Volume 118 — California Reports

J. M. Seawell, Judge. The facts are stated in tbe opinion of tbe court. It was lawful for plaintiff to use tbe public streets of San Francisco for electric lighting purposes. (Const., art. XI, sec. 19.) Being lawful its acts could not be a nuisance. (Civ. Code, secs. 3479, 3482; Marini v. Graham, 67 Cal. 130; Ex parte Taylor, 87 Cal. 91; Vernon v. Voegler, 113 Ind. 325; Miller v. New York, 109 U. S. 385; Commonwealth v. Capp, 48, Pa.

<p>Mutual Benefit Association—Payment feom Besebve Fund—Change of By-laws—Pkovision fob Change—Harmless Amendment.—A member of a mutual benefit association cannot complain of an amendment to the by-laws providing that a payment of two thousand dollars should be made out of the reserve fund only when there is a sufficient excess over fifty thousand dollars, where the amendment was made in pursuance of a by-law which permitted it, and which was in force when the membership of such member commenced, and especially where at that time there was a rule which fixed the excess at two hundred thousand dollars, thus making the amendment to the benefit and not to the detriment of such member.</p> <p>Id.—By-laws Part of Contract.—All of the by-laws, rules, and regulations of a mutual benefit association become part of its contract with its members, whether referred to in the contract or not, and all of them must be read together.</p> <p>Id.—Findings against Evidence—Intentional Depletion of Reserve Fund—Amount of Fund—Okdee Granting New Trial—Presumption upon Appeal.—Where a finding that the reserve fund was purposely depleted in order to evade payment of dues to beneficiaries is without evidence or allegation to support it, and a finding that there was-' more than fifty thousand dollars in such fund was unsustained by the evidence, and the court granted a new trial upon motion of the defendant, after having rendered judgment in favor of the plaintiff in too large an amount, based upon the findings, the presumption upon appeal from such order is against the findings, and not in their favor, and the order will be affirmed.</p> <p>Id.—Nature of Reserve Fund—Absence of Rule Creating it.—Where there is no by-law or rule creating a reserve fund, or defining of what it shall consist, and certain moneys are specially devoted to other purposes, the net assets are to be treated as belonging to that fund which are not specially devoted to other purposes.</p> <p>Id.—Borden of Proof as to Excess—Deductions from Assets—Overdrafts Where a by-law provides that a certain payment is to be made out of the reserve fund only where there is an excess over fifty thous- and dollars, the burden of proof is upon the plaintiff claiming such payment, to prove that there was such excess in the reserve fund, after deducting from the assets funds devoted to special purposes, and also deducting the amount of an overdraft from bills receivable.</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.</p>

W. G. Lorigan, Judge. The facts are stated in the opinion. The decree of diyorce does not sever the relation of parent and child, or the responsibility of the father for the maintenance of his children, and/ the decree may be modified to require such maintenance. (2 Bishop on Marriage and Divorce, secs. 1212,1213; Plaster v. Plaster, 47 Ill. 290; Wilson v. Wilson, 45 Cal. 399; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Pretzinger v. Pretzinger, 45 Ohio St. 452; 4 Am.

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

John Hunt, Judge. Tbe facts are stated in tbe opinion. A new promise to pay a discharged debt must be express, clear, distinct, unconditional, and unequivocal. (Meech v-Lamon, 103 Ind. 513, 515; 53 Am. Rep. 540; Allen v. Ferguson, 18 Wall. 1; Bennett v. Everett, 3 R. I. 152; 67 Am.

J. M. Seawell, Judge. The facts are stated in the opinion of the court. The buildings in question are parts of the realty. (Civ. Code, secs. 658,660.) The board of supervisors had no power to provide that title to such buildings should remain in the lessee, it not having been conferred upon them by the statute. (Zottman v. San Francisco, 20 Cal. 102; 81 Am.

J. M. Seawell, Judge. Tbe facts are stated in tbe opinion of tbe court. In partition suits eacb party must rely upon bis own title, .and if tbe plaintiff fails to make out a sufficient case, the court must grant a nonsuit and dismiss the action. (Ripple v-. Gil-born, 8 How. Pr. 456; Porter v. Lee, 6 How.

<p>APPEAL from a judgment of the Superior Court of Napa County and from an order refusing a new trial. E. D. Ham, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

F. B. Ogden, Judge. The averments of the complaint upon the subject of damages were substantially as set forth in the last syllabus. The main facts of the case axe stated in the opinion of the court. The poverty of the plaintiff was not competent to show freedom from contributory negligence. (Ma.yhew v. Burns, 103 Ind. 328; Indianapolis etc. Ry. Co. v. Piizer, 109 Ind. 179; 58 Am. Rep. 387; Patterson’s Railway Accident Law, 77; Mahoney v. San Francisco etc. Ry.

J. Y. Coffey, Judge. Tbe facts are stated in tbe opinion of tbe court. The court erred in excluding tbe certified copy of tbe certificate of death. (Pol. Code, sees. 3023-25;' Code Cíy. Proc., see. 1920; Swamp Land Dist. v. Gwynn, 70 Cal. 566; People v. Grundell, 75 Cal. 303; Reclamation Dist. v. Wilcox, 75 Cal. 448; People v. Fairfield, 90 Cal. 186.) The court erred in refusing to allow tbe executor to be cross-examined in reference to tire original answer.

Charles W. Slack, Judge. Tbe appeal was taken by tbe husband of tbe deceased wife. Tbe facts are stated in tbe opinion of tbe court. Tbe legislature bad in view only community property,’ in the provision for setting apart an estate of small value, a widower not being mentioned, because the entire community property vests in him upon death of the wife. (Code Civ.

<p>Gtjaedian and Waed—Investment by Guaedian without Authobity oe Couet—Loans upon Inadequate Seoueity—Rejection oe Loans as Assets.—A guardian, by securing the consent of the court, may invest the ward’s estate without risk to himself; but where he fails to do so, and assumes to act upon his own responsibility, he is held to a strict accountability; and where loans are made without the advice and consent of the court upon inadequate security, and were not such as a prudent business man would have made, the court may properly reject such loans as assets of the estate.</p>

William T. Wallace, Judge. Tbe facts axe stated in tbe opinion of tbe couxt. It is essential that the oath be taken before an officer having authority to administer it, in the particular ease. (Róscoe’s Criminal Evidence, 11th ed., 791; Russell on Crimes, 5th ed., 5; 2 Wharton’s Criminal Law, 1263; Van Dusen v. People, 78 Ill. 645; Biggerstaff v. Commonwealth, 11 Bush, 169.) The indictment must show that the officer had authority to administer the oath.

William T. Wallace, Judge. Tbe action was brought by Mary Canbape, formerly Mary Pond, to recover a sum of three thousand dollars alleged to have been had and received by tbe Security Savings Bank to tbe use of tbe plaintiff, and to have it determined that an adverse claim to that sum made by tbe executors of the estate of Cora L. Floyd, deceased, to said moneys, was invalid.

<p>APPEAL from a judgment of tbe Superior Court of tbe City and County of San Francisco, and from an order denying a new trial. "William T. Wallace, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

<p>APPEAL from an order of tbe Superior Court of Butte County quashing and recalling executions. John C. Gray, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Ejectment—Evidence of Plaintiff’s Title—Foreclosure of Mortgage— Loss of Judgment-roll—Judgment-book—Recitals in Judgment.—In an action of ejectment, when the plaintiff claims title under the foreclosure of a mortgage against the defendant, and a sheriff’s deed under the order of sale of the mortgaged premises, and it appears that the judgment-roll in the action of foreclosure was lost, the judgment-book is competent evidence of what matters were passed upon and determined by the court, and the recitals in the judgment showing acquisition of jurisdiction over the defendants are at least prima facie evidence of the truth of the facts recited, and of the validity of the judgment, and the judgment-book should be admitted as part of plaintiff’s proofs, together with the sheriff’s certificate of sale, and the deed founded upon it.</p>

<p>APPEAL from a judgment of tbe Superior Court of tbe City and County of San Francisco. J. C. B. Hebbard, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

