Volume 117 — California Reports

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

<p>Criminal Law—Homicide—Evidence—Deposition Taken at Preliminary Examination—Constitutional Law.—Depositions taken at the preliminary examination of a defendant charged with the crime of murder, may be read in evidence for the prosecution, as provided for in section 686 of the Penal Code, and that section as applied to cases of homicide, is not in conflict with the provision of section 13 of article 1 of the Constitution, that “ the legislature shall have power to provide for the taking, in the presence of the party accused and his counsel, of depositions of witnesses in criminal cases other than cases of homicide, when there is reason to believe that the witnesses, from inability or other cause, will not attend at the trial.”</p>

<p>Mortgages — Homestead — Priority — Assignment or Mortgages to Owner — Merger. — Where two mortgages upon land claimed as a homestead were valid and. subsisting liens when the declaration of homestead was filed, the mortgages do not lose their priority over the homestead because transferred by assignment to the owner of the fee, for the purpose of placing him in a position to foreclose the right of the homestead claimant; and where the mortgages were not satisfied or paid in. any other manner, they are not extinguished by merger with the fee, nor is the case one to which the doctrine of merger can be applied, but the owner of the fee may foreclose the mortgages as against the homestead claimant.</p> <p>Id.—Merger—Intention—Implication—Presumption. — The merger of mortgage liens with the fee, upon both being united in the same person, is a question of intent; and merger will not be implied where there is an intervening claim, but equity will keep the legal title and the « mortgagee’s interest separate, though held by the same person, whenever necessary for the full protection of his just rights; and if, from all the circumstances, a merger would be disadvantageous to the party holding the fee, his intention that merger shall not result will be presumed and maintained, and equity will keep the liens alive for the purpose of doing justice.</p>

<p>Appeal from an order of the Superior Court of Los-Angeles County granting 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 the City and County of San Francisco, sustaining a demurrer to an information. William T. Wallace, 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, opening a default and setting aside a judgment. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sale—Stock and Fixtures of Saloon—Statute of Frauds—Change of Possession—Control of Premises—Sign of Vendor.—Where the owner of a saloon sold the stock and fixtures thereof to a former bartender, who was not employed at the time of the sale, in consideration of a cash payment by the vendee and the extinguishment of indebtedness from the vendor to him, amounting in all to more than the full value of the property sold, the sale not being intended to hinder, delay, or defraud the creditors of the vendor; and where the property sold was immediately delivered to the vendee, who, not then having a liquor license, locked up the stock and fixtures, and kept the key of the premises, and was the only person thereafter having control of the property sold, until it was attached as the property of the vendor, who had had no access to the premises or property after the sale, the facts warrant a finding that there was an immediate delivery and an actual and continued change of possession from the vendor to the vendee, and that the title passed from the vendor to the vendee; and the mere fact that the sign of the former owner of the saloon remained upon the premises, until the property was attached, does not require a reversal of such finding.</p> <p>Id.—Attachment—Subsequent Transfer by Vendee—Effect of Con- - version—Change of Title—Demand upon Sheriff—Refusal — Action by Transferees.—The mere conversion of personal property does not change title thereto, prior to the rendition of a judgment for its value; and the mere fact that the stock and fixtures were seized under attachment in a suit against the vendor, prior to a transfer made of them by the vendee to other persons, does not prevent title to the property from passing under such transfer, and, after proper demand made upon the sheriff by such transferees for the delivery of the property to them, and his refusal to deliver the same, and the subsequent sale thereof by the sheriff under execution against the first vendor, such transferees may maintain an action against the sheriff for damages for the conversion of the property.</p>

Appeals from orders of the Superior Court of Yolo County, denying a new trial, in each of two actions. W. H. Grant, Judge. The facts are stated in the opinion of the court.

<p>Action against Corporation—Change oe Venue—Verified Complaint —Conflicting Affidavits.—Where the verified complaint in an action against a corporation alleged a contract with the corporation made and payable in the county in which the action was brought, and affidavits in conflict with the complaint were presented upon motion for change of the place of trial to the county where the corporation had its principal place of business, the verified complaint raises a sufficient eondict to support an order denying the motion, and where counter-affidavits were also read in support of the complaint, the decision cannot be disturbed.</p>

Walter Van Dyke, Judge. The complaint was demurred to generally and specially, but nonjoinder of parties defendant was not assigned as a ground of demurrer. Further facts are stated in the opinion.

<p>Corporations — Deed without Corporate Seal— Evidence op Authority Essential.—To support the deed of a corporation which is without a corporate seal, it is incumbent upon the party relying upon it to show affirmatively that it was executed by authority of a resolution of the board of directors entered on the records of the corporation, or that it was ratified by such a resolution.</p> <p>Id.—Deed Sealed by Trustees—Insufficient Proof of Ratification-Delivery of Deed—Receipt of Consideration—Delivery of Possession.—Where the deed purports to be sealed by the private seals of the trustees of the corporation, for the alleged reason that the corporation has no seal, ratification, in the absence of record proof of authority for the deed or ratification thereof, cannot be inferred from the delivery of the deed, from the receipt of the consideration, and from delivery of possession to the grantee, where there is no proof that the persons who executed the deed were trustees of the corporation, and no proof that any consideration was received by the corporation, which cannot be presumed from a recital in the deed which was not shown to have been executed by the corporation, and where it appears that the grantees were already in possession of the land as squatters, and there is no proof and there is no evidence that any possession was delivered or accepted from the corporation.</p>

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

<p>Criminal Law—Exclusion of Witnesses.—It is within the discretion of the court during the trial of a criminal case, to allow a particular witness to remain in the courtroom during the examination of the witnesses, the other witnesses being excluded.</p> <p>Id.—Burglary—Time of Commission.—In a prosecution for burglary, where the evidence shows the act to have been committed between sometime in the afternoon of a particular day and the following midnight, a conviction of burglary of the first degree will not he disturbed on appeal.</p>

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

<p>Constitutional Law—Obligation of Contracts—Execution Sale—Redemption—Act Reducing Percentage not Retrospective.—The provision of law regulating the amount of percentage to be paid in order to effect a redemption of land from a sale under execution in force at the time of the sale forms an element in the purchase at the sale, and constitutes a term in the contract under which the purchaser paid his money to the officer. The legislature has no power to impair the obligation of such contract by diminishing such amount subsequently to the sale; and the amendment of 1895 to section 702 of the Code of Civil Procedure, reducing the percentage to be paid upon a redemption from two per cent to one per cent per month on the amount of the purchase until the time of redemption, can have no retrospective operation upon a sale made prior to its passage.</p>

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

<p>Criminal Law—Homicide—Defense of Insanity—Burden of Proof.— A defendant charged with the crime of murder, who relies upon insanity as a defense, has the burden of proving his insanity at the time of the homicide by a preponderance of evidence.</p> <p>Id.—Authority of Federal Decision.—Upon a question of law, like that pertaining to the burden of proof in criminal cases tried in the courts of this state, this court is not bound by a decision of the supreme court of the United States.</p> <p>Id.—Instruction—Caution as to Defense of Insanity.—It is proper to instruct the jury tiiat “the defense of insanity is one which may be and sometimes is resorted to in cases where the proof of the overt act is so full and complete that any other means of avoiding conviction and escaping punishment seems hopeless,” and that “while, therefore, this is a defense to be weighed fully and justly, and when satisfactorily established must recommend itself to the favorable consideration of the humanity and justice of the jury, they are to examine it with care lest an ingenious counterfeit of such a mental disorder should furnish immunity for guilt.”</p>

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

Ansel Smith, Judge. The judgment appealed from exonerated the plaintiff from all liability for payment of rent by reason of any guaranty or suretyship upon the lease between John Boggs and William D. McLaren, and awarded costs in favor of plaintiff against the defendant John Boggs. Further facts are stated in the opinion of the court.

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

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

A. P. Gatlin, Judge. The judgment of the Superior Court adjudged that the defendant Reclamation District No. 551 is a public corporation, legally organized and existing under the laws of the state of California, and legally entitled to exercise corporate functions and powers under the laws of the state relating to the reclamation of swamp and overflowed lands, and all the powers and franchises properly belonging to such corporation.

