—Striking Oct — Instruction to Disregard.—Upon the trial of a defendant charged with the crime of an attempt to commit rape upon a female child of the age of about seven years, any error in admitting the testimony of the child is cured by ordering all of her evidence stricken out, and instructing the jury to totally disregard it.</p> <p>Id. — Complaint of Injury while Recent — Testimony of Child’s Mother.—Upon such a trial, the prosecution may prove that the injured party made complaint of the injury while it was recent; and the testimony of the child’s mother that the child complained to her about the injuries she had received from the defendant, shortly after the date of the alleged offense, is admissible.</p> <p>Id.—Health and Appearance of Child Prior to Assault—Evidence Favorable to Defendant.—It is proper for the prosecution to ask the child’s mother as to what was the general health and appearance of the child for two or three- months before the alleged offense; and if the answer is favorable to the defendant, it could not have operated to his prejudice.</p> <p>Id. —Absence of Hymen—Examination of Child by Adult Female — Expert Evidence.—An adult female, who knows what the hymen is, can testify to the absence of it from the child, when she examined her shortly after the alleged offense; and it is not necessary that the witness should he a physician, or a skilled physiologist, to render her testimony on that subject admissible.</p> <p>Id.— Argumentative Instruction — Uncertainties and Dangers Attending Cases of Rape. —It is proper to refuse an instruction requested by the defendant, which states no rule pf law, hut comments upon facts, and is simply argumentative as to the uncertainties and dangers attending cases of rape as a class, in consequence of which conviction will sometimes he wrongly had, and sometimes the guilty will go free.</p> <p>Id.—Repetition of Instruction.—It is not error to refuse an instruction requested by the defendant, though it state the law correctly, if the same rule of law is, in substance, given in another instruction requested by him.</p> <p>Id.—Amendment of Instruction.—An amendment to an instruction requested by the defendant, which states the law correctly, is not prejudicial to the defendant, because appended to such requested instruction.</p> <p>Id.—Instruction to Disregard Testimony—Amendment.— Where the court had stricken out the direct testimony of the mother of the .child, as far as it connected the defendant with the offense, an instruction requested by the defendant to disregard that portion of her testimony which so connected the defendant, is properly amended by inserting the'word “direct” before the word “testimony.”</p> <p>Id.—Instruction as to Verdict—Assault.—Upon the trial of a defendant accused of an attempt to commit rape, an instruction that the jury could render but one of two verdicts, guilty or not guilty, and if they found him guilty, it would be of an attempt to commit rape, is not erroneous for not telling the jury that they might find the defendant guilty of a simple assault, where it clearly appears from the evidence that the defendant was either guilty of the offense charged, or not at all, and where the defendant did not request the court to charge the jury specifically as to the lesser offense of simple assault.</p>

<p>San Francisco—Superintendent of Schools—Power to Fill Vacancy —Consolidation Act—County Government Act.—Under the Consolidation Act of the City and County of San Francisco, the power to fill a vacancy in the office of superintendent of schools is vested in the board of education; and the provision of the County Government Act giving such power to the boards of supervisors applies to such boards in the several counties of the state, other than the city and county of San Francisco, which is governed by the Consolidation Act as to the power to fill vacancies in office.</p> <p>Id.—Municipal Distinguished From County Supervisors.—The supervisors of San Francisco, authorized by the Consolidation Act, are municipal and not county officers, and are endowed with municipal functions, unknown to the County Government Act, and are separate and distinct from the county boards of supervisors established by the latter act.</p> <p>Id.—Repeal by Implication not Favored.—The law does not favor the repeal of statutes by implication; and the legislative will will not be implied to repeal the clause in the Consolidation Act which devolves the duty of filling vacancies in the office of supez-intendent of schools in San Francisco upon the board of education, by reason of the provision of the County Government Act giving to county boards of supervisors the power to fill vacancies in county offices generally.</p>