<p>APPEAL from a judgment of the Superior Court of Modoc County and from an order denying a new trial. C. L. Claflin, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of tbe Superior Court of tbe City and County of San Francisco. Walter H. Levy, Judge.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>APPEAL from a judgment of tbe Superior Court of Butte County. W. H. Grant, presiding.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Contract to Construct Seawall—Subcontract—Keserv-ed Percentage— Order upon Harbor Commissioners—Condition Precedent—Abandonment of Work—Completion by Contractor—Eights of Assignee.— Where one who hacl contracted with the state hoard of harbor commissioners to construct part of the sea-wall, made a subcontract, agreeing' that a residue of twenty-five per cent of the subcontract price was to be paid by an order drawn upon the harbor commissioners, to be held by a third person until the work was completed and accepted by them, and delivered to the subcontractor only on the faithful performance of the subcontract, and, if it was not performed as therein specified, the order was to be forfeited and returned to the contractor, who might complete the work at the expense of the subcontractor, the completion and acceptance of the work is a condition precedent to the payment of the reserved percentage, and upon abandonment of the work by the contracting company which made the subcontract before its final completion, it is not entitled to the order, or the money which it represents, and its assignee is in no better position, and is only entitled to such portion of the reserved percentage as might remain after deducting the expense incurred by the contractor in completing the work specified in the subcontract, and an assignee of that portion of the reserved percentage covered by such expense, acquires nothing by the assignment.</p> <p>Id.—Consent of Contractor to Assignment of Eeserved Percentage— Conditions—Subcontract not Modified.—The written consent of the contractor to the assignment by the subcontractor of the reserved percentage, which is given expressly subject to the terms and conditions of the subcontract, and to the completion of the contract according to the terms and conditions thereof, works no modification of the subcontract, and does not circumscribe the rights of the contractor, in case of a violation of the terms of the subcontract by the assignor; and the assignee takes the assignment cum onere. i</p> <p>Id.—Losses of Contractor in Completing Subcontract—Conflicting Evidence—Appeal.—Where the evidence is conflicting as to what losses were sustained by the contractor in completing the work specified in the subcontract upon abandonment thereof by the subcontractor, a new trial cannot be granted for failure of the evidence to support the findings as to the losses so sustained.</p> <p>Id.—Amount of Loss—Value of Labor—Expert Evidence—Striking out Evidence for Appellant—Harmless Ruling.—In an action by an as-signee of the reserved percentage, where expert evidence was given for the defendant to show the value of certain labor charged for by the contractor in performing work which the subcontractor had covenanted but failed to perform, and experts testified for plaintiff in rebuttal that the labor was of considerably less value, the striking out such rebutting evidence is harmless, where it appears that if the lowest value testified to were accepted, the amount of loss of the contractor would still be largely in excess of all that portion of the reserved percentage assigned to plaintiff.</p>

<p>APPEAL from a judgment of the Superior Court of El Do-rado County. M. P. Bennett, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Contempt—Disobedience to Coroner’s Subpoena—Punishment by Superior Court—Jud&ment not Appeaj.able—Dismissal op Appeal.—The judgment and orders of the court or judge, made in cases of contempt, are final and conclusive; and, as a general rule, there is no appeal from, a judgment or order adjudging one guilty of contempt; and where a coroner has adjudged a person guilty of contempt in disobeying a subpoena to appear at an inquest as a witness, an order thereupon made by the presiding judge of the superior court, that such person he imprisoned until he should testify before said coroner as directed by the latter, is not appealable, whether such order be viewed as within the general category of contempts, or as punishment for a misdemeanor, and an appeal therefrom will be dismissed.</p> <p>Id.—Jurisdiction of Superior Court—Unlawful Imprisonment—Remedy not by Appeal.—The question whether the superior court had jurisdiction to make the order appealed from cannot affect the invalidity of an appeal therefrom; and if appellant is imprisoned unlawfully, he must pursue some remedy other than appeal.</p>

<p>Sale and Lease by Brewer—Notes for Purchase Money—Want of Consideration—Violation of Internal Revenue Laws—Judgment of Forfeiture.—In an action upon promissory notes given in consideration of tbe sale of personal properly connected with a brewery, which was leased by the payee to the maker of the notes, an answer setting up that the vendor, prior to the sale and execution of the notes, had violated the internal revenue laws of the United States in the business of brewing and selling beer, and that on that account the personal property sold had become, and was, liable to seizure and sale, and was thereafter seized and subjected to a judgment of forfeiture for such violation, and that said notes were executed and delivered without consideration, sets up a valid defense to the action.</p> <p>Id.—Proceedings in Rem—Parties—Conclusiveness of Judgment against Absent Owner—Default—Date of Divestiture of Title.—Where proceedings for the forfeiture of property are in rem, all the world are deemed to be parties thereto, and are concluded by the judgment of forfeiture; and such judgment is conclusive evidence against the former owner of the property, for whose violation of the revenue laws the forfeiture was adjudged, although he was not served with process, and was absent from the state when the property was seized and the judgment was rendered, and though the judgment against the property was rendered by default and without proof; and such forfeiture must be deemed to have attached at the time of the commission of the offense, and to have divested the title of the owner as of that date, as against his subsequent vendees.</p> <p>Id.—Action upon Notes—Issue as to Want of Consideration—Finding as to Failure—Conclusion of Law.—Where the answer in the action upon the notes given in consideration of the property adjudged to have been forfeited, pleaded all the facts as to the forfeiture, and set up want of consideration for the notes, and the court found all the facts touching the sale, the execution of the notes, the forfeiture, seizure, and sale of the property, and the proceedings in conrt after the seizure, its concluding finding, repeated in its conclusions of law, that the consideration for the notes ⅞ hilly failed prior to their maturity, is but the finding of its conclusion of law from the facts specifically found, and as the judgment for the defendant is right upon the facts found, it will not be reversed on the ground that failure of consideration was not within the issues.</p> <p>In.—Evidence—Collection of Outstanding Accounts—Irrelevant Proof.— Where there is neither allegation nor evidence in an action upon promissory notes, that outstanding accounts in favor of the plaintiff were sold to the defendants, or formed any part of the consideration of the notes sued upon, there can be no recovery in the action for moneys collected upon said accounts, and evidence in reference to such outstanding accounts, and as to whether defendants had collected any of them, is inadmissible.</p> <p>Id.—Immaterial Evidence—Statement as to Ownership op Property Sold and Leased.—A sale of property is in itself an assertion of ownership; and where the notes in suit were given in part payment for personal property purchased, which was connected with a brewery leased by plaintiff to defendants, a statement made by plaintiff, at the time of the sale and lease, that he was the owner of the property sold, and had a right to lease it, is immaterial, and an objection thereto is properly sustained.</p> <p>Id.—Part Payment—Use op Materials before Seizure.—Where part of the property sold consisted of materials for maiding beer, which were used by defendants before the property was seized for forfeiture incurred by the vendor, and it appears that two hundred dollars were paid in cash on account of the purchase, and the notes in suit were for the residue of the purchase money, and it does not appear what the value of the materials was, and there is no action to recover its value, such use of the materials does not affect the correctness of the findings and judgment as to want of consideration of the notes by reason of forfeiture of the property sold.</p>

<p>APPEALS from a judgment of the Superior Court of Nevada County. John Caldwell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

John C. Gray, Judge. The facts are stated in the opinion of the court. The indictment charges voluntary and not involuntary manslaughter, and the conviction of involuntary manslaughter is not supported, none of the acts constituting it being specifically charged. (People v. Lee, 107 Cal. 480-81; People v. Ward, 110 Cal. 369; Bruner v. State, 58 Ind. 159.) The violation of a municipal ordinance is not an “ unlawful act ” within the meaning of section 192 of the Penal Code.

APPEALS from a judgment of tbe Superior Court of Ala-meda County and from an order denying a new trial. F. B. Ogden, Judge. Tbe facts are stated in tbe opinion of tbe court. ' Tbe city of Oakland is estopped from bringing this action by its conduct and acquiescence. Municipalities and states may be thus estopped. (State, etc. v. Flint etc. Ry. Co., 89 Mich. 481, 487; State etc. v. Jachson etc. R. R. Co., 69 Fed. Rep. 116; Cohn v. Barnes, 5 Fed.