<p>Criminal Law—Forgery of Check—Verdict against Evidence—Failure to Prove Absence of Authority.—Upon the trial o£ a defendant accused of the forgery of a check, by signing the name of another thereto, the prosecution must prove that the defendant was not authorized to sign such name, and until this proof is made, it is not shown to be a false instrument, and the defendant is not put to his proof at all; and where a verdict of conviction is found, in the absence of such proof, it will be set aside as unwarranted by the evidence.</p>

Appeals from a judgment of the Superior Court of Tuolumne County and from an order directing a receiver to turn over property to the defendant corporation. ' Gr. W. INicol, Judge. The facts are stated in the opinion of the court, and in the cases referred to therein, as decided between the same parties, upon former appeals.

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

<p>Fraud upon Creditors—Voluntary Transfer from Insolvent Husband to Wife — Proof of Fraudulent Intent — Constitutional Daw—Amendment of Code not Retroactive.—The amendment of 1895 to section 3442 of the Civil Code, which provides “that any transfer or encumbrance of property, made or given voluntarily, or without a valuable consideration, by a party while insolvent, or in contemplation of insolvency, shall be fraudulent and void as to existing creditors, ” prescribes not merely a rule of evidence, but also a rule of property which cannot be given retroactive effect upon transfers made before the passage of the amendment, but such transfers must be governed by the statute in force when the transfer was made; and a voluntary transfer from an insolvent husband to his wife, without consideration, made before the adoption of that amendment, cannot be presumed fraudulent as to creditors, as matter of law, at a trial had after the passage of the amendment; but it is incumbent upon a creditor contesting it to prove the fraudulent intent of the husband as matter of fact.</p> <p>Id.—Bona Fide Transfer in Pursuance of Agreement.—Where it appears that the husband, while in prosperous circumstances and in the conduct of a business in the state of New York, had agreed with his wife that he would convey to her his California property as soon as he obtained title thereto, and the transfer in question was made in good faith in pursuance of such agreement, for a nominal consideration paid by the wife, and without any knowledge on the part of the wife that the husband had any creditors in California, and at a time when his business in New York was not in an insolvent condition, there is no evidence of fraudulent intent, in the matter of the consideration which would vitiate the transfer, as against a creditor in California, who brought an attachment suit six months after the deed was made and delivered, though prior to its acknowledgment andjrecord.</p> <p>Id.—Nature of Insolvency — Means may Exist in Another State.— A debtor is insolvent when he is unable to pay his debts from his own means, as they become due; and it is not essential that the means from which the debts are to be paid must exist in this state; nor is the debtor to be considered insolvent merely because he has not means in this state to pay his creditors here, outside of the property transferred to his wife in this state, if, at the time of the transfer, he had sufficient means in another state to pay all of his creditors.</p> <p>Id.—Evidence—Declarations of Husband after Conveyance.—Statements made by the husband after the conveyance made by him to his wife, tending to show that the deed was made to avoid the attachment, or to defraud the attaching creditor, cannot be .received as imparting verity, or to overthrow the title of the wife, if any doubt is left in the mind of the court that they truly reflected the situation, when the deed was made.</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>Reclamation District — Action to Determine Validity of Assessment — Proceeding Quasi in Rem — Consular Privilege no Defense.—An action brought by a reclamation district, under section 5493J of the Political Code, to determine the validity of an assessment levied for purposes of reclamation is not an action in personam, and, though not in strictness a proceeding in rem, partakes rather of its nature, being designed to test the legal perfection of the assessment, and to give the property owner an opportunity to present his objections to its validity, at a hearing in advance of an action upon the assessment, and is a process of law, forming one of the steps by which the lien of the tax is fixed upon the property in the district; and, such being the nature of the action, a defendant owning property in the district, who is a consul of a foreign nation, cannot plead his consular privilege in bar of the proceeding.</p> <p>Id.—Basis of Assessment—Bbport of Engineer.—The report of an engineer, containing not alone a general and comprehensive, but also a detailed, statement of the character and amount of ditch work to be done, with estimates of the cost thereof, and also of the cost of a proposed pumping plant, is sufficient to serve as a basis for an assessment.</p> <p>Id.—Evidence—Unfair Assessment—Disproportion to Benefits.—A property owner has the right to make any legal proof to show an unfair and illegal assessment whereby his lands were not benefited to the amount of the lien sought to be fixed upon them; and it is error to refuse to permit evidence in his behalf showing that his land was wholly reclaimed, and in a state of cultivation, and that it had been assessed at a much higher rate than unreclaimed lands similarly situated, and of the same level; and that portions of his lands used for roads and ditches had been assessed at the same rate as his other lands, while the lands of other owners within the district subjected to like uses had been entirely relieved from assessment.</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>Criminal Law—Homicide—Self-defense—Reasonable Belief of Bodily Danger — Applicability of Instruction.— Upon the trial of a defendant accused of murder, where self-defense is relied upon as justifying the homicide, and there is some evidence which, if accepted by the jurors, leaves it for them to decide whether the conduct of the deceased justified the homicide or not, an instruction that, if, from the evidence, the jury believes that without any overt act or physical demonstration upon the part of the deceased sufficient to warrant the defendant as a reasonable man, in believing that he was in great bodily danger, the defendant fired the fatal shot at the deceased and killed him, such killing, under such circumstances, was not justifiable, is properly given, as applicable and pertinent to one theory of the evidence.</p> <p>Id.—Wrongful Assault—Rule as to Flight—Tendency of American Mind.—The tendency of the American mind is against the enforcement of any rule which requires a person to flee when wrongfully assailed, to avoid chastisement, or even to save human life; and it seems that a true man, who is without fault, is not obliged to flee from an assailant who, by violence or surprise, maliciously seeks to take his life or to do him enormous bodily harm.</p> <p>Id.—Assault Committed upon One’s Own Premises — Right to Stand Ground and Take Life.—A person assailed in his own house, or upon his own premises, has the right to stand his ground, and is not bound to retreat or escape to avoid the assailant, but may kill him if reason, ably necessary for his protection from great bodily danger in the position rightfully occupied by him on his own premises, even though he might avoid the assault by fleeing or withdrawing therefrom.</p> <p>Id—Assault upon Defendant in Door of His House—Erroneous Instruction as to Duty to Flee.—Where the evidence for the defense showed that the defendant was standing inside the door of his own house, and that deceased, who had previously threatened to kill him, was brandishing an iron-bound singletree, with which he advanced, threatening to beat out the brains of defendant, when the fatal shot was fired, an instruction that “if he could have withdrawn from the danger it was his duty to retreat,” and that, “between his duty to flee and his right to kill, he must fly, or, as the books have it, he must retreat to the wall,” is prejudicially erroneous.</p>

<p>County—Liability of New County for Debts of Old.—Under section 3 of article XI of the constitution, providing that new counties shall be liable for “a just proportion of the existing debts and liabilities of the county or counties ” from which its territory is taken, the courts have no power to determine what is such “ just proportion. ” The power to apportion such debts rests exclusively with the legislature, and, in the absence of any legislation on the subject, the old county cannot maintain an action against the new to recover any part of its existing indebtedness.</p> <p>Id.—Contribution—Surety—Remedy.—Neither section 1432 of the Civil Code, providing for contribution between joint debtors, nor section 2847, relating to the obligation of a principal where the surety satisfies the obligation, nor section 3523, declaring that for every wrong there is a remedy, authorizes the maintenance of such an action.</p>

<p>Written Contract — Pleading — Presumption — Answer.—Where an ■ agreement is required to be in writing, it is sufficient in pleading to allege the agreement, it being presumed that the agreement alleged will he proved to be in writing; and this rule of pleading applies not only to the complaint, but also to an answer which alleges an agreement by way of defense.</p> <p>Id.—Promissory Note—Written Agreement as to Collateral Securities—Foreclosure—■ Defense to Personal Liability — Judgment upon Pleadings fop. Deficiency.—In an action to foreclose mortgage bonds pledged by the defendant as maker of a promissory note as collateral security for its payment, where the verified answer pleaded by waj' of defense to any personal liability, and to any deficiency judgment upon the note, that it was agreed prior to the giving of the note and securities that plaintiff would rely upon and look to the securities alone, and that no further personal or general liability or judgment should be sought or obtained, the pleading of such agreement is sufficient to admit proof of a written agreement to that effect; and it is error to grant a judgment upon the pleadings, so as to include a deficiency judgment against the defendant.</p> <p>Id.—Failure of Proof—Written Agreement to Protect Security— Conclusive Presumption—Parol Evidence Inadmissible.—Where the only written agreement proved in addition to the note did not contain the agreement alleged in the answer, hat showed an agreement for security of the note, and that if the securities pledged deteriorated in value, defendant should reduce the note in proportion to the deterioration, or give additional security, it must he conclusively presumed that the whole engagement of the parties and the extent and manner of their undertaking were reduced to writing; and parol evidence is inadmissible to vary the written agreement by proof of an oral agreement such as was alleged in the answer.</p>

