Volume 115 — California Reports

<p>Mechanics’ Liens—Claim op Materialman—Completion op Work— Cessation — Pleading—Uncertainty—Waiver — Evidence— Finding.—Where the complaint of a materialman alleged that the buildings contracted for were in an unfinished condition, but that work ceased thereon “on or about the first day of April, 1894, and has not been resumed,” and that plaintiff’s claim of lien was filed for record on May 8, 1894, though such complaint is subject to a demurrer for uncertainty as to the time of cessation of the work, yet, in the absence of a special demurrer, objection on that ground is waived, and it may he proved and found that the work ceased on the first day of April, 1894; and the complaint and finding show with certainty a completion of the work thirty days after that date, and that the claim of lien was filed in time after such complet;on.</p> <p>Id.—Attorney’s Fee on Appeal.—Upon the affirmance of an appeal from a judgment enforcing a mechanic’s lien, the supreme court will not make any directions to the lower court respecting the allowance of an attorney’s fee for defending the appeal. Under section 1195 of the Code of Civil Procedure, that matter rests exclusively with the trial court.</p>

Edw. A. Belcher, Judge. The instruction given to the jury by the court on the subject of reasonable doubt is as follows: “As the exclusive arbiters of the facts, it is for you to say what has been proved and established to your satisfaction in this case, being minded that if that proof to your satisfaction shall make against the defendant, then it must be proof beyond all reasonable doubt and to a moral certainty.....Now, the reasonable doubt that you have heard me speak of…

<p>Counterclaim—Demurrer Sustained on Motion op Defendant—Exclusion of Evidence—Review upon Appeal.—Where a demurrer to a counterclaim is sustained on motion for the defendant, the defendant cannot complain of such ruling upon appeal, and, after the sustaining of such demurrer, there being no issue upon the counterclaim, it is not error to reject evidence proffered in support thereof.</p>

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

Application in the Supreme Court for a writ of review to annul orders of the Superior Court of the City and County of San Francisco. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

V. A. Gregg, Judge. The action was brought by the plaintiff as administrator, with the will annexed, of James A. Brown, deceased, against R. B. Jack and the First National Bank of San Luis Obispo, to recover the value of certain personal property alleged to be the property of the estate, and to be of the value of seven thousand dollars, and to have been unlawfully converted by defendants.

<p>Municipal Corporations—Claim for Supplies for Prisoners—Exhaustion of General Fund for Fiscal Year—Judgment—Mandamus.— Where the general fund for the fiscal year in which supplies were furnished by contract with the city and county of San Francisco to prisoners in the jails of the municipality, was totally exhausted, the reduction of the original claim therefor to a judgment against the city and county, does not increase the dignity of the claim so as to authorize the claimant to demand payment of it from any fund not subject to the primary demand, and mandamus will not lie to compel the supervisors to order such judgment paid.</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>Criminal Law—Criminal Libel—Preliminary Examination—Jurisdiction of Police Court and Judges.—The police court of the city and county of San Francisco, and police judges sitting as magistrates, have jurisdiction to hold a preliminary examination of a defendant charged with the offense of criminal libel, although the police court has no jurisdiction to try that offense.</p> <p>Id.—Magistrates—Source of Authority—Jurisdiction.—Magistrates, as defined and enumerated in the Penal Code, including police judges in towns and cities, derive their powers and jurisdiction from the constitution, operating with the acts of the legislature upon the subject; and judges, when sitting as magistrates, have the jurisdiction and powers conferred by law upon magistrates, and not those which pertain to their respective judicial offices.</p> <p>Id.—Examination of Complaining Witness by Defendant—Conspiracy —Impeachment.—Where part of the libelous matter charged was that the complaining witness, who was a newspaper editor and proprietor, was paid by a dishonest and dishonorable cabal or confederation of Italians, known as “ the Camorra,” to libel and vilify certain people, and such complaining witness was called to the stand as a witness for the defendant, and asked, with specifications of time, place, and persons present, if he had not stated that he had instituted the proseeutiou of the defendant at the instance of others, to which he answered that he had not, the defendant cannot be permitted to impeach his own witness by proof that he had made such statement.</p> <p>Id.—Dishonest Character of Camorra—Conspiring Druggists—Rebutting Evidence—Testimony of Physician.—Where, for the purpose of showing the dishonest character of the camorra, with which the complaining witness was stated to have conspired, evidence was introduced to show the improper making of money by druggists of the city who were connected with the camorra, and with a benevolent society controlled by it, through the furnishing of inferior medicines, it is proper rebutting evidence to show by a practicing physician of the same city, that he knew nothing of the use of inferior medicines, and that in his practice no complaints had been made to him thereof, and it is no objection that he was not connected with the benevolent society, or with either of the parties to the controversy, or that his evidence was of slight importance, the value or weight of it being for the jury alone.</p> <p>Id.—Family of Complaining Witness—Harmless Ruling.—The admission of testimony of the prosecuting witness that he was a married man, and the father of a family, it seems might be allowed, as affecting his credibility before the jury, and, in any event, could have done defendant no harm.</p> <p>Id.—Instruction—Object of Law Punishing Libel—Prevention of Breach of Peace.—An instruction to the effect that a public prosecution for libel is conducted for public purposes; that the publication of a libel has a tendency to provoke a breach of the public peace, which the law is solicitous to maintain and preserve; that persons feeling themselves injured by such publications are incited, in many instances, to seek satisfaction by personal violence inflicted upon the supposed libeler; and that it is the precautionary policy of the law, in the interest of the preservation of the peace of society, to discourage such violent remedies involving a breach of the peace, and the law has therefore provided for the punishment of the libeler, as being one who wantonly puts the public peace at hazard by printing and publishing untrue and malicious attacks on private character—is a clear and correct exposition of the law and the cause of its existence.</p>

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

The tax collector of the city and county of San Francisco had advertised for sale, and was about to sell, certain property on Dupont street for nonpayment of taxes for the widening of said street, for each and every fiscal year, from the fiscal year ending June 30, 1879, to the fiscal year ending June 30, 1893, both inclusive, and thereupon certain of the property owners paid to said tax collector, under protest, the amount of the taxes for each of said fiscal years.

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

<p>Appeal from an order of the Superior Court of Placer County denying a new trial. J. E. Prewitt, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action foe Attorney’s Fees— Recovery by Plaintiff — Finding for Defendant as to Part of Fee. — In an action for attorney’s fees, where plaintiff recovered a less sum than the amount claimed, the fact that the complaint averred an agreement for the sum of three thousand dollars, to be paid in three payments, each of which was agreed to be one thousand dollars, while the answer denied such agreement, and averred that the plaintiff was to have only seven hundred and fifty dollars in full for his services, a finding by the court that plaintiff’s first payment was to be only seven hundred and fifty dollars, and that additional payments of one thousand dollars each were agreed upon, is not ground for reversal, but is within the issues raised. '</p> <p>In.—Conflicting Evidence—Review upon Appeal.— Where there is a clear conflict of evidence upon the issues, and the record discloses evidence tending to support the findings, the judgment cannot be reversed for insufficiency of the evidence to sustain the findings.</p> <p>Id.—Nonsuit—Prima Facie Case.—A motion for nonsuit should be denied when the plaintiff has made out a prima facie case, and there is no material variance between the averments and the proofs.</p> <p>Id.—Evidence—Conversations in Absence of Plaintiff.—Evidence of transactions and conversations between the defendant and his attorney in the absence and without the knowledge of the plaintiff, is inadmissible against the plaintiff.</p>

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

Motion in the Supreme Court to dismiss an appeal from a judgment of the Superior Court of Los Angeles county, as taken without authority; and motion to substitute attorneys for appellant. The facts are stated in the opinion of the court.