F. W. Henshaw, Judge. The facts axe stated in the opinion of the court. ' The complaint in this case is similar to the information or bill in equity in the Chicago case, and states a cause of action. (Illinois Gent. R. R. Go. v. Illinois, 146 U. S. 387.) The attorney general had authority to institute this action. (People v. Stratton, 25 Cal. 242; People v. Gold Run Ditch etc. Go., 66 Cal. 138; 56 Am.

F. B. Ogden, Judge. The facts are stated in the opinion of the court. The superior judges being taxpayers in the city of Oakland were disqualified.

<p>APPEAL from an order of the Superior Court of the City • and County of San Francisco adjudging an executrix guilty of contempt. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of tbe Superior Court of Sacramento County denying a new trial. W. C. Yan Fleet, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

<p>APPEAL from a judgment of tbe Superior Court of Tuolumne County and from an order denying a new trial. G. W. Nicol, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

D. J. Murphy, Judge. Tbe facts are stated in tbe opinion. There can be but one trial and judgment in tbe justices’ court. (Code Civ. Proc., secs. 850, 873, 892.) Tbe jurisdiction of tbe justices’ court is special and limited, and it is not governed by provisions applicable to courts of record, in relation to trials and judgments. (Weimmerv.

<p>Estates of Deceased Persons—Death of Sole Executrix—Letters "with Will Annexed—Eights of Public Administrator against Sister of Executrix—Discretion—Waiver of Commissions.—Where a widow was appointed sole executrix of the will of her deceased husband, but died several years after his death, without having applied for letters, the public administrator is entitled to letters of administration upon the estate of the deceased husband with the will annexed, as against the sister of the deceased executrix, who was executrix of her will; and the court has no discretion to refuse such letters to the public administrator, and to grant them to the sister of the deceased executrix, notwithstanding her offer to waive commissions, in the interest of the estate.</p> <p>Id.—Construction of Code—Default in Letters Testamentary—Death of Executor before Probate of Will—Grant of Letters as in Cases of Intestacy.—Under section 1350 of the Code of Civil Procedure, which provides that “if the sole executor or all the executors are incompetent, or renounce, or fail to apply for letters, or to appear and qualify, letters of administration with the will annexed must be issued as designated and provided for the grant of letters in cases of intestacy,” it is the manifest intention of the legislature to make the provisions of section 1365 of the same code, regulating the grant of letters in cases of intestacy, applicable in any case provided for in section 1350, including cases where the executor dies before the will has been probated or letters have been issued.</p>

Lueien Shaw, Judge. Tbe facts are stated in tbe opinion. Tbe owners of tbe higher tract have an easement for tbe flow 'of water over the lower tract. {Gray v. McWilliams, 98 Cal. 161; 85 Am. St. Rep. 163; Ogburn v. Connor, 46 Cal. 346; 13 Am. Rep. 213; Los Angeles Cemetery Assn. v. Los Angeles, 103 Cal. 466.) Tbe supervisors acted under authority of law, and any resulting injury is damnum absque injuria. {Lamb v. Reclamation Dist., 73 Cal. 125; 2 Am.

<p>Estatus or Deceased Peesons—Obder Refusing Letteks or Administration—IMBUED FINDING—INSUFFICIENT BlLD OF EXCEPTIONS—APPEAD— Evidence not Reviewabee.—Where an order refusing letters of administration of the estate of a deceased person is in general terms, it implies a finding against the petitioner upon all the material allegations of the petition; and if there is no specification of insufficiency of the evidence to justify the decision, the appellate court is precluded from looking into the evidence to ascertain its sufficiency to sustain the order.</p>

<p>APPEAL from a judgment of the Superior Court of Los An-geles 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>Cebtiobaei—Justice's Judsment—Default—Demubbeb—Notice oe Heab-ing—Record Proof oe Service—Supplemental Evidence oe Constable-Disproof of Record bt Attorney Inadmissible.—’Where a judgment was rendered by default in a justices’ court after an appearance and filing of a demurrer by an attorney for the defendant, and the overruling of the same, and the expiration of time to answer thereafter, and the docket showed that notice of hearing of the demurrer was issued three days before the hearing, and was returned and filed on that day, bearing an indorsement of receipt of a copy of the notice with blank date, purporting to be signed by the attorney for the defendant, followed by the memorandum “Served H. H. Y.,” upon certiorari to review the judgment, though it may be proper to admit proof supplemental to the record to show that the memorandum bore the initials of the constable who served the notice, and that two days before the hearing he delivered the copy of the notice to a man in the office of defendant’s attorney, who signed the attorney’s name to the acknowledgment of service, yet evidence of such attorney is not admissible to. impeach the record of service, by disproving the authority of the person in his office to make the acknowledgment, and denying that he in fact received notice of the hearing.</p> <p>Id.—Review of Facts upon Oeetioeaei—Evidence—Peovinoe of Writ— Tkial of Facts de novo not Peemitted.—Upon certiorari, if it becomes necessary for the court of review to be put in possession of the facts upon which the court below acted, and which are not technically of record, it is competent for that court to require the lower court to certify such facts in its return to the writ, and its statement of facts is part of the record, and it seems that upon this principle the court of review may hear evidence supplemental to the record, in aid of the jurisdiction appearing from the record; but the province of the writ being to review the record of an inferior court, board, or tribunal, and to determine therefrom whether it has exceeded its jurisdiction, its inquiry into the evidence is limited to that upon which the inferior tribunal acted; and where its jurisdiction depended upon a question of fact, that question cannot he tried de novo upon its merits, nor can evidence dehors the record and contradicting it, to show want of jurisdiction, ever be permitted.</p>

W. L. Pierce, Judge. The facts are stated in the opinion of the court. One who is not the head of a family can claim no greater exemption than one thousand dollars. (Civ. Code, sec. 1260.) The present time of the appraisement is the time when the value of the homestead is to be compared with the amount of the then existing exemption. (Civ. Code, sec. 1246.) The object of the homestead law is to protect the home of the family. {Gregg v. Bostwick, 33 Cal. 220; 91 Am.

<p>APPEAL from a judgment of tbe Superior Court of Sacramento County. Joseph W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEALS from judgments of tbe Superior Court of Tulare County. J. E. "Webb, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe 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 of the court.</p>

E. W. Risley, Judge. Tbe facts are stated in tbe opinion of tbe court. Tbe corporation defendant was not chargeable with tbe knowledge acquired by its mere ministerial servants. (4 Thompson on Corporations, sec. 5237; Pomeroy’s Equity Jurisprudence, sec. 668; Tiedeman on Equity, sec. 100; Fairfield Sav. Bank v. Chase, 72 Me. 226; 89 Am. Rep. 219; Consolidated Coal Co. v. Block etc. Co., 53 Ill. App. 565; Grant v. Cole, 8 Ala. 519; Shaver v. New York etc. Transp.

<p>Criminal Law—Assault with Ihtent to Murder—Evidence—Identifi cation of Defendant—Cross-examination—Apparel.—upon a charge of assault with intent to commit murder, where the identification of the defendant by the prosecuting witness was a vital point in the case, it is permissible and important for the defendant to impair, so far as he can by legal evidence, the force of the identifying evidence, and it is legitimate cross-examination upon the question of identity to ask the witness concerning the apparel of his assailant, and upon answer made that the coat of defendant exhibited to him was like the coat worn, it is proper to show that upon the preliminary examination, and upon the former trial the same witness had identified the same garment with positiveness, and that evidence was afterward adduced upon the former trial to show that defendant had purchased it subsequent to the date of the alleged offense, and it is reversible error to refuse to permit such evidence.</p> <p>Id.—Pistol not Identified—Striking Out Evidence—Instruction to Disregard-Error not Reversible.—Where the prosecuting witness gave a general description of the size and appearance of the pistol with which he had been threatened, and, over defendant’s objection, it was shown that when arrested defendant 'had two loaded pistols, one of which was admitted in evidence, but there was no attempt of the prosecuting witness to identify it, and upon proof by the defendant that the pistols were purchased by him after the date of the assault, the court reconsidered its ruling and struck out all the evidence as to defendant’s pistols, and instructed the jury to disregard it, although it would have been a wiser procedure for the court in the first instance not to receive the evidence until satisfied of its admissibility, yet, under the circumstances, it cannot be said that the injury from the admission of the evidence afterward stricken out was reversible error.</p>

