Volume 119 — California Reports

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

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

<p>Boundary of Lot—Dispute as to Division Line—Action to Enjoin Removal of Bulkhead—Preliminary Injunction—Improper Dissolution. In an action to enjoin the removal oí a bulkhead which tor fourteen years had practically marked the division of occupation of adjacent lots of plaintiff and defendants, the defendants claiming the right to remove it, as occupying eight inches of defendants’ lot, which claim was disputed by the plaintiff, a preliminary injunction should be allowed to stand until the trial, a dissolution of it being improper, as practically equivalent to a dismissal of the action before a trial upon the merits, where it is not made reasonably certain by the pleadings and affidavits that the attack upon .plaintiff’s title and right of occupation up to the existing bulkhead line would be ultimately successful.</p> <p>Id.—Disputed Title—Ground for Injunction Pendente Lite—Preservation of Property.—The mere existence of a doubt as to the title does not of itself constitute sufficient ground for refusing an injunction; and the jurisdiction of the court to issue injunctions where the title is in dispute is asserted for the preservation of the property pending proceedings for the determination of the title of the parties.</p> <p>Id.—Improvements by Former Owner of Adjacent Lots—Sale of Improved Lots—Location of Boundaries—Monuments Controlling Distances.— Where a former owner of adjacent lots improved them by the erection of houses, bulkheads, and fences, making each ready for occupancy, and sold them, putting persons in possession of the respective lots just as they were inclosed and improved, the boundary lines designated by the improvements, being the monuments fixed by the original survey and measurement of the adjacent lots by the common vendor, control the distances described in the deeds, and fix the actual location of the lines upon the ground.</p> <p>Id.—Declaration of Vendor to Defendant—Noncommunication to Plaintiff.—A declaration made by the common vendor of the improved lots to one of the defendants at the time of his purchase, that the house which constituted part of the bulkhead was four inches from the east line, and that each of a row of houses erected by the same vendor was built four inches from the east line of the lots, so as to ■ leave room for the overhanging gutterways, such declaration not having been communicated to plaintiff, is inadmissible to change or affect the lines marked by the common vendor upon the ground by the monuments erected thereon.</p> <p>Id.—Acquiescence in Occupation by Monuments—Effect upon Preliminary Injunction.—The long acquiescence of the defendants in the occupation of the adjacent lots according to the monuments erected thereon, aside from any question of its being a new source of right, whether operating by estoppel or otherwise, should have great weight upon the question whether the preliminary injunction against the removal of the bulkhead line should be continued until the trial of the action permanently to enjoin its removal.</p> <p>In.—Adverse Possession—Taxes—Monuments Controlling Description in Assessment Roll.—Where the fences constitute monuments which control the description in the deeds of adjacent lots, such monuments must also control the description in the assessment-roll, and the question of adverse possession and payment of taxes need not be considered.</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.</p>

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

MOTION in the Supreme Court by Respondents to dismiss an appeal from a decree of distribution of the estate of a deceased person, rendered in the Superior Court of the City and County of San Francisco. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Sonoma County and from an order refusing a new trial. William R. Daingerfield, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>APPEAL from an order of the Superior Court of Sutter County refusing to set aside property to an insolvent debtor. E. A. Davis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

G. W. Hunter, Judge. The facts are stated in the opinion of the court and in the opinion rendered on the former appeal reported in 109 Cal. 504.

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

APPLICATION in the Supreme Court for a certificate of probable cause to stay proceedings under an order of the Superior Court of the City and County of San Francisco fixing a day for the execution of a sentence of death. George H. Bahrs, Judge. The facts are stated in the opinion of the court.

HABEAS CORPUS in the Supreme Court to the Sheriff of Sacramento County, to test the validity of an order of the Superior Court of Sacramento County imprisoning the petitioner for contempt of court. E. C. Hart, Judge. The facts are stated in the opinion of the court.

<p>Foreclosure of Mortgage—Estate of Deceased Person—Parties—Administratrix—Heirs—Writ of Assistance to Purchaser.—In an action to foreclose a mortgage executed by a deceased person, it is sufficient to make the administratrix of his estate a party defendant, and the heirs of the mortgagor are not necessary parties to the action, nor is it necessary that the administratrix should be sued individually in order to bar her right of succession to the mortgaged premises; and the purchaser at the foreclosure sale, after receiving his deed, is entitled to a writ of assistance against the administratrix for possession of the premises, where her answer to the application for the writ fails to show that she claims the property or the possession thereof by any right or title adverse to that of her deceased husband, whose right was foreclosed in the action to which she as administratrix was a party.</p>

<p>Mortgages—Conflict and Priority—Prior Recordation of Second Mortgage-Actual Notice—Unprotected Transfer.—The prior recordation of a second mortgage does not give it priority over a first mortgage which is subsequently recorded, where the mortgagee named in the second mortgage had actual notice of the execution and existence of the prior note and mortgage when the second mortgage was executed, while such mortgage remains in the hands of the mortgagee, or of his assignee, who takes without consideration, or subsequently to the record of the first mortgage.</p> <p>Id,—Foreclosure — Conflicting Mortgages — Pleading—Protection of Bona Fide Assignee of Second Mortgage.—In a foreclosure suit, when there is a conflict as to priority of lien between an assignee of such second mortgage and the prior mortgagee, and it appears that the subsequent mortgagee, whose mortgage was first recorded, had actual notice of the prior mortgage, it devolves upon such assignee, . in order to claim protection as a tona fide, purchaser of the second mortgage for value, without notice of the prior mortgage, to plead and prove the facts essential to make him such tona fide purchaser, and to show that he took for value prior to the recordation of the first mortgage, and without actual notice thereof.</p> <p>Id.—Constructive Notice to Assignee.—Where the court finds that the second mortgagee had actual notice of the prior mortgage, and there is neither allegation nor finding that any consideration was paid for the assignment of the second mortgage, and it does not appear but that it may have been made after recordation of the first mortgage, the assignee of the second mortgage will be deemed chargeable with constructive notice of the prior mortgage, and a decree giving priority of lien to the first mortgage will be affirmed.</p>

<p>APPEAL from a judgment of the Superior Court of Mendocino County. B. McGarvey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Guaranty—Note Given to Secure Another—Indorsement Part of Contract—Parol Evidence Inadmissible—Guaranty for Deficiency of Mortgage Security.—An indorsement written upon a note at request of the maker before its execution, stating that it is given for the purpose of securing the payment of a note of the same date and amount of another person to the same payee, becomes part of the contract of the maker, though the indorsement is signed by the payee and not by the maker, and the agreement as written, taken with the admissions in the pleadings, constitute a contract of guaranty for the payment of the other note in full; and parol evidence is inadmissible to vary the terms of the guaranty as expressed, by proof that the contract was one of guaranty only for the payment of auy deficiency resulting after the sale of property mortgaged by the maker of the other note to the payee as security therefor.</p> <p>Id.—Admission of Guaranty—Averment of Answer.—The defendant cannot complain that the court regarded the contract between the parties ns one of guaranty, as distinguished from a general contract of suretyship, where the answer pleads that the contract was one of guaranty made at the request of plaintiff, and not of the maker of the ether note, whereby defendant promised and agreed with plaintiff to answer for the debt or default of such maker.</p> <p>Id.—Distinction between Guarantor and Surety—Exhaustion of Creditor’s Remedies against Principal Debtor.—One who is a mere surety, as distinguished from a guarantor, has the right to demand that the creditor shall first apply the property of the principal debtor to the discharge of the debt; but the creditor has the right to sue a guarantor, upon default of the principal debtor, without proceeding first to realize upon other securities, or to foreclose a mortgage given by such debtor.</p> <p>Id.—Action upon Debt Secured by Mortgage—Construction of Code—Independent Contract—Note Given as Security.—An action upon a note ¿riven a’s security for another note, which is also secured by mortgage, is not violative of section 776 of the Code of Civil Procedure, but is an action upori an independent contract, with which the mortgagor has nothing to do, and which may be maintained against the maker of such note without foreclosure of the mortgage security.</p> <p>Id.—Principal Debtor and Guarantor not Jointly Liable.—There is no privity, or mutuality, or joint liability between the principal debtor and his guarantor.</p>

<p>APPEAL from a judgment of the Superior Court of Monterey County. N. A. Dorn, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—False Impersonation of Officer—Insufficient Information—Construction of Code.—Section 529 of the Penal Code, which provides for the punishment of “every person who falsely personates another,” etc., does not apply to a case where a party falsely assumes an official character, but is intended to cover only acts done by one person while representing himself to he another and different person; and an information charging a defendant with impersonating an officer of the law and a constable, and performing a specified act in such assumed character, without stating the name of the officer of the law or constable which defendant represented himself to be, is insufficient.</p> <p>Id.—Ambiguous Information.—The mere fact that an information is susceptible of widely different constructions renders it unsatisfactory in the eyes of the law.</p>

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

<p>APPEAL from an order of the Superior Court of Fresno County granting a change of the place of trial of an action. E. W. Risley,- Judge.</p> <p>The facts are stated in the opinion.</p>

APPEAL írom a judgment of the Superior Court of Kern County and from an order denying a new trial. A. B. Conklin, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Rape—Girl tjnber Age oe Consent—Instruction—Improper Request—Absence oe Outcry and Immediate Disclosure.—Upon the trial of a defendant charged with the crime of rape, committed upon a girl under fourteen years of age, it is proper to refuse to instruct the jury, upon request of the defendant, that the facts that the prosecutrix made no outcry and no immediate disclosure, and that there was but little indication of violence to her person, “are proper to be taken into consideration by the jury, as throwing doubt upon the assumption that the act was committed at all,” the consent of the girl being immaterial, as affecting the guilt of the defendant, and the undisputed facts being such as to show that there was no probative force in the alleged facts, and the instruction being a clear invasion of the province of the jury, and involving an assumption that certain controverted facts had been established by the evidence.</p> <p>Id.—Consummation of Chime—Conflicting Evidence—Expebt Testimony. Where the testimony of the prosecutrix and of the defendant is conflicting as to whether the crime of rape was consummated or only attempted, and the circumstances shown by the testimony of the medical experts tended to show that there was not a complete sexual act, but they are all so far consistent with the evidence of the prosecutrix that enough may have been done to constitute the crime of rape, a verdict of conviction of that crime will not be disturbed upon appeal for insufficiency of the evidence.</p>

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

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

<p>Trust—Sale of Lards fob Indebtedness to Bank—Joint Debtors—Separate Settlements—Release of One Debtor Except as to Lands— Settlement with Godbbtor—Surrender of Notes—Action by Administrator for Accounting as to Lands.—Where each of two debtors gave his notes to a bank' with the other as indorser, and transferred lands and other securities to the bank to secure his indebtedness, upon an express trust to sell the lands to pay the indebtedness, and the bank, for a valuable consideration, surrendered his personal securities to one of the debtors, and released him from liability upon the notes except as to the lands transferred by him to the bank in .trust, the settlement in no way touching upon or affecting the rights and liabilities of his codebtor, with whom a separate settlement was subsequently had, involving an absolute conveyance of his lands to the bank, and a release of his indebtedness, and surrender of all the notes to him, such settlement in no way touching upon or referring to the other debtor with whom the first settlement was made, the burden of indebtedness remaining upon the lands under the first settlement was not removed or discharged or in any way affected by the second settlement with the codebtor, and such lands, being still held upon the original trust, formed no part of the estate of the deceased trustor, and upon subsequent sale thereof by the bank and application of the proceeds in part payment of the original indebtedness of the deceased trustor to the bank, his administrator cannot maintain an action against the bank for an accounting upon the theory that the entire indebtedness of both debtors was discharged by the surrender of the notes, and that the lands of the deceased debtor were thereby released from the trust, and reverted to the estate.</p> <p>Id.—Conflicting Evidence as to Nature of Second Settlement—Admission of Bank—Closing of Note Account—Findings—Sufficiency of Evidence.—Where there is evidence of circumstances tending to show that the second separate settlement was simply a release of the liability of the debtor with whom it was made, and that the other debtor who had been before released except as to his lands was a stranger to the second transaction, and that it had nothing to do with the charge of his indebtedness upon his lands, or any release thereof, the fact that the bank, in an answer filed in another action, admitted that the entire indebtedness of both debtors was satisfied and discharged by the deed given at the second settlement, and the further fact that all the notes were given up at the time of that settlement, and the note account upon the books was then balanced and closed, cannot be held conclusive that the liability of the other debtor charged upon his lands was then discharged, but served only to create a conflict of evidence, the weight of which was matter for the trial court, and its findings against such discharge will not be disturbed for want of evidence to sustain them.</p>