<p>Mortgage—Stipulation for Receiver Pending Foreclosure—Rights of Bona Fide Tenant in Growing Crops—Collection of Rent.— Where a mortgage upon farming land contained a stipulation for the appointment by the court of a receiver to take possession of the mortgaged premises during foreclosure of the mortgage; and to collect the rents and profits until the premises should be redeemed from such sale, or until title should be vested in the purchaser, but was not accompanied by an affidavit as required in mortgages of growing crops, and was not recorded or indexed as a chattel mortgage, the court cannot, under such stipulation, authorize a receiver to take possession of a growing crop pending foreclosure as against a tenant of the mortgagor who took possession under a lease without actual knowledge of such stipulation, and where such lease reserved a fair and adequate rent, which represents the value of the use and occupation of the land. The authority of the receiver must be confined to the receiving of such rent from the tenant in possession.</p> <p>Id.—Effect of Stipulation—Jurisdiction to Appoint Receiver.—The stipulation in the mortgage that a receiver may be appointed and directed to take possession and collect the rents and profits, enlarges the rights of the mortgagee as against the mortgagor, and a purchaser from the mortgagor is in no better position in regard to this matter than the mortgagor; but where the mortgage does not give, the mortgagee an interest in the growing crop, or in the rents and profits, it seems that a stipulation for a receiver cannot affect the rights of others, or authorize a court of equity to appoint a receiver in a case where the court has no such authority given by law.</p> <p>Id.—Insufficient Security of Mortgage—Receiver of Rents—Extent of Authority.—Where the complaint for the foreclosure of a mortgage avers that the security is insufficient, the court is authorized to appoint a receiver to take and hold the rents and profits to secure the debt; but his authority is confined to receiving the rent from a tenant of the mortgagor who is lawfully in possession under a lease reserving a fair and reasonable rent, and he cannot dispossess such tenant of his rights in the crop.</p>

<p>Action upon Contract—Terms op Contract—Conflicting Evidence— Review upon Appeal.—In an action upon a contract, where there is conflicting evidence upon issue joined as to the terms of the contract, and the defendant’s version of the contract is adopted by the jury, its verdict upon that issue is conclusive upon appeal.</p> <p>Id.—Contract to Work Sulphurets—Percentage of Assay—Return of Bullion—Pleading—Fraud—Negligence—Custom as to Tailings.—In an action upon an alleged contract to work sulphurets at a fixed price per ton, and to return to plaintiff ninety per cent of their assay value, for an alleged breach in failing to return that percentage, where the answer joined issue as to the alleged agreement for percentage, and alleged an agreement merely to return the total amount of bullion obtained, less the agreed price per ton, which defendant had done, and the jury found for the defendant upon conflicting evidence upon the issues joined, no question of fraud, or negligence in working the sulphurets, whereby a large amount was lost in the tailings, can be considered upon appeal, where there is no allegation in the complaint of a character to sustain such a cause of action, and no allegation or evidence of any custom or agreement that the tailings should belong to or be delivered to the plaintiff, and where the evidence tended to show that the sulphurets were rebellious and difficult to work, and there was no proof that defendant did not honestly and faithfully work them, nor that he did not return to plaintiff all the gold obtained.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco. Eugene R. Garber, 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 refusing to set aside a judgment. 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 Los Angeles County and from an order denying a new trial. J. W. McKinley, Judge.</p> <p>The facts are stated in the- opinion of the court.</p>

Cross-appeals from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge. The plaintiff claimed nineteen hundred and fifty-six dollars with interest as being due under an alleged contract of defendant Frank P. Adams with plaintiff’s assignor for the erection of a frame building upon the land of said defendant. The court awarded to plaintiff only six hundred and ninety dollars and fortjr-nine cents.

<p>Criminal Law — Rape of Young Girl — Evidence—Proof of Age — Testimony of Girl.—Upon the trial of a person charged with tha crime of rape, committed by having carnal intercourse with a young girl under the age of fourteen, the testimony of the girl as to her age is admissible; and the fact that her knowledge of her age was derived from statements of her parents, or from family repute, does not render her evidence inadmissible.</p> <p>Id.—Entries in Family Bible — Authorship Immaterial — Testimony of Mother—Ignorance of Language.—Entries made in the family Bible are admissible to show the name of a child and the date of its birth, and the admissibility of the book does not depend upon proof of handwriting or authorship of the entries, but upon the fact that they are .to be taken as assented to by the family in whose custody the book has been; and it is admissible upon mere proof that it is the family Bible, and such proof may be given by the mother, notwithstanding the entries are in the English language, in which she can neither read nor write.</p> <p>Id:—Belief of Defendant as to Age of Girl — Refusal of Instruction.—One who has carnal intercourse with a young girl, who is in fact under the age of consent, does so at his peril, regardless of whether he believed, or had reason to believe, that she was over the age of fourteen years; and, upon the trial of such an one for the crime of rape, it is proper to refuse an instruction that, if the defendant had reason to believe, and did believe, that she was over the age of fourteen years, then there was an absence of the necessary intent to constitute a crime, and that he should be acquitted.</p>

<p>Vendor and Purchaser—Breach of Contract of Sale by Vendor— Action to Recover Back Purchase Money—Implied Assumpsit— Statute of Limitations.—Where a written contract for the sale of land contained no express agreement to refund the installments of purchase money in the event of the failure or refusal of the vendor to convey as agreed, an action by the purchaser to recover back such purchase money upon breach of the contract on the part of the vendor is not based upon the written contract, but upon an implied assumpsit, and is governed by the two years’ limitation under subdivision 1 of section 339 of the Code of Civil Procedure.</p> <p>Id.—Accruing of Cause of Action—Running of Statute.—Under a contract not expressly requiring a demand for a deed, the cause of action for recovery of the purchase money would accrue at the date of the last payment, and the statute of limitations would run from that time.</p> <p>Id.—Demand for Deed—Modification of Contract.—Where tne contract for sale originally provided for a demand for a deed, it is competent for the parties by a subsequent agreement to modify the contract, and where it appears that, by a subsequent agreement, a specified sum was paid and received “in full performance by the purchaser of his part of this contract, ” the effect of such modification is to entitle plaintiff to a deed immediately upon payment and receipt of the money so stipulated to be received without further act or demand for a deed on his part.</p> <p>Id.—Stipulation for Demand—Reasonable Time.—Under a stipulation in a contract of sale for .the demand of a deed by the purchaser, the demand must be made within a reasonable time, and if no demand is made within two years after payment of the last installment of purchase money, the action is barred, and a demand after that time has elapsed is too late to conserve the plaintiff's right.</p>

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

Application in the Supreme Court for a writ of prohibition to the Superior Court of the City andCounty of San Francisco. William T. Wallace, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Homicide—Insanity—Atrocity of Crime—Motive— Conflicting Evidence of Experts.—Where a defendant charged with murder relies upon insanity as a defense, the atrocity of the murder and' circumstances of inhumanity and barbarity may be evidence of insanity, but may also owe their existence to the promptings of a brutal and malignant spirit; and where a jealous rage appears to have been the motive of the crime, and, upon the general question of insanity, the evidence of experts is conflicting, the jury are sole arbiters of the question, and their verdict will not be disturbed upon appeal.</p> <p>Id.—Instruction — Care as to Defense of Insanity.—It is proper to instruct the jury that while the defense of insanity is to be weighed fully, fairly, and justly, and, when satisfactorily established, must commend itself to the sense of humanity and justice of the jury, they must examine it with care lest a mere counterfeit of this mental infirmity shall furnish immunity to guilt.</p>

<p>Criminal Law—Separate Appeals—Law of Case—New Trial Order— Review of Instructions.—When an appeal separately taken from the judgment in a criminal ease is decided only upon questions arising upon demurrer to the information, and the instructions were not in fact presented or passed upon, the rule of the law of the case does not forbid the review of the instructions upon a separate appeal from an order denying a new trial, notwithstanding they might have been presented and reviewed upon the appeal from the' judgment; and, in such case, the defendant may prosecute both appeals, though he can have but one decision on the same point.</p> <p>Train-wrecking — Erroneous Instruction — Robbery. —Where a defendant is charged with the crime of derailing a railroad train, and unlawfully boarding the train with intent to rob the same, it is error to instruct the jury that they should find the defendant guilty if he boarded the express-car, and with force and violence robbed the messenger of money in his custody.</p> <p>Id.—Inapplicable Instruction.—It is error to give an instruction which is inapplicable to the case, and which assumes the existence of evidence not given.</p>

<p>Municipal Taxes—Limitation op Action.—An action to recover municipal taxes, and to enforce the lien thereof, is subject to the limitation of subdivision 1 of section 338 of the Code of Civil Procedure, respecting an action upon a liability created by statute, and is barred in three years after the right of action accrued.</p> <p>Id. —Effect of Tax as Judgment. —Where a tax has the force of a judgment; an action commenced thereon more than five years after the right accrued, is barred by limitation, though the judgment is not thereby satisfied.</p>