<p>Mechanic’s Lien—Work on Street—Contract with Reputed Owner— Constitutional Law.—Section 1191 of the Code of Civil Procedure, so far as it purports to authorize the creation of a lien upon land by virtue of a contract for the improvement of the street adjacent thereto, entered into with one who is only the reputed owner of the land, or to affect the interest of the real owner therein, is unconstitutional.</p> <p>Id.—Objection by Real Owner.—Under such section, the fact that the real owner of the land knew of the work while it was being performed, and neither made objection thereto, nor gave any notice that he would not be responsible therefor, does not entitle the contractor to a lien.</p>

<p>Produce Bxchance—Suspension of Members—Action to Compel Reinstatement— Laches.—Persons suspended from membership in a produce exchange, who for more than seven years after the passage of a resolution suspending them from membership, acquiesced in the suspension, and took no steps to set it aside, and made no demand for reinstatement until six years thereafter, there being no circumstances to excuse the delay, are guilty of such laches as will bar an action to compel reinstatement.</p> <p>Id.— Demand—Reasonable Time—Statute of Limitations.— Where a demand is required before action, the party whose duty it is to make it must make it within a reasonable time, and he cannot indefinitely extend the statute of limitations by failing to make a demand; and if it is not made within the time limited for bringing the action, the action is barred.</p>

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

<p>Pleading—Complaint — Ultimate Pacts—Averment of Evidence — Argumentative Pleading — Surplusage—General Demurrer.—It is a fundamental rule of our code pleading that ultimate and not probative facts are to be averred in a pleading, and where a complaint merely states the evidence from which the ultimate facts are left to inference by argument, the allegations of evidence are to be disregarded as surplusage, and the complaint is demurrable for not stating facts sufficient to constitute a cause of action.</p> <p>Id.—Insufficient Complaint in Ejectment—Deraignment of Title— Deed from Mortgagors.—Where a complaint in ejectment containing no averment of seisin or ownership, or possession, or right of possession, but merely avers evidentiary facts respecting plaintiff’s deraignment of title under a deed from the defendants, with whom as mortgagors an agreement is alleged to have been made for a deed in satisfaction of the mortgage and of the note thereby secured, the complaint is insufficient, and is subject to a general demurrer.</p>

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

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

<p>Criminal Law—New Trial—Intoxication oe Juror—Affidavits—Oral Evidence—Discretion.—Where one of the grounds relied upon for a new trial in a criminal case is that one of the jurors was intoxicated during the trial, the question whether the fact of intoxication shall be determined upon affidavits, or upon oral evidence at the request of the defendant, is within the discretion of the court.</p> <p>Id.—Latitude as to Decision of Fact—Knowledge of Judge—Showing OF Affidavits.—Where the judge was an eye-witness of the condition of the jnror during the trial, and his attention was called to him at the time when it was claimed that he was intoxicated, he is allowed the widest latitude of decision as to whether he was or was not intoxicated; and where the attorneys for the defendant did not present their own affidavits upon the question, and the showing made by the affidavits presented on both sides thereof justified the court in holding that the juror was not intoxicated, his decision as to such fact will not he disturbed on the ground of abuse of discretion.</p> <p>Id.—Plea of Once in Jeopardy—Reversal of Former Judgment—Absence of Finding—Instruction. —Where a judgment of conviction was reversed upon appeal of the defendant, for want of a finding upon a plea of once in jeopardy, these facts do not constitute jeopardy or an acquittal of the defendant; and the judge upon a second trial may so instruct the jury.</p> <p>Id.—Evidence at Former Trial Immaterial.—The presence or absence of evidence at the former trial upon the matter of the special plea of once in jeopardy, is immaterial and foreign to anything involved upon appeal from a second judgment of conviction.</p>

<p>Appeal from, a judgment of the Superior Court of Shasta County. Edward Sweeney, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Receiver—Verified Petition to Compel Payment of Funds—Motion —Sworn Statement — Evidence.—A verified petition to compel a receiver to pay over funds to the petitioner is in the nature of a motion, iu which the moving party makes a prima facie case by his sworn statement; and it is immaterial whether the statement be termed a complaint, or a petition in the nature of a complaint, or an affidavit, it being evidence which is to be met at the hearing upon the order to show cause; and, if not so met, the court is authorized to treat the statements of the verified petition as established facts.</p> <p>Id.—Authority of Receiver of Mortgaged Railway—Collection of Debts Due Railway Company—Wrongful Payment—Attachment —Order to Pay Funds upon Judgment.—A receiver, appointed with authority only to take possession of a mortgaged street railway, and to operate the road, etc., without any authority to collect debts, which were due to the street railway company prior to his appointment, and which were not covered by the mortgage, is not absolved from liability to an attaching creditor of the street railway company under a garnishment for the amount of the debts so collected, by reason of having wrongfully mingled the funds with those received in the course of his receivership, and paid them out without authority; and he may be properly ordered to pay over the funds so collected, to be applied upon a judgment obtained by the attaching creditor against the railway company.</p>

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

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

<p>Building Contract—Failure to Record Specifications—Bond for Performance—Guaranty against Liens—Liability of Sureties.—The fact that a building contract is rendered invalid by reason of a failure to record the plans and specifications does not affect the liability of the sureties upon a bond given for the faithful performance o.f the contract, and guaranteeing the delivery of the building to the owner free from all liens that might be filed on account of any claim against the contractor; and the owner may recover against the sureties any amount which he is compelled to pay after the completion of the building by the contractor, to release the building from liens filed thereon in excess of the sum remaining in his hands, and due under the contract.</p>

<p>Action fob Monet Deposited—Pleading—Defense—Proof under Denials of Answer—Gambling Debts.—In an action against an administrator to recover moneys alleged to- have been deposited with the decedent under a promise to repay the same to the plaintiff, evidence is admissible under the general issue that no money was in fact deposited by plaintiff with the decedent, and that the debts in suit were gambling debts from the decedent to the pilaintiff and his assignors, for moneys lost to them at the game of poker.</p> <p>Id.—Evidence—Entries in Poker Book—Gaming Laws—Inadmissible Declarations—Hearsay.—A poker book, kept by the clerk of a cigar store, containing entries of losses by the keeper of the store, to other players at games of poker conducted in the rear rooms of the store is not admissible in evidence as a tradesman’s book of original entry; and its contents, being merely declarations in the interest of the keeper of the store, having the effect, if admissible, to enable him to avoid the payment of debts for such losses, cannot be proved in his favor, or in favor of his administrator, in an action upon such debts, if properly objected to; nor can hearsay evidence be given, if properly objected to, of his oral declarations that he was owing money for poker debts to the plaintiff and his assignors.</p> <p>Id._Insufficient Objection to Evidence—Waiver of In Competency-Review upon Appeal. —Where the appellant merely objected to incompetent or hearsay evidence as leading, and the objection was properly overruled, or where he objected to it generally, without stating any specific objection to its competency, he waives objections not stated, and cannot be allowed upon appeal to enlarge his grounds of objection, or to urge new ones not presented in the first instance to the trial judge, and the ruling made as to the admissibility of the incompetent evidence is open to review upon appeal.</p>