<p>APPEAL from a judgment of tbe Superior Court of tbe City and County of San Francisco, and from an order denying a new trial: Geo. H. Bahrs, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Clara County. W. G. Lorigan, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, granting a preliminary injunction. A. A. Sanderson, Judge.</p> <p>The facts are stated in Schwarz v. Superior Court, 111 Cal. 106.</p>

<p>Criminal Law—Suspension of Sentence—Direction for- Deportation.— After a verdict convicting a defendant of a felony has been rendered, an order, made at his request, by its terms directing a suspension of judgment' and allowing him to ship upon a United States deep water vessel, and requiring the sheriff to make a due return thereof to the court, is, in legal effect, a mere order tha.t sentence be suspended until further order of the court; and the court has jurisdiction, several years thereafter, to set aside such order, and sentence the defendant to imprisonment.</p>

<p>APPEAL from a judgment of tlie Superior Court of Los An-geles County. 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 and from an order refusing a new trial. William R. Daingerfield, Judge.'</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of tbe Superior Court of Solano County and from an order denying a new trial. A. J. Buckles, Judge.</p> <p>Tbe facts are stated in tbe opinion of the court.</p>

MOTION in the Supreme Court to strike out an order entered upon receipt of a mandate from the Supreme Court of the Hnit-ed States. The facts are stated in the opinion of the court.

<p>Cp.iminai.Law—Homicide—Evidence—Previous Trouble—Tendency to Disgrace Dependant.—Upon the trial of a defendant charged with mnrder, the prosecution is entitled to show any previous difficulties or troubles that had arisen between the defendant and the deceased, in order to indicate the state of mind of the defendant at the time of the killing. This showing is not limited to physical encounters, but may consist solely in an afiray of words; and this character of evidence is admissible, however much it may tend to disgrace and injure the defendant in the estimation of the jury.</p> <p>Id.—General Statement op Nature op Trouble—Matter op Detail—Motion to Strike Out—Improper Objection.—A witness may be properly asked to make a general statement of the nature of any preceding trouble between the defendant and the deceased; but the location of the right or wrong of the trouble is immaterial, and the evidence should not be introduced in detail; yet, if the answer of the witness includes any objectionable matter of detail, the wrong can only be remedied by a motion to strike it out, and, if no such motion is made, the evidence cannot properly be objected to on the ground that it tends to disgrace and injure the defendant in the estimation of the jury.</p>

<p>APPEAL from a judgment of tbe Superior Court of tbe City and County of San Francisco. J. C. B. Iiebbard, Judge.</p> <p>Tbe facts are stated in tbe opinion of the court.</p>

<p>Criminal Law—Bill of Exceptions—Correction of Mistake—Notice—Order SerxiNG Aside Settlement—Appeal.—Under section 473 of the Code of Civil Procedure, notice is not required to be given of an application for the correction of a mistake in a record; nor is the presence of a defendant convicted of felony needed at the hearing of a motion to correct' a mistake in the settled bill of exceptions, so as to make it show the record as it actually existed; and where the defendant was given two days’ notice of such motion, arid the court, after the taking of evidence which justified the correction of a mistake in the bill, set aside the order settling the bill, corrected the mistake, and resettled the bill as corrected, the order setting aside the settlement will not be reversed upon appeal for the want of five days’ notice to the defendant of the hearing.</p>

<p>APPEAL from a judgment of tbe Superior Court of Tulare County. W. W. Cross, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

<p>Counties—Power of Supervisors—Employment of Counsel—Assistance of District Attorney not Essential—Contest of Salaries of Deputies. The board of supervisors is made by law the guardian of the interests of the county, and, by subdivision 17 of section 25 of the County Government Act of 1893, is empowered to direct and control the prosecution and defense of all suits to which the county is a party, and may employ counsel for that purpose, whether in aid of the district attorney or otherwise, and where in their opinion, the deputies of certain officers, including the district attorney, are drawing salaries without authority of law, they may properly employ other counsel, exclusive of the district attorney, to prosecute actions to enjoin the payment of such salaries.</p> <p>Id.—Discretion of Supervisors—Power of Employment not Dependent - upon Result.—Whether, in any particular case, the employment of counsel shall be made, is addressed to the discretion which the supervisors are to exercise in behalf of the public interests; nor is their right to employ counsel and to make the value of their services a charge upon the county dependent upon the result of the suit; but wherever there is room for an honest difference of opinion as to such result, and, in the opinion of the supervisors, the interests of the county require the employment of counsel, they are justified in making such employment.</p> <p>Id.—Allowance and Settlement of Expenses and Services of Counsel-Adjudication Conclusive upon Auditor—Mandamus—Immaterial Evidence.—The allowance and settlement of a claim for the expenses and services of counsel employed by the supervisors is an adjudication by a tribunal having jurisdiction of the matter that the services have been rendered, and of the correctness of the claim, and is conclusive upon the auditor, who cannot refuse to draw his warrant upon the ground that the services were not rendered, or were of less value; and, upon mandamus to compel him to draw warrants upon claims so allowed. evidence is not admissible for him to show whether suits were brought by such counsel, or whether they had assisted the district attorney in bringing any suits, or whether he had sought for any assistance, and what had been the result of the suits brought by the plaintiff; but these questions are irrelevant and immaterial to the issue before the court.</p>

William E. Daingeriield, Judge. The main facts are stated in Taylor v. Hearst, 107 Cal. 262. Further facts axe stated in the opinion of the court rendered upon this appeal.

<p>Contracts—Ciiarter of Barons for Us® of Dredge Company—Execution by President—Copartnership—Parod Evidence.—Where one of the members of a copartnership doing business under a corporate name having his surname in its title, chartered barges expressly for the use of the copartnership, and designated himself in the charter and in the signature thereof as president of such company, the evidences upon the face of the charter that it was designed to be the contract of the copartnership, if not sufficiently clear of themselves to prove it as matter of law, are, at least, sufficient to warrant parol evidence to show that the company was bound by the terms of the contract as principal.</p> <p>Id.—Principad and Agent—Designation of Agency in Written Contract —Evidence—Distinction Abodished.—The distinction at common law between sealed and unsealed instruments, as to the effect of words of agency appended to the name of a contracting party in the body and signature of the contract, is abolished in this state, and the rule as to simple contracts is applicable, that words of agency employed in the written contract are to be regarded, not as descriptive merely, but as importing character and capacity; and, where the reading of the contract, however inartificially it may be drawn, discloses that it is executed for or on behalf of a principal, or even leaves the matter in doubt, parol evidence may be used to determine whose contract it is, and this even in cases where the instrument is sufficiently clear in its terms to bind the agent personally.</p> <p>Id.—Negligence or Bailee—Injury erom Storms to Chartered Barges— Prevention or Injury—Question or Pact—Nonsuit.—In an action for injury to chartered barges, where one count of the complaint was upon the terms of the charter covenanting to return the barges in good condition, etc., and a second count charged defendant with failing to exercise the ordinary care required of a bailee for hire, and the plaintiffs’ evidence showed that the barges were placed by the defendant in shallow water, off a lee shore, and left exposed to the fury of a southeastern storm of unprecedented severity, that the barges were not designed to meet or withstand heavy weather, that defendant knew this when receiving them, and that injury to the barges might have been prevented by removing them to a sheltered shore, it is a question of fact for tbe jury whether the defendant did or did not exercise due care for the preservation of the barges, and it is error to grant a nonsuit for want of proof of negligence.</p>

W. H. Clark, Judge. The facts concerning the rents of property devised jointly to the appellants and the executor, Marshall, and concerning the allowance of a fee for services of the attorneys of the executors, are stated in the syllabi upon those points. Further facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Alameda County setting aside a verdict of its own motion. A. L. Frick, Judge.</p> <p>The facts axe stated in the opinion of the court.</p>