<p>Action—Plea in Abatement—Another Action Pending—Dismissal— Judgment not Entered.—A plea in abatement of a subsequent action, of a prior action pending between the same parties for the same cause, must be sustained, where it appears that such prior action was commenced, and no judgment of dismissal is shown to have been entered therein, although a dismissal was in fact ordered by the court, on mo. tion of the plaintiff, and was entered in the minutes of the court.</p> <p>Id.—Jurisdiction—Effect of Order of Dismissal—Judgment Nunc pro Tunc.—The court does not lose jurisdiction of an action, until a judgment of dismissal is entered, though an order of dismissal cannot be defeated by the filing of an answer containing a counterclaim before the actual entry of judgment, and judgment of dismissal may be entered nunc pro tunc.</p> <p>Trial—Admission of Evidence without Objection—Motion to Strike Out.—Where evidence is admitted without objection, a motion to strike it out is properly denied.</p> <p>Estates of Deceased Persons—Presentation of Claims—Note Secured by Mortgage—Finding against Evidence.—Where a note secured by mortgage was presented as a claim against the estate of a deceased person, but no copy of the mortgage was attached to and presented with the note, and the mortgage was not described in the claim, nor reference made therein to-the date, volume,_ or page of its recordation, a finding in an action to foreclose the mortgage, that it was presented as a claim against the estate, is not supported by the evidence.</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, and from an order denying a motion to vacate said judgment and taxing costs. A. A. Sanderson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Vende oe Action—Breach oe Contract oe Corporation to Convey Land—Election oe Plaintiff.—An action for breach of a contract of a corporation to convey land situated in a county other than that of its principal place of business, is triable at the election of the plaintiff in the county where the contract was made or was to be performed, and where it appears that the contract was made and was to be performed in the county where the land is situated, an action brought therein cannot be removed for trial, upon motion of the defendant, to the county in which its principal place of business is situated.</p> <p>Id.—Plage of Execution of Contract—Agency—Delivery.—Where the corporation has an agency in the county where the land is situated, and the contract, after having been signed by plaintiff in such county, was forwarded by the agent of the corporation, to the corporation at its principal place of business, and was there signed on behalf of the corporation, and by it returned to such agent, who finally delivered it to plaintiff, the contract must be deemed to have been executed in the county where the land is situated, the execution thereof being incomplete until such delivery, and the place of delivery, being the place where the last act is performed which is necessary to render the contract obligatory, is the place where the contract is made.</p> <p>Id.—Execution in Duplicate.—A contract to convey land executed in duplicate is in effect one instrument, which does not take effect until one of the duplicates is finally delivered to the party to whom the land is to be conveyed.</p> <p>Id,—Place of Breach of Contract.—Where the plaintiff, as purchaser of the land, was directed to make his payment to the agent of the corporation in the county -where the land was situated, upon full payment being made there, the plaintiff was entitled to have delivered to him at that place, and at the time of full payment, a conveyance of the land, and the contract to convey must be deemed to have been broken in that county.</p>

<p>Guardianship—Estate of Minor—Sale of Realty—Disproportionate Value—Order fob New Sale—Discretion—Appeal—Review of Evidence.—The sale of the real property of a minor by his guardian is governed by the same rules which govern sales of the real property of deceased persons; and when the court is satisfied from the evidence as to the value of the property, that the amount bid by the purchaser, including an iilcreased bid in court, is disproportionate to the value of the property, the court has discretion to refuse to confirm the sale, and to set it aside and order a new sale; and its conclusion from the evidence as to the facts cannot be disturbed upon appeal, upon the ground that the testimony in support thereof is incredible.</p> <p>Id.—Ascertainment of Value—Cross-examination of Witnesses—Basis of Estimate.—In ascertaining the real value of the land sold, it is proper for the court to be informed upon what ground the estimates of value made by the witnesses are based, and it may permit cross-examination of real estate agents who have given low estimates of value, to show that their estimates were based upon a forced sale.</p>

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

<p>Execution—Patent Rights not Subject to Levy—Relief in Equity.— A patent right is not tangible property, but is an incorporeal right, being a personal favor or monopoly granted to a particular person by the Dnited States government, and is created and regulated entirely by federal legislation, and is not subject to levy or sale upon execution; and if a creditor of the patentee can have the patent right subjected to the satisfaction of his judgment at all, it can be done only by a court of equity, acting in personam, and compelling the patentee to make an assignment.</p>

<p>Insolvency—Prior Transfer for Benefit of Creditors—Action by Assignee—Nonsuit.—In an action by an assignee in insolvency to recover property transferred by the insolvent debtor nearly eight months prior to the commencement of proceedings in insolvency, where the evidence showed that, at the time of the transfer, the debtor did not consider himself insolvent, and that the transferee did not know that he was insolvent, and that the transfer was not made in the intent to hinder, delay, defraud, or prefer creditors, but was made at the request of the creditors to a trustee selected by them, and that most of the property was sold by such trustee and the proceeds paid to the creditors, though not ratably, it appearing that some of the creditors had liens on part of the property, and were legally preferred creditors, and it not appearing that any of the unpaid creditors had objected that the proceeds were not distributed pro rata, or indicated that they were unwilling to wait until the remainder of the property should be sold and distributed, a nonsuit of the plaintiff is properly granted.</p>

<p>Appeal—Bill of Exceptions—Specifications.—A bill of exceptions used on appeal from the judgment need not contain any specifications of error, except as to the ground that a finding or decision is not supported by the evidence.</p> <p>Id.—Review upon Appeal—Findings—Nonsuit.—Where a case was decided upon a motion for nonsuit, findings of the court filed at the time that the motion for nonsuit was granted cannot be considered upon appeal.</p> <p>Mechanics’ Liens—Claims of Materialman—Overstatement of Amount Doe—Clerical Error—Validity of Lien.—Where an overstatement of the amount due on a claim of lien for materials furnished for the erection of buildings is upon its face a mere clerical error, it will not invalidate the lien, and at most can only postpone it to other liens.</p> <p>Id.—Statement of Terms—Time Given and Conditions of Contract. A statement in a materialman’s recorded claim of lien, that the materials were to be delivered in such quantities as might be directed during the progress of the construction of the building, and that he was to be paid therefor on demand of payment as to each delivery of any quantity on said property by him, the reasonable market value thereof, sufficiently states the terms, time given, and conditions of the contract.</p> <p>Id. — Charge for Package — Overcharge, when Immaterial.—Where material is usually delivered in packages, it is proper to charge for it as packed, although the small material constituting the package does not literally go into the construction of the building; but where there is a slight overcharge, a recorded claim of lien, good in other respects, cannot be rejected on that ground, unless it be so willfully false as to amount to a fraud.</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 Fresno County and from an order denying a new trial. E. W. Risley, Judge.</p> <p>The facts are stated in the opinion.</p>

William T. Wallace, Judge. The main facts are stated in the opinion of the court. The court, after giving to the jury the usual and accepted definition of reasonable doubt, added the following: “A reasonable doubt is the doubt that arises out of a consideration of the testimony; a doubt that is supported by reason, and not by mere conjecture or idle supposition, irrespective of evidence in the case.

<p>Appeal from Judgment Favorable to Appellant. —Where a judgment-appealed from is clearly favorable to appellant, it should not be reversed unless for some material error which is quite clear and palpable.</p> <p>Partnership—Accounting—Improvement of Land—Proceeds—Family Expenses.—In an action for an accounting and settlement of a partnership between a father and son for the purchase, improvement, development, and cultivation of land, where the father was to advance the purchase money for the land, for which he was to be reimbursed, and was also to advance from his individual resources all the outside independent capital and money that should be necessary to the development and cultivation of the land as an offset against the care and services of the son in its development, and not that the proceeds of the land should not be used in its future development and cultivation, and there was no agreement that the son was to be entitled to support for himself and family, it is not error for the court to refuse the son a credit for one-half of the proceeds of the land, where there is no finding as to the amount of his family expenses, and it is evident that that amount would exceed one-half of such proceeds.</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>Personal Action — Removal of Trustees of Mining Property — Injunction—Accounting—Damages—Place of Trial.—An action to remove trustees of mining property, to whom it was conveyed, with authority to work it, and pay the creditors of the grantor, and to sell it under certain contingencies, for their alleged inefficiency and mismanagement, and to enjoin a threatened sale of the property by them, and for an accounting of their trust, and for the recovery of damages for violation of the trust, and for the appointment of other trustees in their stead, is not a real, but a personal, action, which is triable in the county of the residence of the defendants; and the fact that the trust property is situated elsewhere cannot deprive the defendants of their right to the place of trial.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco. W. R. Dainger. field, 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. Craweord, Judge.</p> <p>The facts are stated in the opinion of the eourt.</p>