<p>Negligence—Collision of Wagon with Foot Traveler—View of Premises BY Jury—Discretion.—In an action brought against a laundry company for alleged negligence in driving its laundry wagon so as to collide with and injure the plaintiff, while crossing an alley into which the wagon was passing from the street, where the accident occurred in a well-known street of a populous city, and the facts are not complicated nor obscure in reference to the place in which they happened, there is no abuse of discretion in refusing to permit the jury to view the premises.</p> <p>Id.—Review ubon Appeal—Insufficient Statement.—Where the statement upon appeal does not contain any specification of error in refusing to permit the jury to view the premises, nor contain the alleged ruling of the court and the exception thereto, the point is not properly saved for consideration upon appeal.</p> <p>Id. — Contributory Negligence — Inattention of Foot Traveler at Crossing of Alley—Heedlessness of Warning.—Where the collision between plaintiff and the laundry wagon of the defendant occurred at the crossing of a sidewalk by an alleyway, and it appeared that plaintiff’s attention, when he reached the curb of the alleyway, was distracted, and that after stopping at the curb be stepped into the alleyway without exercising proper circumspection and care, and without heeding a warning shouted by the driver of the laundry wagon, with the wheel of which he collided as it was passing into the alleyway from the street, a verdict for the defendant is fully warranted by the evidence.</p> <p>Id.—Duty of Foot Traveler at Crossing.—Where a foot traveler is crossing a highway over which vehicles are accustomed to pass, it is his duty to look both ways before crossing, and he is hound generally to the exercise of the same care to avoid the injury that the drivers of the vehicles are to prevent injuring him.</p> <p>Id.—Crossing of Sidewalk by Public Alley.—Where an alley is a public highway, over which vehicles are frequently driven, its roadway along and across the sidewalk of the street into which it enters is necessarily a part of the public highway for vehicles, as much as are the street crossings of any of the main thoroughfares.</p> <p>Id,—Instructions—Inevitable Accident. — Where the jury might reasonably have believed that the injury was the result of a casualty occasioned without fault, it is proper to instruct the jury upon the rule of law that for inevitable accident occurring when one is engaged in a lawful business with due care, damages may not be recovered.</p> <p>Id.—New Trial—Newly Discovered Evidence—Cumulative Proof.— A new trial should not be granted for newly discovered evidence which is merely cumulative upon matters fully presented to the jury.</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 an order of the Superior Court of the City and County of San Francisco directing executors to pay a collateral inheritance tax. 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 Ventura County and from an order denying a new trial. B. T. Williams, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Attorney and Client—Relation, When not Existing—Consultation without Retainer. — The relation of attorney and client does not exist where there is a mere consultation as to the charges to be made for the commencement of an action, and the terms proposed by the attorney are not accepted, and no retainer is given, and no implied contract exists to pay for advice given; and, in such case, the attorney is at liberty to accept employment from the opposing party.</p> <p>Action for Consequential Injury to Land — Overflow of Water — Erection of Bulkhead—Trespass—Case—Statute of Limitations. An action for an injury to the land of the plaintiff, as the result of the erection of a bulkhead on the land of the defendant, which prevented storm water from flowing naturally across the lands of plaintiff, and caused it to overflow and to make gullies in plaintiff’s land, is not in the nature of an action for trespass upon real property of the plaintiff within the limitation of three years provided for in section 338 of the Code of Civil Procedure, hut is in the nature of an action upon the ease, at common law, to recover damages for a consequential injury, and is subject to the limitation of two years provided for in subdivision 1 of section 339 of the Code of Civil Procedure.</p> <p>Id.—Damages—Detriment after Commencement of Action—Supplemental Pleading.—Damages may be awarded in a judicial proceeding for detriment resulting after commencement thereof; and no supplemental pleading is necessary to support such a recovery.</p> <p>Id.—Insufficient Disclaimer of Accruing Damages—Offer of Proof-Rejection of Evidence.—An offer of proof limiting evidence of damage to a time prior to the commencement of the action does not constitute a disclaimer of damages thereafter accruing, where it appears that other specific offers to prove damages accruing after the commencement of the action were rejected by the court.</p> <p>Id. — Prejudicial Error — Instruction as to Recovery — Error not Cured by Evidence.—Where the court rejected evidence of damages accruing after the commencement of the action, and instructed the jury that the plaintiff could only recover so much damage as accrued before suit brought, the error is prejudicial, and is not rendered harmless by the fact that the other evidence was given of damage accruing after suit brought.</p> <p>Id. _ Deduction of Benefit from Damages — Pleading. — Any benefit received by the plaintiff from the acts of the defendant should be deducted from any damages caused to plaintiff by such acts; and it is not necessary that such incidental benefit to plaintiff should be pleaded by the defendant.</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 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>Action upon Note—Liability of Indorser—Pleading—Consideration —Findings—Appeal—Conflicting Evidence.—In an action upon a. promissory note indorsed by the defendant to the plaintiff, where the plaintiff does not merely charge the defendant as indorser, and leave it. to him to plead a want of consideration, but alleges a consideration for the indorsement, which the defendant denies, and sets out that the money was loaned by plaintiff to the maker of the note, and indorsed by the defendant without consideration, and the findings and judgment were in favor of the defendant upon conflicting evidence, the judgment and order denying a new trial will not be disturbed upon appeal.</p>

<p>Appeal—Insufficient Record—Affirmance.—Where the record upon appeal from a judgment and from an order denying a new trial fails to show that the complaint, answer, findings, or judgment were ever filed in the court below, or that the judgment was ever entered, and fails to contain a certificate to the papers which would constitute the judgment roll, and further fails to show that the statement on motion for new trial was filed, or that the order denying a new trial was entered, the record contains no basis upon which there can be a reversal of the judgment or order, and the same must be affirmed.</p> <p>Water Rights—Prior Appropriation—Breaking and Repair of Ditch—First User—Evidence.—Where water was first appropriated by the defendants for the purpose of irrigation, by posting a sufficient notice of such appropriation, and by the construction of a ditch prior to the construction of plaintiff’s ditch, the fact that defendants’ ditch broke before the water reached the. land intended to be irrigated, and that the plaintiff was thus enabled first to apply the water on his land, does not affect the prior appropriation of the defendants; and the notice is properly received in evidence, and the defendants may properly prove why the ditch broke and why it was not sooner repaired.</p>

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

Certiorari in the Supreme Court to review an order of the Superior Court of the City and County of San Francisco for the restitution of property to executors. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

<p>Appeal from an order of the Superior Court of Yolo County setting apart a homestead. W. H. Grant, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>School District—Mandamus—Parties.—A school district may be properly joined as a defendant in a proceeding in mandamus against its-officials to compel the performance of a duty owed to the relator.</p> <p>Id.—Audited Claim—Order for Requisition.—After the board of education of a city has properly audited and allowed a claim against a school district, mandamus will lie to compel it to draw an order on the county school superintendent for a requisition for its payment.</p> <p>Id.—Hearing—Motion to Strike Out—Bill of Exceptions—Appeal.— A motion to strike out part of a complaint, and an order refusing the-same, form no part of the judgment roll, and will not be reviewed on-appeal, unless embodied in a bill of exceptions.</p> <p>Id.—Statute of Limitations—Pleading.—Where a claim against a school district has been properly audited and allowed by the board of education, it became a duty imposed by statute on the hoard to draw an order on the proper officer for its payment, and, under section 338 of the Code of Civil Procedure, the statute of limitations barred the right-to such order in three years. To avail itself of such bar, in a proceeding for a writ of mandate to compel the board to draw such order, the section must he pleaded by the board, and a plea thereof by its president and secretary, who are individually joined as defendants, is insufficient.</p> <p>Id.— Judgment in Prior Action—Estoppel.— An action previously brought by the plaintiff against the school district to recover judgment on his original account, and a judgment therein adverse to him, is not a bar to such a subsequent proceeding in mandamus based upon his-audited demand-—it not appearing that the former action involved issues vital to the right to maintain mandamus.</p> <p>Id.—Judgment in Mandamus.—In the proceeding in mandamus the plaintiff can only obtain judgment for an order for the amount of his audited claim, without any allowance for interest.</p>

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

<p>Appeal from a judgment of the Superior Court of Contra Costa County. Joseph P. Jones, Judge.</p> <p>The facts are stated in the opinion.</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>Injunction — Stay of Pbooeedings in Action Pending—Multiplicity OF Suits.—Under section 3423 of the Civil Code, the courts of this state cannot restrain persons within the state from prosecuting an action already pending either in a domestic or in a foreign jurisdiction, except to prevent a multiplicity of suits.</p> <p>Id.—Construction of Code—Specific and Preventive Relief—Regulation of Rights.—The provisions of the Civil Code upon the subject of specific and preventive relief are designed to cover the whole subject, and are not mere rules of procedure, but define and regulate rights.</p> <p>Id.—Construction of Constitution—Jurisdiction of Cases in Equity —Power of Legislature.—The constitutional grant to the superior court of jurisdiction in all cases in equity was not intended as a limitation upon the power of the legislature to regulate the rights of persons; and the legislature may either create new rights, under which new cases in equity may arise, without enlarging the jurisdiction of courts of equity, or may cause some rights to cease to exist, so that certain cases which courts of equity once entertained can no longer arise without diminishing the jurisdiction of the superior court in all cases inequity.</p>