<p>Sake—Severable Contract—Different Items—Acceptance.—A contract for the sale of different kinds of personal property, at an agreed price for the different items, is severable, in the absence of any thing in the contract to show that the sale of one item was contingent upon the sale of the others, or that the contract was for any other reason an entirety; and the refusal of the purchaser to accept a tender of one of the items does not operate to waive or excuse performance, or offer of performance, by the seller as to the other items.</p> <p>Id.—Resale by Seller—Performance.—Upon the refusal of the purchaser to accept a tender as to one of the items, a resale by the seller of all the property incapacitates him from any performance whatever, and releases the purchaser from the necessity of further demand or tender of performance as to the other items, and as to them subjects the seller to liability.</p> <p>Id.—Part Payment—Forfeiture.—Where, at the time of the execution of such contract, the buyer made a payment which the seller receipted for “on account,” the subsequent refusal of the buyer to accept one of the items does not work a forfeiture of the payment, but it is his right to have it applied on the price of any of the items which he accepted.</p>

<p>'APPEAL from a judgment of the Superior Court of Los Angeles County. Walter Van Dyke, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEAL front an order of the Superior Court of the City and County of San Francisco setting aside a judgment and recalling an execution. Charles W. Slack, Judge. The facts are stated in the opinion.

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

<p>Criminal Law—Pleading—Information fob Felony—Absence of Conclusion Contra Formam Statuti—Motion in Arrest of Judgment.—The failure of an information for felony to allege that the acts which constituted the felony were done “contrary to the force and effect of the statute in such cases made and provided,” no demurrer having been interposed to the information upon that ground, does not go to the jurisdiction of the court, nor disclose a failure to state a public offense, and is not ground for a motion in arrest of judgment.</p>

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

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

APPEALS by the appellants severally from several judgments of the Superior Court of Invo County and from several orders denying a new trial to each appellant. N. D. Arnot, Judge.

WRIT of habeas corpus in the Supreme Court to the Sheriff of San Diego County to test the validity of the imprisonment of the petitioner under contempt proceedings had in the.Superior Court of San Diego County. E. S. Torrance, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Butte County, denying a new trial. J'ohn.C. Gray, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Butte County and from an order denying a new trial. John 0. Gray, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from an order of the Superior Court of Butte County amending a previous order settling an annual account of trustees under the will of a deceased person. John C. Cray, Judge.</p> <p>The facts are stated in the opinion, and in the decision therein referred to.</p>

<p>Estates of Deceased Persons—Trust under Wild—Settlement of Account of Trustees—Items Allowed in Previous Account.—When the annual accounts of trustees acting under the will of a deceased person have been settled and approved, they are only subject to direct attack by motion to open the settlement, or other like remedy in the superior court, or on appeal, and items allowed in a previous annual account cannot be examined into upon the settlement of a succeeding annual account.</p> <p>Id.—Item for Services of Bookkebebr—Relative of Trustee—Discretion. The allowance of an item for the services of a bookkeeper for the trustees will not be deemed an abuse of discretion, merely upon a showing that the bookkeeper was a relative and employee of one of the trustees, where it does not appear that such trustee had any interest in his earnings, and there is no other or fuller showing against the item.</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, and also to dismiss an appeal from an order refusing to restrain the sheriff from executing a writ of assistance. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court.

<p>Eminent Domain—Condemnation or Land sob Public Street—Power oe Municipal Corporation—Statutory Construction.—The provisions of the act of March 6, 1889, relative to the laying out, opening, extending, widening, and straightening of public streets in municipalities are not exclusive, and were not designed to prohibit a municipality from maintaining proceedings to condemn land for a public street under the provisions of part III, title VII, of the Code of Civil Procedure; and a municipal corporation has power to institute such proceedings under the code, where it has funds in the treasury available for the proposed condemnation and opening of the street, without resort first had to the method provided in the act of March 6, 1889.</p>

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

<p>Action fob Lumber Sold and Delivered—Sale . of Land for Lumber— Agency for Owner—Contract for Benefit of Lumber Firm—Separate Agreements in One Transaction.—Where a member of a copartnership engaged in the business of buying and selling lands, acting for the benefit of bis firm, and also as agent for the sale of a tract of land, effected a sale of the land in his own name to a corporation engaged in the business of manufacturing lumber near to the land, agreeing that the price fixed should be paid in lumber to be delivered to him at specified rates, and on the same day made a separate agreement with the owner of the land reciting that he had acted as agent of the owner in effecting the sale, and that such owner was to be paid for the lumber by him at the rates specified, each lot delivered to be paid for to the owner at those rates ninety days after delivery, with agreed interest, and that the owner was to sell the lumber to him at those rates, and should pay him a commission for effecting the sale, payable in lumber at the rates fixed, the two agreements are to be considered as parts of one transaction, and as binding the firm for whose benefit they were made, and an action will lie in favor, of the owner of the land against such firm for lumber sold and delivered to them under the agreement.</p> <p>Id.—Time for Payment of Commission—Contemporaneous Oral Agreement for Postponement—Parol Evidence.—Though, as a general rule, a broker or agent for the sale of land for a stipulated commission has earned and is entitled to his commission when he has found a purchaser able, ready, and willing to take the land at the price and within the time agreed upon, yet where no time for the payment of the commission was definitely agreed upon in the written contract, parol evidence is admissible to show that, contemporaneously with the execution of the written agreement, it was orally agreed between the agent and the owner of the land, that the commission, which was to be paid to the agent on lumber, was not to be taken out of the first lumber delivered to him under the contract, but that he was to wait for payment of the commission until all the lumber had been shipped as agreed in the contract, and the owner had received payment for his land.</p> <p>In.—Lumbeb Eirm Bound by Obad Agreement—Appropriation of Lumber fob Commission—Insufficient Defense to Action.—Under the circumstances of the case, all of the members of ,the lumber firm were bound by the terms of the agreement made by one of its members for the benefit of the firm, including the oral agreement made respecting the time for payment of the stipulated commission, and none of them can appropriate the lumber first delivered to them under the contract to the immediate payment of the stipulated commission, or defend an action by the owner of the land against them for the agreed price of such lumber, upon the ground of such appropriation.</p>

<p>Dismissal of Action—Want of Pbosecütion—Delay in Sebvice of Summons—Discbetion—Oonstbuction of Code.—Subdivision 7 of section 581 of the Code of Civil Procedure, providing that no actions shall be further prosecuted, and all actions shall be dismissed unless summons shall have been issued within one year and shall have been served within three years after the commencement of the action, is not to be construed as meaning that plaintiff may have the full time limited thereby in all cases; but it is still discretionary with the court, as it was prior to the amendment of that section, to dismiss the action for improper delay in the prosecution of it, even though the summons be issued and served within the time limited by the code.</p> <p>Id.—Rule not Fixed ob Cebtain—Question as to Abuse of Discretion.— There is no fixed or certain rule as to the dismissal of an action for want of prosecution in eases in which the dismissal is not made compulsory by the Code of Civil Procedure; and where there is no dispute as to the facts, the only question is whether there is an abuse of discretion in dismissing the action in view of the particular circumstances of the case. The facts of this case reviewed, and the dismissal held not an abuse of discretion.</p>

<p>Mechanics’ Liens—Building Contract under One Thousand Dollars— Rights of Conteacting Parties—Construction of Code.—Where the contract price for the erection of a building is less than one thousand dollars, the provisions of section 1184 of the Code of Civil •Procedure, relative to the mode and time of payment, and the withholding of a percentage of the contract price for the benefit of lienholders, are not applicable; and it is permissible for the parties to contract for the payment of the whole amount before the commencement of the work, or after the completion of the building.</p> <p>Id.—Abandonment of Contract—Completion of Building by Owner-Rights of Lien Claimants.—The contract for less than one thousand dollars being valid, the liens of mechanics and materialmen cannot be claimed for a greater amount than the sum due and unpaid to the contractor; and if nothing was due the contractor at the time of his abandonment of the contract, and he was to be paid by the ' terms of the contract only upon completion of the building, liens cannot be claimed for a proportional part of the contract price earned at the date of abandonment by the contractor, and if the building is completed by the owner of the building substantially as called for by the contract, the amount available for the liens of those who had furnished labor or materials to the contractor would be only the excess of the contract price remaining in the owner’s hands after payment of the cost of completion.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. J. W. McKinley, Judge.</p> <p>The facts are stated in the opinion rendered in Department Two.</p>

<p>Fees of Sheriff—Levy under Execution—Judgment Lien—Attachment— Notice of Sale—Ilibgad Exaction of Fees—Recovery Back.—A sheriff can exact legal fees only for such acts as are necessary to a full performance of his duty, so as to protect him against any charge of dereliction, and for none others; and where the judgment under which real property is sold under execution is a lien upon the land sold, it is a sufficient seizure and levy under the execution, to give the statutory notice of sale of the land under the execution, and the sheriff cannot legally exact fees for levying the execution upon the land in such eases in the manner in which a writ of attachment is levied, and fees illegally exacted for such levy may be recovered back from the sheriff by the judgment debtor or his assignee.</p> <p>In.—Lands of Record in Names of Third Parties—Mode of Levy of Execution— Interest of Defendant.—The fact that some of the land upon which the sheriff levied stood on the records of the county in the names of persons not parties to the writ does not require that the levy of the execution should he different in case of such land, nor that there should be any notice other than that given to the general public by the ordinary posting and advertisement of sale; and, in such case, the judgment lien, levy, and sale can only operate on such interest in the land as may be in fact owned by the defendant.</p> <p>Jurisdiction—Amount in Controversy—Prayer.—The prayer of a complaint is not conclusive of the jurisdiction of the superior court if the record shows on its face that the dispute concerning an amount within the competence of that court to consider is feigned and not real.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. The facts are stated in the opinion of the court.

APPEALS from orders of the Superior Court of the City and County of San Francisco fixing the time for the execution of a previous sentence of death. George II, Bahrs, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Ventura County. Walter Van Dyke, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

from an order denying a new trial. E. C. Eust, Judge. The main facts are stated in the opinion of the court. The' nature of the ruling upon the evidence of the witness C. Burger is set forth in the syllabus upon the subject of the testimony of a business acquaintance, and the laying of a foundation therefor.