<p>Action by Deserted Wife for Maintenance—Fraudulent Transfers by Husband—Publication of Summons—Default—Findings—Appeal—Presumption—Support of Judgment.—In an action by a deserted wife against her husband for maintenance without divorce, and to set aside fraudulent transfers of his property, and for a receiver to take charge of the property, where the defendants are absent from the state, and service of the summons has been made upon them by publication and mailing, as prescribed by statute, and they have failed to appear in the action, there is no necessity for findings; and any findings made cannot constitute part of the judgment-roll, or be considered upon an appeal by them from the judgment; but the appellate court can only consider the complaint and judgment, and such allegations as are necessary to support the judgment are deemed to have had confirmation in the evidence.</p> <p>Id.—Transfers of Husband’s Separate Property—Interest of Wife —Intent to Defeat Maintenance.—Although the wife, as such, may have no such interest in the separate property of the husband as will enable her to assail voluntary transfers thereof by him, yet, when deserted by the husband, she has a right to sue him for her maintenance, and, though not in strictness a creditor of her husband, she is so far within the statute against fraudulent transfers, as respects her right to maintenance, that she may sue to avoid transfers made by her husband of his separate property, with design to defeat such right.</p> <p>Id._Transfers before Marriage — Intercourse under Promise of Marriage— Pregnancy—Subsequent Solemnization—Estoppel of Husband.—Where the parties, after agreeing to marry, assumed the relation of husband and wife, and she became pregnant before marriage, the fact that the transfer to defeat her right to support was made before the marriage was lawfully solemnized, cannot change the rule that she may, upon desertion by her husband after the marriage, assail such transfer in an action by her for the maintenance of herself and child; and the husband has no equity to say that assignments which would have been undeniably a fraud against his wife if made after marriage, should be treated as innocent when made before that event, when, by his conduct, marriage had become to her inevitable to avoid the continued stain of concubinage, and of the bastardy of her offspring.</p> <p>Id. — Security for Maintenance—Appointment of Receiver — Jurisdiction of Superior Court—Usage of Equity.—The superior court has jurisdiction, under section 144 of the Civil Code, to require the husband to give reasonable security for providing maintenance, and may enforce the same by appointing a receiver; and it also has jurisdiction to appoint a receiver at the commencement of the action, under the general provisions of section 564 of the Code of Civil Procedure, for such appointment, “where receivers have been heretofore appointed by the usages of courts of equity,” it being in accordance with such usage to enforce the wife’s equitable demand for maintenance, which may be charged specifically upon property described in the complaint, by appointing a receiver, where it is necessary to preserve her equitable claim thereupon from loss.</p> <p>Id.—Jurisdiction in Rem—Service of Summons by Publication.—By the appointment of a receiver to take charge of property specifically described in the complaint, in connection with the service of summons by publication, the court acquires jurisdiction to render a judgment in rem affecting such property, notwithstanding the absence of the owner from the state, and the impropriety of rendering a personal judgment against him.</p> <p>Id. — Pleading—• Fraudulent Transfers — Mistaken Designation of Second Cause of Action — Disregard of Error.—Where but one cause of action is stated, and the complaint introduces that portion of its allegation relating to the fraudulent transfers of the husband’s property, by mistakenly designating it as “a separate and second cause of action, ” such mistaken designation should be disregarded as an error which does not affect the substantial rights of the parties.</p> <p>Id.—Erroneous Cancellation of Instruments—Pleading—Parties.— It is error for the court to cancel a deed not mentioned in the complaint, or to cancel an instrument of lease made to one who is not a party to the action.</p> <p>Id.—Personal Judgment not Allowable—Execution of Bond for Alimony—Power of Court.—When summons is served by publication against nonresident defendants, the judgment cannot properly impose any personal obligation; and, in such case, the court has no power, in an action for maintenance against a husband who is out of the state, to require the absent husband to execute a bond in favor of the plaintiff,, conditioned for the payment of the alimony allowed her, but the power, of the court to secure the award is limited to the property within its, control.</p> <p>Id.—Extent of Disturbance of Transfers—Security for Maintenance. The fraudulent transfers made by the husband should not be set aside any further than is necessary to secure the maintenance allowed to the wife by the court; and any property not needed for such security should be restored to the person from whom the receiver took it.</p> <p>Id.—Proper Form of Decree__The decree should declare precisely what property is to continue in the hands of the receiver, or to be otherwise subjected to the satisfaction of the judgment for alimony, and the remainder, if any, should be wholly exempted from the effect of the judgment.</p> <p>Id.—Direction to Receiver to pay Physician.—The court may properly direct the receiver to pay a physician’s bill incurred by the plaintiff; and it must be assumed that this was found to be a part of the necessary maintenance of the plaintiff.</p>

Writ of review from the Supreme Court to annul an order of the Superior Court of the City and County of San Francisco adjudging petitioner guilty of contempt. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

<p>Appeal from a judgment of the Superior Court of Los Angeles County. Walter Van Dyke, 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 refusing to change the place of trial. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Appeal from an order of the Superior Court of Alameda County granting a new trial. A. L. Frick, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Mining Corporations— Act Imposing Liability upon Directors in Favor of Stockholders — Constitutional Law.— The act of 1880, which provides for the recovery of one thousand dollars liquidated damages against the directors of mining corporations in an action by a stockholder for a violation of its terras, is constitutional and valid.</p> <p>Id.—Discrimination in Favor of Foreign Corporations—Transaction of Business.—The act of 1880 does not relate to the business of the corporation, nor impose burdens or restrictions upon domestic corporations in the conduct of their business, from which foreign corporations are relieved, within the prohibition of section 15 of article XII of the constitution.</p> <p>Id. — Special Law— Construction op Statute.—The act of 1880 is not unconstitutional as being a special law, but is to be construed as applying to all mining corporations, and not merely to those which produce bullion from gold or silver bearing ores or quartz.</p> <p>Id.—Action by Stockholder—Pleading—Willful Failure op Directors —Defense—Exculpation.—In an action by a stockholder against the directors, it is sufficient for the plaintiff, in order to establish a prima fade case, to aver and prove a neglect, failure, or refusal of the directors to comply with a specified provision of the act, and it is not necessary that the complaint should charge, or that plaintiff should prove, a willful failure or refusal; but it is incumbent upon the defendants to show that the failure was not willful, and they must set forth and prove facts or circumstances of exculpation as matter of defense.</p> <p>Id.—Failure to Post Superintendent’s Reports—Insufficient Proof. In an action by a stockholder against the directors of a mining corporation for alleged failure to post the weekly reports of the superintendent, the introduction in evidence of certain papers appearing to he reports made by the superintendent of the mine to its secretary, not accompanied or followed by proof to show that they were in fact the superin. tendent’s reports, or that they were the only reports which the directors caused to be posted, is insufficient to sustain the burden of proof resting on the plaintiff to show the violation of the statute, nor were such reports generally admissible without further proof to overcome the effect of defendant’s denial of the plaintiff’s charges; nor can matter of proof not appearing in the statement be considered upon appeal.</p> <p>Id.—Inconsistent Defenses — Denial — Matter of Extenuation—Admissions.—The defendants have a right to plead inconsistent defenses, and the effect of a denial in one defense is not waived by the setting up of affirmative matter of extenuation in another defense, nor can the admissions made in the affirmative defense relieve the plaintiff from the necessity of proving matters denied.</p> <p>Id.—Amended Pleading — Evidence — Admissions of Original Pleading.—An amended pleading supersedes the original, and admissions made in the original pleading cannot thereafter properly he introduced in evidence against the party who made them.</p>

<p>Partnership—Preference of Partnership Over Individual Creditors—Priority of Attachment Immaterial.—The debts of a partnership must be discharged out of the partnership property before any portion of it can be applied to the individual debts of the partners; and the creditors of the partnership are entitled to preference over the creditors of the individual partners in the payment of their debts out of the partnership property or moneys arising therefrom, without regard to the priority of attachment liens.</p> <p>Id.—Joint Note—Individual Action and Judgment.—Where an action is brought against two partners, as individuals, upon a joint note executed by them individually and not as partners, and a judgment is rendered therein against them jointly, as individuals, and not as partners, an attachment in such action levied upon the partnership assets is subject and subordinate to a subsequent attachment levied upon such assets by a creditor of the partnership who sues the partners as such, and the latter is entitled to priority of payment out of moneys realized by the sheriff from sale of the partnership property.</p>