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

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

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

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

<p>Appeal from a judgment of the Superior Court of Plumas County. G. G. Clough, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from an order of the Superior Court of Napa County refusing to set aside a default judgment. E. D. Ham, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Sale—Memorandum—Statute of Frauds.—A document reading as follow's: “One dollar in hand paid, I sell California Canneries Company, San Jose, one hundred and fifty tons of choice canning peaches. Varieties, Fosters, Mary’s Choice, and Sal ways, at §20 per ton, delivered,” across the face of which the seller wrote his signature, is sufficient evidence of a contract of sale, and is a sufficient memorandum to take it out of the statute of frauds.</p> <p>Id.—Signature to Memorandum.—In this state,*a memorandum of sale, in order to be a sufficient compliance with the statute of frauds, need not be signed or subscribed at the end thereof. It is sufficient if the party to he charged attaches his signature to it with the intent to accept and be bound by it, no matter to what part of the instrument the signature be attached.</p> <p>Id.—Partnership—Signature of One Partner.—A memorandum of sale by a firm, which is signed by one of the partners in his individual name, with the intention to bind the firm, is, in law, the act of the firm, and binding on all the partners.</p> <p>Id.—Subscription at End of Memorandum.—The signature of a seller, which is written across the face of the memorandum, for want of sufficient place at the bottom of the paper to contain it, will be deemed to have been subscribed at the end of the memorandum, within the meaning of the authorities requiring such a subscription.</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 Tulare County. Wheaton A. Gray, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Building Contract—Failure to File Plans and Specifications—Value of Labor and Materials.—A contract for the erection of a building, according to certain plans and specifications, for a sum exceeding one thousand dollars, is void, if the plans and specifications are not filed in the office of the county recorder. Under section 1183 of the code of Civil Procedure, the contractor in such a case must be deemed to be the agent of the owner, and the owner cannot be held liable to him for the value of the materials and labor furnished in a greater amount than he paid for them.</p> <p>New Trial—Newly Discovered Evidf.nce.—A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative.</p>

<p>Insolvency—Construction of Insolvent Act—Dissolution of Attachment—Levy of Execution—Rights of Execution Creditor.—Under section 21 of the Insolvent Act of 1895, the dissolving of an attachment in a prior action by insolvency proceedings, is the condition upon which the insolvency proceedings can produce any effect upon a judgment or execution subsequently entered or levied; and where, prior to the commencement of the proceedings in insolvency, an attachment suit had passed into judgment, and property of the insolvent had been seized, and was held under a levy of execution, the attachment previously issued has no further existence, and is incapable of being dissolved by the proceedings in insolvency, though the attachment was levied within one month prior thereto, and section 21 of the Insolvent Act has no application to such a case; nor can such judgment and execution be affected by the proceedings in insolvency, but the judgment creditor has the right, as against the assignee in insolvency, to retain and dispose of the property under the execution.</p> <p>Id.—Levy Superior to Rights of Assignee—Absence of Statute.— In the absence of any statutory provision, a levy upon property by virtue of an attachment or execution, creates an interest in the property superior to the rights of the assignee in insolvency, and only an express provision to that effect will make the proceedings in insolvency paramount to such lien.</p>

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

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

<p>Mining Claims—Real Estate —Ejectment—Pleading — Ownership— Citizenship op Locator—Evidence.—A mining claim ia real estate and the rules of pleading relative to real estate are applicable in an action of ejectment to recover its possession. In such an action, ownership is the ultimate fact to he averred, and such averment carries with it all the facts essential to establish the ownership, including a valid location and the qualifications of the locator, which may be proved under the general allegations of ownership, and the citizenship of the locator, being only matters of evidence, should not be alleged.</p> <p>Id.—Averment of Citizenship when Required—Contest upon Application for Patent.—The rule that it is necessary to aver citizenship of the locator or claimant of a mining claim, applies only to contests brought by an adverse claimant under section 2356 of the Revised Statutes of the United States, after application has been made for a patent; in which case, the right of possession, depending on citizenship as a necessary element, is the ultimate fact to he pleaded, hut such rule is inapplicable toan ordinary action of ejectment where ownership of land is the ultimate fact in issue.</p> <p>Id.—Burden of Proof in Ejectment — Ownership of Mining Claim — Location—Citizenship.—Where the allegation of ownership of a mining claim, in an action of ejectment, is to be established by virtue of a location under the laws of the United States, the burden of proof is upon the plaintiff to show a valid location, and the citizenship of the locator, or a declaration of intention to become such; and a finding that the plaintiff was the owner, without any proof of such citizenship, is not sustained by the evidence. ,</p> <p>Id.—Rights of Prior Locator—Burden of Proving Abandonment or Forfeiture.—Where there is a prior valid location of the claim, the right of possession of the prior locator continues until he has, in fact, abandoned it, or forfeited it by failure to do requisite amount of annual work thereupon; and the burden of proving such abandonment or forfeiture is upon one who attacks the rights of the prior locator.</p> <p>Id.—Possessory Right—Action Based on Title.—Though an action of ejectment may be based upon prior possession, in case of wrongful eviction therefrom, yet, where such action is based on title, and the plaintiff offers proof of title, and does not prove an actual possession at the time of the defendant’s entry, he must fail if he does not show a valid title or right of possession.</p> <p>Id.—Paramount Title of Mining Claim—Law of Possession—Proof of Right.—Under section 910 of the United States Revised Statutes, a possessory action in any court of the United States for the recovery of a mining title, or for damages thereto, is not affected by paramount title in the United States, but each cast is to be adjudged by the law of possession; and no greater proof of a right of recovery in such an action can be required in a state court, unless by virtue of some statute of the state.</p> <p>Id.—State Law — Affidavit of Annual Work — Time Allowed for Filing—Premature Location Invalid.—Where the amount of annual work upon a mining claim was, in fact, performed within the year, as prescribed by the law of Congress, the owner of the claim is allowed thirty days after the end of the year within which to file an affidavit thereof, under the act of the legislature of this state passed March 31, 1891, providing for the filing by the owner of the claim with the county recorder of an affidavit describing the labor performed or improvements made, and that, upon failure to file the same within thirty days after the time limited for such work or improvements, the mine shall be open to relocation; and a location made on the second day of January following the doing of such annual work is premature and invalid under the statute, though no affidavit is, in fact, filed with the county recorder, the claim not being open to relocation under the statute until after the expiration of said thirty days.</p>

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

<p>Criminal Law—Obtaining Note under False Pretenses—Misdescription of Note—Averment of Single Maker—Proof of Joint Note —Suretyship—Material Variance.—Where an indictment for obtaining a note by false pretenses describes the note as having been executed by one person as maker, but the proofs show that the note was executed by two persons as joint makers, the variance is material, and the indictment is not sustained by the evidence, and it is not sufficient to prevent the variance from being material that one of the joint makers is shown to have been a surety for the other.</p> <p>Id.— Verdict—Support of Judgment — Insufficiency — Reference to Indictment.—A good verdict must contain within itself, or by reference to the indictment, all the elements of the crime, and if it is silent on some element of the crime, the verdict will not sustain a judgment; and where there is no reference to the indictment, as an aid to determine by what means the alleged fraud in obtaining the note was con ■ summated, a verdict merely finding- the defendant guilty of defrauding the person named in the indictment, of the note in the indictment mentioned, is not sufficient to support a judgment of conviction.</p>