<p>Municipal Corporations—Liability Limited to Revenue of Year’s Indebtedness-Constitutional Law.—"Under section 18 of article XI of the constitution, each year’s income and revenue of a municipal corporation must pay each year’s indebtedness and liability, and no indebtedness or liability incurred in any one year can be paid out of the income or revenue of any future year.</p> <p>Id.—Contract for Sale of Waterpipe—Delivery—Exhaustion of Year’s Revenue—Validity of Contract—Remedy Only Affected.—A contract for the sale of waterpipe to be imbedded in the streets of a city for its use and benefit, in connection with waterworks established under vote of its electors, which was entered into and carried out by the delivery and laying of pipe thereunder, during one fiscal year, and at a time when there was money in a water fund derived from the sale of bonds for the improvement, sufficient to meet the obligation, was valid, and its validity could not be affected by any subsequent failure of revenues from that fund, or from the general fund of that fiscal year; but the seller was bound to look only to the revenues of the city for that fiscal year for payment, and the exhaustion of such revenues affected only his remedy and left him in the same condition as any creditor who has dealt with one whose assets are exhausted before he presents his claim.</p> <p>Id.—Title of Water Pipe—Invalid Purchase in Subsequent Year—Void Warrant—Mandamus.—The title to the waterpipe laid in the streets of the city, under such contract, during one fiscal year, vested in the city, and a subsequent attempt of the city to purchase a part thereof during the next fiscal year, was invalid and void, and a warrant issued under such purchase drawn upon the funds of a subsequent year was without consideration and void, and its payment could not be compelled by mandamus to the city treasurer.</p>

<p>Municipal Charter of Sacramento—Power of Board of Trustees—Trial of Charges against Superintendent of Streets—Jurisdiction—Sufficiency of Charges—Prohibition.—Under the municipal charter of the' city of Sacramento, the board of trustees has jurisdiction to try the superintendent of streets upon charges of incompetency, neglect of official duty, and being interested in contracts payable from the city treasury, in violation of the charter, and to remove him from office, if found guilty thereof; and the question of the sufficiency of the charges in form must be made to the board having the authority to determine them, and cannot be considered upon application for a writ of prohibition, nor will such writ lie to prevent a trial of the charges, where none of them is based upon a violation of-the general laws of the state, and the subject matter of the charges’ is within the class of matters that the board is authorized to try.</p> <p>Id.—Constitutional Law—Exercise of Judicial Power—Municipal Authority.—The charter of the city of Sacramento is not unconstitutional as conferring the exercise of a judicial power upon the board of trustees to try a municipal officer thereunder; but the appointment and removal of a city superintendent of streets is a matter purely municipal, which, under the constitutional power to frame a city charter, may be conferred upon the municipal body, and is rather the exercise of a power necessary for its police and good administration than the exercise of judicial powers by a legislative body.</p> <p>Id.—Common Law Power of Amotion of Officers.—It seems that there is a common-law power of amotion of officers as an incident to all corporations, though not conferred by statute; but the question is undecided, and is referred to as showing that a charter provision authorizing such amotion is not to be considered as unprecedented, or held unconstitutional or inoperative unless upon clearly sufficient grounds.</p> <p>Id.—Double Penalty—Removal and Disqualification—Question Undetermined.—The board of trustees of Sacramento having power and jurisdiction under its city charter to remove the superintendent of streets from office for sufficient cause shown, as provided therein, prohibition will not lie to restrain their action, regardless of the question whether the power conferred by the charter upon them to perpetually disqualify him from holding office under the municipality is or is not invalid; and such question is left undetermined until properly raised, upon the rendition of a judgment of disqualification by the board of trustees. •</p>

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

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

<p>Jury—Action on Contract.—An action to recover money upon a promissory note, and for the breach of a contract entered into simultaneously therewith, in which no equitable issues are raised, is an action at law, in which the defendant is entitled to a jury trial.</p> <p>Id.—Waiver of Jury.—A stipulation to set the action for trial on a day certain before a department of the superior court then known to be engaged in the trial of causes without a jury is not a waiver of the right to a trial by jury. Such right cannot be waived by implication.</p>

<p>Injunction Bond—Previous Issuance of Restraining Order—Consideration—Order for Bond upon Motion of Defendant—Recitals.—Where a restraining order was issued in a United States circuit court without requiring the plaintiff to execute a bond, and a bond was subsequently required to be given upon motion oí the defendant by an order which did not purport to make the continuance of the restraint conditional upon the giving of the bond, and where the bond given recited the issuance of the restraining order and the order requiring the bond, and that it was given “in consideration of the premises, and of the issuance of the restraining order,” but did not recite that it was executed to obtain a continuance of the restraining order, such bond is void for want of consideration, and no-action can be maintained thereupon, and a judgment thereon will be reversed.</p>

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

<p>Purchase op Land and Water Right—Improper Transfer and Cancellation op Water Right by Vendor—Action for Damages—Instructions as to Punitive Damages.—In an action for damages for the improper transfer and cancellation of a water right by the defendant, after plaintiff had purchased from defendant a tract of land with such water right appurtenant thereto, and had received a deed therefor, but prior to its recordation, where the complaint avers that the acts of the defendant were done “willfully, without, any right whatever, from wanton motives, and without plaintiff’s consent and knowledge, and under circumstances of great hardship and oppression to plaintiff,” and the answer averred that they occurred inadvertently and without any intent to oppress plaintiff or maliciously injure him, and the evidence was conflicting as to the actual damage suffered, the question whether or not plaintiff was entitled to punitive damages is material; and where the court instructed the jury that “in any action for the breach of an obligation not arising upon contract, where the defendant has been guilty of oppression, fraud, or malice, actual or presumed, the jury, m addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant,” the defendant is also entitled to have the jury fairly instructed as to the general principle of law governing the matter of punitive damages, upon his theory of the case, and though not entitled to an instruction that there was no evidence which would warrant any punitive damages, nor to any instructions containing too narrow a statement of the principle Upon which punitive damages may he given, he is entitled to have the jury instructed that “a tort committed by mistake, in the assertion of a supposed right, or without any actual wrong or intention, and without any such recklessness or negligence as evinces malice or conscious disregard of the rights of others, will not warrant the giving of punitive damages,” and a refusal to give such instruction is ground for reversal.</p>

<p>Criminal Law—Burglary—Evidence—Ownership of Trunk Containing Stolen Property—Previous Burglary and Theft of Trunk—Claim— Possession of Contents.—Upon the trial of a defendant accused of burglary with intent to commit larceny, where there was evidence for the prosecution showing that a burglarious entry had been made into a house by two men, and that a trunk standing in the hall had been rifled by them, and clothing, an album, and jewelry taken therefrom, it was proper for the prosecution to prove, as corroborative evidence, that defendant was the owner of a trunk in which most of the stolen property was found; and even if the record had disclosed that defendant had been prosecuted upon another charge of burglary wherein it was alleged that he had stolen the trunk, it would still be competent to show that he owned or claimed the trunk in question, as furnishing evidence of possession of its contents.</p> <p>Id.—Sufficiency of Evidence—Alibi—Province of Jury.—Where the evidence for the prosecution showed that the stolen clothing, album, etc., were found in a trunk kept by defendant in a barn owned by another person, and that some of the stolen jewelry was found in his pockets, and that the burglary occurred between 10 and 11 o’clock at night, and there was evidence for the defendant tending to prove that defendant was elsewhere employed until about 11 o’clock on that night, and defendant attempted to account for his possession of the stolen property by saying he was a junk dealer, and that on the next morning he found the goods in a gunny-sack standing against a tree on the corner of two streets, and that he put them in the barn because he was afraid the woman with whom he lived near the barn would take them, the jury was the sole judge as to the guilt or innocence of the defendant, and may have disbelieved the testimony tending to prove an alibi, or that there was a mistake as to the hour when he quit work, or as to the time of the burglary, and their verdict cannot be disturbed upon appeal for insufficiency of the evidence to support it.</p> <p>Id.—Cross-examination of Defendant—Improper Questions—Harmless Action of Prosecuting Officer—Rulings of Court.—Where some of the questions put to the defendant upon his cross-examination were improper, but were oí little moment, and objections thereto were sustained by the court, and when any of them were answered without objection, the answer was stricken out by the court, and the jury instructed to disregard such testimony, no injury resulted from such improper questions, and a judgment of conviction of the defendant will not be reversed for alleged misconduct of the prosecuting officer in asking them.</p> <p>Id.—Impeachment of Defendant—Pbevious Conviction of Eelony.—Although it is not proper to show that the defendant was guilty of some other offense, for the purpose of raising a presumption, either of law or fact, of his guilt in the case under consideration, yet, when a defendant offers himself as a witness in his own behalf he may be asked, for the purpose of impeaching his evidence, if he has been convicted of a felony, or the fact, if it exists, may be shown by the record of the judgment.</p>

<p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. 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 San Biego County and from' an order denying a new trial. George Puterhaugh, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Trinity County and from an order denying a new trial. John F. Ellison, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Trust under Will—Estates of Deceased Persons—Decree of Distribution to Trustees—Determination of Validity of Trust—Bes Ad judicata—Creditor's Bill.—Where the estate of a deceased person is distributed to the trustees appointed under the will, the decree of distribution is an adjudication of the validity of the trust, and of the title of the trustees to take under the will; and where such decree has become final by failure to appeal therefrom, the title of the trustees and the validity of the trust cannot be assailed upon a creditor’s bill filed to subject to execution the property of a beneficiary of the trust, to twhom the trustees were to pay a portion of the income of the estate during his life, as it should be received by them.</p>

MOTION to dismiss an appeal from three orders of the Superior Court of the City and County of San Francisco. J. V. Coffey, Judge. The facts are stated in the opinion of the court.

<p>Appeal—Review of Order Denying New Trial—Affidavits not Identified. Affidavits of newly discovered evidence printed in the transcript upon appeal, but not identified as having been the affidavits used upon the motion for a new trial, nor shown to have been filed in the court below, cannot be considered by this court upon appeal from the order denying a new trial.</p> <p>Id.—Bill of Exceptions—Proper Refusal of Settlement—Failure to Comply with Statute.—Where the party proposing a bill of exceptions refuses to adopt the amendments, and fails to present the same for settlement within the time limited by section 650 of the Code of Civil Procedure, without offering any excuse therefor, the court is justified in refusing to settle the bill when subsequently presented for settlement.</p> <p>Id.—Obdbb Refusing to Settle Bill of Exceptions not Review able upon Appeal—Mandamus.—If a judge improperly refuses to settle a bill of exceptions, he may be compelled to act by writ of mandate, but his refusal to act is not an appealable order, and cannot be reviewed upon appeal from an order of the court denying a new trial, which must be determined upon the same record as that presented in the court below.</p>

<p>Foreclosure of Mortgage—Subordinate Liens—Sale of Parcels by Mortgagor-Order of Sale Subject to Just Rights.—The entire rule established by section 299 of the Civil Code, respecting the order of sale of the mortgaged premises, in case of transfer of parcels thereof, and of subordinate liens not coextensive with the mortgage, applies, under the terms of the statute, only where it can be followed without injustice to other persons.</p> <p>Id.—Sale in Inverse Order—Assumption of Mortgage Debt by Grantee. The doctrine of selling mortgaged property, which has been alienated by the mortgagor, in the inverse order of alienation, is not unyielding; and where, upon a sale of part of the premises, the grantee has bound himself to pay the mortgage debt, or a proportionate part thereof, the portion purchased by him becomes in his hands and in the hands of those holding under him with notice, primarily chargeable with the mortgage debt, or such proportionate part thereof as he may have agreed to pay, as against the mortgagor, and as against subsequent purchasers of other parcels of the mortgaged premises.</p> <p>Id.—Costs—Discretion—Appeal.—The costs in an action of foreclosure are in the discretion of the court, and, where the evidence is not returned upon appeal, it cannot be said that there was an abuse of discretion.</p> <p>Id.—Attorney’s Fees—Stipulation—Limitation of Mortgage Security.— Where the mortgage purports only to secure the payment of a promissory note, and does not purport to secure the payment of attorney’s fees, a stipulation in the mortgage for counsel fees at the rate of ten per cent upon the amount due, does not authorize the making of such fees a lien upon the property or the inclusion of them in the decree of sale.</p>

