Volume 120 — California Reports

<p>Action to Recover Taxes Paid—Improvement of Dupont Street—Protest— Notice to Collector—City and County not Liable.—The city and county of San Francisco cannot be compelled to refund any taxes assessed for the improvement of Dupont street, which were paid under protest, by virtue of the provisions, of section 3819 of the Political Code, nor as being money had and received to the use of the payer of the taxes, upon the ground that the plaintiff notified the tax collector not to pay the money into the treasury, and that he would institute an action to recover the money paid, it being the duty of the collector to pay the money into the treasury immediately upon its receipt, regardless of such notice or of any protest accompanying the payment; nor can such payment be recovered as having been made under duress, it being voluntary in its nature.</p> <p>Id.—Duress—Voluntary Payment—Illegal Tax Deed—Burden of Proof upon Purchaser—Sale under Dupont Street Act.—In order to constitute a payment under duress, there must be some coercion or compulsion, or some threatened exercise of authority over the person or property of the party making the payment, which controls his action, and which can be avoided only by making the payment; nor does the payment of a tax under protest of such party take from the payment its voluntary character, unless it is necessary in order to protect his person or property, or unless the conveyance by the officer will have the effect to deprive the owner of some defense to the tax, or throw upon him the burden of showing its illegality; and where the officer’s want of authority will appear upon the face of the deed, or the illegality of the proceedings will necessarily appear in any attempt to disturb the owner in the possession of the land, a payment under protest to prevent such sale is not made under duress, but is voluntary, and cannot he recovered back; and this principle applies to a tax sale under the Dupont street act, there being no provision therein making a deed from the collector prima, facie evidence of any proceedings prior thereto, and under such deed the purchaser must prove each step in the proceedings, which, if illegal, cannot affect the owner’s possession.</p> <p>ID.—CONSTRUCTION OF DUPONT STREET Ad—MANNER OF COLLECTING TAXES— Effect of Tax Deed as Evidence.—The provision of the Dupont street act that “there shall be levied, assessed, and collected annually, at the time and in the manner as other taxes are levied, assessed, and collected in said city and county, a tax, etc., for the purpose of meeting the expense of the improvement,” does not have the effect to make a deed upon a sale for assessments levied prima facie evidence of the truth of matters recited therein, that being no part of the manner of collecting the taxes levied and assessed under the act.</p> <p>In.—Valid Tax—Defective Proceedings—Effect of Protest.—If a tax is valid and constitutes a lien upon the land of the person paj-ing the tax, his protest at the time of payment can give him no right to recover back the sum paid by reason of any defect in the proceedings for the sale of the land to enforce the collection, but in such case the satisfaction of the obligation to pay the tax, and the release of the lien thereof upon his property, are a sufficient motive and consideration for the payment to take from it all character of duress.</p> <p>Id.—Omission of Duty of Tax Collector as to Other Property.—The obligation of plaintiff to pay a tax assessed against his property is not affected by the omission of the tax collector to enforce its collection against other property.</p>

'APPEAL from a judgment of the Superior Court of Los Angeles County and from orders denying a hew trial and denying a motion in arrest of judgment. B. N. Smith, Judge. The facts are stated in the opinion of the court.

T. Ei Jones, Judge. The facts are stated in the opinion of the court. Further facts are stated in the opinion rendered by the court in the case of People v. Van Horn, 119 Cal. 323.

MOTION to dismiss an appeal from a judgment of the Superior Court of Santa Barbara County. W. B. Cope, Judge, The facts are stated in the opinion of the court.

<p>Criminal Law—Embezzlement— Commissions for Sale of Lodging-house— Construction of Code.—Under section 511 o£ the Penal Code, which provides that, “upon any indictment for embezzlement, it is a sufficient defense that the propertj- was appropriated openly and avowedly and under a claim of title preferred in good faith, even though such claim be untenable,” a conviction for embezzlement cannot stand, where it appears that the defendant had a written contract with" the owner of a lodging-house, authorizing him to sell it for a specified sum, and that he found a purchaser who paid three hundred dollars in excess of that sum, which he retained as commissions for his services, claiming the right in good faith to do so under his contract with the owner; and it is immaterial what may be the legal liability of the defendant in a civil action for the recovery of the sum of money retained by him.</p>

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

' APPEAL from a judgment of the Superior Court of Sacramento County and from an Order denying a new trial. A. P. Catlin, Judge. The facts are stated iu the opinion of the court.

APPEALS from a judgment of the Superior Court of the City and County of San Francisco, and from orders striking out a demurrer and entering default, and denying a motion to set aside a default, and denying motions for a new trial. J. C. B. Hsbbard, Judge. The facts are stated in the opinion of the court.

<p>Action by Assignee in Insolvency to Set Aside Transfer—Evidence—Deposition op Insolvent in Prior Action to Foreclose Lien—Subsequent Intervention op Defendant—Payment—Subrogation.—In an action by an assignee in insolvency brought against a transferee of the insolvent to set aside the transfer and recover the property transferred, a deposition of the insolvent taken in a prior action brought against the insolvent debtor by a third party to foreclose a lien on the same property is inadmissible; and it is not rendered admissible because the transferee intervened in such action subsequently to the taking of the deposition, and paid off and extinguished the amount of the lien for his own protection, there being no subrogation or privity thereby created between the transferee and the holder of the lien.</p> <p>Id. — Real Parties in Interest not op Record — Limits op Rule.—The rule that the court may look beyond the record to ascertain who arc real parties in interest not of record applies only to a person who voluntarily undertakes in whole or in part the prosecution or defense of an action between other parties in protection of his own interest, or in pursuance of some obligation which he has incurred, and does not apply to one, whatever his interest, who has not in any way aided or intermeddled in the action prior to the filing of a complaint for intervention, except by procuring a dismissal from the plaintiff, for the protection of his interest.</p>

