Volume 116 — California Reports

<p>Foreclosure ot Mortgage—Decree for Interest—Amendment—Remedy for Judicial Error.—A decree signed by the judge, and expressly purporting to order a sale only for interest then due, cannot be amended, more than one year after the decree, by inserting a direction providing for a sale for the remainder of the principal and interest thereafter to become due upon the note secured by the mortgage, there being no inadvertence or misprision of the clerk in failure to enter the judgment intended by the court, and any judicial error committed in rendering the judgment could be remedied only by appeal, or motion for a new trial.</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>

<p>Collateral Security — Note to Secure Drafts for Value of Merchandise—Insolvency of Principal Maker—Defense of Sureties —Application of Proceeds of Merchandise—Burden of Proof.— In an action upon a note given to a bank as collateral security for the repayment to it of the amount of drafts drawn upon it for the value of merchandise shipped to the principal makers of the note, which were to be paid by the bank when accompanied by invoices and bills of lading o£ the merchandise, where it appears that the principal makers had become insolvent, and accommodation makers of the note, who signed it as sureties for the principal makers, pleaded as a defense that the bank held the invoices and bills of lading of the merchandise as security for the payment of the drafts, and had received from the proceeds of the merchandise on account o£ said drafts a sum in excess of their aggregate amount, the burden of proof is upon them to show that the bank had been repaid from those proceeds, and to establish improper debit items in the account of the bank, as rendered, sufficient to equal a balance shown by its account to be due to the bank.</p> <p>Id.—Deduction of Charges from Proceeds—Expenses of Bank.—Reasonable charges paid by the bank for storage of the cargo, insurance upon it while stored, cartage, brokerage, etc., properly incurred in caring for, preserving, and selling it, are to be deducted from the gross proceeds realized by the bank from the sale of the cargo.</p> <p>Id.—Marine Insurance — Drayage Paid by Check.—Payment by the bank for -marine insurance upon the cargo, made upon the arrival of the vessel, cannot be allowed as a deduction from the proceeds of the cargo; nor is the bank entitled to charge for drayage which had been paid for by the check upon it of the principal makers of the note.</p>

Edward A. Belcher, Judge. In its instruction to the jury the court charged, in defining a reasonable doubt, that: “The reasonable doubt that I have mentioned means precisely what the words import—a fair doubt growing out of the evidence, or want of evidence, in the case, based upon reason and common sense.

<p>Taxation—National Bank Stock— Constitutional Law—Provision for Taxation not Self-executing.—Section I of article XIII of the constitution, providing that “all property in the state not exempt under the laws of the United States shall be taxed in proportion to the value, to be ascertained as provided by law,” and that “the word ‘property’ as used in this article and section is hereby declared to include moneys, credits, bonds, stocks,” etc., is not self-executing, but merely fixes the liability of property to taxation, and the standard upon which it is based, viz., in proportion to its value, but confides the duty of prescribing the machinery by which to ascertain the value to the legislature, with which the power of taxation is lodged; and it cannot be properly objected to the taxation of shares of national bank stock that they were not assessed in pursuance of the provisions of that section of the constitution.</p> <p>Id.—National Banks Agencies of Federal Government—Consent to Taxation—Restrictions upon Power.—National banks are agencies of the federal government, and are not subject to the taxing power of the state without its consent; but the general government has consented in section 5219 of the Revised Statutes of the United States that the states may tax the stock or shares of national banks, subject to the restrictions, that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state, and the shares of any national banking association owned by nonresidents of any state shall be taxed in the city or town where the bank is located, and not elsewhere.</p> <p>Id.—Rate of Taxation—Construction of Federal Statutes—Discrimination not Allowed.—The clause in the United States statute, that “ the taxation shall not be at a greater rate than is assessed upon other moneyed capital,” etc., means more than that there shall be no more discrimination with respect to the percentage, or any valuation which might be made, but that taking the assessment, rate of assessment, and valuation together, the taxation in shares of national banks should not be greater than on other moneyed capital, and where there is a discrimination under the state law of taxation of shares of national banks in favor of state banks or other moneyed capital, such discrimination is violative of the act of Congress,</p> <p>Id,—Construction of Political Code—Void Tax of National Bank Shares.—Under section 3608 of the Political Code, shares of stock in national banks are not subject to assessment for purposes of taxation and the shares of state banks being exempt from taxation under that section, the shares of stock in national banks cannot be assessed as other personal property, as the machinery provided therefor works such a discrimination in favor of state banks and against shares of national banks as to be violative of the restrictions of the act of Congress, and an assessment and tax of national bank shares is null and void.</p>

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

Motion in the Supreme Court to substitute a defendant and to dismiss an appeal from an order of the Superior Court of San Bernardino County denying a new trial. George E. Otis, Judge. The facts are stated in the opinion of the court.

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

<p>Divorce—Judgment for Husband — Wife’s Motion tor New Trial— Costs of Transcribing Evidence — Order against Husband — Remedy — Vacation of Judgment — Jurisdiction.—The superior court has authority to direct the husband, who has a judgment in his favor in an action for divorce, to pay the costs of the transcription of the evidence by the phonographic reporter, and may enforce “the order by any remedy applicable to the case”; but the husband, having acquired a right in the judgment for divorce, cannot he deprived thereof except by such proceedings as would authorize a court to vacate or set it aside in any other action, and it is not a remedy applicable to the case to vacate the judgment for nonpayment of the costs ordered to be paid by the husband, and the court has no jurisdiction to vacate the judgment on that ground, or to vacate it on mere motion after the lapse of more than six months from its entry.</p> <p>Id.—Duty of Court to Settle Statement Found Correct.—When the court finds that the statement prepared by defendant’s counsel represents as correctly as possible the proceedings had on the trial of the case, its proper course is to settle the same accordingly, without compelling the transcription of the evidence by the phonographic reporter, and upon such settled statement to hear and pass upon the motion.</p>

<p>Appeal from a judgment of the Superior Court of the City and County of San Francisco. J. 0. B. Heb-bard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract to Harvest Grain Crop—Con struction—Stipulated Facts— Unnecessary Loss—Recoupment of Damage.—A contract to harvest, thresh, and sack the whole of a grain crop in a thorough and farmer-like manner, without waste or unnecessary loss, and to use one or more combined harvesters in good working condition, is to be construed in view of the surrounding facts, and where, in an action to recover the balance due on the contract, it was stipulated that by reason of all the grain not being harvested within forty days after it was fit for harvesting, there was a loss through its shelliug out by wind and other causes, and by reason of weeds interfering with the harvesting and cleaning of the grain, to the extent of eight hundred dollars; and further stipulated that if, as matter of law, under the contract, it was the duty of plaintiff to have provided sufficient means to have threshed all the defendant’s grain without waste or unnecessary loss, then said defendant is entitled to said amount as damages, otherwise not, the plaintiff contending that it was only his duty, under the contract, to provide one harvester, and to continue the work therewith without cessation, until it was finished, the stipulation and contract must be construed as using the words “ waste or unnecessary loss” in the same sense, and the contract is to be construed as agreeing to use one or more combined harvesters, as the condition of the grain should indicate, it being known to the parties that the necessity for a quick and early harvest must depend greatly on the season, and as would be necessary that it might be done in a good and farmer-like manner, and without waste and unnecessary loss; and, under the contract and stipulation, the defendant is entitled to recoup the agreed amount of damage, with interest.</p> <p>Id.—General Intent—Reasonable Construction.—The clause of the contract in regard to the use of one or more combined harvesters, must be construed so as to effectuate the general intent manifest in the contract, and must receive a reasonable construction, and not one which seems unreasonable, or which makes the contract such as no farmer in his senses would have deliberately made.</p>

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

Appeals from an order of the Superior Court of Los Angeles County fixing the compensation of a receiver, and from an order denying an application to vacate an order of substitution. Lucien Shaw, Judge. The facts are stated in the opinion of the court.