<p>Mining Corporations—River Mining—Use of Dredging Boat—Failure to Post Accounts—Statutory Liability of Directors.—A corporation organized under the laws of this state for the purpose of mining, which carried on mining operations in the bed of the Sacramento river, by the use of a dredging boat, and appliances for the purpose of extracting gold from the debris in the bed of the stream, is within the provisions of the act of April 23,1880, for the better protection of the stockholders in such corporations, and the fact that the purpose of the corporation was very feebly prosecuted, and that the work done was without profit, cannot dispense with or excuse the discharge of the duty of the directors to post an itemized account or balance sheet in the office of the corporation, as required by the terms of that act, and, upon their entire failure so to do, they are liable under the statute to a judgment at the suit of a stockholder for the sum of one thousand dollars liquidated damages, as penalty for the violation of that act.</p> <p>Id.—Intentional Failure of Directors—Case Distinguished—Ignorance of Law.—The case of Eyre v. Harmon, 92 Cal. 580, in reference to the necessity of a willful and intentional violation of the statute by the directors of a mining corporation, has no application where there is an entire failure of the directors to comply with the statute, and no facts of excuse are set forth, or attempted to be proved other than their ignorance of the statute.</p> <p>Id.—Construction of Statute—Penal and Remedial Act.—The act of April 23,1880, for the better protection of stockholders in mining corporations is not only penal in its nature, but it is also remedial and of much consequence and value to stockholders, and it must receive a construction with reference to its beneficent objects as well as to its penal character.</p> <p>Id.—Immaterial Evidence—Bad Faith of Plaintiff—Discharge from Ser vice—Revenge—Knowledge of Accounts.—Evidence of letters of the plaintiff offered for the purpose of showing that the suit was brought in bad faith “solely 'to get even with defendant for removing him from his berth of assistant superintendent,” and not offered for purposes of impeachment of the plaintiff as a witness or to contradict his testimony, was properly excluded as immaterial; nor can the fact that plaintiff, by reason of his connection with the company, had knowledge of the accounts, and had the means of learning about them after his discharge, excuse noncompliance of the directors with the law.</p>

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

<p>Mechanic's Lien—Contract fob Materials—Record, when not Required. Where a lessee, for the purpose of constructing certain additions to the premises leased, purchased materials therefor of less value than one thousand dollars, the provisions of the code relating to a written contract and filing the same for record have no application.</p> <p>Id.—Lien fob Materials—Time for Notice—Completion of Building— Premature Filing.—The lessee having caused the improvements to be constructed for himself, the party furnishing the materials was not an original contractor, and must file a notice of lien within thirty days after the completion of the building; and unless the building • was completed before the notice of lien was filed, the filing was premature, and conferred no right to enforce the lien.</p> <p>Id.—Finding—Completion before Notice—Date Immaterial—Conflict of Evidence.—A finding that the building was completed at a particular date, which was prior to the notice of lien, is not material so far as the date is concerned; and though there may be no evidence as-to the date of completion, it is sufficient that there is evidence tending to show that the building was completed before the notice ot lien was filed, and the finding cannot be disturbed on account of conflicting evidence upon that issue.</p> <p>Id.—Test of Completion—Absence of Plans—Presumption—Matters not Included—Trivial Imperfection.—In the absence of any plans of the building, or means of test by which it could be determined when the building was completed, its completion must be determined by the court from all the circumstances of the case shown by the evidence; and where it appeared that no sidewalk was ever constructed, that the building was never painted, and that no eave-troughs or waterclosets were ever constructed, it is to be presumed, in the absence of evidence to the contrary, that the original plans of the building, did not include any of these matters and the court might properly so find; and the failure to make the ridge of the roof tight, and to putty the glass on the outside, is merely a defective performance of the work rather than a failure of completion, and was properly disregarded as a “trivial imperfection.”</p> <p>Id.—Construction by Lessee—Liability of Owner—Absence of Notice.— Where improvements to the building were constructed by the lessee with the previous knowledge and permission of the owner, his failure to give the notice required by section 1192 of the Code of Civil Procedure rendered his interest in the land subject to the lien of one furnishing materials for the improvements; and it is immaterial whether they were constructed in the particular form, or at the particular place which was authorized by the owner.</p> <p>Id.—Void Notice of Lien—Incorrect Statement as to Contract Price— Variance.—The right to enforce a mechanic’s Ken depends upon a compliance with the statute; and not only must the notice of lien contain the statements required by section 1187 of the Code of Civil Procedure, but the statements thus made must be in accordance with the facts, and if they are not correctly stated the right to a lien is lost; and though proof that the contract was for the “regular market price” is not a substantial variance from an allegation that the contract was for what the materials were reasonably worth; yet where the notice incorrectly stated the amount of the balance due as the amount of the contract price of the lumber, and that no part thereof had been paid, proof that the contract was for a considerably larger price and that payments had been made thereon, shows a fatal variance in the terms of the contract from that stated in the notice, and renders the notice of lien defective and void.</p> <p>Id.—Distinction as to Variance—Pleading and Proof—Notice of Lien and Proof.—The effect of a variance between the pleading and proof is not governed by the same rules as in the case of a variance between the notice of lien and the proof. A variance between the pleading and proof is not material unless the adverse party has been misled thereby to his prejudice, while a variance between the notice of lien and the proof, showing that the statement of the contract set forth in the notice was untrue, is fatal to the lien.</p>

<p>Proceedings in Aid op Execution—Bindings not Bequired.—Proceedings in aid of execution are only a summary method of purging the debt- or’s conscience, and compelling the disclosure of any property he may have which is subject to execution; and it is not incumbent upon the court to make express findings in special proceedings of this character, and the action of the court cannot be reversed for want of such findings.</p>

<p>Criminal Law—Assault with Intent to Commit Crime against Nature —Sufficiency of Evidence—Questions for Jury.—Upon the trial of a defendant accused of an assault with intent to commit the infamous crime against nature, where there is evidence tending to show that defendant, after having unsuccessfully solicited consent to the act by the person upon whom the alleged assault was made, grabbed him and tried to roll him over; that he resisted and made some noise, and the defendant then desisted, and said he would not make him do it if he didn't want to, it is a question of fact for the jury whether the force testified to was used, and also what was the intent with which it was done, and the evidence was sufficient, if believed by the jury, to justify the conclusion that whatever force was used was with the intent and purpose to commit the crime alleged; and if any appreciable force was used with that intent, and the defendant desisted through fear of detection from any cause, the intended act being felonious and against the will of the prosecuting witness, it was an assault within the meaning of the Penal Code defining an assault, and defining the crime for which the defendant was prosecuted.</p> <p>Id.—Fear not Essential to Assault—Feelings and Motives of Prosecuting Witness—Support of Verdict—Recommendation to Mercy.—It was not essential to the offense charged that the assault should have put the person assaulted in fear, and the questions whether his feelings were not sensitive and were not greatly outraged, and whether the fact that no bodily injury was inflicted may suggest the possibility of some improper motive for the prosecution on his part, are questions for the jury; and it is sufficient to support a verdict of guilty of the offense charged, with a recommendation of the defendant to .the extreme mercy of the court, that there was legal evidence upon which the verdict could be sustained, and that the recommendation made by the jury negatives the idea of passion or prejudice on their part.</p>

<p>Injunction—Relative Equities.—A court of chancery will not interpose by injunction as of course after the right of the plaintiff has been established at law; but it will consider the circumstances, the consequences of such action, and the real equity of the case; and each case must be governed by the circumstances that surround it, and by relative equities.</p> <p>Id.—Rights of Riparian Owner—Pollution of Stream by Sewage—Nuisance—Injunction against Municipal Corporation.—A riparian owner has a right of property in the waters of the stream, as appurtenant to the land, and is entitled to have it flow in its natural purity, and may enjoin as an actionable nuisance the pollution of the stream by a municipal corporation which has caused sewage to flow therein, so as substantially to impair its value for ordinary purposes, and to render it at times offensive to the senses and unfit for domestic use, and the fact that the defendant is a municipal corporation does not enhance its rights, or palliate its wrongs in this respect.</p> <p>Ib.—Supplemental Answeb—Consteuction of Sewage Plant—Deodobization of Sewage—Fitness fob Domestic Use—Bubden of Pboof—Pbesumption.—A supplemental answer by the municipal corporation, setting forth that, since the commencement of the action, it had constructed and was operating a sewage plant, which rendered the sewage water clear and inodorous, does not constitute a defense to the injunction, in the absence of a showing that the water was rendered palatable and fit for use; and prior findings having established that the water of the stream was rendered unfit for use by the sewage, the burden of showing a change in that respect rested upon the defendant, and it must be presumed, in the absence of such a showing, that the water in that respect had not undergone a change.</p>

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

APPLICATION to the Chief Justice for a writ of habeas corpus to the sheriff of Orange County, to test the jurisdiction of the Justice’s Court of Santa Ana Township. George Huntington, Justice. The facts are stated in the opinion.

<p>Estates of Deceased Persons—Distribution—Separate Property of Husband-Presumption from Purchase after Marriage—Rebutting Proof. Property acquired by the husband before marriage is properly distributed as his separate estate; and the presumption that property purchased after marriage is community property is rebutted and overcome by proof that the property acquired after marriage was acquired by the ordinary use of his separate property, and that lands which appear to have been the nucleus of subsequent holdings • was settled upon, possessed, and claimed by him long before his marriage, although not consummated by patent from the sources of paramount title until subsequent to the marriage.</p>

<p>Void Trust under "Will—Suspension of Power of Alienation.—A trust attempted to be created under the will of a testator, for the benefit •of his children, by the terms of which the trustee was to divide the •net income of the residue of his estate in equal shares among them to the survivors of them (the issue of any deceased child to share in such distribution by right of representation) until the younger son, then aged seventeen years, shall, or would if living, reach the age of thirty years, and at the expiration of such time to divide and ■distribute the said residue of his estate in equal shares among such of his children as may then be living, and the issue of any deceased child, such issue to share in the distribution per stirpes and not per capita, is void, as suspending the power of alienation for a time certain, and not dependent upon any life or liyes in being.</p> <p>Id.—Construction of Statute—Perpetuities—Future Estates—Time of Vesting—Remoteness—Alienability.—Our statute prohibiting the suspension of the power of alienation is not, properly speaking, against perpetuities, but simply prohibits restraints upon alienation, and makes a future estate void in its creation, if, by any possibility, it may suspend the power of alienation beyond the prescribed period, regardless of the time of vesting of such estate; nor does it insist upon the vesting of estates, but only upon their alienability, and the doctrine of remoteness has no materiality, except as it affects alien-ability.</p> <p>Id.—Void Postponement of Possession—Invalidity of Trust—Rules of Construction—Intention of Testator.—The rule that when an absolute estate is granted, but the right of possession and enjoyment is postponed, solely for the supposed benefit of the grantee, such postponement is void, as applied to future estates vesting in the issue of the children of the testator under the will, cannot affect the invalidity of the trust attempted to be created by the will, which if valid, would operate to suspend the power of alienation for a fixed period; but the rule that when a testamentary disposition is made to a class, and possession is postponed, it includes all persons within the class at the time to which possession is postponed, and the rule of construction of a gift to a class that only those are included who are in existence at the time of the distribution, and the further rule that the word “issue” ordinarily means descendants to any degree, are in harmony with the testator’s manifest intent, disclosed by the terms of the will to keep the property in his family and beyond the power of his descendants to dispose of for the prescribed period, and the case is clearly within the prohibition of the statute against the suspension of the power of alienation.</p>