<p>Appeal from Judgment—Verdict—Support of Judgment—Sufficiency of Pleadings—Affirmanoe.—Where any material issue is raised by the pleadings, a verdict in favor of the defendant must support a judgment in his favor, and, if the complaint is wholly bad, such judgment should be affirmed upon appeal.</p> <p>Id.—Action upon Sheriff’s Bond by Assignee of Insolvent Corporation—Execution Sale in One Parcel—Order of Resale in Separate Parcels—Return of Purchase Money—Pleading—Fraud and Conspiracy—Materiality of Issues.—In an action by the assignee of an insolvent corporation upon the bond of a sheriff to recover the alleged value of personal property of the corporation sold by the sheriff under execution in one lot, where the complaint shows that the court had vacated the sale and ordered the property to he resold in separate parcels, and that the purchase money paid by the purchaser be refunded to him, and alleges that, through fraud and conspiracy between the sheriff and the purchaser, the custody of the property was taken by the purchaser, and that the sheriff by fraudulent collusion and confederacy with the purchaser had placed it out of his power to comply with the order of resale, but does not allege any return of the purchase money nor any offer to return the same to the purchaser, the allegations of fraud and conspiracy are essential to the cause of action, if any is stated; and either a denial of those allegations creates a material issue, or the complaint is wholly had; and in either case a verdict and judgment in favor of the defendants will not he disturbed upon appeal from the judgment.</p> <p>Id.—Rights of Executor’s Purchaser—Irregular Sale—Custody of Property Purchased—Order for Repayment—Non-payment—Duty of Sheriff—Query as to Sufficiency of Complaint.—An irregular sale of property under execution in one parcel, which should- be sold in separate parcels, is not void, and the purchaser, upon payment of the purchase money, was entitled to the immediate possession of the property purchased, and was under no obligation to surrender it to the sheriff, upon the sale being vacated, without repayment of the money paid for it; and where such money was paid out upon preferred claims against the corporation whose property was sold, and the order of the court vacating the sale required the repayment of the purchase money to the purchaser, if such order is not complied with by the corporation, or its assignee in insolvency, nor any offer made to comply with it, no duty rested upon the sheriff to retake the custody of the property from the purchaser; and qucere whether, in such case, even allegations of fraud and collusion between the sheriff and purchaser as to the custody of the property can state a cause of action in favor of such assignee against the sureties upon the bond of sheriff.</p>

<p>Appeal from an order of the Superior Court of the City and County of San Francisco directing the payment of a claim against the estate of a decedent. J. V. Coeeey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Family Allowance— Setting Apart of Homestead—Allowance not a Lien — Rights of Minor Child. — A family allowance, made before exempt property and the homestead are set apart, is made subject to the rights of the designated beneficiaries to have a homestead and the exempt property set apart for their benefit, and does not constitute a charge or lien upon the family home; and no arrears of such allowance due to the widow, nor any claims in her favor against the estate, as administratrix or otherwise, however just, can preclude the setting apart of the homestead to a minor child of the decedent, after the death of the widow, no prior order having been made setting the homestead apart.</p> <p>Id.—Loss of Homestead Rights — Effect of Order of Sale. — The widow and minor children do not lose their rights to have a homestead set apart, by reason of her having, as administratrix, procured an order of sale of the property used as a family home, which was not in fact sold under the order.</p> <p>Id.—Loss of Rights of Widow and Adult Children—Remarriage of Widow.—A widow who remarries thereby loses her rights to have a homestead carved out of the property of the estate of her deceased husband, and also loses her right to any further family allowance, which then terminates without order of court, so far as she, individually, is concerned; and children who become of age, without an application for a homestead, also lose their right to have a homestead set apart.</p> <p>Id.—Delay in Application of Minor for Homestead.—A homestead may be set apart upon the return of the inventory, or at any subsequent time during the administration; and where the administration is not closed, no delay of years in applying for a homestead can prejudice the right of a minor son to have the homestead set apart for his use.</p> <p>Id.—Community Property—Succession of Widow—Effect upon Probate Homestead—Tenancy in Common.—The rights of the widow, as successor to one-half of the community property, upon the death of the husband, are subject to the right of a minor child to have a probate homestead carved out of the community property, the homestead being one of the burdens upon the community property, subject to which the surviving wife takes her interest therein; and the widow has no title as tenant in common, which, during the administration of the estate, is not subject to the probate homestead.</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. Chas. W. Slack, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Common Schools—Certifícate of Grammar Grade — Right of Graduate from State Normal School—Power of Board of Education —Invalid Bulb—Mandamus.—A graduate from a state normal school is entitled, under section 1403 of the Political Code, as amended in 1893, to a grammar grade school certificate from any city, city and county, or county board of education in the state; and a rule adopted by a county board of education, requiring one year’s experience in teaching, before such certificate will be issued, is invalid, as being inconsistent with the act of the legislature; and mandamus will lie to compel the issuance of such certificate.</p> <p>Id.—Construction of Constitution — “Control” of Board of Education— Legislative Power — Rules of Board.—Section 7 of article IX of the state constitution, conferring upon the county superintendents and the county boards of education “control of the examination of teachers, and the granting of teacher’s certificates within their respective jurisdictions,” is not to be construed as conferring unlimited or exclusive control, or power to legislate upon that subject, nor as taking away the power of the legislature to prescribe the rules by which the qualifications of teachers shall he determined, and to determine what shall entitle them to a certificate; and the hoard of education has power only under section 1771 of the Political Code, to make such rules as are not inconsistent with the laws of the state.</p> <p>Id. —Parliamentary Power of Legislature — Limitations — Implication.—A state legislature has the same unlimited power of legislation which resides in the British parliament, except where restrained and limited either by express words of the constitution, or by necessary implication therefrom; and its power cannot be restrained by any unnecessary implication.</p>

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

<p>Whittier State School—Liability of County for. Half Expense of Inmates.—Under section 24 of the act of 1893 (Stats. 1893, p. 328), amending the act of 1889 (Stats. 1889, p. Ill), establishing a reform school for juvenile offenders, now called the Whittier State School, the legislature intended to impose upon the several counties from which inmates were committed by order of the superior court of the county, one-half of the expense o£ keeping all minors committed to the institution therefrom for any cause, whose parents,,guardians, or other protectors were unable to pay such expense, and such liability is not limited to any class of inmates, whether committed as incorrigible or abandoned and indigent minors, or committed for violation of the penal statutes of the state.</p>

W. B. Cope, Judge. The main facts are stated in the opinion of the court rendered upon the former appeal by plaintiff. (Gould v. Eaton, 111 Cal. 639, 641-45; 52 Am. St. Rep. 201.) Further facts appear in the opinion of the court rendered upon this appeal.

<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 of the court, and in the opinion rendered in Estate of Thompson, 101 Cal. 349.</p>

<p>Appeal— Estate of Deceased Persons — Order for Redemption from Foreclosure.—The executors of the last will of a deceased person are “ parties aggrieved” by an order of the probate court requiring them, in pursuance of the terms of the will, to redeem certain land from a foreclosure sale, and as such are entitled to appeal from the order.</p> <p>Id.—Evidence as to Unproductive Property—Finding.—The evidence held to justify the finding that there was sufficient unproductive property belonging to the estate to pay the mortgage referred to, and directed to be paid by the will.</p>

<p>Appeal from an order of the Superior Court of San Diego County refusing an order for a change of the place of trial. E. S. Torrance, Judge.</p> <p>Motion to strike brief from files. The facts are stated in the opinion of the court.</p>

Albert G. Burnett, Judge. The defendant was accused of the crime of obtaining money from Frederick T. Brown under false pretenses. Brown was the only witness who testified directly to the false pretenses. Further facts are stated in the opinion of the court.

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

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

Habeas Corpus in the Supreme Court to Thomas Cunningham, city jailer of the city of Stockton, to test the validity of the conviction of L. Giambonini in the Police Court of the city of Stockton. C. P. Rendon, 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 granting a writ of assistance. A. A. Sanderson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Rape—Female of Unsound Mind—Resistance or Con•sbnt Immaterial.—Under the second subdivision of section 261 of the Penal Code, the act of sexual intercourse with a female not the wife of the perpetrator, where she is incapable, through lunacy, or any other unsoundness of mind, whether temporary or permanent, of giving legal consent, constitutes the crime of rape; and in this species of rape, neither force upon the part of the man, nor resistance upon the part of the woman forms an element of the crime, nor will apparent consent avail any more than in case of a child incapable by law of giving legal ccyisent</p> <p>Id.—Legal Consent—Impaired Intellect — Capacity Ordinarily Question for Jury.—Legal consent presupposes an intellige'hce r-i! hie of understanding the act, its nature, and probable conseqv , and this degree of intelligence may or may not exist with an ii and weakened intellect; and whether a woman of impaired inte’ ■ ’ ■ sessed mental capacity sufficient to give legal consent, mu i.; '"ir ;, exceptional eases, remain a question of fact for the jury.</p> <p>Id.—Defendant’s Knowledge of Mental Unsop'.-i>ni.-i Ii.ma"c: "al— Illegal Motive—Criminal Intent.—Xyhor/- the imnl. w.h whom the act of sexual intercourse was perpetrated v, ■ , in fact, so mentally unsound as to be incapable of giving legal consero, tin , > rsnn committing such act does so at his peril, and an i" "al motive being present, that illegal motive becomes a criminal into ./l r-n the''facts, at peril of which he acts, are shown to exist, and it . -' ' > e, for the crime that the defendant did not know, or have rea'. ,u ’o «.n '.ve, the incapacity for legal consent.</p> <p>Id.—Intercourse with Feeble-minded /Xtt ' efficiency of Evidence. Where the evidence shows that t jcl > f sexual intercourse complained of was with a feeble-minded , ,rl ■' ,_,nteen years of age, and that she was feeble-minded from early' Uk' «id/ and was an inmate of the state home for the feeblo-miud t it .he 'time of trial, and was then feeble-minded, the evidence is suüii -t to warrant the finding of the jury that the girl, by reason of inentyd unsoundness, was incapable of giving legal consent at the time of the !’ complained of.</p> <p>Id.— Mental Infirmity of Long Staniumj — Evidence—Condition at Time of Trial—Home for Feeiu f-minded.—Where the mental infirmity of the female sought fe> he shown by the people was one of. long standing, evidence of its past, present, and continued existence is admissible as hearing upon her state of mind at the time of the occurrence of the act complained of, anl where she was shown to have been feeble-minded from infancy, test! nony of the medical superintendent of the state home for the feeble-n inded that she was at the time of trial, six months after the alie, i .A .-e, an inmate of that institution, and was then feeble-minded, . ■’ ■ <„ ¡dole, as throwing light upon her condition at the time of the o'.</p>