<p>State Patent—Deed Prior to Approval of Application—Implied Trust — Bona Fide Purchaser.—Where an. applicant for the purchase of state land made a deed of the land prior to the approval of his application, if the invalidity of such deed makes a subsequent holder of the certificate of purchase, who obtains a patent upon surrender thereof, a trasteé of the legal title for the benefit of the heirs of the applicant, such trust is by implication of law only, and no trust so arising can prejudice the rights of an encumbrancer or purchaser of the legal title without notice of the trust.</p> <p>Id.—Effect of Patent—Evidence of Right of Grantee.—A patent from the state running to the grantee absolutely is the highest evidence of transfer of the state’s title, and is also evidence that all the steps prescribed for its issuance have been properly taken, and that the certificate of purchase was surrendered by the person entitled to the patent.</p> <p>Id.—Notice of Trust—Protection of Purchaser from Patentee.—A purchaser from the patentee is not required to look behind the patent to inquire into the right of the patentee to hold the certificate of purchase, or to see whether the register had not erred or been duped when he made the determination that the patentee was the legal holder of the certificate of purchase.</p> <p>Id.—Void Judgment Annulling Certificate—Constructive Notice.— A void judgment annulling a certificate of purchase cannot impart any constructive notice of the rights of heirs of the original holder of the certificate, who had died before the commencement of the state’s suit" to annul the certificate.</p> <p>Id.—Redemption of Certificate—Presumption from Patent—Notice of Trust.—The patent is presumptive evidence that a redemption of the certificate of purchase made by the holder of it who obtained the patent was made in his own right, and such redemption cannot operate as notice of a trust implied against him.</p> <p>Id.—Knowledge of Nature of Land—Notice of Fraud.—The knowledge by the purchaser from the patentee of the nature of the land, and that it was public and salable in the manner provided by law, and that patent could only be issued upon a certificate of purchase, cannot charge such purchaser with any notice that the patentee was not entitled to the certificate of purchase, or that the patent issued fraudulently.</p>

<p>Appeal from a judgment of the Superior Court of San Joaquin County. Ansel Smith, 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. D. J. Murphy, Judge.</p> <p>The facts are stated in the opinion</p>

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

Habeas Corpus in the Supreme Court to test the validity of an ordinance of the City and County of San Francisco. The facts are stated in the opinion of the court.

<p>Corporations—Liability of Stockholders—Pleading—Time of Incurring Indebtedness.—In an action to enforce the individual liability of a stockholder for his proportionate share of a corporate debt, the complaint must show affirmatively that the indebtedness was incurred while the defendant was a stockholder, and the mere allegation that on a certain day, while the defendant was a stockholder, the corporation made its promissory note, is not sufficient, in the absence of an averment that the indebtedness was then for the first time incurred, or that the corporation then became indebted to the plaintiff.</p>

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

<p>Appeal—Bill oe Exceptions—Settlement—Acts of Different Judges. Where different judges act during the progress of a cause, it is the duty of the litigant desiring to have a ruling or decision reviewed upon appeal, to present a bill of exceptions embodying the matters excepted to before one of the judges to the judge who made the ruling or decision for settlement by him, either at the time of the ruling, or after judgment; and, in such case, two or more bills of exceptions may be settled and properly presented for consideration upon appeal.</p> <p>Id.—Review of Order Striking Out Parts of Answer.—An order made by one judge striking out parts of an answer cannot be reviewed on appeal if the exception thereto, instead of being settled by the judge who made the ruling, is settled by another judge who tried the cause.</p> <p>Libel—False Publication against Attorney—Evidence—Standing of Attorney—Extent of Practice—Damages.—In an action for a pub. lication which is libelous per se, affecting the standing of an attorney in his profession, his position and standing in society and the nature and extent of his professional practice may be proved and properly considered by the jury in estimating the general damages to which the plaintiff is entitled.</p> <p>Id.—Mental Suffering of Plaintiff—Evidence—Statements of Third Persons.—The mental suffering of the plaintiff is an element of general damages in an action for libel; but only the suffering which plaintiff naturally experiences as the direct, immediate, and proximate effect upon his mind and feelings of the libel, can be considered; and plaintiff cannot be permitted to prove what third persons have said about the publication for the purpose of showing increased mental suffering induced by their statements.</p> <p>Id.—Understanding of Third Persons' as to Person Libeled — Issue Stricken Out—Estoppel of Plaintiff.—Where an issue has been stricken from the answer on motion of plaintiff as to whether the libelous words were understood by third persons to refer to the plaintiff, the statements of third persons cannot be offered in evidence by the plaintiff to prove that the libelous words were so°understood.</p> <p>Id.—Mistake in Name •— Competency of Reporter — Inadmissible Evidence of Subsequent Discharge.—Where the defendant had fully proved the competency of the reporter who had mistakenly substituted the name of plaintiff for that of another person, in a libelous report furnished by him for publication, it is not admissible for plaintiff to prove the subsequent discharge of the reporter in disproof of his competency.</p> <p>Id.—Evidence of Malice — Circumstances of Publication—Correct Report taken from Another Paper — Failure to Verify—Question for Jury.—It is a general rule that the publication and all the circumstances attending and surrounding it, may be given in evidence upon the question of malice; and it may be shown that the defendant in publishing the article relied entirely upon the publication in another paper, and did not verify the report of that paper, as evidence touching the question of negligence or careless disregard of the rights of the plaintiff, notwithstanding the fact that the article published in such other paper was correct; and whether or not the method adopted by the defendant amounted to such disregard is matter for the jury under proper instruction by the court.</p> <p>Id.—Mitigation of Damages — Retraction of Libel after Commencement of Action.—An apology or retraction of the libelous charge may be proved in mitigation of damages, though made after the commencement of the action; and when such apology or retraction is fully, promptly, and adequately made, and is such as an impartial person would consider reasonable and satisfactory under the circumstances of the particular case, it tends to decrease the amount of damages which, without it, the plaintiff would have sustained, and affords evidence upon the subject of express malice, the presence of which alone justifies punitive damages.</p> <p>Id.—Duty of Retraction—Erroneous Instruction.—There is no legal duty resting upon one who has made a libelous publication to publish an apology and retraction thereof, and it is erroneous to instruct the jury that such legal duty rests upon the defendant charged with libel, it being merely the right of the defendant to publish a retraction, and to have proof of that publication presented to the jury in mitigation of damages.</p> <p>Id.—Adequacy of Retraction — Instruction — Question of Fact.— Where the defendant seeks to prove the publication of an adequate retraction in mitigation of damages, it is proper for the court to instruct the jury that to avail him it should appear that it was fully, fairly, and promptly made, and is such as an impartial person would consider reasonable and satisfactory under the circumstances; and, in such case, the question of the sufficiency or insufficiency of the retraction is peculiarly one of fact for the determination of the jury.</p>