<p>Stbbet Woek Requested in Front of Lot—Lien Confined to City ob Town—Insufficient Complaint—Demubbeb—Uncertainty.—The lien provided for in section 1191 of the Code of Civil Procedure, in favor of one who, at the request of the owner of a lot, improves the street or sidewalk in front of or adjoining the same, can be acquired and enforced only against a lot in an “incorporated city or town”; and a complaint to enforce such a lien, setting forth a contract for grading and other work, which shows upon its face that the work was to be done outside of any city or town, and was to be done in accordance with an ordinance to be passed by the board of supervisors of the county, does not state a cause of action; and if such complaint leaves it uncertain whether the work to be done under the contract was within an incorporated city or town, and uncertain as. to whether an ordinance was passed by the board o£ supervisors of the county, it is subject to a demurrer for uncertainty.</p> <p>In.—Omission to Request Amendment—Objection upon Appeal. — The omission to request an amendment to a pleading after a demurrer thereto has been sustained precludes the making of an objection upon appeal for the first time that the court should have allowed an. amendment, when nothing appears in the record to show an abuse of discretion.</p>

CERTIORARI in the Supreme Court to annul an order of the Superior Court of Sacramento County, adjudging the petitioner guilty of contempt. A. P. Catlin, Judge. The facts are stated in the opinion.

<p>Action to Quiet Title—Defense of Written Contract—Failure to Deny Genuineness and Execution—Evidence—Matter in Avoidance of Contract.—The failure of the plaintiff, in an action to quiet title, to file an affidavit denying the genuineness and due execution of a written contract pleaded and set forth in the answer by way of defense, merely admits that the instrument pleaded is not spurious or counterfeit, or of different import on its face from the one executed, but is the identical instrument executed by the plaintiff, and does not preclude the plaintiff from controverting the instrument by evidence of fraud, mistake, undue influence, or any matter in avoidance of the contract, not inconsistent with the fact of its execution and genuine-ness.</p> <p>Id.—Issues Agreed upon—Objection upon Appeal.—Where issues as to matter in avoidance of the contract pleaded in defense, not involving its genuineness and due execution, were agreed upon and submitted to the jury without objection, the defendant cannot object upon appeal for the first time that such issues were not properly submitted.</p> <p>Id.—Pleading—Fraud or Mistake in Avoidance—Replication as Matter of Law.—A plaintiff is not required to plead the facts constituting fraud or mistake, unless the cause of action or defense to a cross-complaint rests thereon; and where such facts are merely matter in avoidance of a defense set up in the answer, they are not required to be averred in the complaint, but may be proved in rebuttal of the defense without a replication, which is supplied by operation of law.</p> <p>Id.—Equity Case—Verdict of Jury Advisory—Right of Court to Determine Question of Fraud.—An action to quiet title, in which the defendant relies upon a contract for the sale of the premises in controversy, is purely an equity case, in which neither party has the right to demand a jury, and the verdict of a jury is merely advisory to the court, and, though actual fraud in avoidance of the contract is always a question of fact, yet the court is not bound by the verdict of the jury on that question, but may determine it regardless of the verdict.</p> <p>In.—Mistake of Fact upon Past of Plaintiff—Ignorance of Plaintiff — Age, Infirmity, and Inexperience—Reliance upon Defendant—Knowledge of Defendant.—A contract may be set aside fora clear mistake of fact on the part of one of the parties, without proof of fraud of the other party; and where the evidence for the plaintiff showed that she was aged, subject to physical infirmities, and inexperienced in business, and had confidence and implicit trust in the defendant, who prepared the contract out of her presence, and brought it to her to be executed, bringing with him a notary and a witness, and, knowing that she did not know what was contained in the contract, did not read it to her, and that she signed it, without reading it, under the understanding and belief that it was a lease with an option of renewal, and in ignorance of the fact that it contained a contract of sale, the circumstances are such that ordinary prudence on the part of the defendant required him to have the contract read in her hearing, and the plaintiff should not be held to suffer for her apparent laches in signing it in ignorance of its contents.</p> <p>Id.—Findings—Probative Facts—Issues Rendered Immaterial.—A finding of probative facts is sufficient when the ultimate facts follow therefrom; and when the findings show a clear case of mistake of fact upon the part of the plaintiff, whether involving fraud therein or not, a separate finding upon the question of actual fraud is not required; and it is immaterial whether other findings are or are nut sustained by the evidence. '</p> <p>Id.—Immaterial Error—Evidence.—Error in the admission of evidence upon other matters not involving the question of mistake of fact upon which the judgment for plaintiff proceeds is without injury.</p> <p>Id.—Prima Facie Case of Mistake—Conflict of Evidence.—"Where the evidence for the plaintiff standing alone establishes a prima facie case of mistake, and the trial judge accepted her evidence as true, though contradicted by the evidence for the defendant, the appellate court is not at liberty to inquire into the relative weight of the conflicting evidence.</p>

<p>Justice’s Court—Proceedings Supplementary to Execution—Order to Debtor not Appealable—Jurisdiction of Superior Court—Prohibition. An order made by a justice’s court in proceedings supplementary to execution, requiring the judgment debtor to apply designated property to the satisfaction of the judgment, is not in the nature of a “ judgment, and is not appealable to the superior court; and the superior court and the judge thereof, having no jurisdiction of an appeal therefrom, will be restrained by writ of prohibition from this court from proceeding to try said appeal, and that court will be directed to dismiss the 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. S. K. Dougherty, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Time fob Notice to Cbeditors—Alleged Fraudulent Undervaluation—Equitable Action by Créditos after Distribution—Laches—Means of Knowledge.—A complaint in an equitable action brought by a creditor of the estate of a deceased person, after the final settlement and distribution of the estate, to annul all proceedings in the matter of the estate, subsequent to the return of the inventory, and to compel the administratrix to allow the plaintiff’s claim, upon the ground that the estate had been fraudulently undervalued, and that the notice to creditors should have been published for ten months, instead of four months, and alleging that plaintiff had no actual or constructive notice of such undervaluation, or of the proceedings for the settlement of said estate, but not alleging ignorance of the death of the decedent, nor of the appointment of the administratrix, nor of the inventory filed, does not state a cause of action; but the plaintiff, notwithstanding the allegation to the contrary, is chargeable with constructive notice of the proceedings, and, having had sufficient means of knowledge of the alleged undervaluation to be put upon inquiry, is chargeable with inexcusable laches, in not obtaining relief, if a fraud was being perpetrated, before the final settlement of the estate.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order refusing to quash an execution. W. H. Clark, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Delinquent Tax List—Authobitt fob Publication—Allowance of Illegal Claim by Supebvisobs—Manbamus to Auditob.—The tax collector has no authority to contract for the publication of the delinquent tax list, and where the board of supervisors of the county did not contract for the publication thereof with the lowest bidder after ten days’ public notice, in pursuance of section 3766 of the Political Oode, such board had no authority to allow and approve a claim for the publication thereof by order of the tax collector, and mandamus will not lie to the auditor to compel the drawing of a warrant for such illegal claim.</p>

<p>Criminal Law—Incest—Sufficiency op Indictment—Carnal Intercourse with Daughter.—An indictment for incest, charging that the defendant L. K., at a time and place stated, “did willfully, unlawfully, knowingly, incestuously, "and feloniously, upon the person of one O. K., the daughter of said L. IC., commit fornication, and have sexual intercourse with and carnally know the said O. K., contrary,” etc., sufficiently conforms to all the requirements of the statute, and sufficiently shows that the oSense was committed upon an immediate female descendant of the defendant, and not upon an adopted daughter or a stepdaughter or a daughter in law.</p> <p>Id.—Daughter under Age op Consent—Bape—Additional Indictment— Beview upon Appeal.—The fact that the daughter with whom the incest was committed was under the age of consent, and that the crime committed also included the crime of rape, does not preclude the putting of the defendant on trial for the crime of incest; nor cart the fact that an additional indictment was found lor the crime of rape he considered upon appeal from a verdict of conviction of the crime of incest, where the record does not disclose that any such indictment was found.</p> <p>It.—Testimony op Daughter—Corroboration—Conflicting Evidence.— Where the testimony of the daughter, though slightly corroborated, clearly and explicitly detailed the circumstances of the crime charged against her father, and was sufficient, if believed, to uphold a conviction, the fact that the defendant was called as a witness in his own behalf, and positively denied all the charges made against him, cannot entitle the defendant to a reversal of the judgment, upon the ground that the evidence was insufficient to justify or support the verdict.</p> <p>Ed.—Bequestbd Instruction as to Seasonable Doubt—Modification.—An instruction requested by the defendant, that the facts tending to prove the guilt of the defendant must be established in the minds of the jury beyond a reasonable doubt, “that is, it must entirely satisfy” them of. the guilt of the deceased before they could convict, and that if they were not “entirely satisfied,” they should acquit him, though it might have been given as requested, is not rendered erroneous or misleading by striking out the word “entirely" therefrom, and giving it as thus modified.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Luden Shaw, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Void Contract—Sams of Stocks on Margin—Action fob Monet Paid— Defense—Accord and Satisfaction—Insufficient Proof—Settmment of Stock Account—Receipt in Fuel—Basis of Validity of Contract. In an action by the assignee of an insolvent debtor to recover money paid by the insolvent debtor to stockbrokers under a void contract for the purchase and sale of stocks on margin, evidence of a mere settlement and receipt in full of the balance of the stock account, consisting of the dealings under the contract for the purchase and sale of the stocks upon a margin, upon the assumption that those dealings were regular and legal, without proof of any agreement to settle any claim for the recovery of the money illegally paid under the void contract, or that such claim was known or considered, or referred to in any manner upon the settlement, does not sustain a defense of accord and satisfaction of the claim sued upon.</p> <p>Id.—Evidence—Ignorance of Legal Rights.—In such action, it is error to refuse to permit the insolvent debtor to answer a question as to-whether he knew of any law authorizing the recovery of money paid in on margin stock transactions at the time of signing the receipt in full of the balance of stock account; nor is it a valid objection to such question that the witness was presumed to know the law, and could not be excused for ignorance of it.</p> <p>Id.—Maxim—Ignorance of Law—Exception—Mistake of Fact Arising from Mistake of Law—Relief in Equity.—The maxim, Ignonmtia, legis neminem excusat, though applicable generally to mistakes of law pure and simple, does not apply to the exceptional case where a party has acted in ignorance of his antecedent and; existing private legal rights, and under a misapprehension which involves a mistake of fact arising out of a mistake of law as to the existence of a legal right or title, which there could not have been an intention to part with, while in ignorance of it; but, in such case, equity will grant relief from the legal effect of instruments which surrender such unsuspected right or title.</p> <p>Id.—Code Provisions—Ignorance of Fact—Misapprehension of Law— Limited Effect of General Release.—A settlement with stockbrokers and receipt in full of a balance of the stock account, made in ignorance of a legal right to recover moneys paid to them for the purchase and sale of stocks on margin, if regarded as involving a mistake of fact, involves unconscious ignorance of a fact material to the contract, within subdivision 1 of section 1577 of the Civil Code, and, if regarded as involving a mistake of law, involves a misapprehension of the law by all parties, all supposing that they knew and understood it, and all making substantially the same mistake as to the law, within section 1578 of the Civil Code; and regarding the receipt as a general release, it could not, under section 1542 of the Civil Code, extend to claims which the creditor did not know or suspect to exist in his favor at the time of executing the release, which, if known by him, must have materially affected his settlement with the debtor, nor is it material that his ignorance of the fact of its existence was occasioned by his ignorance of law.</p>