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

<p>Mexican Grant—Mission Lands—J urisdiotion op Board op Land Commissioners — Decree op Confirmation — Collateral Attack—Authority of Govern or.—The board of land commissioners was authorized to adjudicate upon the validity of every claim for lands in California which purported to be derived from the Spanish or Mexican government, and its decision, however erroneous, cannot be collaterally assailed; nor can a decree of confirmation of a grant from the Mexican governor be collaterally assailed by proof that the lands granted were mission lands, which the - governor had no authority to grant under the laws and regulations of the Mexican government.</p> <p>Id.—Conclusiveness op Patent.—By the patent of the United States to land claimed under a Mexican grant, the government declares that it was valid under the laws of Mexico; that it was entitled to recognition and protection by the stipulations of the treaty, and might have been located under the former government, and is now correctly located so as to embrace the premises as they are surveyed and described; and this record, so long as it remains unvacated, is conclusive against the government, and all parties claiming under it, and all persons not able to show a prior and better title in the premises; and its issuance by the government forecloses all collateral attack upon the regularity and sufficiency of any of the steps or proceedings upon which the patent depends.</p> <p>Id.—Title op Patentee—Description op Survey—Collateral Attack— Absence op Survey.—The patent establishes the title of the patentee to the lands embraced in the survey described in the patent; and it cannot be collaterally attacked by proof that no actual survey upon the ground was made of the tract described in the patent.</p> <p>Id.—Definiteness op Description—Discrepancy in Surveys—Courses and Distances—Monuments.—The field-notes of the survey described in the patent are not limited to the courses and distances described therein, but include also the monuments referred to, and all the objects mentioned by which the lines of the survey can be ascertained; and in case of discrepancy, the latter will control the former; nor can the mere fact of discrepancy between different surveys of the tract described in the patent, as to courses and distances merely, prove that the description given in the patent is so indefinite as to render it void; hut the description is sufficiently definite if the entire body of the field-notes therein described afford sufficient data for its location.</p> <p>Id. — Ejectment — Jury Trial — Direction to Find for Plaintiff. Where the plaintiff in an action of ejectment proves title to the premises in controversy under a United States patent issued in confirmation of a Mexican grant, and defendant shows no prior or better title to the premises claimed, it is not error for the court to direct the jury to find a verdict in favor of the plaintiff.</p> <p>Id.—Questions of Pact and Law — Direction of Verdict. —The correctness of a ruling directing a jury to find a verdict in favor of one party depends upon whether there is any evidence before the jury which would have authorized a different verdict, it being the function of the jury to decide all questions of fact in cases of conflicting evidence, or as between different inferences of fact; but where there is no evidence before the jury whicli would have authorized a different verdict, and the court would be bound to set aside its verdict if rendered otherwise, as contrary to the evidence, the matter becomes a question of law, and the court may direct a verdict in accordance with its ruling upon the question of law.</p> <p>Id. —Pleading—Answer—Admission of Possession—Denial ofUnlawful Withholding—Verdict—Proof of Title.—In an action of ejectment, where the defendants in their answer merely deny that they unlawfully entered upon the lands described in the complaint, or that they unlawfully withhold possession thereof from plaintiff, such answer admits the possession by the defendants of lands within the tract described in the complaint; and the plaintiff is entitled to a verdict for possession of the entire tract therein described upon proof of title thereto, under a patent and survey therein described covering the entire tract in controversy.</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 of the court.</p>

<p>County Government Act—Repeal of Clark Road Law—Authority of Supervisors to Order Road Work—Allowance of Claim—Mandamus to Auditor.—The act of April 1, 1897, to establish a uniform system of road government, etc., commonly known as the “Clark Road Law,” by the provisions of which the powers of supervisors over public roads were withdrawn and vested in road district corporations therein provided for, being inconsistent with the provisions of the new County Government Act subsequently approved on the same day, was thereby repealed; and under the terms of the latter act the county board of supervisors has authority to order road work to be done, and to allow claims therefor; and mandamus will lie to compel the auditor to draw his warrant for such allowed claims.</p> <p>Id.—Passage of Law—Governor’s Approval—Inconsistent Acts of Same Date—Chronological Order of Publication—Presumption—Judicial Notice—Aid from Secretary of State.—A law is not finally passed until it is approved by the governor, and transmitted by him to the secretary of state; and where inconsistent acts are approved on the same date, it is to be presumed that they were printed and published in the chronological order of their approval; but the court will take judicial notice of the time of the approval of each act, and may resort further to the office of the secretary of state to learn the exact time thereof.</p>

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

<p>Certiorari in the Supreme Court to review an order of the Superior Court of Los Angeles County, imprisoning the petitioner for contempt. M. T. Allen, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

County of San Francisco and from an order denying a new trial George H. Bahrs, Judge. The facts are stated in the opinion of the court.

Certiorari in the Supreme Court to review an order of the Superior Court of the City and Count) of San Francisco, Department lío. 9, directing control of a bank deposit, subject to its order. J. V. Coefey, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—New Trial—Misconduct of Jury—Presumption—Conversation of Jurors—Denial of Misconduct—Conclusive Finding. The presumption is that the jury performed their duty with fidelity to their oath, and that they observed the admonitions of the judge as to their conduct, and this presumption can be overthrown only by showing some act of positive misconduct; and it is no ground for a new trial of a criminal case that the jurors were seen conversing together in the courtroom, and pointing out features of the evidence before retiring to the juryroom, when there is no proof as to what their conversation was, or that it was calculated to prejudice the defendant; and where the jurors denied any misconduct, the implied finding of the judge in support of their denial, is conclusive upon appeal against the contention of misconduct.</p> <p>Id.—Misconduct of District Attorney—Impropriety of Defendant’s Counsel.—The only proper way for the district attorney to correct an impropriety or abuse of privilege by defendant’s counsel, is to call the attention of the court to it, and have it stopped; and no improper conduct of the district attorney can be justified by the fact that defendant’s counsel have committed a like impropriety.</p> <p>Id. — Objection upon Appeal for First Time.—An objection to the misconduct of the district attorney cannot be raised upon appeal for the first time.</p> <p>Id.—Striking out Hearsay Evidence—Harmless Ruling.—It is proper, upon motion of the district attorney, to strike out hearsay evidence given by a witness for the defendant; and where the same matter, in substance, was testified to later by the witness, and permitted to rest with the jury, there could be no prejudicial effect of the ruling.</p>