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

<p>Chattel Mortgage—Sheep — Increase and Wool not Covered — Rights of Mortgagor.—A chattel mortgage upon sheep only, which does not expressly cover the increase or the wool from the sheep, extends only to the property expressly described, and creates no lien upon the increase and wool; but they are the property of the mortgagor, who may lawfully sell and dispose of the same, and may sell lambs which were in gestation, and wool which was upon the back of the sheep at the date of the mortgage.</p>

<p>Pleading—Demurrer to Complaint — Misjoinder of Parties—Sufficiency of Form.—A demurrer to a complaint upon the ground of a misjoinder of parties which designates the defendants who are improperly joined with the demurring party, sufficiently calls the plaintiff’s attention to the objection to the complaint and is sufficient in form. It is not necessary to incorporate into the demurrer an argument in support thereof, or to state therein the reasons why the misjoinder is improper.</p> <p>Id.—Proper Parties Defendant—Cause of Action against One.—If the relief sought by a plaintiff by reason of the cause of action as framed in his complaint, would render all of the persons named as defendants proper parties to entitle him to such relief, a defendant against whom a sufficient cause of action is stated, cannot demur for misjoinder of defendants because the complaint does not sufficiently state a cause of action against another defendant.</p> <p>Id.—Action by Lessee to Enforce Lien for Improvements against Lessor—Purchaser of Land a Necessary Party.—In an action by a lessee of land against the lessor to have the value of certain improvements placed upon the land by the lessee declared to be a lien thereon, and to have the land sold for its payment, a subsequent purchaser of the land, who purchased it after the termination of the tenancy, is a necessary party defendant, and he cannot be said to be improperly joined as a defendant, even though the complaint does not sufficiently state a cause of action for affirmative relief against him.</p> <p>Id.—No Lien for Improvements without Express Agreement.—In the absence of an express agreement to that effect, a tenant has no lien upon leased land for the value of improvements placed thereon, under an agreement that the landlord shall pay for the same, at the expiration of the term.</p> <p>Landlord and Tenant—Lease—Personal Covenant of Lessor—Payment for Improvements—Purchaser after Breach not Liable.— A covenant in a lease of land by the terms of which the lessor agrees upon the expiration of the term to pay for any improvements which the lessee might put upon the land under a permission therefor in the lease, without any covenant by the lessee to make improvements, is a personal covenant upon the part of the lessor, and not one which can be enforced against one who purchases the land after the breach of such covenant.</p>

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

<p>Ejectment—Damages—Amendment of Answer—Counterclaim—Trespass oe Cattle upon Contiguous Premises.—In an action of ejectment to recover the possession of a tract of land, with damages for its detention, and for the value of the rents and profits, a proposed amendment to the answer, setting forth a claim for damages in consequence of the cattle and stock of the plaintiffs running and grazing upon lands of the defendant contiguous to the demanded premises, does not constitute a defense to the action, nor a proper subject matter of counterclaim, and such proposed amendment is properly disallowed.</p>

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

<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>District Attorney—Term of Office—Compensation for Holding Over— County Government Act—Repeal of Code Provision.—Section 4109 of the Political Code, limiting the term of office of certain county officers, including the district attorney, to the precise period of two years, was repealed by section 60 of the County Government Act, providing that all officers elected thereunder shall hold office until their successors are elected or appointed and qualified; and the district attorney is entitled to demand and receive compensation in proportion to his monthly salary for such part of a month as he may hold over, after the expiration of the term for which he was elected, until his successor has qualified.</p> <p>Id.—Statutory Construction — Revision — Repeal by Implication.— Whenever it clearly appears that the intention of the legislature, by a later act, is to revise the entire subject matter of a former act, the subsequent act operates as a repeal of the former, although it contains no precise words to that effect; and even if the subsequent statute be not repugnant in all of its provisions to a prior one, yet, if the later statute was clearly intended to prescribe the only rule which should govern in the case provided for, it repeals the original act.</p> <p>Id.—Construction of County Government Act—Pro Rata Compensation of Officers.—The County Government Act, though providing for warrants in favor of county officers for their salary, to be drawn on the first Monday of each and every month, contemplates that the warrant may be drawn for such fractional portion of a month as the officer may actually serve after the first Monday of January, with which his term ordinarily concludes.</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. Seawell, 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 Alameda County, and from an order denying a new trial. A. L. Frick, Judge. The facts are stated in the opinion of the court.

<p>Nonsuit—Failure to Except—Presumption upon Appeal.—Where a nonsuit is granted, and the plaintiff fails to except to the order granting it, it must be assumed upon appeal that, upon the evidence before the court, the nonsuit was properly granted.</p> <p>Id.—Findings.—Where a nonsuit is granted, there is no occasion for any findings upon the issues presented by the pleadings.</p> <p>Id.—Foreclosure of Mechanics’ Liens—Consolidation of Actions— Default of Contractor—Effect of Nonsuit as to Owners.— Where several actions to foreclose mechanics’ liens are consolidated, and a nonsuit is granted in favor of the owners as to one of the plaintiffs for the insufficiency of his claim of lien, they are entitled to judgment against him for costs, and he is not entitled to judgment against them for the unpaid amount of the purchase price; but such plaintiff still remains a party to the action as against the other lien claimants and the contractor, and when the contractor has made default, is entitled to judgment against him by default.</p>

J. V. Coffey, Judge. The complaint in the action of Dyerville Manufacturing Company v. M. Heller & Sons alleged an infringement by the defendant ‘of the plaintiff’s trademark as a manufacturer of bleached cotton cloth, consisting of the words “Rockland Mills Water Twist,” with the form of label containing them, a copy of which was attached to and made part of the complaint, and prayed for “ an injunction commanding said defendants, their agents, attorneys, and employees not…

<p>Appeal from Judgment—Review of Evidence—Limitation.—There can be no review of the insufficiency of the evidence to justify the decision upon an appeal from the judgment, where such appeal was taken more than sixty days after the rendition of the judgment.</p> <p>New Trial—Right to Move Statutory—Loss of Right—Failure to Serve Notice of Intention in Time Limited.—The right to move for anew trial is statutory, and must be pursued in the manner pointed out by the statute; and where the notice of intention to move for a new trial is not served within the ten days prescribed by section 659 of the Code of Civil Procedure, and the time therefor is not lawfully extended, the right to move for a new trial is lost.</p> <p>‘Id.—Insufficient Extension of Time—Motion to Modify Findings— Order Staying Entry of Judgment.—A party cannot extend the time for service of a notice of intention to move for a new trial, at his own volition; and a motion by such party to modify and set aside the findings does not operate to extend the statutory time within which service of such notice must be made; nor does an order, upon his motion, staying the entry of judgment until after the determination of the motion to modify the findings, extend the time for the service of such notice.</p> <p>Id.—Construction of Code—“Notice of Decision” — Actual Notice Sufficient.—Under section 659 of the Code of Civil Procedure, which provides that a motion for a new trial must be made within ten days “after notice of the decision,” where it appears affirmatively that the party moving for a new trial had actual notice of the decision, no formal service of a written notice by the opposite party is necessary.</p> <p>Id.—Proof of Actual .Notice—Recital in Motion to Modify Findings.—Where a party moving for anew trial has made a formal written motion to set aside the findings, reciting in his motion that the court had filed its findings, he will not be heard to say that he had no notice of such findings.</p>

Waldo M. York, Judge. The main facts are stated in the opinion of the court.