<p>Ckiminal Law—Assault with Intent to Kill—Pbiob Conviction—Denial and Subsequent Confession—'Verdict—Sentence—Recital in Judgment —Appeal.—Wliei'e a defendant charged with an assault with intent to kill, and also with having suffered a prior conviction of another felony, when arraigned, pleaded not guilty of the offense charged, and denied the prior conviction, and the verdict passed only on the plea of not guilty, but the sentence was too great, unless based on the prior conviction, and the judgment recited that defendant subsequently, on a specified day, confessed the prior conviction, the truth of which recital was not controverted, the verity of the recital must be accepted; and where it appears that the case was conducted on the theory that the prior conviction had been confessed, and no reference was made to the prior conviction, either in the reading of the information or in the charge of the court, there is no defect in the judgment-roll of which defendant can take advantage upon appeal, and no erroi appears upon its face.</p>

<p>Disincorpoeation op Municipality—Mandamus—Cam. por Eduction—Sup-piciency op Petition.—Under the act of 1895 requiring the board of trustees of a city of the sixth class to call an election on the question of disincorporating the municipality, upon receiving a petition in that behalf signed by not less than one-fourth of the qualified electors of the municipality, it is no objection to the sufficiency of the petition that it did not represent the subscribers as qualified electors, but described them only as citizens of the city, if the signers were qualified electors in fact; and where the complaint in manlamus to compel the call of the election avers that the petition was signed by the requisite number of qualified electors, it is the fact of the receipt of such a petition, and not the fact that it describes the subscribers as electors, which under the statute imposes the obligation to call the election.</p> <p>Id.—Inquiry by Board op Trustees—Quadipication op Signers to Petition. Whether the names subscribed to the petition were those of electors is matter for consideration by the board; and an affirmative allegation of that fact in the petition would neither preclude nor materially aid the inquiry.</p> <p>In.—Complaint por Mandamus—“ Party Beneficially Interested”—Owner and Taxpayer.—It is sufficient in a complaint for mandamus to show that the complainant is a “party beneficially interested,” within the meaning of section 1086 of the Code of Civil Procedure, to aver that he is a property owner^ynd taxpayer.</p>

<p>APPEAL from an order of tbe Superior Court of Sacramento County denying a new trial. A. P. Catlin, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

William E. Daingerfield, Judge. The facts are stated in the opinion of the court. The act of 1893 is unconstitutional as being special legislation. (Welsh v. Bramlet, 98 Cal. 219, 227.) An arbitrary classification cannot be used as a pretext for special .legislation.

<p>APPEAL from a judgment of tbe Superior Court of tbe City and County of San Francisco and from an order denying a new trial. William T. Wallace, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

James M. Tro-utt, Judge. The facts are stated in the opinion. The plaintiff does not show capacity to sue as administra-trix. There is no sufficient allegation of the appointment of .plaintiff as administratrix, by an order duly given or made. (Barfield v. Price, 40 Cal. 535; Young v. Wright, 52 Cal. 407; Code Civ. Proc., sec. 456; Judah v. Fredericks, 57 Cal. 389.) Plaintiff bas an adequate remedy in law, and cannot maintain this action for specific performance.

<p>Beceivek—Appointment after Judgment—Direction as to Possession.— Where a judgment has been rendered directing the defendant to satisfy a particular claim within a specified time, and, in default thereof, that a certain piece of real property described in the judgment be sold and the proceeds applied in payment of said claim, and, if insufficient, that judgment should be docketed against the defendant for the deficiency, the court has no jurisdiction, in an order thereafter made appointing a receiver, to direct him to take charge and possession of any property of the defendant other than that described in the judgment.</p> <p>Id.—Stay of Execution—Entry of Judgment.—After the entry of the judgment, although there had been no appeal therefrom, and the defendant had obtained a stay of its. execution until afrer the decision of his motion for a new trial, the court had jurisdiction to appoint a receiver of the land which it directed to be sold, and to give him authority to collect the rents thereof and to hold the same subject to its further order.</p>

<p>Warranty—Contract—Findings—Want of Consideration.—In an action to recover for the breach of a written warranty of the capacity of a pump manufactured and sold by the defendant to the plaintiff, in which the defendant, by answer, denies making the representations alleged, sets out the representations that were made, and that the alleged warranty was without consideration and given after the purchase and delivery of the pump, and as a counterclaim, the amount of certain expenditures made by him in sending an agent to examine the pump, under an alleged agreement with plaintiff that, if the pump was found to be as represented by defendant, plaintiff would repay the expense of such agent, and by cross-complaint set up a want of consideration for the warranty and prayed for its reformation on account of accident and mistake, a finding that the defendant had fully complied with the terms of the contract, is sufficient to support a judgment in his favor, without finding specifically on the probative facts as to what representations and warranties were made, and rendered the subject matter of the cross-complaint immaterial.</p> <p>Id.—Immaterial Issues.—A finding that the warranty was without consideration rendered immaterial the issues raised by the cross-complaint as to its being made by accident or mistake.</p> <p>Id.—Counterclaim.—A finding, in general, that the allegations of the .counterclaim “are untrue, and not supported by the evidence,” should not be construed as intended to contradict the specific findings upon the main subject of the controversy.</p>

John Reynolds, Judge. Tbe facts are stated in tbe opinion of tbe court. The nomination of tbe brother as administrator, without bonds, shows a testamentary intent.

<p>In VOLUNTARY INSOLVENCY—TRANSFER OE STORE BY INSOLVENT ElRM—PREF-ERENCE oe Creditor—Contemplation oe Insolvency—Fraud — Question oe Fact—Prima Facie Evidence—Rebuttal—Support oe Findings. Upon the trial of a petition in involuntary insolvency by creditors of an insolvent firm, charging that, within thirty days next preceding, the firm had transferred its stock in trade, and the fixtures and book accounts of its store, with intent to hinder, delay, and defraud the creditors of the firm, and also in contemplation of insolvency, where the evidence showed that the transfer was made to one creditor in payment for borrowed money, and did not exceed the debt in value, and it was testified that, at the time of the transfer, there was no intention to hinder, delay, or defraud any creditors, and that the firm and each partner, though insolvent in fact, did not contemplate insolvency, or intend to file any petition in insolvency, the question of their intent to make a fraudulent preference forbidden by the Insolvent Act, is a question of fact, and not of law; and, although the fact that the transfer was out of the usual course of business, was prima facie evidence of fraud, yet such prima facie evidence nught be overcome by rebutting evidence, and where the court found against any intent to defraud, and against any contemplation of insolvency, at the time of the transfer, and refused an adjudication of insolvency under the petition, its findings and judgment cannot be disturbed upon appeal for insufficiency of the evidence.</p> <p>Id.—Right oe Insolvent Debtor to Prefer Creditors.—Except as limited by the statute, an insolvent debtor may lawfully make preferences among his creditors, even to tbe extent of transferring all of his property to one creditor to the exclusion of others; and a conveyance of property which pays one creditor a just debt and nothing more, is not fraudulent per se against other creditors of the insolvent debt- or, and can only be attacked by showing that it is in violation of the insolvent law.</p>

<p>APPEAL from a judgment of the Superior Court of Butte County. John C. Gray, Judge.</p> <p>Tbe facts axe stated in tbe opinion of tbe court.</p>

Edward A. Belcher, Judge. The affidavits of the jurors referred to in the opinion set forth that they did not wish to convict the defendants of any manslaughter which was a felony, and for that reason refused to change their verdict and to strike out the words “not a felony”; that they understood that they were convicting the defendants of something less than a felony, and their idea was to find them guilty of nothing moré than a misdemeanor.

<p>APPEAL from an order of tbe Superior Court of tbe City and County of San Francisco- settling tbe account of an executor. J. Y. Coffey, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

MOTION in tbe Supreme Court to reverse a judgment upon a confession of errors by respondent. Tbe facts are stated in tbe opinion of tbe court.

<p>Ejectment—Possession by Defendant Pendente Lite—Eviction—Statute of Limitations.—Where an action of ejectment, commenced within the statutory period of limitation, is prosecuted to a final judgment for the plaintiff, and the defendant is evicted under a writ of possession issued thereunder, the latter, although he has remained in possession during the pendency of the action, and five years have elapsed from the time at which he first took possession until his eviction, does not acquire a new or independent title by prescription, which either he or his grantee can afterward enforce notwithstanding his eviction under the judgment in ejectment.</p> <p>Id.—Possession Coneeks no New Rights.—During the pendency of the action of ejectment, the defendant can acquire no new rights as against the plaintiff by the mere fact that he remains in possession.</p>

WRIT of Mandate from tbe Supreme Court to tlie Auditor of tbe City and County of San Francisco. The facts are stated in' tbe opinion of tbe court. Mandamus is the proper remedy in this case. (Code Civ. Proc., sec. 1085; People v. Olds, 3 Cal. 167; 58 Am.