<p>Criminal Law—Homicide—Motion to Set Aside Information—Legality of Commitment—Lapse of Time after Arrest—Appeal—Loss OF Jurisdiction not Shown.—Where the record on appeal of a defendant accused of murder shows that he was arrested and held for preliminary examination on the seventeenth day of September, and that the order holding the defendant to answer for murder was dated October 4th of the same year, and that the depositions of the witnesses taken upon the preliminary examination were used in evidence upon the hearing of the motion of the defendant to set aside the information, on the ground that no legal commitment was had, and that the justice lost jurisdiction of the case before the date of the commitment, but the depositions are not set forth in the record, and it does not appear but that the justice may have entered upon the examination immediately after the arrest, and continued to conduct it until the date of the commitment, no error appears in refusing the motion.</p> <p>Id.—Appointment of Reporter at Preliminary Examination—Error not Appearing.—In the absence of proof in the record that a reporter had acted or reported the testimony taken at the preliminary examination, or had certified thereto, no error can be predicated upon the ground that it does not properly appear that the shorthand reporter was appointed to take the evidence.</p> <p>Id.—Signature of District Attorney to Information—Official Designation— Omission of Name of State—Judicial Notice.—Where the information is properly entitled in the county and state, it is a sufficient compliance with the Penal Code that the information shall be subscribed by the district attorney, and he is not required to append the name either of the county or of the state to his signature; and where he does append the name of the county of which he is district attorney, but omits therefrom the name of the state, the court will take judicial notice that the designated county is in the state, and it is not a ground of objection that the name of the state is not also appended to his signature.</p> <p>Id.—Special Venire — Challenge to Panel — Disqualification of Sheriff — Piling of Sheriff’s Affidavit — Harmless Ruling. — Where a challenge to the panel of a special venire of jurors summoned by the sheriff was sustained, on the ground of the disqualification of the sheriff by reason of bias, and the testimony of the sheriff proves the bias, the defendant is not prejudiced by an order directing an affidavit to be made and filed by the sheriff embodying the substance of his testimony, or by an order refusing to strike out the affidavit, it appearing that the jurors were not present, and that the defendant could not be injured by the testimony or affidavit of the sheriff, and such orders can afford no ground of reversal, conceding, without deciding, that the filing of the affidavit was an irregularity.</p> <p>Id.—Permitting Jurors to Separate—Discretion.—It is matter resting in the discretion of the court to permit the jurors to separate during the progress of the trial, upon the several adjournments from day to day, after properly admonishing them, as provided by section 1122 of the Penal Code.</p> <p>Id.—Appointment of Elisor—Sickness of Coroner.—Where it appears that the sheriff is disqualified from acting by reason of bias, and that, by reason of sickness, the coroner is physically unable to perform the duties of his office, the court may appoint an elisor to take charge of the jury.</p> <p>Id.—Circumstantial Evidence—Incident Prior to Homicide—Conduct of Defendant—Sack and Pistol.—Where the homicide was caused by pistol shots, and the defendant was connected therewith by circumstantial evidence, showing, among other circumstances, the possession by him for several days before the homicide of a white flour sack, and a pistol of caliber corresponding to the bullets which caused the homicide, which flour sack and contents, including the pistol partially discharged, were afterward found in a thicket of brush near the scene of the murder, testimony is admissible to show that, during the trip from the place where the pistol was obtained to the vicinity of the homicide, defendant, three days prior to the homicide, stopped at a country residence, with the flour sack in his possession, and that he was discovered in the evening concealed under a bed, and, when discovered, went out, carrying his hand as if he were going to shoot, and that, having received the flour sack, he ran off the place—as an incident throwing light upon the act of the defendant, his appearance and belongings, at a period not remote from the day of the alleged murder.</p> <p>Id.—Evidence Tending to Establish Offense Charged—Attempt to Commit another Offense.—Although ordinarily evidence of another offense cannot be given, yet, whenever the case is such that proof of one crime tends to prove any fact material in the trial of another, such proof is admissible, and the fact that it may tend to prejudice the defendant in the minds of the jurors is no ground for its exclusion; and where the evidence tends to establish the offense charged, the fact that it tends also to show an attempt of the defendant to commit another offense does not render it inadmissible.</p> <p>Id.— Cross-examination of Defendant—Incomplete Record — Error not Presumed.—Where the scope of the testimony given by the defendant in his examination in chief shows that the questions propounded to him on cross-examination were within the rules enunciated by this court in previous decisions, or were unproductive of injury to the defendant, there is no ground of reversal therefor; and where the record does not contain all of the defendant’s examination in chief, it will not be presumed that the cross-examination was improperly allowed upon matter not testified to by the defendant in chief.</p> <p>Id.—Expert Evidence—Hypnotism of Defendant—Offer of Proof— Instruction. — Expert evidence of a hypnotist is not admissible to show that the defendant, when hypnotized by him, had made a statement to him in regard to his knowledge of the homicide, and had denied his guilt while in that condition, from which statements he was ready to testify that defendant is not guilty; and, after rejection of the oiler of such evidence, it is proper for the court to instruct the jury to disregard the offer, and that the law does not recognize hypnotism.</p> <p>Id.—Trial upon Information—Grand Juror Acting as Trial Juror— Improper Challenge.—Upon the trial of a defendant upon information, where it appears that the grand jury had had nothing to do with the case, it is not ground for challenge to a trial juror that he is a member of a grand jury which was assembled after the information was filed, and which had taken a recess to meet in the future, and had not been discharged.</p> <p>Id.—Death Warrant—Order after Judgment—Appeal—Review. — Where a death warrant is signed by the superior judge after the entry of judgment, it is appealable as an order made after judgment, and, when not separately appealed from, cannot be reviewed on appeal from the judgment and from an order denying a new trial.</p> <p>Id.—Reasonable Doubt — Instructions Refused and Given—Ambiguous Request—Unsuitable Propositions,—Where the instructions given by the court state the whole doctrine of reasonable doubt fully and properly to the jury, and taken as a whole, are as favorable to the defendants as the facts and the law will warrant, it is not error to refuse instructions requested by the defendant upon the subject of reasonable doubt, especially where the meaning of one of them is involved in doubt, and another asserts the uncalled-for proposition that “it is better that a hundred guilty persons escape punishment than that one who is innocent be punished.”</p>

<p>Appeal from a judgment of the Superior Court of Tuolumne County. 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 the City and County of Santa Cruz and from an order denying a new trial. James F. Breen, Acting Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law — Perjury—Making False Affidavit — Delivery for Use—Insufficient Indictment.—Before a party can be convicted of perjury in making a false affidavit, he must either use the affidavit for a purpose contemplated by section 118 of the Penal Code, or deliver it to some one for such use; and an indictment which merely shows that a false affidavit made by the defendant was used by another person on a motion for a new trial, without averring that the defendant so used it, or delivered it for such use, or that it was delivered by defendant to another person with the intent that it be uttered or published as true, does not state facts sufficient to constitute the offense of perjury.</p> <p>Id.—Inferences of Fact Cannot Aid Indictment — Demurrer. — Although, as matter of evidence, inferences of fact and presumptions of fact may be drawn by a jury from circumstances indicating the defendant’s guilt, yet no inferences of facts not alleged can be invoked to aid an indictment, which must charge the crime in words, and which is demurrable if it omits to charge it in express terms.</p>

<p>Superior Judges—Act Reducing Number in Fresno County—Statutory Construction—“Terms” — Vacancy— Appointment — Salary op Elected Judge—Mandamus.—Under the Act of March 26, 1895, reducing the number of superior judges in the county of Fresno, and providing that it should take effect at the expiration of the “term” of the judge of said court whose “ term ” should first expire, and in case of “vacancy ” in any “term ” prior to the first Monday after January 1, 1897, it should take effect immediately, the “ terms ” therein referred to are the constitutional terms; and where a vacancy in a term had occurred by death of the incumbent, and another person had been appointed by the governor to hold until the election and qualification of a judge to fill the vacancy, the incumbency of the appointee is not a “ term " within the meaning of the act, upon the expiration of which the office should cease to exist, and a judge elected and qualified for the unexpired term is entitled to the office for the remainder of the constitutional term, and may maintain mandamus to compel the payment jf the residue of the salary for such term.</p> <p>Id.—Construction op Constitution—Power op Governor to Appoint— “VACANCY.”—In the sense of the constitution, which authorizes the governor, when a “vacancy ” occurs in the office of judge of a superior court, to appoint a person to hold the office until the election and qualification of a judge to fill the “vacancy,” there is a vacancy in the term until such election and qualification, although in the meantime a ' person had been appointed by the governor to hold the office until the vacancy could be filled.</p> <p>Id.—“Constitutional” and “Legislative” Judge.—There is no such 'officer as a constitutional judge as contradistinguished from a legislative judge. Both are provided for in the constitution, and in that sense are constitutional officers.</p> <p>Id.—Distinction in Term op Appointed and Elected Judge. —An appointed judge holds until a successor is elected and qualified, but the judges elected hold for a fixed term only.</p>

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

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