<p>Criminal Law — Altering Official Returns — Comparison of Handwriting of Figures — Insufficiency of Evidence.—Upon the trial of .a defendant accused of altering the official returns of an election, where the only evidence adduced against him consists of the comparison of handwriting written by him in a state of excitement, with altered figures in the returns, and where no other single suspicious circumstance, or any motive or opportunity for the crime was proved against him, but it was shown without contradiction that he never had the package in his hands, and that he bore a good character, held, that "the evidence is insufficient to justify a verdict of guilty of the offense charged.</p> <p>Id.—Bill of Exceptions — Duty of Prosecution — Presumption upon Appeal.—Where the bill of exceptions, used on a motion for a new trial in a criminal case, specifies the insufficiency of the evidence to justify the verdict, it is the duty of the prosecution to have put into the bill some evidence, if any there be, to make it appear that there was proof of the participation of the defendant in the crime charged; and it will be presumed upon appeal that such specification is preceded by all the material evidence bearing thereupon.</p> <p>Id.—Documentary Evidence — Original Papers — Copies — Statement in Bill of Exceptions—Rule of Court—Possible Sufficiency of Proof.—It is not the duty of the prosecution to embody in the bill of exceptions original papers used as evidence in the court below, nor to provide photographic or fae simile copies thereof, but the bill need only state what written evidence was given to the jury; and it seems that, upon proper application, the original papers may be ordered brought up under rale XXV of this court, but if not .so ordered, the evidence is re- . viewed at a disadvantage, and in such ease the question is whether, accepting the statement in the bill of exceptions, it can be seen that, in the nature of things, the evidence might have been sufficient.</p> <p>Id.—Delay in Trial—“Good Cause”—Dismissal—Quaere.—The question as to what constitutes “ good cause” for delay in the trial of a defendant accused of crime beyond the period of sixty days prescribed by section 1382 of the Penal Code, which provides that the prosecution shall be dismissed unless good cause to the contrary be shown, if a defendant whose trial has not been postponed upon his application is not brought to trial within sixty days after the filing of the information, discussed but not decided.</p>

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

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

D. J. Murphy, Judge. The latter part of instruction X asked for by the defendant, and refused, and which is referred to in the opinion of the court, was as follows: “It is safer to err in acquitting, and better that many guilty persons should escape, than that one innocent man should suffer.

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

<p>Foreclosure of Mortgage — Statute of Limitations — Maturity of Note—Stipulation in Mortgage—Default in Interest—Penalty —Waiver.—The statute of limitations does not begin to run against the foreclosure of a mortgage until the maturity of the note secured thereby, notwithstanding a stipulation in the mortgage that if default be made in payment of the interest, or any part thereof, according to the tenor of the note, then the whole principal and interest shall become immediately due, and the mortgagee may proceed to foreclose and sell the mortgaged premises in the manner provided bylaw, such stipulation being in the nature of a penalty inserted for the benefit of the creditor, who waives all benefits from the default by accepting payment of interest after the default.</p> <p>Id.—Stipulation in Note fob Attorney’s Fees—Personal Judgment.— A stipulation in a note secured by mortgage for the payment of five per cent of the amount due and unpaid, as attorney’s fees, renders the note non-negotiable, but is not invalid or void; and, where the mortgage only secures the principal and interest of the note, it is proper, in an action to foreclose the mortgage, to render a personal judgment against the mortgagor pursuant to the terms of the note for the attorney’s fees therein stipulated.</p>

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

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

<p>Corporations—Subscriptions to Stock—Power op Assessment.—A corporation cannot levy an assessment until after one-fourth of its capital stock has been subscribed, where the terms of the agreement of subscription do not otherwise provide.</p> <p>Id.—Terms op Subscription—Measure op Liability—Construction op Agreement.—A subscriber to the stock of a corporation may, by the terms of his subscription, vary his liability to calls or assessments from that imposed by the statute, but the liability of the subscriber in such case is measured by the terms of his agreement, and is to be determined by a construction of the language used in the agreement.</p> <p>Id.—Pleading—Exhibit— Legal Effect of Subscription Contradicting Allegation—Demurrer.—Where a copy of the agreement of subscription, annexed to the complaint as an exhibit, shows a mere subscription to the shares set opposite the names of the subscribers, and to pay ten per cent in cash to the treasurer of the corporation, which cash payment appears to have been made, the legal effect of the subscription is to make further payments not otherwise than as assessments therefor might be legally made, and such legal effect of the agreement will prevail over an allegation that the defendant agreed to pay his subscription “when and as it might be demanded by said plaintiff,” and such allegation must be disregarded; and where the complaint shows that one-fourth of the capital stock had not been subscribed when the assessment sued upon was levied, a demurrer to the complaint, upon the ground that it states no cause of action, should be sustained.</p>

Application to the Supreme Court for an alternative writ of mandate to the Superior Court of Santa Clara County. John Reynolds, Judge. The facts are stated in the opinion of the court.

<p>Fraud—Election of Remedy—Rescission—Action for Damages—Limitations of Right to Damages—Arm’s Length—Compliance with Contract — Favors — Conditions—New Engagement—Waiver.—A party to a contract may elect to rescind the contract for fraudulent representations promptly upon discovering the fraud, and restoring the other party, as near as may be, to his former condition, or to affirm the contract and sue to recover damages for the deceit, without warning the other party that he intends at some future time to charge him with fraud; but the rule which relieves a party, when he elects to sue for damages, from the acts required of him when he elects to rescind, has the just limitations that, after knowledge of the fraud and election to sue for damages, he must stand toward the other party at arm’s length, must comply with the terms of the contract on his part, must not ask favors of the other party, or offer to perform the contract on conditions which he has no right to exact, and must not make any new agreement or engagement respecting it; otherwise he waives the alleged fraud.</p> <p>Id.—Lease of Hotel—False Representation as to Monthly Income —Waiver of Action for Damages—Failure to Complain—Favor Asked—Note for Rent—Nonpayment.—A cause of action for damages for fraud of the defendant in misrepresenting the amount of income received monthly from a hotel leased by the defendant to the plaintiff, is waived where it appears that the defendant occupied the premises . for about seventeen months after knowledge of the facts constituting the fraud, without making any complaint thereof or giving any intimation that any false representations had been made until suit was brought, and meanwhile had asked for a reduction of rent, and was permitted to, and did give, a note for unpaid rent, which he failed to pay at maturity.</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>

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

<p>Lien of Laborer on Threshing-machine — Operation by Possessor under Contract with Owner.—Under the “Act to secure the wages of persons employed as laborers on threshing-machines, ” approved March 12, 1885, a laborer performing labor in and about the operation of a threshing-machine and outfit, at the employment of one not the actual owner of the machine, hut lawfully in the possession and operation of it under contract with the owner, is entitled to the lien upon the property for his services.</p> <p>Id.—Actual Ownership Immaterial—Possessor Deemed Owner—Constitutional Law—Due Process of Law.—As respects the enforcement of the lien upon the threshing-machine, the actual ownership of the property is an immaterial circumstance, and the one lawfully hold, ing from the actual owner the possession and right to operate the machine is to be deemed, for the purposes of the statute, the owner of the property; nor is the giving to one not employed by the actual owner the benefit of the lien, in such case, subject to the constitutional objection that it authorizes a deprivation of the property of the owner without due process of law.</p> <p>Id.-—Case Affirmed.—The decision in the case of Olvurch v. Garrison, 75 Cal. 199, affirmed.</p>

B. N. Smith, Judge. The defendant was accused of feloniously injuring the building of one T. D. Stimpson by explosion of gunpowder and other explosive substances, by means of which the lives and safety of said T. D. Stimpson and other human beings were in danger. Further facts are stated in the opinion of the court.