<p>APPEAL from a judgment of tbe Superior Court of San Diego County. W. L. Pierce, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

MOTION to dismiss an appeal from an order of tbe Superior Court of the City and County of San Francisco refusing to set aside a sale. William T. Wallace, Judge. The facts are stated in the opinion, of the court.

<p>MOTION to dismiss an appeal from an order of tbe Superior Court of the City and County of San Francisco refusing to set aside a sale. William T. Wallace, Judge.</p> <p>The facts are stated in the opinion, of the court.</p>

<p>Hosband and Wins—Agreement for Separation—Release of Right or Succession. — An agreement for separation between a husband and wife, made in pursuance of a compromise of an action for a divorce, providing for a division of property between them, and containing a mutual release “from all obligations for the future acts and debts of each other,” and an individual release each to the other from the then existing debts and obligations of each, but not containing a release, in terms, by either one, of claims upon the future acquisitions of the other, nor, in terms, any release by either one upon the estate of the other in case of death, does not amount to a waiver or release by either of the right to succeed to all or any portion of the other’s estate.</p> <p>Id.—Estate of Deceased Person—Appearance of Attorney—In a proceeding for a distribution of such a wife’s estate, instituted by the husband, and on the appeal from the decree therein, the public administrator, as administrator of her estate, who made and had no claim upon the estate beyond his commissions, was not an adverse party, nor a necessary party to the appeal, and the attorney who appeared for him in the general proceedings of the administration had a right to appear as attorney for the husband in the proceeding for a distribution.</p>

<p>LANDLORD AND TENANT—PAROL LEASE FOE YEARS—AGRICULTURA!. LAND—ANNUAL Rent—Tenancy from Year to Year.—A parol lease for five years is void, and no rights are fixed by its terms; but, when entry is made under it, the tenancy is either at will, or from month to month, or from year to year, according to the circumstances of the case; and where the laud is agricultural, and the rent is to be paid annually, and is in fact paid to the lessor and accepted by him as annual rent, the holding is from year to year.</p> <p>Id.—Ejectment—Premature Action by Lessor—Receipt of Annual Rent— Conflicting Evidence—Appeal.—An action of ejectment will not lie in favor of a lessor who has received annual rent under a void parol lease, before the expiration of the year for which the rent was received; and where the evidence upon the question of the receipt of rent for that year is conflicting, and the verdict was against the plaintiff, the finding of the jury as to that fact is controlling upon appeal.</p> <p>Id.—Action by Executrix—Power to Rent Premises—Receipt of Rent— Estoppel.—An executrix who has received annual rent from a tenant from year to year, who entered into possession of premises belonging to the estate of the decedent under a parol lease from the executor, cannot .maintain an action of ejectment to oust the tenant before the expiration of a year for which annual rent was received, upon the alleged ground that the executrix had no power to lease the premises without the consent of the court in which the administration was pending.</p> <p>Id.—Evidence—Complaint in Another Action—Allegation of Individual Ownership—Harmless Ruling.—The admission in evidence in an action of ejectment brought by an executrix, of a complaint filed In another action, averring individual ownership in the same plaintiff, conceding it to be erroneous, is not prejudicial,where it is conceded upon both sides that the administration is not concluded, and that no distribution has been had, and all other statements in such pleading were in support of the testimony of the executrix.</p> <p>In.—Change in Amount oe Annual Rent—Number oe Leases—Question oe Fact—Prejudicial Instruction.—Where there was evidence for the plaintiff tending to show that the amount of annual rent specified in the original parol lease was changed and increased by consent of the parties for the ensuing years, and that the defendant was in partial default of rent for the year in which the action was brought, it was a question of fact essential for the jury to determine as to the number and character of the leases entered into between the parties, and an instruction that the only lease established was the original parol, lease for years, under which the defendant entered into possession, at a specified annual rental, is prejudicially erroneous, as touching upon a matter of fact, and taking from the jury the evidence for the plaintiff as to the change in the terms of rental.</p>

<p>APPEAL from a judgment of tbe Superior Court of Los An-geles Cormty and from an order refusing a new trial. B. N. Smith, 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. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Foreclosure—Mortgagee in Possession—Averment oe Rental Yalue—Evidence.—In an action to foreclose a mortgage, by a mortgagee who had been in possession of the mortgaged premises, an averment in his complaint “that the rents and profits of the said premises for the time plaintiff has had and received the same does not exceed three hundred dollars for the first year, four hundred and fifty dollars for the second year, and five hundred dollars per annum for the remaining portion of the time which plaintiff possessed the same,” is an admission that the rental value for the second year was four hundred and fifty dollars, and for the balance of said time five hundred dollars per annum; and it is error for the court, on the trial, to permit the plaintiff to introduce evidence showing a less rental value during such time; and a judgment based on a finding of a less rental value for such period will be modified on appeal to conform to the pleading.</p> <p>Id.—Finding.—The rental value of the premises for times not covered by such averment is not concluded thereby, and, where the evidence as to the value is conflicting, the finding thereon will not be disturbed.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los An-geles County, and from an order denying a new trial, and from an order refusing to hear a motion to set aside the order denying a new trial. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION in tbe Supreme Court to dismiss an appeal from an order of the Superior Court of tbe City and County of San Eran cisco, Tbe facts are stated in tbe opinion of tbe Court.