<p>APPEAL from a judgment of the Superior Court of Alameda County. ■ W. E. Greene, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County. Walter Van Dyke, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPLICATION for writ of habeas corpus from the Supreme Court to the sheriff of the City and County of San Francisco, to test the validity of a judgment of conviction of the Police Court of said City and County. Charles T. Conlan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of San Joaquin County allowing an attorney’s fee against the estate of decedent. -Joseph H. Budd, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

Writ of habeas corpus from the Supreme Court to the Superintendent of Whittier State School, to test the validity of a commitment from the Superior Court of Merced County. J. K. Law, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco, denying confirmation of the sale of the real estate of a decedent, and annulling the sale and vacating the proceedings had under the petition for the order of sale, and directing return of the amount deposited by the. purchaser. Charles W. Slack, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Larceny—Evidence—Recent Possession of Stolen Cow— Explanation—Question por Jury.—The possession by the defendant on-the morning after the theft of a stolen cow, which the defendant was accused of stealing, is prima fade evidence of guilty possession, and is a circumstance, to be taken in connection with other corroborating-circumstances, tending to show guilt of the larceny alleged, unless satisfactorily explained; and where the defendant undertook to explain the possession as having been transferred to him by another person, under circumstances detailed by him, and it could not be said that his explanation was so clearly and evidently true that the jury could not find against it except under the influence of passion or prejudice, but there was evidence from which they might rightly conclude that the explanation was fabricated, the question whether his explanation was true and reasonable or fabricated was a question for the jury to determine, and their verdict of guilty cannot be disturbed on the ground that the inference of guilt was removed by the explanation given by the defendant of the circumstances attending his possession.</p> <p>Id.—Sale of Cow to Butcher—Evidence of Previous Proposal to Sell— Absence of Rebuttal.—It appearing that the stolen cow was sold by the defendant to a butcher on the morning after the theft, the testimony of the butcher that about a week previously the defendant asked the butcher if he did not wish to buy a cow, tended, in some degree, to render improbable the defendant’s explanation of his possession of the cow sold, and is not too remote to be inadmissible; and it being in the power of the defendant to rebut such inference if not correct, the failure of the defendant to oiler evidence to show that he had in his possession another cow which he was proposing to sell the week previous added to the improbability of his testimony.</p> <p>Id.—Instructions—Possession of Stolen Property—“Guilty Circumstance.”—The use of the words “guilty circumstance,” instead of the words “a circumstance tending to show guilt,” in an instruction as to the effect of the unexplained possession of stolen property soon after the taking, could not be misleading to the jury, where other instructions on that subject were such as must have corrected any erroneous impression made upon the minds of the jurors.</p> <p>Id; — Modification of Instruction—Discrediting of False Witness.— Where the defendant requested an instruction substantially covering the provision of section 2061, subdivision 3, of the Code of Civil Procedure, that “a witness false in one part of his testimony is to be distrusted in others,” a modification of the instruction by the word “willfully” before the word “false” did not render the instruction erroneous, nor change the effect of the instruction as offered.</p> <p>Id.—Instruction Taking Case from Jury—Improper Request.—Where there was evidence sufficient to sustain a verdict of guilty of larceny, an instruction requested that there was no evidence that the defendant participated in the actual stealing of the cow, and that the evi-! dence only showed that defendant sold property alleged to have' been stolen, and that defendant could not be convicted upon that evidence, would have taken the case from the jury, and was properly refused.</p> <p>Id.—New Trial—Newly Discovered Evidence—Lack of Diligence.—A new trial will not be granted for newly-discovered evidence, where it appears that what the witness could have testified to was well known to the defendant before the trial, and no steps were taken to secure his attendance at the trial, and the lack of diligence in that regard was such that the defendant, though stating to the court a desire for his evidence, did not insist upon a postponement to secure it.</p>

<p>APPEAL from a judgment of the Superior Court of Fresno County, Stanton L. Carter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Taxation—Assessment of Personal Property—Collection by Assessor— —Validity of Statute—Constitutional Law.—The statute requiring the assessor to collect the taxes assessed upon personal property at the time of the assessment, upon the basis of the levy of the previous year, where the taxes are not secured by lien upon real estate, with a provision for remission of any excess in the levy, is constitutional ■ and valid, and neither conflicts with article XIII of the constitution, requiring property to be taxed in proportion to its value, to be ascertained as provided by law, nor with subdivision 10 of section 25 of article IV, which prohibits the legislature from passing local or •special laws for the assessment or collection of taxes. [Van Fleet, J., and Harrison, J., dissenting.)</p> <p>Id.—Hardship not to be Considered.—The fact that a law may work hardship in extreme cases cannot be considered in determining its validity.</p> <p>Id.—Special Legislation—General Law—Classification—Secured and Unsecured Taxes.—The distinction between secured and unsecured taxes is intrinsic, and justifies a classification based thereupon; and a law providing for the collection of unsecured taxes upon personal property at a different time and in a different manner from the collection of taxes upon personal property which are secured by lien upon real estate, is general and uniform in its operation, and is not a special law for the collection of taxes within the meaning of the constitution.</p>

<p>Statute op Limitations—Counterclaim—Pleading—Demurrer—Defense to Counterclaim—Record upon Appeal—Presumption.—The statute of limitations is a personal privilege which is waived, unless specially pleaded; and, where a counterclaim appears upon the face of the answer to be barred by the statute of limitations, it must be specially pleaded to by demurrer on that ground, else it is waived; and if it does not so appear, in order that it may be availed of upon appeal as a defense to the counterclaim, and that reversible error may be shown in sustaining the counterclaim, it is incumbent upon the plaintiff to show in the record upon appeal that the statute of limitations was urged in the court below and relied upon as a defense to the counterclaim, else it will be assumed upon appeal that no such defense was made or claimed.</p> <p>Id.—Action for Rent—Counterclaim for Division Pence—Period of Limitation-Statutory Liability.—In an action for rent, a counterclaim for a division fence constructed by the defendant upon contiguous land and used by the plaintiff is upon a liability created by statute, and is not barred short of three years from the date of the inclosure of plaintiff’s land whereby the division fence was utilized; and it is immaterial that it may be deemed a cause of action upon contract. within the law of setoff and counterclaim.</p>

J. M. Seawell, Judge. The action was brought to determine an adverse claim of the defendant as mortgagee to a note and mortgage hypothecated to plaintiff by C. E. 1L Royce, assuming to act as the attorney in fact of the defendant. Further facts are stated in the opinion of the court.

<p>Home fob Inebriates—Dedication off Lot to Public Use—Private Corporation—Title of City and County.—The dedication of a lot in the city and county of San Francisco for a “Home for Inebriates,” by virtue of proceedings had under Order 800, reserved the lot from private occupation, and dedicated it to a public use, and a private corpora-, tion known as the “Home for the Care of the Inebriate,” without any of the elements of a public agency, can have no right to the lot,' or to its possession under such proceedings, but the title remained in-' the city and county for the public use designated. •</p> <p>Id.—Construction of Act of 1870—Action to Quiet Title of Private Corporation— Judgment fob City and County—Presumptions upon Appeal. In an action to quiet the -title of such private dorporation against the city and county of San Francisco to such lot, where plaintiff claimed title under the act of April 1, 1870, purporting to vest the title of the city and county in such corporation to a lot described therein merely as “set apart by the board of supervisors of San Francisco, or a committee of said board, to and for a corporation known as the ‘Home for the Care of the Inebriate,’” upon appeal from a judgment quieting the title of the city and county, where there is no evidence or finding in the record to show that any lot was ever set apart to such corporation, or that the lot dedicated by the city to public use was ever intended for such corporation, It must be presumed that the “Home for Inebriates” described in Order 800 was not a corporation, and was not the same organization as the private corporation, “Home for the Care of the Inebriate,” and that, inasmuch as the board of supervisors could set apart the land only for public uses, it did not set apart the lot in question for the private use of the plaintiff, and it must be presumed further that there was no evidence from which any finding could be made that plaintiff was the beneficiary intended by the board of supervisors.</p> <p>In.—Statute of Limitations—Adverse Possession—Prescription—Public Use.—No title could be acquired by the plaintiff by adverse possession under the statute of limitations, or by prescription to a lot dedicated to public use.</p>

CERTIORARI from the Supreme Court to review orders of the Superior Court of the City and County of San Francisco. Charles W. Slack, Judge. The facts in reference to the orders reviewed are stated in the opinion of the court. A petition in intervention was filed in the Supreme Court hy the Clarke’s Water Works, claiming that the pipe in controversy was the property of that corporation.

<p>Stock of Corporation—Enforcement of Trust by Administrator of Beneficiary.—Where shares of the stock of a corporation had been pledged by the original owner as security for payment of his note, and had been sold to satisfy the note, and the purchaser was willing and desirous to allow the original owner the benefit of a great rise in the value of the stock, upon payment of a specified sum therefor, and such sum was advanced by the defendant under an agreement that the original owner of the stock should procure it to be transferred to the defendant to be held by him for the benefit of the original owner, upon the trust and condition that such original owner, upon the tender by him to the defendant within six months of "the sum so advanced with interest from the date of advance, and a specified bonus, should receive from the defendant a transfer of all of said stock, and such original owner died before the expiration of the time limited, an action will lie in favor of his administrator, after tender to the defendant of the amount so agreed upon, to enforce the trust, and to compel a retransfer of the stock by the defendant pursuant to the agreement.</p> <p>Id.—Specific Performance of Contract—Option—Mutuality—Effect of Tender.—Assuming that the element of mutuality was wanting in the-contract sought to be enforced at the time the contract was entered into, and that it only conferred upon the original owner of the stock an option to pay the money, that element was supplied upon the offer of performance and tender of the amount agreed upon by his administrator, at which time the remedy became mutual. An originan lack of mutuality in the right to specific performance of a contract will not preclude the enforcement of the contract where this want has been removed at the time the action was brought.</p> <p>Id.—Creation of Trust—Consideration—Statute of Frauds.—The transaction between the defendant and the original owner of the stock was not in effect a purchase of the stock by the defendant from, the prior purchaser with a mere promise without consideration to-hold it for the benefit of the original owner; but in legal effect it amounted to a purchase of the stock by the original owner with-money advanced by the defendant, the title to the stock being taken in the name of the latter as security for the repayment of the money so advanced, with the stipulated compensation for its use, and there was no want of consideration for the promise to return or transfer the stock, nor was there anything in the nature of the contract rendering it obnoxious to the statute of frauds; but a trust arose upon the facts in favor of plaintiff’s intestate to have the stock, restored to him upon compliance with the terms of the contract.</p> <p>Id.—Right of Administrator to Sue—Offer of Payment.—The administrator of the deceased beneficiary of the trust may maintain an action to enforce the trust, upon compliance with the contract creating it on his part, and an offer or tender of payment by such administrator to the defendant of the sum agreed upon, within the time limited by the contract, is sufficient to authorize the maintenance of such action.</p> <p>Id.—Construction of Code—Mode of Tender.—Section 1500 of the Civil Code does not prescribe the mode of tender, but a method of extinguishing an obligation when that object is sought.</p>