Habeas Corpus in the Supreme Court to test the jurisdiction of the state senate to punish petitioners for contempt. The facts are stated in the opinion of the court.

<p>Criminal Law—Robbery — Grand Larceny—Presence or Absence op Force or Fear — Question for Jury — Instructions—Erroneous Charge Eliminating Larceny.—In every trial upon a charge of robbery in taking property from the person of another with force or fear, the offense of grand larceny is included, and where the evidence justifies it, the court should of its own motion instruct the jury to that effect, and that their verdict may be framed along those lines; and where the evidence is such as to make it a question of fact for the jury to determine whether there was the presence or absence of force or fear in the taking, it is error demanding a reversal of a judgment of conviction of robbery to give an instruction that has the effect of eliminaing any question of larceny from the case.</p> <p>Id.—Snatching Property from Hand or Vest.—Grabbing or snatching property from the hand of another person is grand larceny, and not robbery; and where a watch and chain is hurriedly snatched from the vest of another, it is a question for the jury whether the taking was robbery or grand larceny, according as they find the presence or absence of force and fear.</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. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>Appeal from a judgment of the Superior Court of Tuolumne County, and from an order denying a new trial. 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 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>

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

Appeals from a judgment of the Superior Court of Alameda County and from an order denying a new trial. John Ellsworth, Judge. The facts are stated in the opinion of the court.

<p>Estates of Deceased Persons—Maturity of Note and Mortgage after Death—Statute of Limitations—Presentation of Claim.—The general rule is that the statute of limitations does not begin to run when no administration exists on the decedent’s estate at the time the cause of action accrued; and where a note and mortgage were not mature at the date of the death of the mortgagor, they are not barred by the statute of limitations, although letters of administration were not issued until more than four years after the maturity of the note and mortgage; and a claim for the note and mortgage presented to the administrator promptly upon the publication of notice to creditors is properly allowed.</p>

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

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

<p>Attachment — Garnishment — Action by Judgment Creditor against Garnishee.—After execution unsatisfied against the judgment debtor, the judgment creditor may bring an action at law against a garnishee upon whom notice was served under an attachment issued in the action before judgment; and it is not necessary before bringing such action that the garnishee should be required to appear and answer, or that an order should be obtained authorizing the action against the garnishee; and no equitable circumstance need be shown to justify the suit, which is upon a direct liability of the garnishee to the plaintiff in that suit provided for in section 544 of the Code of Civil Procedure.</p> <p>Id.—Statute of Limitations—Defenses of Garnishee and Intervenor. No statute of limitations applies to the liability created by the garnishment; though the garnishee may plead any defense which he may have against his creditor, or that the debt of that attaching creditor has been satisfied, or that he has failed to recover judgment, or that the judgment has been reversed, or has been barred; and any other claimant of the fund in the hands or the garnishee may intervene and plead the latter defenses against the attaching creditor, but neither the intervenor nor the garnishee can plead the statute of limitations to the liability arising distinctively out of the garnishment.</p>

<p>Acknowledgment—Deed of Married Woman—Action to Correct Defective Certificate — Pleading — Evidence — Finding — Relief beyond Specific Allegations.—In an action to correct a defective certificate of acknowledgment of a deed by a married woman, where the complaint sets forth the conveyance, and its proper acknowledgment to the notary, and alleges that the notary, in affixing his certificate, omitted to certify therein “that, upon examination without the hearing of her husband, he had made her acquainted with the contents of the said deed, but used for his acknowledgment a blank form appropriate to certifying the acknowledgment of an unmarried woman, ” and the answer takes issue upon the averments of the complaint, and evidence was received without objection which supports a finding that the deed was properly executed and acknowledged, but that the notary in affixing his certificate “omitted to certify therein that, upon examination without the hearing of her husband, the said notary had made her acquainted with the contents of the said deed, and that thereupon she acknowledged to him that she executed the same, and that she did not wish to retract said execution,” the court is authorized to have the certificate corrected in accordance with the findings, including the acknowledgment that she did not wish to retract said execution, although not specifically pleaded in the complaint.</p> <p>Id.—Relief upon Answer—Case Made by Complaint—Defective Allegation of Particulars—Failure to Object.—Under section 580 of the Code of Civil Procedure, the court, where there is an answer, may grant any relief consistent with the ease made by the complaint, and embraced within the issue; and the case made by the complaint herein, as well as the issue between the parties, is the right of plaintiff to have the defective acknowledgment corrected, and the relief granted was consistent therewith; and though the failure of the complaint to allege all the particulars in which the defect consisted might have been ground for refusing to admit evidence of defects not specifically pleaded, yet the parties might consent to have such defects considered by the court, and where no objection appears to have been made to full proof thereof, it will be presumed on appeal, upon the judgment-roll alone, in support of the judgment, that all objections to evidence in support of the findings were waived.</p>

<p>Appeal from a judgment of the Superior Court of Kern County and from an order refusing to vacate and set aside said judgment. A. B. Conklin, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Fraud— Rescission of Purchase of Bank Stock—Stockholder’s Liability—Voluntary Payment—Insufficient Complaint.—A complaint showing that a purchase by plaintiff of bank stock from the defendant had been rescinded for fraudulent representations inducing the purchase, and alleging that plaintiff was sued as a stockholder by attachment upon large claims for indebtedness which existed at the time of the transfer of the stock by defendant to plaintiff, and that plaintiff had a proportionate share of said claims on account of said stock, for which sum damages were claimed, states no cause of action for damages, but merely shows a voluntary payment hy plaintiff of a liability which pertained alone to the defendant, and from which defendant was not released by the transfer.</p>

<p>Appeal from a judgment of the Superior Court of Alameda County. W. E. Greene, 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.</p>

<p>Pish—Ownership op State—Title to Lands Immaterial.—The fish within the waters of the state constitute the most important constituent of that species of property commonly designated as wild game, the general right and ownership of which is in the people of the state; and to the extent that waters are the common passageway for fish, whether such waters flow over lands, the title to which is in the government of the state or of the United States, or over lands entirely subject to private ownership, they are deemed for such purposes public waters, and subject to all laws of the state regulating the right of fishery.</p> <p>Id.—Extent op State’s Dominion—Non-navigable Waters—Resort and Passage op Fish.—The dominion of the state for the purpose of protecting its sovereign rights in the fish within its waters, is not confined to navigable waters, but extends to non-navigable streams, wherein fish are habited or accustomed to resort for spawning or other purposes, and through which they have freedom of passage to and from the public fishing grounds of the state.</p> <p>Id.—Judicial Notice—Non-navigable Stream Connecting Navigable Lakes—Truckee River—Passageway op Fish.—The court will take judicial notice that the Truckee river, though a non-navi gable stream, has its source in Lake Tahoe, a large, navigable body of water lying partly in this state, and that it empties into Pyramid Lake, in the state of Nevada, which is also navigable; and that the river has from time immemorial afforded a natural and free passageway for the passage of fish habiting those lakes.</p> <p>Id.—Injury to Fish—Pollution of Truckee River—Refuse from Sawmill—Public Nuisance—Injunction—Action by State.—The pollution of the Truckee river by refuse matter which is poisonous and deleterious to the fish therein, and which is deposited from a sawmill . operated on its bank, to the injury and destruction of the fish in the stream, is a public nuisance, which may be enjoined in an action brought by the attorney general in the name of the state.</p> <p>Id.—Remedy—Punishment by Penal Code not Exclusive. —The fact that the acts complained of are made a misdemeanor, and punishable as such, does not make them less a nuisance, nor imply that the legislature intended to make the criminal remedy exclusive of the civil.</p> <p>Id.—Relator—Information by Attorney General.—The attorney general is privileged to maintain an action to enjoin a public nuisance on his own information, without the intervention of a private relator.</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>