<p>Municipal Corporations—Subsidy pob Railbo ad—Illeg al Contea ct.—A municipal corporation not authorized to grant aid to a railroad cannot, directly nor indirectly, make any contract for the payment of money, where an indefinite and inseparable part of the stipulated amount is payable in consideration of the unlawful object of subsidizing a railroad.</p> <p>Id.—Void Lease op Water Plant to City—Condition pob Building Railroad—Evasive Conteact—Lease to Nominal Parties—Sublease to City without Condition.—A lease to a city by a water company of its entire plant for a term of years, in which the rent reserved is in part consideration oí a condition that the water company shall construct a railroad within a specified time, is invalid and void; and where, by an evasive contrivance, the lease containing such condition. was made to nominal parties, who, in accordance with the understanding, immediately subleased the plant to the city for the entire term, and for the full amount of rental, but without expressing such condition in the sublease, and the city was thereby induced to agree to pay, under the name of rent, the whole consideration for the undertaking of the water company to build the railroad, and thus indirectly to subsidize the railroad, the contracts of lease and sublease are wholly void from their inception.</p> <p>Id.—Option to Terminate Lease—Void Purchase by City—Rights of Nom-inad Lessees.—The city not being permitted to subsidize a railroad directly or indirectly, could not buy an option, to be exercised either by itself or by others, to-terminate its agreement to pay rent, upon failure of the lessor to build a railroad; and although the right to terminate the agreement for failure to construct the railroad was left in the nominal lessees, it is immaterial whether that right was to be exercised in their own behalf and at their own discretion, oí-as trustees for the city.</p> <p>Id.—Condition Subsequent—Consideration.—The fact that the condition for the construction of the railroad was put in the form of a condition subsequent, upon the breach of which the lease might be terminated, does not prevent the condition from forming part of the consideration for the stipulated payments of rent; but the option to terminate the lease for breach of such condition is valuable to the party paying the rent, and burdensome to the party charged with the condition, and is a good consideration for the agreement to pay the rent.</p> <p>Id.—Waiver of Condition — Nonperformance—Void Contract.—The contract being void for want of power in the city to expend corporate funds in aid of the construction of a railroad, it cannot aid the contract that the city waived compliance with the condition for its construction, and it is immaterial that the railroad was never constructed or operated, or that its construction was never commenced.</p> <p>Id.—Void Resodution of Councid as to Lease—Absence of Auditor’s Certificate—No Presumption of Authority.—A resolution of a city-council authorizing the mayor to execute a lease of a water plant, which had not previous to its passage been presented to the auditor as required by the city charter, and which lacked his required certificate that the contemplated indebtedness or liability could be incurred without a violation of the restrictions imposed by the charter, is fatally defective and void; nor had the water company the right to presume that the council would not have authorized the mayor to act, in violation of the charter, without the proper certificate of the auditor.</p> <p>Id.—Vadidity of Charter Provision.—The provision of the city charier requiring the auditor’s certificate is not invalid, as being an attempt to invest a ministerial officer with judicial powers and functions; but such provision is a mere restriction upon the legi dative power of the council, requiring them to go to the best source of information for the fact upon which their right to act depends.</p> <p>Id.—Supply of Water for City—Ordinance Required—Joint Resolution Nugatory.—Where the only authority conferred upon the council by the charter to adopt and carry out means for securing a supply of water for the use of the city and its inhabitants is found in the enumeration of matters as to which the council is empowered to pass ordinances, which cannot take effect without publication, an unpublished joint resolution authorizing the mayor to lease a water plant is nugatory.</p> <p>Id.—Contract fob Future Payment by City—Case Affirmed.—The case of MeBean v. Fresno, 112 Cal. 159, affirmed as to the power of a city to make contracts in futuro, involving the payment of moneys annually during a long period of time, without violating the provision against indebtedness in excess of revenue, if the annual payment does not exceed the revenue for the year in which it is to be made, and also as to the conditions under which such contracts may extend beyond the term of office of the trustees who authorize it.</p> <p>Id.—Invalid Contbact—Ratification—Estoppel.—Where the objection to a contract made by a city for the lease of a water plant is that it is void as involving a subsidy for a railroad, the contract is incapable of ratification, directly or indirectly, and the city cannot be estopped from denying the validity of the contract because the water company was required by the city to expend a large sum of money in extending- the plant, and because the city refused to redeliver possession of the plant when demanded.</p> <p>Id.—General Power of City as to Water Supply—Lease of Plant from Year to Year—Reasonable Value of Use—Provision against Excess of Revenue.—Although the express contract of the city to lease the water plant for a term of years at a fixed rental was invalid and void, yet as the city has the general power to contract for a water supply for itself and its inhabitants, it may lease a water plant for a year, and renew it from year to year, and it is liable to pay the reasonable value of the use of the plant actually enjoyed, provided the claim of the water company for the reasonable value of the use does not exceed the amount of unappropriated revenue for the respective fiscal years during which the city had the use of the plant; but claims for such use accruing at a time when there were no unappropriated funds to meet them are void, like other claims upon exhausted revenues, and will not warrant a judgment of any character.</p> <p>Id.—EokM of Judgment for Reasonable Value of Use—General Judgment against City—Provision as to Payment.—A judgment for the reasonable value of the use of the water plant, after ascertaining in what years the claims of the water company for such value were not in excess of the unappropriated revenues of that year to meet them, should not be rendered so as to be payable only out of those revenues, but should be in the form of an ordinary general judgment for whatever amount shall be found due, without any direction as to the revenues out of which the judgment shall be satisfied, or any direction as to the method of its payment, for which some future provision mght be made by the city, although there might be no revenues of the fiscal year in which the debt was incurred out of which it could be satisfied.</p>

J. W. McKinley, Judge. The facts are stated, in the opinions of Justices Van Fleet and Garoutte. There can be no relief against water rates fixed by a municipal board except in cases of actual fraud or gross injustice. (Spring Valley Water Works v. San Francisco, 82 Cal. 286; 16 Am. St. Rep. 116.) It is not necessary for the board as a body to hear witnesses and examine evidence.

PETITION in tbe Supreme Court for writ of mandate to Honorable E. A. Belcher, Judge of tbe Superior Court of tbe City and County of San Francisco. Tbe facts are stated in the opinion of tbe court.

MOTION in the Supreme Court for an order directing the Superior Court of San Diego County to set aside a settlement of a statement of the case, and to amend the same: E. S. Torrance, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of San Diego County. W. L. Pierce, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Banks—Deaft Received foe Coilection—Negligence.—A bant which receives for collection a draft drawn upon another bank, acts as agent for such collection, and is bound to exercise reasonable care and diligence as well in the employment of its subagents as in the discharge of any other of the duties assumed by it. If, in making the collection, it follows the course usually taken by banks under similar circumstances, it cannot be held to have been negligent.</p> <p>Id.—Identification of Signatube of Patee—Sending Deaft to Dbawee— usage of Banks.—If the payee and his signature were unknown to the collecting bank, and it had no reason to believe that the drawee had knowledge thereof, the question whether or not it was negligent in sending the draft to the drawer for identification is one of fact for the jury; and in an action against the collecting bank to recover the value of the draft on account of its negligence in so sending it, evidence is admissible that the conduct of the bank was in accordance with the usage of banks when making collections of paper presented by persons who were unknown to them.</p> <p>Id.—Knowledge of Usage.—One who gives a draft to a bank to collect is held to have an implied knowledge of its usage in collecting drafts, so far as such usage does not contravene any rule of law.</p> <p>Id.—Attachment of Deaft.—If the failure to collect the draft or to return it to the payee was due to its attachment in legal proceeding against the payee, at the place at which it was drawn, such fact would tend to exonerate the collecting bank from negligence, and evidence thereof should have been admitted in the action against it.</p> <p>Id.—Instetjctions—New Tbial.—In such an action, where evidence had been given on behalf of the defendant tending to show that it had been authorized by the payee to send the draft to the drawer for identification, an instruction that if the jury found such to be the fact, the defendant was not liable for any loss thereby resulting, and an instruction that “under the evidence there was no need of the defendant forwarding the draft to any place for the purpose of having the signature identified, for it was the duty of the bank upon reqeiv !ng the draft for collection to have forwarded it for collection to the place where by its terms it was made payable,” are conflicting, and the effect of the latter instruction being to neutralize the former, a new trial should be granted.</p>

William T. Wallace, Judge. Tbe facts are stated in tbe opinion of tbe court Tbe exercise of discretion by a public board cannot be interfered with by injunction, in tbe absence of fraud, though it may be unwise or improvident. (2 High on Injunctions, 964,965; Davis v. Mayor etc., 1 Duer, 451, 497; Spring Valley Water Works v. San Francisco, 82 Cal. 286, 306, 308, 309; 16 Am.

A. P. Catlin, Judge. The facts are stated in the opinion of the court. Benefits in a voluntary mutual benefit society constitute the property rights of members, and are subject to the control of the courts. (Dolan v. Good Samaritan Court, A. 0. F., 128 Mass. 487; State v. Nicholas, 78 Iowa, 747; Gorman v. Russell, 14 Cal. 532; 18 Cal. 688; Robinson v. Exempt Fire Co., 103 Cal. 1; 42 Am. St. Rep. 93; Olery v. Brown, 51 How.

<p>Taxation—Debo— Year of Assessment.—Under section 3786 of tbe Political Code, requiring a tax deed to recite the matters recited in the certificate of sale, and section 3776 requiring the certificate of sale to state “the name of the person assessed, the description of the land sold, the amount paid therefor, and that it was sold for taxes, giving the amount and year of the assessment, and specifying the time when the purchaser will be entitled to a deed,” a tax deed reciting that the property was assessed “in the year 188 , for the year 1888 and 1889,” is void for failure to state the year of the assessment.</p> <p>Id.—Statutory Requirements—Yoid Deed.—Where the statute prescribes the particular form of the tax deed, the form becomes substance, and must be strictly pursued or the deed will be held void, and the courts cannot inquire whether the required recitals are of material facts or otherwise.</p> <p>Id.—Certificate of Sale—Evidence of Title.—Such a deed, when relied on as evidence of title, cannot be aided by reference to the certificate of sale, or by showing that the certificate complied with the statute. It is not even prima facie evidence that the title of the owner assessed is impaired, and cannot form the basis of a recovery.</p> <p>In.—Amount Paid for Land—Recitals in Deed.—A tax deed, reciting that the amount of taxes levied on the property was seven dollars and fifty cents and that the costs and charges which have since accrued thereon amount to the further sum of one dollar and thirty-seven cents, and also that the purchaser was the bidder who was willing to take the least quantity of the land, and pay the taxes, costs, and charges due thereon, “which taxes, costs, and charges, including fifty cents for certificate of sale, amounted to the sum of eight dollars and eighty-four cents,” and that the land was sold to the purchaser, “who paid the full amount of said taxes, costs, and charges,” is void, for failure to definitely state the amount paid for the land, it being doubtful therefrom whether the amount paid was eight dollars and eighty-four cents or eight dollars and eighty-seven cents. In such a case the maxim de minimis does not apply.</p> <p>In.—Notice to Redeem—Affidavit—Service on Ocoupant.—Under section S785 of the Political Code, a tax deed issued without an affidavit, showing that the notice of intention to apply for a deed required thereby to be given has been given, is void. Such affidavit must show on its face whether the property was occupied or unoccupied, and, if occupied, that the person upon whom the notice was served was at the time occupying it. A mere recital in the affidavit that the notice was served upon a lessee of the property, without a statement that he was occupying it, is insufficient, and parol evidence is inadmissible, in support of the deed, to show that the lessee was in the occupation thereof at the time of the service.</p> <p>In.—Pee Due fob Notice.—A mere statement in the notice to redeem that three dollars would be due for the notice, without a statement that such sum was a portion of the “amount then due,” did not impair its sufficiency.</p>