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

<p>Criminal Law—Larceny—Name of Owner of Property—Immaterial Variance.—Where the information charged the defendant with the theft of a horse described as the “property of George P. Sisler and Sam Sisler,” evidence showing that Samuel was the full given name of the person called Sam Sisler in the information, though he was commonly known by the latter designation in the community where he lived, does not disclose a material variance between the allegation and the proof.</p> <p>Id.—Instructions — Testimony of Accomplice—Reasonable Doubt. Where testimony inculpatory of the defendant was given by one who confessedly was an accomplice in the offense charged, and the court instructed the jury that a conviction cannot be had on the testimony of an accomplice, unless lie is corroborated by other evidence which, in itself, tends to connect the defendant with the commission of the offense, a subsequent instruction that, if the jury were satisfied beyond a reasonable doubt that the defendant was guilty of the crime charged in the iuformation it would be their duty to return a verdict to that effect, does not authorize the jury to infer that they could be satisfied of defendant’s guilt by the testimony of the accomplice alone.</p> <p>Id.—Charge to be Taken as a Whole.—The charge of the court is to be taken as a whole, and it is not necessary that each paragraph should contain all the conditions and limitations expressed in the others.</p> <p>Id.—Corroboration of Accomplice.—The evidence reviewed and shown to he sufficiently corroborative of the testimony of an accomplice to the guilt of the defendant, to warrant a verdict of conviction.</p> <p>Id.—Flight of Defendant—Cause a Question for Jury.—The question whether the flight of the defendant was to avoid arrest for some breach of the peace, or on account of the offense charged, is for the jury; and they are not bound to attribute the consciousness of guilt indicated by flight to one disposing cause rather than the other.</p>

<p>Criminal Law—Burglary—Evidence—Corpus Delicti—Admissions of Defendant.—Upon the trial of a defendant charged with burglary with intent to commit larceny, evidence that the prosecuting witness had articles of personal property belonging to him in the house where he lived, at 6 o’clock p. M. of a certain day, and that about 9 o’clock p. m. of the same day, police officers came to his house with the defendant, and with said articles belonging to the witness, together with the testimony of the police officers that the defendant had the articles in his possession, and surrendered them to them, and went with them to the room of the prosecuting witness, and showed them the place in the room where he got them, is sufficient proof of the corpus delicti to justify evidence of the admissions of the defendant made to the officers, that he took the stuff because he was hard up, and expected to get a good price for it.</p>

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

<p>New Trial—Notice of Motion—Signature by Attorney not of Record—Appeal—Affirmance of Order Denying Motion.—A notice of motion for new trial must be signed by the attorney of record, and if it is signed by another attorney who is not of record, and who has not been regularly substituted as attorney for the moving party, an order denying the motion for new trial will be affirmed upon that ground, without an inquiry into the merits of an appeal therefrom.</p> <p>Id.—Appearance of Attorney upon Former Appeal—Waiver.—An attorney may appear for an appellant, though he is not an attorney of record in the court below; but such appearance cannot authorize the subsequent signature by such attorney of a notice of motion for a new trial, without a proper substitution in the court below as attorney of record for the moving party, nor does recognition of such attorney as the attorney for such party upon the former appeal waive objection to his want of authority to sign such notice.</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>Municipal Corporations—Discretion of Governing Body—Action by Citizen and Taxpayer.—A municipality, through its governing body, has control of the property and general supervision over the ordinary business of the corporation; and where the thing in question is within the discretion of the governing body, to do or not to do, neither the state nor any private citizen can question the action or nonaction of such body by any judicial proceeding; and a citizen and taxpayer cannot maintain an action to protect the interests of the municipality when there is no immediate duty enjoined upon the governing body of the municipality to bring a similar action, but they have discretion to refuse to bring it.</p> <p>Id.—Private Claim to Public Street — Compromise — Conveyance of Other Lands to City—Quieting Title—Default of City—Public Use of Street — Discretion of City Authorities — Suit by Taxpayer.—Where a water company asserted a claim against a city to land dedicated as a public street, and, upon a compromise with the city, its trustees accepted a conveyance of other_lands and ways from the water company, and permitted a default of the city in an action by the water company to quiet its title to 4he land dedicated as a street, but the street was not in fact closed or its use obstructed, the city authorities have discretion to refuse to bring an action to set aside the compromise and judgment, and it seems that they could not maintain such action without restitution of the lands and ways conveyed to the city by the water company; and no taxpayer can maintain an action to have such judgment canceled and the title of the city to the street quieted.</p>

<p>Bailment—Deposit of Monet for Safekeeping—Action by Administrator of Bailor— Evidence—Receipt—Parol Proof—Admissions of Bailee.—In an action by the administrator of a deceased bailor to-recover money deposited with the defendant for safekeeping, to be returned on demand, a receipt for the money by the defendant is admissible in evidence, and it may be shown by parol proof that the money was received as a deposit and not as a payment, and for this purpose proof of the admission of the bailee that he received the money on deposit, and had used some of it to loan it and receive one-half of the interest, is sufficient.</p> <p>Id. —Evidence of Nonpayment—Possession of Receipt.—The receipt having been given as evidence of a liability for money deposited, its possession by the administrator of the bailor is evidence of its nonpayment.</p> <p>Id.—Declaration of Bailee—Loss of Money—Insufficient Proof — Pleading.—A declaration of the bailee that he could explain what became of the money, in so far as it might seem to intimate a loss of the money under circumstances which relieved the bailee from liability, cannot avail where no such defense was pleaded, nor any offer made to-prove such a defense, nor any explanation given as to what the circumstances were, but the bailee stood upon the explicit denial in his answer that he had ever received the money.</p>

John L. Campbell, Judge. The instruction referred to in the second subdivision of the opinion is as follows: “A conviction cannot be had on the testimony of an accomplice unless he is corroborated by other evidence, which in itself and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.