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

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

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

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

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

<p>Certiorari to review an order of the Superior Court of Santa Clara County directing a citation to issue in a proceeding for the revocation of the probate of a will. John Reynolds and W. Gr. Lorigan, Judges.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract to Construct Ditch—Guaranty of Capacity—Construction of Contract—Warranty—Time for Payment.—Where, by the terms of a contract for the construction of a ditch, the contractor was entitled to his money when a cut was made sufficient in capacity and grade to carry all the waters of a creek, and he was required to guarantee that all the waters of the creek should run through the cut for two years from the completion of the work, such guaranty is in the nature of a warranty, for which the owners of the ditch took the responsibility of the contractor, and he is not required to wait for the two years, and then show that the ditch had carried all the water at all times, to enable him to recover.</p> <p>Id.—Action for Compensation—Performance—Acceptance of Ditch— Inapplicable Instruction—Verbal Alteration of Written Contract.—In an action by the contractor to recover the agreed compensation for the construction of the ditch, where the plaintiff contended that he had fully performed his contract, and also that the defendants had accepted the ditch as completed, the latter contention is not a claim that the contract had been varied, but that the defendants had accepted the work, and thereby agreed that it had been done as required, or that, by an executed agreement, which the parties were competent to make, further performance was waived, and the owners of the ditch accepted the work, and bound themselves to pay for it, although the contract had not been fully performed; and it is not error to refuse to instruct the jury, at the request of the defendants, upon the subject of verbal alterations of written contracts, even if the instructions asked were not substantially given by the court.</p> <p>Id.—Levy of Assessment—Erroneous Instruction as to Acceptance._ Neither the levy of an assessment upon the-ditch nor an agreement to pay the workmen, while denying that the contract has been performed, and claiming that nothing is due to the plaintiff, can constitute an acceptance of the work; and an instruction to the jury that it is for them to determine whether the levy of an assessment of one thousand dollars was an alteration of the contract, to the extent that it constituted an acceptance of the work, is doubly erroneous in submitting to the jury a question of law, and in instructing on the question of an acceptance of the work.</p>

Application in the Supreme Court for a writ of supersedeas to stay execution upon a judgment of the Superior Court of the City and County of San Francisco, pending an appeal therefrom. James M. Trotjtt, Judge.

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

<p>Guaranty—Shipments in Specific Cars.—A guarantor for the payment of drafts drawn to cover shipments of fruit to be made in cars which are specially designated in the contract of guaranty is not liable for the payment of drafts which show on their face that they were drawn to cover shipments made in different cars.</p>

<p>Promissory Note—Overdraft—Pleading.—In an action on a promissory-note for a sum certain, but which recites that it was given to secure an overdraft of the maker, the complaint must allege the fact of the existence of an overdraft at the time the action is brought.</p> <p>Id__Construction of Overdraft Note,—A note for a sum certain with interest made payable by its terms at a specified time after date, and which recites that it was given to secure an overdraft of the makers, will be construed as intended to secure whatever overdraft might exist at the date of its maturity, not exceeding the amount specified in the obligation, with interest thereon.</p>

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

<p>Cross appeals by the plaintiff and defendant from a judgment of the Superior Court of San Luis Obispo County. J. W. McKinley, Judge.</p>

<p>Practice—Dismissal—Verbal Stipulation—Appeal. — Where the evidence as to a verbal agreement between the attorneys for the respective parties for a delay in the trial of a case is conflicting, the action of the trial court in dismissing the case for want of prosecution, several years having elapsed without any effort on the part of the plaintiff to bring it to trial, will not be reviewed on appeal.</p> <p>Id.—Conflict of Evidence.—Verbal stipulations with reference to pro. ceedings in pending actions cannot be regarded except so far as they are admitted by the parties against whom they are sought to be enforced, or have been wholly or in part executed. And if a party against whom a verbal stipulation is invoked, denies that such a stipulation was made, the court will not hear the parties for the purpose of settling tlie dispute.</p>

Motion in the Supreme Court to dismiss an appeal from the Superior Court of Tulare County. Wheaton A. Gray, Judge. The facts are stated in the opinion of the court.

<p>Jury Trial—Rule of Court—Deposit of Jury Fees by Party Demanding Jury—Waiver—Trial by Court.—A rule of the superior court requiring that the party demanding a jury trial shall deposit the jury fees with the clerk within five days after making such demand, and that, should the trial continue more than one day, the party demanding the jury shall deposit with the clerk, before the opening of the court on each day, the jury fees for each day so occupied in the trial, is reasonable, and if no deposit is made or tendered as required by the rule, the jury is waived, and the cause may be tried by the court without a jury.</p> <p>Id.—Action to Quiet Title—Demand of Jury at Trial—Failure to Make or Tender Deposit—Nature of Action Immaterial.—Where an action to quiet title was set for trial, and no jury had been demanded or ordered for the trial of the cause, and a jury was first demanded by the plaintiff after the cause was called for trial, and the parties had announced themselves ready, and no deposit of jury fees was then made or offered, or had, at any time, been made or offered by the plaintiff, it is not error to refuse a jury trial on account of the failure of plaintiff to comply with the reasonable rule of the court; and it need not be determined whether such an action is, in its nature, equitable or not.</p> <p>Mining Claim — Effect of Discovery—Location Essential—Valid Location by Other Parties—Title.—The discovery of a mining claim vests no right or title to the property, and is but one step in acquiring title to a mining claim, and must be followed by a location, which consists of the marking of the claim by monuments so that its boundaries can be readily traced, the posting of a notice thereon, and, where the state or district law requires it, the recording of such notice; and where the discovery of the claim is first made by two persons, and a valid location of claims extending each way from the point of discovery is first made by other persons, the title of such locators will prevail as against the first discoverers of the claim.</p> <p>Id.—Placing of Monuments—Conflicting Evidence—Findings.—Where there is conflicting evidence as to the marking of the locations by monuments, and there is affirmative testimony that monuments were erected at the center of each end of the two claims, and also at each of the four corners of each of the claims, and that notices of location were posted oil the initial monument of each of the claims, and that the notices were duly recorded, the findings of the court in favor of the ownership of the locators cannot be disturbed upon appeal.</p> <p>Id.—Citizenship of Locator—Objection in Argument upon Appeal for First Time..—Where the location notice recites that the locator is a citizen of the United States over the age of twenty-one years, and there is no specification of the invalidity of the location upon the ground that he was not a citizen, nor was any objection made to the introduction of the notice in evidence on that ground, the objection that there was no evidence to prove his citizenship is not raised by the record and cannot be considered upon suggestion made in the appellant’s brief upon appeal for the first time.</p> <p>Id.—Findings as to Ownership—Ultimate Facts—Probative Facts Included.—Where the court found as ultimate facts that the plaintiff is not, and was not at any time, the owner of the property described in the complaint, and that the defendants are the owners of said property, the findings are sufficient, and include the finding of all probative facts necessary to sustain the finding of the ultimate facts.</p> <p>pD.—Quieting Title—Pleadings — Possession of Defendant—Denial of Plaintiff’s Title—Evidence of Title not Pleaded in Answer. Where the complaint, in an action to quiet plaintiff’s title to a mining claim, shows that the defendants are in possession, defendants may, under a denial of plaintiff’s title, without pleading their own title specifically, disprove plaintiff’s title, either by showing that be made no valid location, or that they had made a prior valid location of the claim, which precluded the possibility of a valid location by the plaintiff.</p>