<p>Altebation of Note and Mobtgage—Fbaud of Agent of Mortgagee—Limitation of Authority—Ostensible Agency—Forgery not Included.— Authority conferred upon a real estate agent and notary public by a mortgagor to negotiate a loan for five hundred dollars, to pay off an existing mortgage of that amount, and to deliver another note and mortgage for the same amount to the person from whom the loan should be secured, does not confer actual or implied or ostensible authority upon such agent to commit the crime of forgery by fraudulently altering and increasing the amount of the principal and interest of the new note and mortgage, after their execution and prior to their delivery, for his own benefit, in order that he might fraudulently appropriate an excess of the principal sum obtained from the mortgagee.</p> <p>Id.—Effect of Alteration of Instrument—Bona Fide Holder not Protected.—Any unauthorized change in an instrument in a material respect destroys the integrity of the instrument as the contract which the maker has executed, and it ceases to be bis contract, and is avoided in the hands of an innocent holder for value; and this rule applies to commercial paper, as well as to deeds and other sealed instruments.</p> <p>Id.—Negligence—Execution of Note and Mortgage with Amount in Pencil—Occasion for Fraudulent Alteration—Estoppel.—The execution of the note and mortgage by the mortgagor, with the amount of principal and interest written therein by the agent in pencil, cannot be said to constitute negligence of itself; and, notwithstanding that fact may have afforded occasion for the criminal alteration of the note and mortgage by the agent, the mortgagor was not thereby estopped, nor bound to anticipate or . uis.'d against the commission of a crime by the agent.</p> <p>In.—Proximate Cause of Injury to Mortgagee—Maxim Inapplicable.—The proximate cause for the injury to the mortgagee as the result of the fraudulent alteration by the agent of the amount written by him in pencil was the crime of the agent, and not any negligent act on the part of the mortgagor in executing the note and mortgage; and in such case, the maxim that where one of two innocent persons must suffer from the wrongful act of another, the loss must fall upon the one making the loss possible, has no application.</p> <p>Id.—Effect of Alteration by Third Person—Recovery upon Original Contract.—The general rule that any material alteration in the contract avoids it even in the hands of innocent holders, and prevents recovery upon it to any extent, has application to cases where the alteration is by the payee or party seeking to enforce it; but that rule does not apply in cases where the alteration is by a stranger to the contract, without the knowledge or consent of either party, in which ease the alteration amounts to a spoliation merely which will not prevent recovery upon the contract according to its original terms, where those terms can be ascertained.</p>

<p>Dedication of Street and Alley—Ejectment by Municipal Corporation —Ownership of Fee Immaterial.—If the owner of the fee has dedicated a street and alley to public use, and the dedication has been accepted by the city in which the street and alley are situated, such city may maintain ejectment to recover possession thereof as against the owner of the fee, though' the city may claim only an easement in the street and alley for public use.</p> <p>Id.—Gross-complaint—Parties — Reformation of Boundaries in Deeds— Striking Out Reference to Street and Alley.—Where it was claimed in an action of ejectment by the city that the defendant had dedicated a street and alley to public uses by description of boundaries in two conveyances made by the defendant, the defendant is entitled to file a cross-complaint, and to bring in as new parties each of the grantees named in such deeds, and to seek a reformation thereof so as to strike therefrom recitals referring to such street or alley.</p> <p>Id.—Bringing in New Parties.—Where new parties are necessary for the determination of the issues raised by a cross-complaint, they may and should be brought in.</p> <p>Td.—Union of Causes—Reformation of Two Conveyances—Response to Plaintiff’s Cause of Action.—A cross-complaint may be filed where the defendants seek affirmative relief affecting the property to •which the cause of action relates; and where the action was to recover possession of two separate parcels of land comprising a street and alley, and the affirmative relief sought by the defendant related to and affected each of these parcels of land, the defendant is entitled to interpose, by way of answer and cross-complaint, any defense as to either or both of the parcels, and to ask any affirmative relief necessary and proper for such defense; and may seek the reformation of two separate and distinct conveyances upon which plaintiff .relies as indicating a dedication of such street and alley.</p>

<p>Dedication op Street—Ejectment by Municipal Corporation—Ownership op Fee Immaterial.—If a street has been dedicated to public use, the municipal corporation in which it is situated may maintain ejectment therefor, regardless of the fact whether the corporation owns the fee, or whether it is retained by the adjoining proprietor who dedicated the street to public use, and who is defendant in the action.</p> <p>Id.—Homestead—Power of Husband.—"Where a homestead has been declared, the husband has no power to dedicate any part of the homestead premises to public use, no matter how clearly his intention so to do may appear.</p> <p>Id.—Insufficient Proof of Dedication by "Widow—Absence of Intention :—User not Sufficient Proof.—A dedication by the widow after the death of the husband is not sufficiently proved, where her intention to dedicate the land to public use is not clearly manifest; and the mere facts that the land was used by the public for travel for about eight years, without either consent or objection upon her part, and that during the lifetime of her husband he erected a house upon the rear of the lot fronting upon the strip of land in dispute, the steps of which occupied four feet thereof, and that this house remained in the same position during her ownership and possession, do not indicate dedication upon her part.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. George E. Otis, Judge.</p> <p>The facts are stated in the opinion.</p>

' APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. Waldo M. York, Judge. The facts are stated in the opinion of the court.

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

<p>APPEAL from a judgment of the Superior Court' of Orange County. W. H. Clark, Judge.</p> <p>-.The facts are stated in the opinion of Mr. Chief Justice Beatty.</p>

<p>APPEAL from a judgment of the Superior Court of Sonoma County. R. F. Crawford, Judge.</p> <p>■ The facts are stated in the opinion of the court.</p>

John Caldwell, Judge. The facts are stated in the opinion of the court, and in its opinion rendered on the former appeal. (Smith v. Hawkins, 110 Cal. 122.)