<p>Irrigation District—Power of Board to Dispose of Bonds—Purchase of Property—Sale in Market—Debts not Payable in Bonds— Construction Fund.—The only mode in which the board of directors of an irrigation district can exercise their power of disposing of the bonds of the district, under the provisions of the irrigation act, so that they may become valid obligations against the district, is either to exchange them for property purchased for construction purposes, at their par value, under section 12 of the act, or to sell them for money in the open market, under the provisions of section 16 of the act, at not less than ninety per cent of their face value; and they have no power or right to exchange the bonds for any other purpose, or to make payment with them at ninety per cent of their face value, in discharge of any obligation of the district, or to dispose of the bonds, or of the moneys received from sales of the bonds, for any other object than to provide for the construction fund contemplated by the act.</p> <p>Id.—Object of Irrigation Act — Money Basis.—The irrigation act is framed upon the theory and with the intention on the part of the legislature that the affairs of the district shall be conducted upon a money basis, and not on credit.</p> <p>Id.—History of Irrigation District Bonds—Judicial Notice.—The court can take judicial knowledge of the financial history of irrigation district bonds.</p> <p>Id.—Power of Assessment for Interest—Discretion.—The power of the board, in levying an assessment to pay interest on the bonds, is not limited to the exact amount of the annual interest; but they have a-discretion in determining how great an assessment will be sufficient to raise the annual interest, and, unless it can be seen that they have abused this discretion, courts ought not to interfere with their action.</p> <p>Id.—Excessive Assessment—Injunction.—1£ the disparity between the amount of the assessment and the annual interest is so great as to make it appear that the action of the board was improper, and not in the exercise of any discretion, so that the assessment is excessive, courts are authorized to prevent its enforcement hy injunction.</p> <p>Id.—Complaint to Enjoin Assessment—Illegal Bonds—Failure of Officers to Keep Record—Amount of Legal Bonds Unknown— Payment of Part of Assessment not Required.—Where the complaint, in an action to enjoin an excessive assessment for the annual interest on irrigation bonds, sufficiently shows that at least the sum of $40,000 of the assessment was for illegal bonds and unauthorized, and alleges in general terms that the outstanding bonds were illegally issued, but fails to account specifically for all of the outstanding bonds, and shows an inability of plaintiff to determine and allege definitely what amount of bonds, if any, were legally disposed of, owing to the failure of the officers to keep such a record of their disposal as is required by the act, the plaintiff, in such case, is exonerated from making a definite allegation of such amount, and the rule of equity requiring the payment of that part of the assessment which is admitted to he just, as a condition of invoking the aid of equity, becomes inapplicable.</p> <p>Id.—Illegal Bonds Issued in Payment for Construction—Benefit to District not Considered.—Bonds issued to a contractor in payment for the construction of a dam needed by the irrigation district, and taken by him at ninety per cent of their face value, are illegally issued, and cannot be valid obligations in his hands, nor can the benefits received and enjoyed by the district be considered in an action to enjoin an assessment for interest upon such bonds, any equitable right of recovery for such benefits being independent of any liability of the district upon the bonds.</p> <p>Id.—Notice of Limitation of Power.—Any person dealing with a municipal or public corporation is charged with a knowledge of all the limitations upon the power of its officers, and can have no right of action upon its written obligation entered into in disregard of statutory requirements.</p> <p>Id.—Injunction against District Collector—Parties to Action.—In an action to enjoin the collection, by the collector of an irrigation district, of an excessive assessment for interest on bonds of the district, neither the irrigation district, nor its agent for the sale of bonds, nor the holder of illegal bonds, is a necessary party.</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>

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

<p>Appeal from an order of the Superior Court of Marin County denying a motion to amend and correct a judgment. F. M. Angellotti, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

- Appeal from a judgment of the Superior Court of the City and County of San. Francisco and from an order denying a new trial. Walter H. Levy, Judge. The facts are stated in the opinion of the court.

Habeas Corpus in the Supreme Court to review the conviction of petitioner by the Recorder’s Court of the City of Watsonville, County of Santa Cruz. The facts are stated in the opinion of the court.

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

<p>Contracts—Public Policy—Horseracing—Wager—Purse Offered by Trotting Association.—A contract for a direct bet or wager between persons engaged in horseracing is illegal and void, as being against good morals and sound public policy; but a purse offered by a trotting association to the winner of a horserace, by way of premium or reward, does not come within the rule against bets or wagers; nor is competing for such premium or offering, whatever may be its designation, competing for a bet or wager, and the contract to pay the same may be enforced.</p> <p>Id.—Addition of Entrance Money to Purse.—The fact that the association added to the purse the amount of the entrance money, paid by each of the competitors for the privilege of entering in the race, to be divided between the owners of the first, second, and third horses in the race, does not tend to impart to the transaction the character of a wager between the competitors.</p> <p>Id.—Partnership between Competitors—Contract to Pool Premiums. A contract between the owners of competing racehorses entered in , stake races, to be given as premiums by two associations, to the effect that they will pool all premiums and stake moneys offered by the associations, which should be awarded to either or any of their horses, and divide the same equally between such owners, constitutes a partnership in the transaction between the contracting parties; and the contract is a valid one, which may be enforced.</p>

<p>Nuisance—Obstruction oe Private Right oe Way—Action—Parties— Special Administrators.—An obstruction of a private right of way is a nuisance, and an action may be maintained by the owner of such right of way for damages, and for the abatement of such nuisance, against any persons who have participated in maintaining the same, regardless of any interest in the land over which the right of way is claimed, and the special administrators of a deceased owner of such land, who participate in maintaining such nuisance, may be joined as parties defendant, notwithstanding the obstruction was originally placed there by the decedent of whose estate they are special administrators.</p> <p>Id.—Estates of Deceased Persons—Presentation of Claims—Action for Damages.—Only claims arising upon contract with a deceased person are required to be presented as claims against his estate, before an action can be brought thereon against his administrators, and a presentation is not required of a claim for damages for wrongful acts before the bringing of an action to recover the same against the administrators.</p>

<p>Appeal from a judgment of the Superior Court of Del Norte County. James E. Murphy, 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.</p>

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

A. L. Frick, Judge. The main facts are stated in the opinion of the court.

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

<p>Municipal Charter — Requirement of Written Contracts—Constitutional Law—Conflict with General Laws—Formation of Contracts.—Section 207 of the charter of the city of Los Angeles (Stats. 1889, p. 506), requiring contracts of the city to be in writing and signed by the mayor or some other person authorized thereto, in behalf of the city, is. constitutional and valid, and is not in conflict with the provisions of the Civil Code concerning the manner of creating contracts, nor void under section 6 of article XI of the constitution, which declares that such charters “shall be subject to and controlled by general laws.”</p> <p>Id.—Charter a Statute—Construction of Code.—The charter of the city of Los Angeles is, to the extent of its operation as a scheme of local government, a “statute” within the meaning of section 1622 of the Civil Code, providing that all contracts may be oral, except when required by statute' to be in writing.</p> <p>Id.—Invalid Contract for Sewer—Damages for Prevention of Performance—Defective Execution—Order for Signature by Mayor —Equity—Conjectural Loss of Profits.—A contract for the construction of a sewer, signed only by the parties agreeing to do the work, and not by the mayor, or by anyone authorized to sign it on behalf of the city, being invalid under the city charter, no action can be maintained for damages for prevention of its performance by the city; and the fact that the city council complied, on their part, with all the requirements of the charter, and ordered the mayor to sign the contract, does not give the signers a right in equity to have its defective execution aided and the contract treated as though signed by the mayor, no work having been done under the instrument and no detriment suffered by the signers, excepting the conjectural loss of profits which they might have made by performance of the contract, if it had been really made.</p>

<p>Appeal from a judgment 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>State Board of Examiners—Implied Power to Employ Expert— Legislative Appropriation— Constitutional Law.—The state board of examiners have implied power to employ an expert to assist them in examining books and accounts; and a legislative appropriation incorporated in the general appropriation bill to pay the salary and expense of such expert is constitutional and valid, and does not create an office, nor is the agreement of the board of examiners for the employment and compensation of such expert void as being without express authority of law, within the meaning of section 32 of article IV of the state constitution.</p> <p>Id.—Extent of Official Power—Implication—Statutory Construction.—In addition to the powers expressly given by statute to an officer or board of officers, he or it has, by implication, such additional powers as are necessary for the due and efficient exercise of the powers expressly granted, or as maybe fairly implied from the statute granting the powers.</p> <p>Id.—Defeat of Statute Conferring Express Power—Legislative Appropriation—-Motives of Legislators.—Courts cannot inquire into the motives of legislators; and a legislative appropriation to pay the salary and expenses of an expert employed by the state board of examiners cannot be defeated on the ground that another statute expressly empowering the board of examiners to employ an expert failed of passage, nor can it be held, as matter of law, or proved as matter of fact, that, except for the anticipated passage of such statute, the appropriation bill would have been altered.</p>