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

<p>APPEAL from an order of the Superior Court of Tulare County adjudicating the insolvency of a debtor corporation and from an order denying a new trial. William W. Cross, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Sbbvices in Obtaining Renewal of Lease—Obal Agbeement fob Compensation—Delivery of Lease fob Less Tebm — Pbiob Wbitten Contbact—Merger—Estoppel.—An oral agreement made between plaintiff and defendants that plaintiff should use his services in obtaining the renewal of a ten-year lease, which was about to expire, in consideration of a monthly payment to be made to plaintiff during the renewed term, the desire being expressed for a new lease of ten years, is merged in a written contract to pay such compensation for a shorter term of three years, which was entered into prior to the delivery of a new lease therefor, which had been executed by the lessor and placed in the possession of plaintiff, and which he was under no obligation to deliver, unless such written contract was made; and the essential act of the delivery of the lease remaining to be performed when the written contract was entered into, his entire service in procuring a new lease, which was one transaction, must be deemed to have been made under the written contract, and defendants are estopped by such contract from objecting that the services were rendered under a different oral agreement, and that plaintiff could only recover upon a quantum meruit, and not under the written contract, and from objecting that the lease delivered to and accepted by them was not in accordance with the terms of the contract.</p> <p>Id.—Surrender of Lease—Continuance of Obligation to Plaintiff.—The terms of the contract being to pay a monthly compensation during the period for which the premises were leased, the defendants could not escape their obligation to make such monthly payments, by surrender of the lease before the expiration of the term.</p>

<p>APPEAL from an order of the Superior Court of Monterey County settling the accounts of trustees. N. A. Dorn, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Distribution—Pretermitted Heir—Co - STRUOTION OF STATUTE—FAILURE OF APPARENT PROVISION IN WILL—PAROL Evidence Inadmissible.—The failure of an apparent provision in the will of a testatrix for the issue of a deceased child, by reason of the testatrix having parted with land devised to them, is not an "omission to provide,” within the meaning of section 1307 of the Civil Code; and upon petition of the grandchildren for a partial distribution of other estate of the testator, claiming as pretermitted heirs, parol evidence is inadmissible to show that the land devised to them was not owned by the testatrix at the time of the making of the will, or at the time of her death, and that the grandchildren had never received any part of the estate of the testatrix by way of advancement.</p> <p>Id.—Object of Statute—Forgetfulness of Testator—Mention in Will— Mistake not to be Reformed.—The object of the statute in regard to pretermitted heirs is not to compel the testator to make provision for any child, but solely to protect the children against forgetful omission or oversight, and the failure to allude to them in the will is made evidence that they were omitted through forgetfulness of their existence; but when they are present to the mind of the testator, the statute affords no protection if provision is not made for them, and the fact that they are mentioned by the testator in the will is conclusive evidence that they were present to his mind; and, in such case, no mistake in the will in apparently, but not really, providing for them, can be reformed or corrected after the death of the testator; and parol evidence to show such mistake is inadmissible, where there is no question of imperfect description or identity of either the persons or property mentioned in the will.</p> <p>In.—Appeal by Guabdiak of Mikobs—Pabties—Question Ukdeoibeb.—The question whether an appeal can be properly taken in the name of a guardian of minor children as trustee of an express trust, or whether such appeal must be taken in the name of the ward, not decided; but held, by Mr. Justice Temple, that such an appeal must be taken in the name of the ward, and should be dismissed, when taken in the name of the guardian.</p>

WRIT of habeas corpus from the Supreme Court to the sheriff of Fresno County, to test the validity of a judgment of the Justice’s Court of the Third Judicial Township of Fresno County.. S. C. St. John, Justice of the Peace. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Santa Barbara County settling the final account of an administrator. W. B. Cope, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

E. A. Bridgford, Judge. The excuse for neglect set forth in the affidavit of merits consisted in reliance upon the advice of his counsel that the effect of his adjudication in insolvency would be that none of his creditors could prosecute any action against him, but that all their efforts in reference to the collection of their respective claims against the affiant would be confined to the insolvent court, except such claims as were not affected by the Insolvent Act, and…

<p>Stbeet Impbovement—Acceptance op Street—Jurisdiction op City Council—Public Expense—Construction op Statute—Mode op Procedure. Notwithstanding the acceptance of a street, the city council still retains jurisdiction, under the street improvement act of March 18, 1885, to order its improvement, and the provision in section 20 of that act, requiring the municipality to improve such street at the public expense, is subordinate to the provision in section 2 of the same act, that the city may order such improvement whenever the public interest or convenience may require, and also to the provision in section 1 that when such order is made the work must be done under the proceedings prescribed in the act, and the contract for doing the work must be let to the lowest responsible bidder, after proposals have been invited under the provisions of section 5 of the act.</p> <p>Id.—Award op Contract—Injunction—Remedy pob Illegal Assessment.— The city council having jurisdiction to award a contract for the improvement of an accepted street, the contractor to whom it is awarded cannot be enjoined, at the instance of owners of property fronting on the street, from performing the contract, upon the ground that by-reason of the acceptance of the street, the cost of the improvement should be borne at the public expense, and not assessed upon adjacent lands; but such question is to be determined after the work under the contract is completed, when, if an assessment is attempted and cannot be legally made, an appropriate remedy may be had to. defeat it.</p>

<p>Criminal Law—Enticing Girl into House of Prostitution—Previous Chaste Character—Conflict of Evidence—Question for Jury.—Where the evidence for the prosecution was sufficient to show that the defendant enticed a young unmarried girl, twelve years old, of previous chaste character into a house of prostitution kept by the defendant, for the purpose of prostitution, any conflicting evidence as to her previous chaste character simply raises a question for the jury.</p> <p>Id.—Opinion Evidence of Witness—Order Striking out.—It is not error to strike out answers of a witness as to what he judged from what he saw.</p> <p>Id.—Erroneous Admission of Evidence—Enticement of Other Girls.—The evidence of other young girls that the defendant had asked each of them to her house to have illicit intercourse with men, is inadmissible; and the admission of such evidence for the prosecution is prejudicially erroneous, and requires the reversal of a judgment of conviction.</p> <p>Instructions—Repetition Unnecessary.—Instructions given in substance need not be repeated at request of the defendant.</p>

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

<p>•Contract between Divorced Parents—Custody op Daughter by Father-Return to Mother at Majority—Liquidated Damages—Void Stipulation.—A contract entered into between divorced parents by the terms of which the custody of a minor daughter, which had been awarded to the mother, was transferred to the father, who agreed to bear the expenses of her support and education until she reached the age •of eighteen, and then to return her to her mother, and, in case of violation of any provision of the contract by him, agreed to restore the daughter to her mother free of expense, and for any failure to do so to become liable to the mother in the sum of one thousand dola-s as liquidated damages, if construed as importing anything more than an agreement to allow and afford facilities to the daughter to return to the mother at the age of majority, if she chose to do so, and as imposing an unconditional obligation to return her to her mother at the age of eighteen at all events, is to that extent void, and the stipulated damages cannot be recovered for its breach.</p> <p>Id.—Stipulation Infringing Personal Liberty. — The right of freedom from personal constraint is perfect at the age of majority, and no parent has a right to the custody of a child thereafter; and a stipulation to restore a daughter to the custody of a mother at the age of eighteen, nolens volens, is as much a contract to infringe the personal liberty of the daughter as if the period fixed had been twice or thrice that age, and is unlawful.</p> <p>Ed.—Contract not Alternative.—A contract in the alternative when not in terms providing otherwise, allows the right of election to the party on whom rests the obligation of performance; and there being nothing in the language of the agreement indicative of a purpose to allow the father to choose whether he would restore the child or pay a pecuniary mulct instead, and no option to pay the penalty and be rid of the obligation to return the custody of the daughter being permitted by the terms of the agreement, the contract cannot be considered as-an alternative one to return the child at her majority to her mother, or to pay her one thousand dollars.</p>

<p>Municipal Corporations—Proceedings to Sell Telephone Franchise— Abatement—Repeal op Act—Substitution oe New Act.—Proceedings had for the sale of a telephone franchise by a city council under the act of March 23, 1893, could not be carried to a conclusion after the repeal of that act, and the taking effect of the act of May 12, 1897, which supersedes it; but any proceedings had under the former act became functus officio after May 11, 1897, and could not be perfected or completed under the act of 1897.</p> <p>Id.—Injunction to Restrain Sale —Dissolution—Appeal after Taking Effect of New Act—Presumption—Dismissal.—Where an injunction to restrain a sale of a telephone franchise under the act of 1893, was dissolved May 10, 1897, the dissolution left the city council free to act, and, when no appeal was taken until nearly two months after that act had ceased to be a law, it must be presumed that if the council proceeded after May 11, 1897, it proceeded under the new act, and as, in any event, the restoration of the injunction would avail nothing, the appeal from the order dissolving the injunction should be dismissed without prejudice.</p>

<p>Collection of Personal Property Taxes by Assessor — Constitutional Law—Case Affirmed.—That part of the revenue laws which provides for the payment of taxes on personal property by those who do not own real estate, and for the collection thereof by the assessor at the time of the assessment is constitutional and valid. Rode v. Siebe, ante, p. 518, affirmed.</p> <p>Id.—Fraudulent Valuation by Assessor—Injunction to Restrain Collection—Sufficiency of Complaint.—A complaint which shows a fraudulent assessment of the personal property of the plaintiff by the assessor, at a valuation greatly in excess of its actual value, and greatly above that placed by the assessors on similar property of others, with intent to oppress the plaintiff and to compel plaintiff to bear an excessive share of the burden of taxation, and alleging a fender to-the assessor of the just amount of taxes conceded to be due, sufficiently states a cause of action to restrain the assessor from proceeding to collect the taxes assessed, as against a general demurrer, though as against a special demurrer it might have been made more definite and precise to the point that the assessment was not made from mere error of judgment.</p>

APPEAL -from an order of th.e Superior Court of Los Angeles County granting a new trial. Waldo M. York, Judge. The main facts are stated in the opinion of the court. The substance of the instruction with reference to the defendant’s plea of justification, is stated in the syllabus on that subject.