<p>Estates of Deceased Persons—Grant of Power of Sale to Executor— Community Property—Debts and Expenses of Administration—Rights of Widow—Quieting Title.—The interest of the surviving widow in the community property is that of an heir, and her title to one-half thereof is to be administered as part of the estate of her husband, and she is only entitled to one-half of the residue after payment of the debts, family allowance, and charges and expenses of administration; and the testator may confer upon the executor a power of sale of the real estate of the community, and where it appears that a sale was made by the executor under such power for the purpose of paying claims against the estate and expenses of administration, and such sale ivas confirmed by the superior court, the widow cannot maintain an action to quiet title to one-half of the real property so sold, as against the purchaser, or his successor in interest.</p> <p>Id.—Disposition of Community Property—Powers of Executor—Statutory Regulation.—The legislature may give to the husband the right to authorize the executor to sell the community property without first obtaining an order of court. The rignts of inheritance, of testamentary disposition, and of the surviving widow in the community property, and the powers of the executor over the estate of the testator, including those which the statute has authorized the executor to confer upon him, are all matters of statutory regulation, and are such as are given by statute, and the extent to which the legislature has authorized the exercise of powers by the executor is to be determined from a consideration of the entire legislation upon the subject.</p> <p>In.—Construction of Codes—“Community Property”—“Property of Estate”—Power of Sale.—Construing section 1402 of the Civil Code in connection with sections 1016, 1561, and 1562 of the Code of Civil Procedure, the “community property” is to be deemed the “property of the estate” of the husband in respect of which he may confer a power of sale upon the executor.</p> <p>Id General Power of Sale—Sale to Pay Secured Claims.—Where the executor has a general power of sale, the fact that he sold land to pay claims secured by other property of the estate cannot affect the validity of the sale confirmed by the court, or authorize the widow to claim title in the land sold as against the purchaser.</p>

<p>Liens fob Materials—Construction of Canal—Separate Contracts for Divisions—Connection of Completed Part of Canal with Pipe Line —Suspension of Work—Extent of Claim of Lien.—Where an irrigation company, owning a reservoir and pipe line, entered upon the construction of a lengthy canal, consisting of four divisions, to be constructed under separate contracts for each division, the plan of which did not include the pipe line as any part of the canal, but was to follow its route, and, alter two divisions of the canal were completed, under separate contracts for the construction of each, they were temporarily connected with the pipe line for immediate use, whereupon work ceased upon the other proposed divisions, and the property passed into the hands of receivers, claimants of liens for materials furnished for the construction of the two completed divisions, may file liens thereupon, without including any other incom: píete divisions of the proposed canal, or the pipe line, as being a necessary part of the structure for which the materials were furnished.</p> <p>Id.—Refusal to Allow Amendment of Answer—Harmless Ruling—Admission of Evidence.—The refusal of the court at the trial to permit an amendment to the answer, setting up the existence of an entire system of which the completed divisions of the canal formed a part, as presenting a new issue, upon which no evidence had been offered-, is harmless, where the court subsequently allowed evidence upon that issue, which was considered in that court, and upon appeal.</p>

<p>Mobtgages—Foeeclosube—Deficiency Judgment—Quitclaim Deed fbom Mobtgagob—Nonliability to Mobtgagee—Assumption of Mobtgages by Subsequent Gbantbes—Lack of Pbivity.—A quitclaim deed from the mortgagor of the mortgaged premises, in which no reference is made to the mortgages thereupon, imposes no personal liability to the mortgagee upon the person receiving it; and a subsequent deed of grant from him, reciting that the grantee did “assume and agree to pay” the mortgages, and another deed of grant from the grantee to another grantee containing a similar recital, do not create any privity between the subsequent grantees and the mortgagee, or impose upon them any personal liability to the mortgagee, nor can either of such subsequent grantees he subjected to a deficiency judg- , ment upon foreclosure of the mortgages.</p> <p>Id.—Liability of Gbantee of Mobtgagob Assuming Mobtgage Debt — Subetyship—Limits of Rule—Gbantob must be Liable.—The right of a mortgagee to recover a deficiency judgment directly against the grantee of the mortgagor who has assumed to pay the mortgage debt, springs from the rule • of equity that' a creditor is entitled to the benefit of any obligations or securities given by his debtor to one who has become surety of such debtor, for the payment of the debt; but this principle is only applicable to a case where the grantor is personally liable for the mortgage .debt, and does not apply where no such liability exists.</p> <p>Id.—Findings—Absence of Notice of Liability of Gbantob—Assumption of Liability as to Land Only—Liability of Gbantob as Agent of Mobtgagee Immatebial.—Where the court found upon sufficient evidence that neither of the subsequent grantees had any notice at the time of his conveyance of any personal liability to the mortgagor of the person who received the quitclaim deed from him, and that it was not intended that either of such grantees should assume or pay the notes described in the mortgages, but merely that they should remain liable for the mortgages to the extent of the real estate only, the court was correct in not decreeing a deficiency judgment against such subsequent grantees, and it is immaterial that the person who received the quitclaim deed acted as agent for the mortgagee for the investment of his money in the agent’s possession, or was involved in liability to the mortgagee growing out of the confidential relations between them.</p>

<p>Interest—Matured Municipal Bonds—Coupons.—Matured municipal interest bearing coupon bonds continue to bear interest after their maturity, when there is nothing in the statute providing for them to indicate the contrary; and the fact that the coupons for interest attached to the bonds extend only to the maturity of the bonds is indicative only of a presumption that the bonds will be paid at maturity, and does not affect the continuance of interest, if the bonds are not so paid.</p> <p>In.—Bonds of City of Sacramento—Construction of Statutes as to Interest.—The statutes under and by virtue of which the bonds of the city of Sacramento were issued are the measure of the rights of the bondholders; and under a proper construction of their provisions they indicate the intent that the bonds shall bear annual interest from the date of their issuance until the time of actual payment, as part of the contract.</p> <p>Id.—Mandamus to Treasurer—Sufficiency of Money to Pay Interest— Presentation of Bonds—Demurrer to Petition—Matter of Defense.— Upon an application for a writ of mandate against the city treasurer to compel the payment of the principal and interest of overdue bonds of the city of Sacramento, the questions whether or not there was money in the treasury to pay the bonds at maturity, and whether a holder of bonds could claim interest, if he failed to present the bonds at maturity, do not arise upon demurrer to the petition for the writ, where the facts therein stated are such as to disclose the explicit duty of the treasurer to pay the principal and interest of the bonds, but such questions can only be considered upon facts to be pleaded by way of defense to the application.</p>