<p>Promissory Notes—Pleading—Commingling of Special Defenses—Judgment upon Pleadings—Objection to Evidence.—Where two sufficient special defenses to an action upon promissory notes which should have been separately stated are improperly commingled, but no objection is taken on that ground either by motion to require them to be separately stated, or by demurrer for ambiguity or uncertamt)^ a motion for judgment upon the pleadings should be denied, without reference to the sufficiency of the denials of the answer, and an objection to evidence upon the ground that the answer does not state facts sufficient to constitute a defense is properly overruled.</p> <p>Id.—Inconsistent Defenses.—An answer may present inconsistent defenses, or plead a defense hypothetically.</p> <p>Id.—Accommodation for Plaintiff—Discharge of Surety by Misapplication of Payment — Renewal Notes—Instructions.—Where the answer to a complaint upon promissory notes pleaded that the defendant did not sign the notes as surety for the other joint maker, but for the accommodation of the plaintiffs, to enable them to raise money upon them as collateral, and also that, if he were liable as surety, the principal maker put in plaintiffs’ hands sufficient wheat to pay the original note, of which the notes in suit were a renewal, and directed that the proceeds be applied in payment of that note, and plaintiffs did not so apply such proceeds, but applied them to an open account, and that defendant did not consent to such misapplication, nor know of the transaction when he signed the renewal notes, an instruction based upon the latter defense is not subject to the objection that defendant cannot avail himself of the rights of a surety, because of having averred that he was not a surety.</p> <p>Id.—Right of Joint Maker to Prove Suretyship.—Where the plaintiffs have not acted upon the faith of the apparent character of a joint maker of a note as being a principal, such joint maker may, under section 2832 of the Civil Code, show that he is in fact a surety, and may-claim the rights of a surety, as against the payee of the note.</p> <p>Id.—Application of Payments—Misapplication—Effect upon Surety. As between the debtor and creditor, a fund placed in the hands of the creditor must be applied as directed by the debtor; and where the principal debtor directed that the proceeds of wheat be applied in payment of a note upon which defendant was a surety, the effect of a misapplication of it by the creditor to payment of an open account instead of the note was, so far as the surety was concerned, in effect a repayment of it into the hands of the principal debtor, which discharges the surety.</p> <p>Id.—Applicability of Instruction—Sufficiency of Evidence—Support of Verdict.—Where there is some evidence to which a proper instruction is applicable, it may be given; and, although the evidence may not be sufficient to sustain the defense to which the instruction applies, the judgment will not be reversed upon that ground, if the evidence under another defense is sufficient to sustain the verdict.</p>

William T. Wallace, Judge. An information was filed against defendant charging him with the crime of rape, committed on a female child under the age of fourteen years, she not being his. wife, and also charging that he made an assault for that purpose, violently and feloniously. Defendant was arraigned upon said charge and. pleaded not guilty.

Motion to dismiss an appeal from a judgment of the Superior Court of Riverside County and from an order refusing a new trial. J. S. Noyes, Judge. The facts are cited in the opinion of the court.

<p>'Criminal Law—Robbery—Accomplice.—A defendant accused of robbery cannot be convicted upon the uncorroborated testimony of an accomplice.</p> <p>Id.—Ownership of Building—Immaterial Variance. —Where an information for robbery alleges that the building entered was “the slaughterhouse of A. Zimmermann and L. Deffner, copartners, situated about two miles east” of a designated place, and the evidence shows that the building was owned by John Zimmermann and L. Deffner, and also that there was no other butcher in that neighborhood by the name of Zimmermann, and no other slaughterhouse belonging to or used by a firm of Zimmermann & Deffner within a radius of seven miles, the variance is immaterial</p>