<p>Election Contest—Power of Adjournment of Special Session—Prior Engagement of Court—Jurisdiction.—Section 1120of the Code of Civil Procedure is not to be construed as limiting the power of adjournment by the court of a special session ordered for the trial of an election contest, merely from day to day or upon good cause shown by either party, not exceeding twenty days; but the court has power of its own motion to adjourn the session for several days, on account of a prior engagement of the court rendering such adjournment necessary, and the court does not lose jurisdiction to try the contest on account of such adjournment.</p> <p>Id.—Illegal Votes—Insufficient Registration.—Votes cast at an election for school trustees of persons whose names had not been enrolled upon the great register of the county fifteen days prior to the election are illegal, and must be rejected in determining an election contest.</p> <p>Id.—Oath as to Qualification—Construction of Code.—The fact that section 1600 of the Political Code, which provides for the reception of a vote upon the voter taking the oath prescribed by that section, was not amended so as to conform to the amendment of 1893 to section 1083, requiring registration of the voter fifteen days prior to an election, does not determine the legality of the vote cast by the one who has taken the oath.</p> <p>Id.—Cancellation of Great Register—Jurisdiction of Supervisors.—The great register of a county must remain for all purposes required by law before the completion of a new register; and the board of supervisors have no authority to declare the old register canceled before the registration of the new register is complete.</p>

<p>APPEAL from a judgment of the Superior Court of Del Norte County. James E. Murphy, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Bonds foe Municipal Improvements—Construction of Statute—Election of Municipality as to Gold Coin.—Under the terms of the original act of March 19, 1889, providing for the issuance and sale of bonds of a city to pay the cost of municipal improvements authorized by the voters, the municipality was not required to designate the kind of money in which the bonds should be payable, and, in the absence of such designation, could at maturity elect to pay them in any lawful money; and the purpose of the legislature in the amendment of 1893, providing that such bonds “shall be payable in gold coin or lawful money of the United States,” was not to require that the bonds should express that alternative, but to confer the power of election upon the municipality to make the bonds payable in gold coin only.</p> <p>Id.—Mode of Holding Election — Provisions of Ordinance—Mandatory Requirement—Invalid Election. —An ordinance of a city designating the mode of holding an election for the issuance of bonds for municipal improvements, having been passed by virtue of the statute authorizing it, has the force of a statute, and is to be construed with the same effect as if its terms had been prescribed by an act of the legislature; and where the ordinance provides that “each voter shall indicate his wish by writing or causing to be written or printed ‘yes’ or ‘no’ on the right-hand margin on his ticket opposite the proposition on which he may desire to vote,” such requirement is mandatory, and a disregard of it renders the vote nugatory; and where the ballots contained an improper notice printed upon them, “to vote for or against a proposition, place an ‘X’ in the square at the right,” and more than two-thirds of the voters followed such direction, instead of following the direction .given in the ordinance, the election is invalid.</p> <p>Id.—Alternative of Marino Interest Payable Annually ob Semi-Annually—Submission to Voters.—It was not necessary to submit to the voters the alternative of making the interest on the proposed bonds payable annually or semi-annually, but it is sufficient that the ordinance states the times at which the interest shall be payable; and it is only the amount of the bonds and the rate of interest which constitute the indebtedness proposed to be incurred, and upon which the voters are to express their wishes.</p>

WRIT of habeas corpus to the sheriff of the City and County of San Francisco, to test the validity of an order of the Superior Court of the City and Cóunty of San Francisco, imprisoning petitioner for contempt of court. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

<p>Negligence—Corresponding Duty—Injury to Plaintiff—Nonliability of Defendants—Nonsuit.—There can be no negligence, without the existence of a corresponding duty upon the part of the persons against whom the negligence is charged; and there can be no liability of defendants for an injury to the plaintiff where, under the circumstances shown, it is clear that defendants were under no legal duty or obligation to protect plaintiff from the injury he received; and, where the evidence for the plaintiff discloses that no such duty existed, the plaintiff is properly nonsuited for want of proof of negligence of the defendants.</p> <p>Id.—Master and Servant—Safe Place for Work—Extent of Duty of Master—Private Excursion of Servant.—The duty of a master to furnish his servant with a reasonably safe place in which to work is limited to the premises where the employee is required to be for the purposes of his employment, and does not extend to his protection while upon private excursions outside of those limits, taken solely upon his own account.</p> <p>Id.—Employment of Servant upon Lighter—Private Excursion to Vessel—Injury in Hatchway—Nonliability of Master.—Where the servant’s place of employment was upon a lighter, from which a vessel was being loaded, and his work consisted m shoveling ballast from the deck of the lighter onto a staging erected outside of the vessel, and the servant made a private excursion upon the deck of the vessel, upon his own account and for his own convenience, to place his coat upon a main hatchway unnecessarily remote from the place of his employment, and, upon resuming his coat after quitting work, fell into a smaller hatchway on the deck which was outside the limits of his employment, and was injured by the fall, the master owed no duty to protect him against such injury, and cannot be held liable therefor.</p> <p>Id.—V oluntaby Entbyupon Vessel out op Scope op Employment—Licensee at Suffebanoe—Nonliability of Ownebs of Vessel.—The plaintiff, in going about upon the vessel without the permission or invitation of the owners or master thereof, and outside the scope of his employment in loading the vessel, was a mere licensee at sufferance, and the owners of the vessel owed no duty to protect him against injury in a part of the vessel where he was neither invited nor expected to go; but the extent of the liability assumed by the owners of the vessel was that their decks should be reasonably safe where the. plaintiff was required by his employment to traverse them, and not elsewhere.</p>

Charles W. Slack, Judge. The facts are stated in the opinion of the court, and in its opinion rendered upon the former appeal, reported in 36 Pac. Rep. 668.

<p>APPEAL from a judgment of the Superior Court of Contra -Costa County, and from an order denying a new trial. Joseph P. Jones, 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, directing payment of a legacy. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

J. C. B. Hebbard, Judge. It was shown on behalf of the plaintiff, that, prior to his election as president, the corporation had, by a resolution of its board of directors, fixed the compensation of the president at one hundred and fifty dollars per month, and that no change therein had been made by the corporation.

<p>Estates of Deceased Persons—Riqht of Administration—Transfer of Title by Heirs—Improper Revocation of Letters.—The heirs of a deceased person, who died without debts, or other estate, cannot, by consent that there shall be no administration oí real property belonging to the decedent, and by transfer of their title in such real estate, dispense with the rights of administration thereupon; and where letters of administration upon such real property were granted to the public administrator six years after the death of the decedent, the court cannot revoke his letters and set aside the proceeding for administration, because of such agreement and transfer on the part of the heirs, and upon the ground that there was no occasion for administration upon the said estate.</p> <p>Id.—Statutory Construction—Object of Administration—Probate Pro- ■ ceedings Statutory and Special—Jurisdiction—Improper Dismissal-Rights of Administrator.—The whole subject matter of dealing with the estates of deceased persons is one of statutory regulation, and the policy and intent of the statute is to subject estates of deceased persons to administration, for the purpose of ascertaining and protecting the rights of creditors and heirs and properly transmitting the title of record, and there is no other method of conclusively determining the existence or nonexistence of heirs or creditors; and the proceedings for administration being statutory and special in their nature, the jurisdiction of the superior court over them is circumscribed by the provisions of the statute conferring such jurisdiction, and it cannot competently proceed in a manner essentially different from that provided by statute, nor dispense with further proceedings nor deprive the administrator of his right to compensation and reimbursement of costs and expense of administration by an order setting aside and dismissing the proceedings.</p>

<p>Criminal Law—Appeal—Absence of Notice from Transcript—Certificate of Clerk—Dismissal.—Where the transcript on appeal in a criminal «case, contains no copy of the notice of appeal, and does not show that -any notice of appeal was served, the clerk merely certifying that the transcript sets forth true copies of the information, etc., “and also of the notice of appeal duly filed herein,” there being nothing in the record to show from what the appeal was taken, or that the notice was served upon the attorney for the adverse party, the appeal cannot be considered, and must be dismissed.</p>

<p>Libel—Justification—Immaterial Variance—Proof of Charge.—A defendant in an action of slander or libel is not required to justify every word of the defamatory matter, but it is sufficient if the substance, gist, or sting of the libelous charge be justified, and immaterial variances and defects of proof upon minor matters are to be disregarded if the substance of the charge be justified.</p> <p>Id.—Divorce for Extreme Cruelty—Variance as to Acts of Cruelty Published—Evidence of Other Violent Assaults.—Where, in publishing a report of the proceedings had in an action for divorce upon the ground of extreme cruelty, in which a decree for the plaintiff had been granted, it was stated that at the trial evidence was introduced showing that the defendant in the divorce suit, who was plaintiff in the libel suit, was a man of most ungovernable temper, and that such incidents as the hurling of dishes at his wife when engaged in argument were referred to by the witnesses for the prosecution, the sting or gist of the charge is that he had assaulted his wife with force and violence, and the hurling of dishes or the fact of argument need not be proved, but evidence of other assaults of any kind upon the wife by the use of force and violence is admissible and sufficient to prove justification of the libel, the manner of the assault, and the means used in making it being mere matters of detail, not material to the substance of the libel.</p> <p>Id.—Evidence—Second Publication after Suit Brought—Question of Malice.—In an action of libel evidence of a second publication made after suit brought, in support of the same charge, may be given as tending to prove malice in the original publication, and the fact that there may be statements in the second publication looking toward other matters furnishes no reason for rejection of the article as competent and materiál evidence.</p> <p>Id.—Understanding of Readers Inadmissible.—Where it does not appear that the readers of a publication alleged to be libelous knew anything of the parties or of the circumstances save what they gathered from the publication, and thus stand in the same position with reference to the publication as the jurors, evidence as to the understanding of such readers as to the meaning of the publication is inadmissible.</p> <p>Id.—Common Import of Words—Province of Jury.—The common import of the words of a published article must be applied to test its libelous character, the publishers’ intentions are to be gauged by such import, and the reader’s understanding of it must be based upon such import; and it is the sole province of the jury to declare its import from the words used.</p> <p>Id.—Evidence—Joint Action—Declarations of Correspondent—Express Malice—Instructions—Damages.—In a joint action against a publisher o£ a newspaper and a correspondent, who may be said to be an agent of the publisher, evidence is admissible to show statements made by the correspondent after the publication of the alleged libelous article, for the purpose of proving express malice on his part, there being evidence to show a repetition of the libel on the part of the publisher for the same purpose as against him, and the jury being properly instructed that subsequent declarations or publications made by one defendant are not admissible against the other, but that to authorize exemplary damages actual malice of each defendant must be shown, and that there can be no recovery in the joint action except of the lowest amount of damages to be assessed against either of them.</p> <p>Id.—Charge of Crime—Proof of Justification—Preponderance of Evidence.—Where the libel published charges upon plaintiff the commission of a crime, it is not necessary that the commission 6f the crime be proved beyond a reasonable doubt, but a preponderance of evidence is sufficient to establish a justification.</p>

<p>Tax Deed—Recitals, How Fab Required—Mode oe Offering Land fob Sale—Sale of Smallest Quantity for Tax—Prima Facie Evidence.— The matters now necessary to be recited in a tax deed are those prescribed by sections 3776, 3785, and 3786 of the Political Oode, and none other; and it is nowhere required under the present law that the mode of offering the land for sale shall be stated in the deed, as was formerly required, so as to show affirmatively that the officer sold the smallest quantity which any purchaser would take and pay the taxes; and where the deed contains the recitals made imperative by the Political Code, and show's that the purchaser paid the full amount of the unpaid delinquent tax, together with the costs and charges for the property sold, and recites “that said sale was conducted in the manner prescribed by law,” there being nothing in the deed to show that the land sold was not the least quantity which any person would take and pay the taxes, such fact is presumed, and the deed is, by virtue of the express declaration of section 3786 of the Political Code, prima facie evidence that “the property was sold as prescribed by law.”</p> <p>In.—Publication op Notice op Sale—Presumption—Recital not Required. A recital of the publication of the notice of sale is not among those expressly required by law to appear in the deed, and when the deed contains nothing to show that the notice was not published, the due publication thereof is included in the presumption from the presence of the essential recitals in the deed that at the proper time and place the property was sold as required by law.</p>

<p>APPEAL from a judgment of the Superior Court of Yuba County. Edwin A. Davis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal—Dismissal—Failure to File Points and Authorities.—The failure of an appellant to file his points and authorities, without reasonable excuse, within the time allowed therefor by the rule of the supreme court, and within a long period of time allowed thereafter by extensions of time for that purpose, is ground for dismissal of the appeal.</p>