<p>Criminal Law—Pleading—Motion to Set Aside Information—Irregularities at Preliminary Examinations—Review upon Appeal.— A judgment of conviction in a criminal case will not be reversed for refusal of a motion to set aside the information because of mere irregularities in the preliminary examination, not affecting a substantial right of the defendant.</p> <p>Id. —Calling in another Justice at Preliminary Examination—Reason for Order—Subscription to Docket—Directory Statute—A justice of the peace has power to call in another justice for the purpose of making a preliminary examination, and it is not required that the order requesting another justice so to act should set forth the reason why the request was made; nor does the failure of such other justice to subscribe the docket, as provided in section 105 of the Code of Civil Procedure, affect any substantial right of the defendant, it not appearing that any material proceeding must be so entered and subscribed in the case of a preliminary examination, and that section, if applicable to a preliminary examination, is merely directory.</p> <p>Id.—Indorsement of Order Holding to Answer.—The order holding a defendant to answer at the conclusion of the preliminary examination is not invalid because not indorsed upon the depositions other than the complaint, and it is sufficient if it is indorsed upon the complaint.</p> <p>Id.—Absence of Formal Commitment—Substantial Compliance with Law.—The absence of a formal commitment running to the sheriff, is not ground of reversal; hut, where the defendant was originally committed to the custody of the sheriff by the order indorsed upon the warrant of arrest, and afterward by the order indorsed upon the complaint, the law is substantially complied with, and, in any event, the question whether the sheriff was properly holding the defendant under the commitment could only be material during the time when the sheriff was so holding him.</p> <p>Id.—De Facto Justice of the Peace—Order Changing Boundaries of Township—Nonresidence of Justice.—Assuming that a valid order has been made changing the boundaries of a township so as to make a justice of the peace a nonresident of the township, yet, if no other person was appointed to fill the office, and the justice continues to act as such justice and to do business as a justice of the township, without being ousted therefrom, he is a defacto justice of the peace of the township, and his right to exercise the functions of the office cannot be questioned in a collateral proceeding.</p> <p>Id.—Jury Trial—Special Venire—Discretion—Appointment of Elisor —Disqualification of Sheriff—Coroner.—Where the venire drawn from the regular jurors has been exhausted, the court has discretion to order a special venire of jurymen to be summoned from the body of the county; and it may appoint an elisor to summon them, where the sheriff is admitted to be disqualified, and the coroner is shown to have been a member of the coroner’s jury, which disqualified him under subdivision 4 of section 1074 of the Penal Code.</p> <p>Id.—Homicide—Evidence—Arming of Deceased—Rebuttal.—Where a defendant charged with murder has testified that he believed the deceased was armed at the time of the homicide, it is not error to allow testimony for the prosecution in rebuttal that, as matter of fact, the deceased was not armed.</p> <p>Id.—Unfriendly Relations between Uefendant and Deceased—Absence of Prejudicial Error.—Where a witness testifying to unfriendly relations between the defendant and the deceased, stated fully the facts upon which his testimony was based, and the same kind of testimony was afterward introduced without objection, there can he no prejudicial error in the admission of the testimony.</p> <p>Id.—Newspaper Article Published by Defendant—Threat against Deceased—Identification of Parties.—It is not ground of reversal to admit in evidence an article published by defendant in his newspaper, where it cannot be said, as matter of law, that it cannot be fairly construed as containing a threat against the deceased, and where the article on its face might well be taken as referring to the deceased, and it appears from the record that evidence was introduced to identify the parties referred to.</p> <p>Id.—Objection on Appeal for First Time—Reference of Article to Deceased.—Where such newspaper article was objected to at the trial, only on the ground that it was not competent or material, it seems that the objection cannot be urged on appeal for the first time, that the article does not, on its face, refer to the deceased.</p> <p>Id.—Cross-examination of Prosecuting Witnesses—Evidence in Chief for Defendant—Ruling without Prejudice.—The defendant has no right to elicit evidence on cross-examination of witnesses for the people, where the questions asked do not refer to any matter testified to by such witnesses in chief for the prosecution; and where such witnesses were afterward called for the defendant, and testified fully as to the matter inquired about on cross-examination, the defendant could not be prejudiced by the refusal to allow the cross-examination, even if erroneous.</p> <p>Id.—Intoxication of Defendant—Opinion from Appearance.—It is admissible for a witness to state that, judging from the appearance of the defendant at the time of the homicide, he had been drinking.</p> <p>Id.—Cross-examination of Medical Witness—Contusion upon Defendant.—Where a medical witness called for the defendant testified in chief that he found a contusion, enlargement and discoloration upon Ms person, he may be asked, on cross-examination, if they were such as to require medical treatment.</p>

Application 'to the Supreme Court for a discharge from imprisonment upon a writ of habeas corpus to the sheriff of the County of Orange. The order under which the prisoner was held was made by the Superior Court of the County of Orange. J. M. Ballard, Judge. Further facts are stated in the opinion of the court.

<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>

<p>Taxation—Redemption of Land Sold to State—Law at Date of Sale to Govern.—The redemption of land sold to the state for delinquent taxes is governed by the law in force at date of the sale; and, upon a redemption made after the passage of the act of March 28, 1895, of land sold for delinquent taxes prior thereto, the owner entitled to redeem is not required to pay the amount fixed by that act.</p> <p>Id.—Retroactive Statute — Impairment op Vested Right — Constitutional Law.—Though the legislature evidently intended, by the language used in the act of March 28, 1895, to make it apply to sales for delinquent taxes to the state theretofore as well as thereafter, yet it is beyond the power of the legislature, after a tax sale, to impose more onerous conditions upon the right to redeem than those which existed when the sale was made; and the retroactive provision of said act is unconstitutional and void in so far as it purports to impair the vested right of redemption, which was a condition of the contract of purchase when made.</p>

John Hunt, Judge. The jury rendered a verdict in favor of the plaintiff for the sum of twenty-five hundred dollars. Further facts are stated in the opinion of the court.

<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>

Matt. F. Johnson, Judge. The facts are stated in the opinion of the court rendered upon the former appeal, 85 Cal. 622, and in the opinion rendered upon this appeal.