<p>Boundary of Mexican Grant—Thread of Changeable Stream—Course at Time of Official Survey—Appeal—Support of Finding—Conflicting Evidence.—In an action to quiet title to a strip of land, the boundary of which is determined by the location of the thread of a changeable stream in the course occupied by it at the time of the survey of a Mexican grant by the United States surveyor, upon a decree of confirmation thereof, where the evidence is substantially conflicting as to its location at that time, the finding of the court below thereupon cannot be disturbed upon appeal.</p> <p>Id.—Description in Patent—Fieldnotes of Survey—Location of Thread of Stream—Calls for Fixed Points and Courses and Distances.— Where the fieldnotes of the survey, which constitute the description in the United States patent confirming a Mexican grant, make certain calls for fixed points and courses and distances therefrom to the thread of a stream on the east side of the land in contest, which lead to a place where such thread might naturally have been, and where witnesses testified and the court found that it was located at the time of the survey, such other calls strongly tend to show that the thread was where they indicate, and that the surveyor intended to locate it and did locate it there, and the conclusion of the court that it was there located is strongly confirmed by such fieldnotes.</p> <p>Id.—Evidence—Oral Declarations of Grantors—Hearsay.—Oral declarations of the grantors of the plaintiff in an action to quiet title are hearsay and inadmissible against defendants who do not claim or hold title under the parties who made the declaration.</p> <p>Id.—Survey and Map Referred to in Deeds.—An old survey and map generally known, and referred to in deeds as matter of description, are admissible in evidence in connection with the deeds, and also with the testimony of witnesses for the appellant referring thereto.</p> <p>Id.—Action to Quiet Title—Suit for Tract of Land—Issue as to Narrow Strip—Form of Judgment.—In an action to quiet title, where the complaint asserted title to a large tract of land, which the defendant denied for want of knowledge or information, but asserted claim only to a narrow strip, which was the only land in controversy between the parties, it is sufficient for the court by its judgment to adjudicate ■ and determine the issue touching the strip of land in contest, which are the only issues before the court.</p> <p>Bill of Costs—Time for Filing—Stay of Entry of Judgment—Notice Claiming Reporter’s Fees.—Where the entry of judgment is stayed, a bill of costs may be filed at any time before such entry is made, though more than five days may have elapsed after notice of the decision; and under section 274 of the Code of Civil Procedure as it existed before the amendment of 1895, the service of notice upon the clerk that the reporter’s fees had not been paid worked a stay of the entry of judgment, unless the court otherwise ordered.</p> <p>Id.—Void Amendment of Code.—The attempted amendment of 1885 to section 274 of the Code of Civil Procedure was totally void, and left that section as it stood before that amendment.</p> <p>Id.—Order of Court as to Transcription of Reporter’s Notes—Yerbad Direction.—A verbal direction of the court to the reporter to transcribe his notes of the proceedings, and file them with the clerk, is a sufficient order of the court for that purpose under section 274 of the Code ot Civil Procedure.</p>

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

<p>Mechanics’ Liens—Time foe Filing Claims—Cessation of Work on Unfinished Building—Pbematube Claims.—Cessation from labor for the period of thirty days upon an unfinished building, which the owner has not abandoned his intention to complete, fixes the date when and after which it is deemed complete, for the purpose of claiming liens thereon, and claims of lien filed before the expiration of such period of thirty days are premature, and cannot be enforced.</p> <p>Id.—Laborees Employed by Contractor—Void Contract—Loss of Liens— Personal Liability Confined to Contractor.—Where laborers employed by a contractor who was working under a void contract, not filed for record, have lost their claims of lien, they are entitled to personal judgment only against the contractor, and not against the owner of the property, nor against one who had obtained permission from such owner to build a house thereupon.</p>

<p>Divorce—Maintenance of Children—Order after Final Decree—Jurisdiction.—The superior court has jurisdiction to make an order at any time subsequent to a final decree of divorce requiring the father to maintain and support the children, though no such order was made in the decree, and though their care, custody, and control was awarded by the decree to the mother.</p> <p>Id.—Appeal from Order fob Maintenance—Allowance of Attorney’s Fees and Costs.—Upon appeal from an order after decree of divorce directing a payment by the father for the maintenance of children awarded to the custody of the mother, the court has jurisdiction to compel the father to pay an allowance for attorney’s fees and costs of printing to the mother as guardian of the children, to the end that they may properly respond upon the appeal.</p>

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

<p>Mortgages—Sale of Mortgaged Premises to Mortgagee—Fairness of Transaction—Validity of Contract—Construction of Code.—Section 2889 of the Civil Code, providing that “all contracts for the forfeiture of property subject to a lien, in satisfaction of the obligation secured thereby, and all contracts in restraint of the rights of redemption are void,” relates only to an agreement made at the time of the creation of the lien, and does not affect or refer to a subsequent contract between a mortgagor and mortgagee, whereby the mortgagor sells and conveys all his right and interest in the mortgaged premises to the mortgagee; and where such a transaction is fair, hon- " est, and without fraud, and no unconscionable advantage has been taken of the position of the mortgagor by the mortgagee, such sale and conveyance is valid.</p> <p>Id.—Escrow—Deposit of Note and Mortgage, and Conveyance in Payment —Valid Transaction—Fulfillment of Conditions.—Vesting of Title. Where a note and mortgage past due, and a conveyance from the nfortgagor to the mortgagee, were placed in escrow, upon condition that if the note and mortgage were paid, by a time fixed, the custodian should deliver all the papers to the mortgagor, and satisfy the mortgage, and that if he should fail to make such payment the custodian should deliver the deed to the mortgagee, in full satisfaction and- payment of the mortgage indebtedness, and should deliver the note to the mortgagor, it appearing that the amount of the indebtedness was in excess of the value of the property and that the arrangement was deliberate and voluntary, and free from fraud, undue influence, or imposition, the transaction was valid, operative, complete, and irrevocable from the date of the delivery in escrow to the depositary, ' and upon the fulfillment of the conditions upon which the deed was to be delivered to the mortgagor it vested him with the legal title to the property.</p>