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

<p>APPEAL from a judgment of the Superior Court of Calaveras County and from an order refusing a new trial. C. V. Gotts-ehalk, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of th.e Superior Court of Placer County. J. E. Prewitt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Gift—Promissory Not® of Donor.—The gift of the donor’s own promissory-note, either inter vwos or in view of death, does not create an enforceable obligation in favor of the donee against the donor or his estate.</p>

<p>APPEAL from a decree of partial distribution of tbe Superior Court of tbe City and County of San Francisco. J. Y. Coffey, Judge.</p> <p>Tbe facts are stated in tbe opinion of tbe court.</p>

<p>Estate of Deceased Persons—Proceeding to Revoke Probate—Nonresident Contestant—Security for Costs.—A contest to revoke the probate of a will is a special proceeding, and not an action within the meaning of section 1036 of the Code of Civil Procedure, requiring nonresident plaintiffs to give security for costs. In such proceeding, a nonresident contestant is not required to give such security.</p>

<p>Partition—Grant oip Pueblo Lands—Reference to Official Map—Subsequent Change of Map—Difference in Location of Lot.—Where a city-sold and conveyed its title to all of the lands of a pueblo lot by reference to an official map of the pueblo lands of the city then on file in the office of the city clerk, and designated by the name of the surveyor who made it, and the title to lands sought to be partitioned is deraigned from the city under deeds of portions of such pueblo lot, containing such reference, the partition must be made according to such official map, and not according to another official map subsequently adopted by the city, giving a different location of such pueblo lot.</p> <p>Id.—Jurisdiction of Equity—Vacation of Decree—Re-Partition—Mistake of Referee—Use of Wrong Map.—Equity has jurisdiction to correct a mistake in a decree in partition, by setting it aside, and making a re partition, where the mistake was extrinsic and collateral to the questions examined and determined in the original action for partition, and led the court to do what it did not intend to do, in confirming to the plaintiffs a piece of land not described or referred to in the complaint, or in the findings or interlocutory judgment, and which was not included in the title to the land sought to be partitioned, but was owned and possessed adversely by one not a party to the action, it appearing that the mistake originated in an incorrect use made by the referees ■ of the lines indicated upon a second official map of the city then in force, which showed different boundaries of the lot sought to be partitioned from those fixed by a prior official map which was referred to in the grant made by the city, under which the title to the lot sought to be partitioned was deraigned, and under which the partition ought to have been made.</p> <p>Id.—Concealed Mistake—Discovery—Reasonable Diligence—Laches not Imputable.—The plaintiffs are not barred by delay and laches from maintaining a suit in equity to set aside the final decree of partition on the ground of mistake, brought within one year after the decree was entered, where it appears that there was nothing in the report of the referees, or in the record of the action for partition, or in the final decree, to indicate the mistake, but it was concealed by reference to the lands described in the complaint, and, without fault or negligence of the plaintiffs, was not discovered until after their remedy by motion or other legal process in the original action had expired, and that as soon as they received information which led them to suspect it, they took immediate steps to ascertain the facts, and employed counsel to prosecute the suit in equity.</p> <p>In.—Pleading—Demurrer to Complaint—Parties.—A demurrer to the complaint in equity for failure to state a cause of action, and for a defect or misjoinder of parties defendant, is properly overruled, where the complaint states all the facts necessary to constitute a cause of action for relief in equity, and further stated that the parties therein named, plaintiffs and defendants, comprised all persons who owned, or claimed an interest in the pueblo lot of which partition was made, or any part thereof, or whose rights or interests were in any way affected by the decree in partition, or by the action to set it aside.</p> <p>Id.—Exchange op Quitclaim Deeds—Mutual Mistake—Want op Consideration—Annulment — Re-Partition— Form op Decree.—Where the plaintiffs executed a quitclaim deed for a small portion of the lands claimed by them in exchange for a like deed from the appellant for a parcel of land outside of the lot of which partition was sought, and to which appellant had no valid claim or title, and it appeared that the deeds were exchanged by mutual mistake, and that plaintiff’s deed was without any consideration, and the court sets out in its findings all the facts necessary to annul the deeds, and in the judgment of re-partition, decreed an allotment to each of the parties of the land originally owned by such party, it is not necessary that there should be a formal annulment of the deeds in the judgment, but it had the effect to vacate and set aside the deeds, and was sufficient in form.</p>

<p>APPEAL from a judgment of tbe Superior' Court of Santa Clara County and from an order denying a new trial. George H. Buck, Judge.</p> <p>Tbe facts are stated in tbe opinion.</p>

<p>Mechanic’s Lien—Description or "Work—Erection op Building.—Where the work for which a claim of lien was filed consisted of the almost entire demolition of an old house, and the building of a substantially new structure in its place, it is sufficient to describe the work in the claim as the “erection” of a house, although a small part of the old building was embodied in the new.</p> <p>Id.—Completion of Work—Discharge of Contractor.—Where a mechanic, engaged by the day to erect a building, under the control of the owner, is discharged by him -when the work was on the verge of full and actual completion, the owner undertaking to finish it, such discharge is equivalent to an acceptance of the work as a completed contract for the erection of the building, and the notice of lien may be properly filed at any time within thirty days thereafter.</p> <p>Id.—Foreclosure of Lien—Finding—Size of Lot—Use and Occupation.— In an action to foreclose a mechanic’s lien, a finding, following the allegation of the complaint, on which no issue was raised by the answer, that all the lot on which the building was erected was necessary to the “convenient use and enjoyment” thereof, will be construed to mean “convenient use and occupation,” and, in the absence of evidence as to the size of the lot, it will be presumed, in support of the judgment, that the whole of it is necessary for the convenient use and occupation of the dwelling.</p>

<p>Eminent Domain—Condemning Land foe Peivate Way—Action by County —Insufficient Complaint.—A complaint in an action by a county to condemn the land of the defendant for a private way, which merely avers the filing of a sufficient petition and the giving and approval of the bond, and that afterward such proceedings were had that, on a day specified, the board of supervisors of the county, by order duly given and made, directed the district attorney to institute condemnation proceedings, but which fails to state that viewers were appointed, or that they proceeded to lay out the road, or that they made or filed any report, or that the report was approved, or that damages awarded had been tendered to defendant and refused by him, fails to state a cause of action.</p> <p>Id.—Jubisdiction of Boaed—Compliance with Statute Essential—Effect of Oedee Dibecting Suit—Constbuction of Code.—A complaint in condemnation proceedings must show that the board had jurisdiction to make the order for the institution of condemnation proceedings; and unless the board complies with the requirements of the statute its orders are void; and section 2690 of the Political Code, which makes the order for the institution of the suit conclusive as to the regularity thereof, must be understood as providing that when the board has jurisdiction mere irregularities are harmless, and not as providing that the board can make a valid order opening a road over private property without a substantial compliance with the requirements of the code.</p>

A. A. Sanderson, Judge. The facts are stated in the opinion of Mr. Justice McFarland. By the acceptance of the receipt with the knowledge of its terms, the plaintiffs are held to have assented and agreed to all the terms and conditions therein contained, including the condition limiting the liability in case of loss to a specified sum, which is a valid and binding contract. (Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174, 175, 188; Grace v. Adams, 100 Mass. 505; 97 Am.