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

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

<p>Appeal from a judgment of the Superior Court of Stanislaus County and from an order denying a new trial. William O. 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 ICern County and from an order denying a new trial. A. ft. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Grand Larceny—“Taking from Person”—Petit Larceny—Taking from: Pocket under Head of Sleeper.—In order to constitute the offense of grand larceny, in taking property of less value than fifty dollars from the person of another, the property must, at the time of the taking, be in some way actually upon or attached to the person, or carried or held in actual physical possession; and the taking of the sum of seventeen dollars from the pocket of trousers placed under the head of a sleeper, is not a “taking from the person” within the statutory definition of grand larceny, but only constitutes the offense of petit larceny.</p>

<p>Water Rights — Stream Appurtenant to Land — Division op Land-Grant by Implication — Equal User.— Where the owner of land through which a stream flows divides the land into two parts, and grants away one of them, the grantee takes by implication a right to the water necessary for the reasonable enjoyment of the part granted; and where the parties have for many years each used one-half of the water of the stream, without interference, it must he held that the grantee and his successors in interest acquired a right to take and use one-half of the water of the stream; and the rights of the grantor are not paramount to the rights of the grantee.</p> <p>Id. — Change of Place of Diversion — Quantity Unchanged. — The owner of a water right may change the place of diversion to a point higher up the stream, provided the rights of others are not injuriously affected thereby; but he does not, by such change, increase or diminish the share of the water that he is entitled to divert.</p> <p>Id.—Riparian Rights—Domestic Use—Irrigation—Division of Use.— Riparian owners are entitled to have their natural wants supplied by using so much of the water as is necessary for strictly domestic purposes, and to furnish drink for man and beast, before any can be used for purposes of irrigation; and after their natural wants are supplied, each party is entitled to a reasonable use of the remaining water for irrigation; and where the interests of the parties will be conserved thereby, the court may apportion the flow of the water of the stream to the respective owners by periods of time, so that each may have the full flow during the designated period.</p>

<p>Dedication of Street—Findings—Conflicting Evidence—Appeal.— Where there is conflicting evidence as to whether what is claimed to be a public street, was or was not dedicated to public use by the owner of suburban land, findings that there was no dedication, or offer of dedication and acceptance by use by the public, which are sustained by the evidence for the defendant, will not be disturbed upon appeal.</p> <p>Id.—Use by Public without offer of Dedication.—A use by the public which is not referable to any offer of dedication on the part of the owner, does not prove the existence of a public street.</p> <p>Id.—Marking of Streets upon Unrecorded Map—Sales of Lots—Declarations of Vendor—Private Ways—Obstruction across Street —Absence of Intention to Dedicate.—The mere marking of streets upon an unrecorded map of a suburban addition to a town, where the purchasers of lots thereupon were informed by the vendor and his agent that the streets were not dedicated to public use, but were to be maintained as private ways, subject to the rights of persons to whom lots in the tract might be sold, to use them in connection with their land, does not constitute a dedication thereof to public use; and where there is evidence that obstructions were constantly maintained across the northern end of one of such streets by the owner of the land, and that it was never his intention to dedicate the street to public use, a finding that there was no dedication of the street, is sufficiently supported.</p>

<p>Findings—Conclusion of Law — Order for Judgment—Appeal—Substantial Right not Affected.—An order for judgment in accordance with the findings of fact is a sufficient conclusion of law to support a judgment npon appeal, where it is evident that any more specific conclusions of law must have been in favor of the party for whom judgment was ordered; and, in such case, the absence of more specific conclusions is not an error or defect affecting any substantial right for which the judgment should be reversed.</p> <p>Mortgage—Description of Land—Survey of Mexican Grant—Reference to Government Sections —• Map. — Although the government authorities do not survey and subdivide lands within a Mexican grant, and there can be no government section of land not established under authority of the United States, yet the owner of a Mexican grant may have the same surveyed and subdivided in the same way as if the grant was part of the public domain; and, where this is done, a mortgage of land may describe it by the subdivisions thus established, and it is not essential that the map of such survey should be referred to specifically in the mortgage.</p> <p>Id.—Definiteness of Description—Identification.—It is only necessary that the description of premises in a deed or mortgage shall be sufficiently definite and certain to enable the land to he identified; and it is sufficient if it is possible from the whole description to ascertain and identify the land intended to be conveyed or mortgaged.</p>

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

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

<p>Public Nuisance—Discharqe of Sewaqe—Injunction.—Where the discharge of the sewage of a city from the sewer system constructed therein, and from the vault located at the lower end thereof into a creek, is a public nuisance, it may he enjoined and abated in the name of the people upon relation of a party aggrieved thereby; and it is not ground for reversal that the judgment operates to deprive the city of the use of any part of the creek for the deposit of its sewage.</p>

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

<p>Statute of Limitations—Adverse Possession—Continuous Inclosure —Temporary Interruption by Flood.—Although, in a general sense, one who relies upon adverse possession by an inclosure must show a continuous and uninterrupted possession thereby, for the term of five years, yet a mere temporary destruction of portions of the inclosure, during flood times, which are repaired within a reasonable time thereof, does not break the continuity of the possession, nor defeat the statute of limitations. ,</p> <p>Id.—Proof of Payment of Taxes.—Where there is no evidence in the record to show that the land in dispute was assessed to any one but the defendant, and it fairly appears from defendant’s testimony that he paid ail taxes assessed and levied thereon, a sufficient compliance is shown, with the statute of limitations as to the payment of taxes.</p>

<p>Municipal Corporations—Water Supply—Conditional Contract—Action for Breach—Insufficient Complaint. —Where a contract by a city for a water supply was conditional on the discovery and development of a sufficient supply of clean, sweet, and wholesome water suitable for drinking water and domestic uses, within six months after the date of the contract, and provided that otherwise both parties should be released from all liability under the contract, in an action by the contractor or his assignee for damage for breach of the contract on the part of the city, it is not sufficient for the complaint merely to allege generally a compliance with all the requirements and conditions of the contract, to be performed by the contractor or his assignee, but it must be specifically averred that the contractor or his assignee discovered or developed water of the required quality and quantity within the six months allowed therefor, and a complaint lacking such averment does not state a cause of action.</p>

<p>Contract as to Grape Crop—Action for Breach—Cross-complaint— Conflicting Evidence—Question for Jury—Improper Instruction. In an action for damages for breach of a contract to deliver grapes to be shipped and marketed by the plaintiff for the defendant, where the defendant denied the breach, and by a cross-complaint counterclaimed damages from the plaintiff for failure to receive and ship the grapes, where there was conflicting evidence as to whether the defendant, through an agent, had excused performance by the plaintiff, and the plaintiff’s contention was that the grapes were unfit for shipment, and that nothing could be realized upon them by shipping, and that defendant’s agent agreed to this, and refused to deliver them for shipment, such contention, if true, was a complete defense to defendant’s counterclaim for damages, unless defendant established the contention that the unfitness of the grapes for shipment resulted from the fact ihat they were overripe, and that plaintiff had refused to receive and ship them at a proper time; and the determination as to which contention was right under the evidence was for the jury; and it was error for the court to take the matter from the jury by an instruction that if the plaintiffs failed to pack the grapes and ship them as they had agreed, it was their duty to find for the defendant in any sum that they find from the evidence that the defendant has been damaged by the failure of the plaintiff to comply with the contract, thereby ignoring the special defense to the defendant’s counterclaim.</p> <p>Id. —Prejudicial Error—Conflicting Evidence as to Agency.—Where there was conflicting evidence as to the agency for the defendant of the person claimed to have agreed for defendant that the grapes need not be shipped, the court could not assume that he was without authority, and it cannot properly be urged that the error in the instruction ignoring the special defense to the defendant’s counterclaim was not prejudicially erroneous for want of authority on the part of such agent to represent the defendant.</p> <p>Id.—Agreement to Ship and Market Grapes — Counterclaim—Inspection of Grapes— Caveat Emptor—Inapplicable Instruction. The doctrine of caveat emptor does not apply to an agreement to ship and market grapes for another, there being no purchase thereof by the shipper; and in an action upon such contract for failure to deliver the grapes, where defendant counterclaimed damages for failure of plaintiff to receive and ship them, it is error to instruct the jury that if plaintiff’s agents inspected the grapes before entering into the eontract, plaintiff cannot urge that the grapes were not fit to ship, or object to their quality.</p> <p>Id.—Breach by Plaintiff—Damages — Evidence — Condition and Quality of Grapes.—Notwithstanding the inspection of the grapes by the plaintiff’s agents and conceding a breach of the contract by plaintiff, it may be shown that without fault on plaintiff’s part, the grapes were in such a condition or of such inferior quality, that they would realize nothing if shipped, and that defendant has suffered no damage.</p> <p>Id.—Market Price of Good Grapes—Proof of Quality.—Under a contract to ship and market Malaga grapes of fair quality, the owner of the grapes is not entitled to the price which could have been real* ized for such grapes without proof that the grapes to be shipped were of that quality, and it may be shown by the person agreeing to ship and market them, that they were of inferior quality.</p> <p>Id.—Neslect of Shipper—Quality, how Determined.—If the shipper without excuse, neglected to make timely shipment of the grapes, the quality of the grapes is to be determined by their condition when they should have been shipped.</p>