<p>Common Carriers—Limitation of Obligations—Presumption as to Law of Another State.—In the absence of proof, it is to be presumed that the law of another state upon the subject of the limitation of the obligations of common carriers is the same as that prescribed in sections 2174 and 2175 of the Civil Code of this state.</p> <p>Id.—Stipulation Limiting Liability—Construction—Negligenoe—Ordering Orange Trees Shipped by Northern Route—Loss from Freezing. A stipuliU ion in a shipment of orange trees from Florida, by the terms of which the shippers insured the railroad lines “against claims by loss or damage which may be incurred by reason of delay in transportation, or any other cause arising out of responsibility as master over its agents or servants (gross or wanton negligence excepted) incident to said shipments,” whatever may be its import as to the exception of gross or wanton negligence, cannot be held to mean anything more than that the railroad company was not to be liable for the mere negligence or misconduct of its agents and servants, and cannot be construed as extending to or embracing loss or damage caused solely by compliance of its agents and servants with an order of the railroad corporation itself directing them to ship the orange trees from Florida over a northern route through Utah and Nevada, as the result of which they were frozen in transit.</p> <p>Id.—Limitation of Liability as to Damage—Invoice—Price at Place of Shipment—Construction — Absence of Invoice—Value of Trees— Measure of Damages. — The ordinary measure of damages for breach of a carrier’s obligation is the value of the goods at the time and place of delivery; but this liability may be limited by special contract, and where there is a special contract making the invoice price of trees at the point of shipment the measure of damages, such contract must receive a reasonable construction, and where no’invoice price was actually made out and agreed upon, that expression must be understood as indicating the actual value of the trees at the point of shipment, when loaded and ready for transportation. To this is to be added the freight actually paid and interest on the whole amount.</p> <p>Id.—Statute of Limitations—Foreign Corporation—Absence of Proof as to Designation of Agent.—Where the pleadings admit that the defendant railroad company was a corporation organized under the laws of another state, and engaged in the business of operating a railroad as a common carrier in this state, in order to avail itself of a plea of the statute of limitations, it must prove a compliance with the act of 1872 in relation to foreign corporations requiring the designation of a suiiable person upon -whom process might be served to he filed in the office of the secretary of state, and, in the absence of such proof, the court may properly find against the defense of the statute of limitations.</p> <p>Id.—Shipment of Orange Trees—Knowledge of Contents—Bill of Lading—Marking of Cars.—Although the printed part of a hill of lading used the expression “contents unknown,” yet where the written description in each bill of lading designated the shipment in writing as “i car orange trees,” and the cars were marked on the outside with the names and residence of the consignees, and the words “orange trees” marked in large plain letters, and each car had open ventilators at each end, affording an opportunity to see and examine the content's, the carrier must be held to have known the contents of the cars, or to have had the means of knowledge at hand.</p> <p>In.—Duty of Carrier as to Direct and Customary Route—Liability for Deviation.—It is the duty of the carrier to transport the goods by the usual direct route, and if a deviating route chosen is not customary, and there are special reasons making it unsafe, the carrier is liable for any resulting loss.</p> <p>Id.—Obstruction of Direct Route by Stress of Weather.—Duty of Carrier.—Where there is an obstruction of the direct and customary route through stress of weather, it is the duty of the common carrier to hold the goods until that or some safe avenue is opened, or to notify the consignors or consignees and take their directions; and where orange trees are shipped marked in such a way as to give notice to the carrier as to how they should be carried for safety, such marks must not he disregarded, and the failure of the carrier to furnish either of the foregoing courses, and its action in shipping the trees over a deviating northern route, upon which they might he reasonably expected to be frozen, and were frozen, the carrier is liable for the resulting loss.</p>

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

APPEAL írom a judgment of the Superior Court of Mendocino County and from an order denying a new trial. J. M. Man-non, Judge. The facts are stated in the opinion.

<p>APPEAL from a judgment of the Superior Court of San Diego County. E. S. Torrance, Judge.</p> <p>The facts arc stated in the opinion.</p>

APPEAL -from a judgment of the Superior Court of Madera County and from an order denying a new trial. W. M. Conley, Judge. The facts are stated in the opinion of the court.

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

<p>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>Guardian and Ward—Advances after Majority—Accounting—Jurisdiction.—The superior court acting in probate for the settlement of the estate of a minor, proceeds in rent; and has only jurisdiction to settle the accounts of the guardian with respect to the ward’s estate, received by him as guardian; and if, at the time the ward reaches his majority, there is no such estate left, the court has no jurisdiction to settle the accounts of the guardian, and render judgment against the ward, for advances made by the guardian after the ward attained his majority, notwithstanding an agreement between them that the guardianship should continue, and that the advances should be made as guardian.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Lassen. W. T. Masters, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

WRIT of review from the Supreme Court to review and annul an order of the Superior Court of Tulare County appointing a receiver. William W. Cross, Judge. The facts are stated in the opinion of the court.

<p>WRIT of review from the Supreme Court to review and annul an order of the Superior Court of Tulare County appointing a receiver. William W. Cross, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Indebtedness and Advances—Lien not Extinguished.—A mortgage given to secure “the present indebtedness” of the mortgagor to the mortgagee, not describing nor referring to notes then evidencing such indebtedness, and also to secure further “advances” to be thereafter made by the mortgagor to the mortgagee, secures the “indebtedness,” and “advances,” as the “principal obligation,” referred to in section 2911 of the Civil Code, regardless of the instruments by which they may be evidenced, or of any change of form thereof, and so long as they remain subsisting obligations under new evidences of the amount thereof, and an action for the amount of the indebtedness and advances secured can be brought upon new notes evidencing the same, the lien of such mortgage is not extinguished under said section 2911 merely by the lapse of time within which an action might have been brought upon the original notes.</p> <p>Id.—Mortgage not Needing “Creation” or “.Renewal”—Construction of Code.—Where the principal obligation secured has never become barred by the statute of limitations, and the lien of the original mortgage has not become extinguished under section 2911 of the Civil Code, there is no occasion to “create” a new mortgage, nor to “renew” the mortgage under section 2922 of the same code, by a “writing executed with the formalities required in the case of a grant of real property.”</p> <p>Id.—“ Extension” of Mortgage—Broadening of Security.—The term “extended,” as used in section 2922 of the Civil Code, refers to a broadening of the security to cover additional advances, or obligations not included in the terms of the original mortgage; and the mortgage is inoperative as to obligations not included in the original mortgage or in a valid extension thereof under that section.</p> <p>Id.—Note of Firm not Secured.—The amount of a note executed to the mortgagee by a firm of which the mortgagor was a member, which does not appear to have been any part of the indebtedness of the mortgagor at the time of the execution of the mortgage, nor an advance made in pursuance of the mortgage, is not secured by the mortgage, though incorporated as part of a note evidencing the indebtedness and advances thereby secured.</p> <p>Id.—Agreement of Mortgagor to Pay Taxes—Invalid Agreement not Shown—Interest.—Upon foreclosure of a mortgage which assumed the form of a deed ana defeasance, an allegation and finding stating that the mortgagee required the mortgagor to pay the taxes upon the land ■ mortgaged without any diminution of the amount by reason of the mortgage, but not stating that the agreement of the mortgagor to pay the taxes was part of the mortgage contract, is not broad enough to establish an agreement violative of the constitution,' and making the interest uncollectible.</p> <p>Id.—Payment of Interest—Waived of Objection by Mortgagor.—Where the interest upon the mortgage contract was paid by the mortgagor in accordance with his agreement, either directly or by ratification of sales of pledged personal property, the proceeds of which were applied to such payment, he thereby waives objection to the invalidity of the contract for payment of interest, and it is too late for him to complain thereof.</p>

'APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge. The facts are stated in. the opinion of the court.

<p>Contract to Erect Elevator—Construction of Warranty — First Class Workmanship.—An express warranty in a contract for the erection of an elevator, which included full specifications as to the manner of the erection, and as to the material to be used, by the terms of which the work' mentioned in the contract was to be furnished “in a first-class, workmanlike manner,” refers only to the work in the erection of the elevator under the specifications made in the contract, and cannot, by any reasonable construction, be held to warrant that the plan or design of the elevator, or the specifications made in the contract, were first class, or that the elevator was suitable for the purposes intended.</p> <p>Id.—Insufficient Size of Drum Specified.—The fact that the size of the drum specified in the contract proved to be insufficient, and that damage resulted therefrom, is immaterial, as respects an express warranty merely to furnish the work mentioned in the contract in a first class workmanlike manner.</p> <p>Id.—Implied Warranty as to Fitness—Specifications in Contract—Construction of Code—Assumption of Risk by Purchaser.—Section 1770 of the Civil Code, providing that “one who manufactures an article under an order for a particular purpose, warrants by the sale that it is reasonably fit for that purpose,” does not apply where the manufactured article is furnished under a contract demanding that it be made according to specifications, and the contract is literally performed; but, in such case, the purchaser selects the article, and obtains what he orders, and, in the absence of an express warranty, assumes the risk following the purchase.</p>

MOTION to dismiss appeals from a judgment of the Superior Court of the City and County of Ran Francisco, from an order denying a new trial, and from an order striking out amended affidavits. John Hunt, Judge. The facts are stated in the opinion of the court.

<p>Mortgage—Reooro or Assignment—Subsequent Payment to Mortgagee —Conveyance in Satisfaction.—Construing together sections 2934 and 2935 of the Civil Code, the record of the assignment of a mortgage by the mortgagee operates as notice thereof to the mortgagor, so as to invalidate any payment made hy him to the original mortgagee, after he has ceased to be a holder of the note and mortgage; and the mortgagor must he deemed to have constructive notice of the assignment, when thereafter conveying the mortgaged land to the mortgagee in payment of the note, and such payment and conveyance is not valid and binding upon the assignee of the notes and mortgage, though the mortgagor had no actual notice of the assignment.</p> <p>Id.—Assignment as Security—Agency—Authority to Mortgagee to Collect—Conveyance in Satisfaction not Authorized.—The fact that the notes and mortgage were assigned by the mortgagor as collateral security, and that the assignee gave to the mortgagee verbal authority to collect money due on the notes held as collateral security, does not tend to show authority from the assignee to the mortgagee to take the mortgaged land or anything but money in payment of the notes.</p> <p>In.—Ostensible Agency not Shown—Letter of Agent of Assignee.—A party maintaining that an ostensible authority existed must prove that he knew of the facts giving color of authority to the supposed agent; and a letter written by an agent of the assignee of the notes and mortgage to a third party subsequently to an unauthorized conveyance by the mortgagor to the mortgagee, in which an agency in the mortgagee to collect interest was recognized, does not tend to show ostensible agency in the mortgagee to receive the conveyance in satisfaction of the notes and mortgage, there being no proof that the mortgagor or mortgagee, or a purchaser from the mortgagee, had any knowledge of the existence of the letter.</p> <p>Ed.—Rights of Purchaser from Mortgagee—Constructive Notice.—A purchaser from the mortgagee, who received the unauthorized conveyance from the mortgagor in satisfaction of the notes and mortgage, has no greater rights against the assignee of the mortgage than those possessed by the mortgagee, but took with constructive notice of the mortgage, and that it had not been satisfied or discharged on the record, and held the land subject to the lien of the mortgage upon it in favor of the assignee.</p> <p>Id.—Cross-complaint Treated as an Answer at Trial—Improper Default. Where a so called cross-complaint in an action to foreclose a mortgage was in effect only an answer, and was treated as such during the trial, the entry of plaintiff's default long after the trial, for not answering or demurring thereto, cannot aid the defendants upon appeal from a judgment in favor of the plaintiff.</p>