<p>Partnership — Construction of Articles — Purchase of Deceased Partner’s Interest—Goodwill—Use of Firm Name by Surviving Partners.—Articles of partnership, which provide for the taking of an inventory upon the death of one of the partners, and for an investigation by a person representing the interests of the estate .of the deceased partner, with privilege to continue at the place of business until all matters relating to the interests of the deceased partner have been fairly and satisfactorily arranged, settled, and adjusted, and that the total amount ascertained and determined to be due to the estate of the deceased partner on account of his interest in the partnership shall be paid by the surviving partners in specified installments, for which notes were to be given to his heirs or legal representatives, and that the surviving partners and their successors shall also have the right and privilege of continuing the business under the firm name, contemplate a purchase of the deceased partner’s interest by the surviving partners, and, upon the acquirement by them of the interest of the deceased partner in the assets as shown by the inventory, the goodwill of the business passes to the surviving partners under the articles conferring the right to continue the business under the firm name.</p> <p>Id.—Action by Representatives of Deceased Partner—Accounting— Fraud—Support of Findings.—Where an action was brought by the administrator of the deceased partner with the will annexed, for an accounting of the partnership, charging fraud on the part of the surviving partners in procuring the execution of the articles of partnership by the deceased partner, and also in procuring a settlement with the executor of the will of the deceased partner and his attorney, without any allowance to the estate for the goodwill of the business, findings of the trial court against the existence of any fraud will be sustained upon appeal where there is no evidence sufficient to establish fraud, and the only question is one of law as to the construction of the contract.</p> <p>Id.—Questions Undecided — Effect of Partnership Articles as to-Price—Power of Executors—Estoppel of Legatees.—The justices of the court are equally divided in opinion as to the effect of the partnership articles involved in the case, as respects the fixing of the price for the purchase of the interest of the deceased partner, and as to whether they provide effectively for the transfer of the interest of the deceased partner, and as to whether the executor had power to settle with the surviving partners respecting such transfer, hut the justices disagreeing to such effectiveness of the articles, and to such power of the executor, concur in affirmance of the judgment upon the ground that the transaction having been fair and without fraud, and the legatees of the estate of the deceased partner having demanded and received the proceeds of the sale with knowledge of the claims of. the surviving partners, and not having rescinded the sale and restored the purchase money received therefrom, they and their representatives are estopped to question its validity or to question that the goodwill passed under the contract to the surviving partners.</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.</p>

<p>Action foe Services—Local Agency for Corporations—Authority for Employment — Sufficiency of Evidence.—In an action for services alleged to have been rendered by plaintiff and his assignor for a corporation defendant, evidence tending to show that the corporation recognized the person who employed the services of plaintiff and his assignor, as its local managing agent at the places of employment, and that the general managing agent of the corporation authorized and permitted such person to advertise and represent himself to the public as the agent for the corporation which was doing business at those places, is sufficient evidence of the authority of such person, actual or ostensible, to employ the plaintiff and his assignor to perform services necessary for the conduct of the business of the corporation at those places, notwithstanding a substantial conflict in the evidence as to the existence of such authority.</p> <p>Id.—Power of Agent—Questions of Pact—Parol Proof—Circumstantial Evidence.—Agency and the extent of the power of an agent, are questions of fact, and may be established by parol proof, except in those cases where a written authorization is expressly required by positive law, and may also he established by circumstantial evidence.</p> <p>Id.—Admissibility of Circumstances.—Where circumstantial evidence is resorted to for the purpose of establishing an agency, all the facts and circumstances showing the relation of the parties, and throwing light upon the character of such relation, are admissible in evidence.</p> <p>Id.—Liability of Undiscovered Principal.—One who deals with another supposing him to be principal, but afterward discovers him to be the agent of another in the transaction, may resort to the principal for payment.</p> <p>Id.—Admissibility of Declarations of Agent—Assumption of Agency—Understanding of Third Parties.—Though the mere declarations of a person are not proof that he is agent for another yet it is proper to show that such person dealt with third parties as an assumed agent of another, not for the purpose of proving the agency or its extent, but to show that such third parties dealt with him as an agent, and not as a principal.</p> <p>Id.—Proof of Written Authority—Harmless Declarations.—Where the written authority and instructions from the vice-president and general managing agent of the corporation to a local agent to put the sign of the corporation on his places of business, and to designate himself as its agent upon such signs, are in evidence, proof of his declarations that he was putting up the signs by direction of the vice-president, are of no moment.</p> <p>Id. — Cross-Examination — Time of Receipt of Letters — Cure of Error.—Any error in refusing to allow cross-examination of the plaintiff by the defendant as to the time of the receipt of certain letters offered in evidence, is cured by a subsequent permission of the court at the close of the trial to open the ease, to allow such questions to be put by the defendant, although such permission was refused, unless the case should he opened generally for the reception of testimony.</p>

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