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

<p>Constitutional Law—Fee Act of 1895 — Fees of Justices and Constables — Limitation of Fees Retained—Supervision of District Attorney.—The provisions of the act of 1895 to establish the fees of county, township, and other officers, limiting the amount of fees to be retained by justices of the peace, and giving the district attorney supervisory power over the fees and bills of justices and constables, are unconstitutional and void.</p> <p>Id.—Compensation of Officers—Classification of Counties—Mandatory Provision of Constitution.—Section 5'of article XI of the constitution, requiring the legislature to regulate the compensation of all county and township officers in proportion to the duties which they may perform, and providing that the legislature “for this purpose may classify the counties by population,’’construed with section 22 of article I, is mandatory, and provides as the sole mode for adjusting the compensation of officers, that it be adjusted in accordance with their respective duties under a classification of counties by population made for this purpose.</p> <p>Id.—Justices of the Peace—Compensation and Fees, how Regulated —Fee Act—County Government Act. —The compensation of justices of the peace cannot be regulated in part by the fee act of 1895, but is governed wholly by the County Government Act of 1893, including the amount of fees which they are permitted to retain; but the fee act of 1895, though invalid in limiting that amount, still remains as a full and complete fee bill, and establishes what fees may be charged for, and collected by, justices of the peace, and by all county and township officers.</p> <p>Id.—Supervisory Control of District Attorney—Uniform Operation of General Laws.—That portion of the fee act of 1895 which gives the district attorney a supervisory control over fees of justices and constables in criminal cases, is void, as being in conflict with section 11 of article I of the constitution, providing that “all laws of a general nature shall have a uniform operation,” as well as in improperly regulating the compensation of officers, in violation of section 5 of article XI.</p> <p>Id.—Statutory Construction — Fee Act Void only in Part.—Where the court can see and say that an act, in the form in which it is left, with such parts excised as are obnoxious to the constitution, is still such an act as it may be presumed that the legislature would have passed had it known that such parts were void, the remainder, under well-settled rules of statutory construction, may stand; and under the application of this rule, the unconstitutional parts of the fee act of 1895 do not affect the remainder of the act.</p>

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

Motion to dismiss an appeal from a decree of the Superior Court of the City and County of San Francisco distributing the estate of Thomas H. Blythe, deceased. J. V. Coffey, Judge. The facts are stated in the opinion of the court in Estate of Blythe, 112 Cal. 689, In re Blythe, 110 Cal. 231, 108 Cal. 124, and Blythe v. Ayres, 102 Cal. 254.

Motion to dismiss an appeal from a decree of the • Superior Court of the City and County of San Francisco, distributing the estate of Thomas H. Blythe. J. V. Coffey, Judge. The facts are stated in the opinion of the court in Estate of Blythe, 112 Cal. 689, 110 Cal. 231, Blythe v. Ayres, 110 Cal. 226, In re Blythe, 108 Cal. 124, and Blythe v. Ayres, 102 Cal. 254.

<p>Estates of Deceased Persons—Determination of Heirship—Res Adjudicaba—Appeal by Party not of Kin — Dismissal.—A party to proceedings for the determination of the heirship of a decedent, instituted under section 1664 of the Code of Civil Procedure, is concluded by such determination in the distribution of the estate, and where he has been declared by the decision of the court, affirmed upon appeal, to be not of kin to the decedent, and not entitled to any interest in the estate, he is no longer a party in interest in the proceedings in the estate; and an appeal taken by such party from the decree of final distribution of the estate will be dismissed upon motion.</p>

<p>Order Vacating Streets — Certiorari — Petition by Nonabutting Owners—Absence of Special Injury.—An order of the board of supervisors declaring certain streets to be closed, will not be reviewed or annulled by the court upon certiorari, as being in excess of jurisdiction» upon petition of property owners and taxpayers, whose premises do. not abut upon the streets proposed to be closed, and who, by the closing of the streets, are not deprived of access to their lands, and do not suffer injury special to themselves, but only such detriment and inconvenience as they bear in common with the community at large.</p> <p>Id.—Lands Remotely Affected — Diminution of Value not Considered,—Owners of lands who are only remotely affected by the proceeding for the closing of streets, and who sustain no special injury different from that sustained by others in that vicinity, are not authorized to call upon the officers of the city to justify their acts, or to invoke the judgment of the court upon the legality of the steps taken by the municipality in passing the order; and whether the order will have the effect to diminish the value of the plaintiffs’ land, or to cause them damage, is not a ground for annulling the order, and cannot be considered upon certiorari.</p> <p>Id.—Public Interest and Convenience—Determination of Supervisors Conclusive.—The legislature having conferred upon the board of supervisors the power to open and close streets ‘‘ whenever the public interest or convenience may require,” the determination by that board of the question whether the public interest and convenience requires that streets be closed, is conclusive, and not open to review by the courts.</p>

<p>Negligence—Injury to Infant by Electric Railway Car—Instruction—Inexperience of Motorman—Error—Question of Ordinary Care.—In an action against an electric railway company to recover damages for injuries received by an infant plaintiff from being knocked down and run over by one of the cars of the company, by reason of its alleged negligence, where there was no direct issue upon the employment of an incompetent servant, an instruction to the jury that, in determining whether the defendant was negligent in not stopping its car so as to avoid the injury, they had the right to take into consideration the fact, in evidence, that the motorman “ had only been at work about twelve days,” and “was a new hand on the road,” is erroneous, the defendant not being responsible for slight negligence, but only for a want of ordinary care, and the question whether it was in the exercise of such care must be determined from a consideration of what actually occurred at the time of the alleged negligent act, regardless of any fact affecting the general character of the servant for skill or proficiency in the discharge of his duty, which fact should not have been submitted to the jury.</p> <p>Id.—Duty of Company to Provide for Safety—Deficient Instruction—Omission of Qualification—Ordinary Care.—An instruction to the jury, in such action, that it was the duty of a person or company operating an electric railway upon the streets of a city to provide “proper cars and appliances, and to provide safe, skillful; watchful, and competent agents or servants to manage the same” is deficient in not further charging that, in performing such duty, the defendant, so far as its obligation to the plaintiff was concerned, was only called upon to exercise ordinary care, and an instruction given on behalf of the defendant as to the degree of care required of its servants, is not the equivalent of such qualification.</p> <p>Id.—Action of Infant Plaintiff—Improper Instruction—Duty of Parents to Keep Attendant with Young Child—Question for Jury.—In an action for negligence brought by an infant plaintiff, aged eighteen months, an instruction to the jury that the law does not require parents to keep an attendant with their young children, and that they are not required to shut them up, is improper, the question whether such precautions are necessary, under any given circumstances, to constitute ordinary care for the safety of their children, with which parents are charged, being one of fact for the jury, and not for the court to determine as matter of law.</p> <p>Id.—Contributory Negligence of Parents—Avoidance of Injury— Question for Jury.—Assuming the contributory negligence of the parents of a young child run over by an electric railway car, nevertheless the question whether, notwithstanding such negligence, the defendant could have avoided the injury, when fairly involved in the evidence, is a proper one for the jury.</p> <p>Id.—Pleading—Demurrer to Complaint—Averment op Negligence— General Facts—Certainty.—In a ¿complaint in an action for negligence, an averment of the facts constituting the negligence, in general terms, is sufficient, the more specific facts being generally more largely within the knowledge of the defendant than that of the plaintiff; and a demurrer to such a complaint on the ground of uncertainty is properly overruled.</p>

<p>Crimínal Law—Homicide—Conviction of Murder in First Degree— Support of Verdict—Conflicting Evidence— Habits of Drunkenness—Insanity.—Where a defendant is convicted of murder in the first degree, and the evidence for the people is amply sufficient to justify the inference that the killing was done with express malice, the verdict of conviction is sustained by the evidence, and conflicting evidence offered by the defendant to prove habits of drunkenness and insanity does not detract from the legal sufficiency of the evidence for the people.</p> <p>Id.—Refusal of Instructions—Confusion of Intoxication and Insanity —Charge of Court.—Instructions requested by the defendant in relation to the plea of insanity are properly refused, where they confuse intoxication and insanity, and where the whole law of insanity, as applicable to the case, was fully and clearly given in the charge of the court.</p> <p>Id.—Intoxication at Time of Killing—Inapplicable Instruction.— Where it appeared from the evidence that the defendant was addicted to the use of intoxicating liquor, was frequently under its influence, and when so affected was abusive and quarrelsome, but there was no evidence that he was intoxicated at the time of the killing, other than that he had been drinking the day before the homicide, there is no evidence to sustain an abstractly correct instruction upon the law as to the effect of intoxication at the time of the killing, and such an instruction is properly refused.</p> <p>Id.—New Trial—Newly Discovered Evidence of Insanity—Cumulative Proof.—A new trial will not be granted for newly discovered evidence respecting the insanity of the defendant, where such evidence is merely cumulative to the proof given on the trial.</p> <p>Id.—Want of Diligence—Discretion.—When the affidavits on the subject of diligence in the discovery of the new evidence are vague and general, and do not disclose the manner in which the evidence was discovered, and no explanation is given why it was not discovered before the trial, it is not an abuse of discretion to deny the motion for want of diligence.</p> <p>Id. —Insanity—Instruction—Duty of Jury—Caution.—An instruction as to the manner in which the law regards the defense of insanity, and as to the duty of the jury in relation thereto, and as to the degree of care and caution with which they should examine that defense, given in the form approved by the decisions of this court, does not invade the province of the jury as to matters of fact.</p> <p>Id.—Effect of Intoxication—Instruction—Penal Code—Felonious Intent.—An instruction as to the effect of intoxication given in the form of a transcript of section 22 of the Penal Code, with the exception that the jury were told that they “may take into consideration the fact that the accused was intoxicated at the time, in determining the felonious motive or intent with which he committed the act, ” is not vitiated by the insertion of the word “felonious" in the instruction, though not used in the language of the code, the only intent in question in the case being a premeditated and deliberate intent to take life which is a felonious intent, if it existed.</p> <p>Id.—Misconduct of .Jury—Impeachment of Verdict—Affidavit of Juror.—The affidavit of a juror cannot be received to impeach the verdict to which he agreed, by swearing that he was misled by statements of the foreman, and that he did not understand the verdict, and was too timid and confused to express his dissent at the time when he ought to have dissented.</p>