<p>Insolvency—Sale Void as to Creditors—Want of Delivery and Change-of Possession—Action by Assignee.—Where a sale of vehicles by an insolvent corporation was made to another corporation, under an agree- . ment that the insolvent corporation should retain possession of the-property, sell the same on commission, and account to the vendee corporation for the net proceeds of sale, such sale is void as to the creditors of the insolvent corporation for want of immediate delivery and an actual and continued change of possession of the vehicles; and the assignee of the insolvent corporation representing the creditors, may bring an action to recover the value of vehicles subsequently converted by the vendee corporation to its own use.</p> <p>Id.—Delivery by Assignee to Vendee —Pleading—Demand—Answer Claiming Title.—Where the property was delivered by the assignee to the corporation vendee, by reason of its claim of title thereto, and, in a subsequent action by the assignee to recover the value of the property so delivered, for the benefit of creditors of the insolvent corporation, the defendant set out that the property belonged to it, and based its right to defeat the action on that ground alone, no demand for a return of the property was necessary, under such circumstances, before the commencement of the action.</p> <p>Id.—Action for Conversion—Burden of Proof—Estoppel of Plaintiff— Sales upon Commission—Agency.—In an action by the assignee to recover the value of vehicles alleged to belong to the insolvent corporation and to have been converted to its own use by the defendant corporation, plaintiff is hound to prove that the vehicles of the insolvent corporation were converted by the defendants, and not by the insolvent corporation, and plaintiff is estopped from claiming that the insolvent corporation was not the owner of the vehicles, but was a mere agent of the defendant, for the purpose of claiming that sales of vehicles made by the insolvent corporation prior to the insolvency proceedings, upon commission, and the accounting by it to the defendant corporation for the proceeds thereof, was a conversion of such vehicles by the defendant corporation.</p> <p>Id.—Notice of Action—Proceeds of Fraudulent Sales not Involved.—In an action to recover the value of vehicles converted by the defendant, an attempt to follow the proceeds of fraudulent sales of vehicles made by the insolvent corporation is not involved, and there is no materiality in the fact that the proceeds of the sales went to the corporation defendant.</p> <p>Id.—Delivery by Assignee under Mistake—Estoppel—Trust Relation of Assignee.—The delivery of the vehicles to the defendant corporation under its claim of title as vendee of the property, by a mistake either of fact or of law, or both, as to the location of the title, does not estop the assignee from claiming the recovery back of the property or its value; but the assignee, being a trustee for the creditors, had no right or power to give away the property, and could not be held to the transaction,</p>

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

B. iST. Smithy Judge. The defendant was charged with the crime of arson, committed at Duarte, in the county of Los Angeles, April 12, 1897. Further facts are stated in the opinion of the court.

<p>Commissions op Real Estate Agent—Sale and Exchange of Lands—Re-conveyance of Greater Part upon Disapproval—General Verdict foe Reduced Commissions.—In an action by a real estate agent to recover commissions upon the sale and exchange of lands, under a contract providing that commissions were to be earned at the time when actual transfer by deeds of conveyance was executed, where it appeared that conveyances were executed between the employer and a purchaser procured by the agent, for a large consideration, but upon • disapproval by the employer of the lands received in exchange, ■the greater part of the lands were reconveyed, a general verdict for the plaintiff for greatly reduced commissions, is to be accounted for by the intention of the jury to treat the lands reconveyed as® not the subject of commissions earned, and where it appears that the jury might have been justified in granting the whole of the commissions claimed under the contract, the defendant has no ground of complaint against the verdict for the reduced amount.</p> <p>2d.—Expense of Procuring Abstract—Reasonable Charge—Schedule of Rates.—The real estate agent was entitled to recover a reasonable sum. paid for procuring a necessary abstract of title for the benefit of his employer; and where the sum paid therefor appears to be reasonable, the fact that the searcher of records, who was paid for such abstract, based his charges upon a schedule of rates charged for such service by members of a real estate board, and in accordance with its rules and customs, and that evidence of such schedule of rates was received as part of the testimony of such searcher of records is immaterial, and such evidence, even if erroneous, is without apparent injury.</p> <p>3d.—Costs—Recovery Less than Three Hundred Dollars—Jurisdiction— Review of Orders.—The court has no authority to grant costs in an action for the recovery of money, where the recovery is less than three .hundred dollars; and when the judgment for less than that sum allowed costs, but did not fix the amount, and this was done afterward, upon a motion to retax costs, and after the court had stricken out the cost bill, the subsequent orders were proceedings relating to the judgment and became part of it, and the error in allowing costs may be corrected upon appeal from the judgment, by striking out the costs allowed.</p>

<p>MOTION in the Supreme Court for the submission of a cause.</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 awarding a peremptory writ of mandate to the Controller of State. J. M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>•Criminal Law—Burglary—Admission of Prior Conviction—Joint Information—Separate Trials—Construction of Becord—Certificate of Clerk. Where an information charged several defendants jointly with the crime of burglary, but charged them severally with prior convictions, ■and they demanded separate trials, and were each proceeded against separately, and it appears that the defendant appealing was ■charged with six prior convictions, four for petit larceny and two for ■burglary in the second degree, a minute entry showing that upon his arraignment, “defendant appeared in open court, and pleaded not ■guilty and admits prior conviction,” must be taken as importing an admission of each and all of the prior convictions charged, and must .also be taken as referring to the plea made by the defendant appealing and not to that made by any codefendant, it being only the •minutes of the proceedings affecting such defendant which the clerk could properly include in the judgment roll, or certify to as being a correct transcript of the record upon his appeal.</p> <p>Sd.—Silence of Judgment as to Prior Conviction—Clerical Misprision —Error not Affecting Substantial Bights.—A judgment upon a conviction of burglary in the second degree, imposing a longer sentence .than is allowed except upon prior conviction of a felony, which, owing to the clerical misprision or mistake of the clerk in entering it, does not recite such prior conviction, is erroneous, but not void, and where the record otherwise shows such prior conviction, which the court had a right to consider in imposing the sentence, the omission of the clerk to recite it is merely a technical error not affecting the substantial rights of the appellant, and is not ground for reversal of the judgment.</p>

<p>APPEAL from a judgment of the Superior Court of Merced County. J. K. Law, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminad Law—Obtaining Money under Pause Pretenses—Engagement of Marriage—Inducing Loan of Money.—The crime of obtaining money . under false pretenses is sufficiently proved by evidence that the defendant was engaged to be married to a young woman, to whom he falsely stated that he had the opportunity of obtaining employment with a real estate firm, and that it was necessary to deposit with them one thousand dollars as security, upon which false representations he requested and induced her to advance money to him, after the advancing of which she saw him no more.</p> <p>Id.—Superinducing Causes of Loan—Questions for Jury.—The facts that the prosecuting witness would not have advanced the money to the defendant, if he had been a mere stranger, and had not been engaged to be married to him, and, that he stated to her that if she would advance the money they could be married right away, are not inconsistent with the false representations being the direct moving cause of the loan of the money; and the questions as to what were the superinducing causes of the loan were for the jury to determine.</p>