<p>Estates of Deceased Persons—Contest of Will—Petition to Revoke Probate—Appearance by Guardian—Capacity of Petitioner—Uncertainty—Appeal—Review of Order denyingNbw Trial.—Where a petition for the revocation of the probate of a will is in form the petition of the mother of the deceased, but she is therein represented as appearing by her guardian, though the petition contain no allegation that she is under disability, nor that a guardian has been appointed for her, any defect in the pleading arising from uncertainty as to her capacity to institute the contest is not assignable as error on appeal from an order denying a new trial.</p> <p>Id.—Answers—Refusal of Amendment—Discretion—Estoppel of Petitioner as Sole Heir—Benefits Taken under Will.—Where the respondent to the petition for the revocation of probate, near the close of the trial, asked leave to amend their answers by adding allegations thereto, showing that the petitioner, who would take as sole heir, if the will were overthrown, had received regularly an allowance of eighty dollars per month bequeathed to her by the terms of the will, for the purpose of raising an estoppel against the contestant, but made no showing why the matter proposed was not pleaded earlier, it was discretionary with the court to refuse the amendment.</p> <p>Id.—Testimony of Physician—Privileged Information—Treatment of Deceased for Consumption—Knowledge of Mental Condition.— Where a physician who attended the deceased in her last illness testified that he treated her for consumption and not for mental disorder, but that he got no information about her condition, physical or mental, except as a physician to enable him to take care of her, it is not error to refuse to allow the question to be put to him as to whether her mind was affected, as against an objection that the information thus sought was privileged.</p> <p>Id.—Undue Influence—Insufficiency of Evidence. —A verdict affirming a charge that the will was procured through undue influence exerted by the executor and the residuary legatee, cannot be sustained, where the evidence to support it is no stronger than that held insufficient in previous decisions of this court.</p> <p>Id. —Insanity of Deceased—Mental Delusions not Affecting Testamentary Action—Insufficiency of Evidence.—A will cannot be rejected on account of insane delusions of the testator, which are not operative in the testamentary act, and which do not relate to the persons or objects affected by it; and a verdict setting aside a will on the ground of insanity of the testatrix is not sustained by the evidence, where the proof shows that she had business capacity, and made the will intelligently, without action indicating a deranged mind as to its subject matter or execution, notwithstanding proof of her unfounded fancies and delusions as to other matters.</p> <p>Id.—Delusion as to Property of Sister not an Heir or Legatee.—A mere fleeting vagary as to property of a sister of the testatrix, does not amount to an insane delusion; but even if it should become a fixed delusion, the sister not being an heir, who could be benefited by the rejection of the will, it seems that it cannot be rejected on account of such delusion.</p> <p>Id.—Testimony of Experts—Futility of Abstract Opinions—Mental Capacity of Testator.—The mere abstract opinion of any witness, medical or of any other profession, is not of any importance; but the opinions of witnesses must be brought to the test of facts, that the court or jury may judge what weight the opinion is entitled to; and no court is justified in deciding against the mental capacity of a testator upon the mere opinion of witnesses, however numerous or respectable.</p> <p>Id.—Province of Jury—Inference of Fact—Assistance of Opinion— Duty of Court.—It is the province and duty of the jury to draw the inference of fact from the evidence before them, under the rules of law stated by the court, being assisted but not superseded in that function by the opinions of experts; and it is equally the duty of the court to determine whether there is satisfactory evidence to justify the conclusion reached by the jury.</p>

<p>Criminal Law—Robbery—New Trial—Newly Discovered Evidence —Impeachment of Prosecuting Witness—Counter Affidavits.— A new trial cannot lie granted to a defendant convicted of robbery, on the ground of newly discovered evidence of statements made by the prosecuting witness to various Chinese persons after the alleged robbery, to the effect that he had not been robbed by defendants, the effect of which would be merely to impeach the testimony of the prosecuting witness, where there is no such exceptional showing as would warrant a new trial on that ground, and where there are counter affidavits which weaken the showing, and make it unsatisfactory.</p>

Wheaton A. Gbay, Judge. The carnal assault shown by the evidence was made by the defendant in the mouth of a boy and not per anum. Further facts are stated in the opinion of the court.

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

<p>Sale of Stock of Merchandise—Statute of Frauds—Change of Possession—Indicia of Ownership—Void Sale—Attachment.—Upon sale of a stock of merchandise to certain creditors of the merchant, in full of their claims, in order to render the change of possession sufficient to satisfy the statute of frauds, it must not only be actual and continued, but must be open and unequivocal, carrying with it the usual marks and indications of ownership on the part of the vendees, and must be such as to proclaim to the world the new ownership, and to evidence the usual relationship between property and its owner, and must be taken to be retained, and not with the purpose to return it to the vendor; and where the change of possession is not of that character, the sale is void ab initio, as to other creditors of the vendor, and the unsold portion of the goods may be seized upon attachment against the vendor, at suit of a creditor not participating in the sale.</p> <p>Id.—Tests of Validity—Presumption of Possession by Vendor.—The character of the sale and the character of the possession give the true color to the transaction, as valid or void, depending upon the intention and conduct of the parties in making the sale, and upon the circum. stances surrounding the parties while the vendor is out of possession; and the mere fact alone that the vendor resumed possession within two weeks after the sale, does not necessarily import fraud, nor that the possession of the vendees was not continued; neither does it imply a right to repurchase or take back the property, but is at most a circumstance to be considered in reference to the intention of the parties.</p> <p>Id.—Conditional Transfer—Agreement for Repossession by Vendor. Where the evidence tended to show that an agent of the vendees, having full authority to represent them, agreed with the vendor, not for an absolute or unconditional change of possession, but for a temporary possession for the purpose of a forced and limited sale, and that the vendor was again to have possession when the amount due the vendees as creditors was realized, it being believed that the assets were sufficient to pay all the creditors, upon a return of possession to the vendor by such agent, the goods may be attached in his possession, as his property, regardless of the question whether the claims of the creditors to whom the transfer was made had been satisfied in full or not.</p> <p>Id.—Evidence—Testimony of Vendor—Purpose of Sale—Statements of Agent—Cross-Examination.—The vendor may testify that, at the time he made the bill of sale to the creditors, it was understood and agreed between him and the agent of the vendees that the store was to be returned to him when the claims of the creditors were realized, as showing the purpose of the bill of sale made while he was in possession, nor does the rule of law as to the impeachment of a deed by the grantor after the execution apply to such a case; and the statements of the agent of the vendor, both when making the agreement and when surrendering possession to him, are also admissible as tending to show what was originally contemplated by the parties, and the agent himself may be asked on cross-examination as to the purpose of the bill of sale.</p>

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

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