<p>Negligence — Destruction by Fire of Insured Building — Parties—, Joint Action by Owner and Insurance Company—Special Damage to Owner’s Business.—A joint action may be maintained by the owner of an insured building, and by the company effecting the insurance, to recover damages for the destruction of the building by fire, caused by the negligence of the defendant; and such joinder is not rendered improper by the fact that the owner further alleges special damage to his. business proxitnately caused by the defendant’s negligence, and all the damage to either plaintiff may be properly recovered in such action.</p> <p>Id.—Title to Insured Building—Reservation in Deed—Prescriptive Right.—Where the insured building originally belonged to the owner of the land on which it stood, who conveyed the land to the defendant by deed containing a reservation of the right to maintain the building with the privilege of ingress and egress from the same over the lands conveyed, and whatever transferable interest thus reserved became vested in the plaintiff, and plaintiff and his grantor with claim of title held undisturbed possession of the building, and paid all taxes thereon for the statutory period required to bar an action for the recovery of real property, the plaintiff has title to the insured building by pz-escription, and it is immaterial whether the deed be construed as operating to reserve a mere unassignable interest in gross, or operating as an exception of a profit a prendre which might be assigned.</p> <p>Id.—Adverse Possession of Building—Horizontal Cleavage os Heal Estate. —For the purposes of adverse possession, and the invocation of the statute of limitations, there may be cleavage of corporeal real estate horizontally as well as vertically, and a prescriptive title to a building may be acquired by adverse possession, although another person may have title to the supporting land.</p>

<p>Corporations—Election of Directors—Persons Entitled to Vote— Construction of Code—Bona Fide Stockholders—Dummy Holders of Stock Disqualified.—Under section 312 of the Civil Code, only those who are bona fide stockholders having stock in their own name on the stock-books of the corporation, at least ten days prior to the election of directors, are entitled to vote at such election; and the holders of stock standing in their names, who do not hold it in a representative capacity, or as trustees of an express trust, or as pledgees, and who have no interest in the stock, and are only dummies for the real owners, the object of the registration being for the admitted purpose of enabling the real owners to avoid statutory liabilities, are not lona Jide stockholders within the meaning of that section, and can neither vote such stock nor give a lawful proxy therefor.</p> <p>Id.—Agreement to Combine Stock for Voting Purposes—Public Policy — Construction of Contract — Proxy — Consideration—Inevitable Power.—An agreement between three persons for the purchase, as an entirety, of railway stock ordered to be sold in the course of ad-, ministration of the estate of a deceased person, and that, in order to secure the control of the management and business policy of the railway company, they would combine the stock purchased so that it should be voted as a unit for the period of five years, the vote to be cast to be determined by ballot between them, is not void as against public policy, and is to be construed as implying that the majority of them shall determine how all the shares purchased are to be voted, and as giving to the majority the^authority to vote the stock of the other owner by proxy, I and such agreement having been made in consideration of the purchase of the stock, the proxy is in the nature of a power coupled with an in. ¡ terest which cannot be revoked at the pleasure of either of the parties.</p> <p>Id.—Restraint of Trade—Limitations upon Disposition of Property. The rule invalidating contracts in restraint of trade does not include every contract limiting the right of the owner of property to dispose of it except upon certain conditions; and an agreement between two or more persons who contemplate the purchase of property that, as a condition of the purchase, neither will dispose of his share within a limited period, or that they will hold it upon certain limitations, is not invalid, as being in restraint of trade.</p> <p>Id.—Separation of Voting Power from Ownership of Stock. — It is not illegal or against public policy to separate the voting power from the ownership of stock, by an irrevocable proxy given upon a sufficient consideration, when it is not appointed for an unlawful purpose, or where no unlawful end is attempted to be effected by the exercise of the voting power.</p>

<p>Appeal from an order of the Superior Court of Marin County refusing to grant a preliminary injunction and dissolving a restraining order. F. M. Angellotti, 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 granting a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Application for leave to file a stay bond in the Supreme Court, upon an appeal from a judgment of the Superior Court of Kern County and from an order denying a new trial. A. R. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Application in the Supreme Court for supersedeas to stay execution upon a judgment of the Superior Court of Santa Clara County. W. Gr. Lorrigan, Judge. The facts are stated in the opinion of the court.

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

<p>Action — Dismissal for Want of Prosecution — Discretion.—The superior court has power to dismiss an action for want of prosecution, and the exercise of this power is left to the discretion of the court, subject only to reversal for a patent abuse of such discretion.</p> <p>Id.—Excuse for Delay—Consent of Defendant—Threat of Insolvent Proceedings.—Where the delay in the prosecution has been had at the instance or request of the defendant, the court will properly refuse to dismiss; but a mere threat of the defendant to take advantage of the insolvent laws, not coupled with any request for delay, or promise of payment in the event of such delay, is not a valid excuse for postponement on the part of the plaintiff in prosecuting the action.</p> <p>Id.—Action upon Note—Continued Delay.—The delay of nearly a year to take out summons after filing the complaint in a simple action upon a promissory note, the delay of nearly another year to serve the summons, with the defendant ever present, and the delay of a year and a half after issue joined in such action is sufficient to justify the exercise of the discretion of the court in dismissing the action for want of prosecution.</p>

<p>Habeas Corpus in the Supreme Court to the sheriff of Colusa County.</p> <p>The facts are stated in the opinion of the court.</p>

Motion in the Supreme Court to dismiss an appeal from a judgment of the Superior Court of Fresno County and from an order denying a new trial. E. W. Risley, Judge. The facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of the City and County of San Francisco denying a petition for partial distribution. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Pleading—Nonpayment.—In an action to recover money upon a contract, the failure to pay constitutes the breach, and must be alleged; and an allegation that a specified amount is “now due and owing” to the plaintiff is a mere conclusion of law, and is insufficient as an averment of the fact of nonpayment.</p>

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

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

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

<p>Appeal from an order of the Superior Court of Napa County denying a new trial. E. D. Ham, 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. Mubphy, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Practice — Place of Trial — Disqualification of Judge — Attorney’s Relationship to Judge.—In order to disqualify a judge from sitting or acting in an action or proceeding pending in his court, by reason of his relationship to a person appearing as an attorney for a party thereto, it is not necessary that such person should be an attorney of record, nor does his relation as attorney depend upon the obligation of his client to compensate him for his services, or upon the continuance of a partnership between him and the. attorney of record.</p> <p>Id.—Conflict of Evidence.—Where the evidence as to the existence of the relation of attorney and client is conflicting, the decision of the trial judge thereon is not open to review on appeal.</p> <p>Id.—Relation of Attorney and Client.—The fact that at a previous trial of a similar action between the same parties the attorney, who was a relative of the judge, sat at the table in court with his partner, who was the attorney of record, took notes of the evidence, and assisted in the trial of the case, is sufficient to warrant the court in determining between the conflict in the evidence that his relative was in fact an attorney in the cause, and in holding himself disqualified to'try it.</p> <p>Id.—Granting Motion after Previous Denial.—The denial of an application for a change of the place of trial does not preclude the granting of a similar application subsequently made, as the doctrine of res judicata is not applicable to motions in a pending action.</p>

Motion in the Supreme Court to dismiss an appeal from a judgment of the Superior Court of Ventura County. B. T. Williams, Judge. The facts are stated in the opinion of the court.