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

<p>Mechanics’ Liens—Impbovements by Lessee—Tntebest of Lessob—Notice— Facts Puttinq upon Inquiby—Liens upon Land.—Under a lease for six months giving the lessee the privilege to make and remove certain improvements, but providing contingently that if the improvements should be incorporated with existing structures, so that removal would leave the latter in worse condition than at the date of the contract, they were to become the property of the lessor, the lessor had sufficient interest in the contemplated improvements, and sufficient knowledge of the intentions of the lessee to make improvements, to put him upon inquiry as to the nature of the improvements made, and to charge him with notice of the improvements, and to make the land subject to the liens of mechanics and materialmen, where the lessor posted no notice disclaiming responsibility for the improvements, as provided in section 1185 of the Code of Civil Procedure.</p> <p>Id.—Findings—Improvements upon Existing Structures.—Where the findings show that the additions, alterations, and repairs in question were made to and upon buildings and other structures situated upon the leased premises, they sufficiently show that the improvements were upon property declared subject to lien therefor by the statute; and they are not defective in failing to show whether the improvements made were of such a character that they must remain on the premises under the clause of the lease referring to the same.</p> <p>Id.—Foreclosure of Liens—Sale of Land—Expired Leasehold.—Upon the foreclosure of liens upon the land of the 'lessor, it is not required first to sell the leasehold interest before selling the land, where the term has expired, and there is nothing in the record to show that the lease-was renewed.</p> <p>Id.—Appeal—Affirmance of Judgment fob Plaintiff—Attorney’s Fees for Defending Appeal—Jurisdiction of Trial Court.—Upon the affirmance of a judgment for the plaintiff upon appeal of the defendant in an action to foreclose mechanics’ liens, the supreme court will not direct an allowance of an attorney’s fee for defending the appeal; but that matter rests exclusively with the trial court.</p>

<p>Irrigation District—Salaries of Officers—Warrants upon Treasurer— Mandamus—Misnomer—Clerical Error—Amendment.—In a mandamus proceeding to compel the treasurer of an irrigation district to pay-warrants issued to a former officer of the district for salary accrued and unpaid during his incumbency, where one of the warrants was fully described in the complaint, including the signature of the presiident of the district by his correct name, a misnomer in regard to such name in the findings, judgment, and statement of the case is a mere clerical error, which may be corrected by order upon the court’s attention being called to it at any time before appeal taken, or after the cause is remanded, and where an error of a similar character occurs in the order for amendment, it may be likewise amended by further order.</p> <p>Id.—Warrants upon General Fund—Water Fund in Effect Part of General Fund.—A fund carried on the treasurer’s books of an irrigation district as “the water fund,” which was wholly derived from toils and charges fixed by the board of directors of the district upon consumers of water using the pipes and canals of the district, is, in effect, part of the general fund applicable to the payment of salaries and employees and other expenses named in section 37 of the Wright act, where the board has not provided for the payment of such expenditures by a levy of assessments, or by both the tolls and assessments.</p> <p>In.—Purchase of Water Right Certificates—Construction Fund—Payment from Water Fund.—A purchase of water right certificates from a water company by an irrigation district is chargeable to the “construction fund,” which is supplied from the sale of bonds, and semiannual payments to he made upon such certificates are part of the contract of purchase, and should be paid out of the construction fund, and cannot be paid out of the fund derived from the water supply, so as to interfere with the payment of salaries and expenses therefrom, where no other fund is provided for such payment.</p> <p>In.—Salaries of Officers—Construction of Wright Act—Exception and Limitation.—The salaries of officers provided for by the original provisions of the Wright act, were not in excess of its provisions, though exceeding two thousand dollars, and did not come within the description of indebtedness in excess of such provisions, which was made void by the act, nor are they affected by the amendment excepting indebtedness not exceeding two thousand dollars, which is to be construed as merely excepting liabilities which by the original act were made void, and not as referring to any liabilities expressly authorized by the act.</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. Edward A. Belcher, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County granting a new trial. P>. M. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County. E. P. Unangst, Judge.</p> <p>'The facts are stated in the opinion.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County. E; P. Unangst, 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. Frank H. Dunne, 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. William W. Cross, Judge.</p> <p>The facts are stated in the opinion rendered in Department One.</p>

WRIT of habeas corpus from the Supreme Court to the sheriff of the City and County of San Francisco to test the validity of an arrest ordered in a civil action by the Superior Court of said City and County. J. M. Seawell, Judge. The facts are stated in the opinion of the court.

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

<p>PETITION in the Supreme Court for Writ of Prohibition to the Judge of the Superior Court of San Joaquin County. Joseph H. Budd, Judge.</p> <p>. The facts are stated in the opinion of the court.</p>

<p>Advebse Possession—Pbescbiptive Title—Payment of Taxes—Consteuction of Code—Taxes * ‘ Levied and Assessed’ ’—Assessment Pbiob to Five Years—Subsequent Levy.—The intention of the legislature in requiring the payment of all taxes “levied and assessed” upon land adversely claimed and possessed continuously for five years, under the terms of section 325 of the Code of Civil Procedure, is to refer to the act of the supervisors in making the levy, and the act of the assessor in making the assessment, and to require that the taxes must be both levied by the board of supervisors and assessed by the assessor upon the land during the period covered by the adverse possession for five years, in order to require payment of them as a condition of such adverse possession; and if an assessment was in fact made by the assessor more than five years before the commencement of an action to recover the possession, the fact that it was levied within the five years does not require it to be paid, and if a tax is levied after the expiration of the five years, the fact that it was assessed within the five years does not require the payment in order to complete the prescriptive title.</p> <p>Id.—Adverse Possession Pbiob and Subsequent to May 31, 1878.—A person holding adverse possession prior to May 31, 1878, when the amendment of the code took effect, might add his prior adverse possession to his adverse possession subsequent to that date, and was only required to pay taxes levied and assessed upon the land within the period after that date, required to complete the statutory period of five years.</p> <p>Id.—Advebse Possession of Tide Lands—Bights of United States.—Tide lands patented by the state may be acquired by adverse possession as against the patentee; and any rights of the United States in such lands are unaffected by an action between the patentee from the state and an adverse claimant, and need not be considered for any purpose in such action.</p> <p>In.—Usual Improvement of Tide Lands—Instruction.—Tide lands may be said to be usually improved within the meaning of section 325 of the Code of Civil Procedure, when improved as similar property is improved, and an improvement thereof does not necessarily mean structures or buildings thereon; but a requested instruction to the effect that “an improvement may mean to employ advantageously, or to enhance its value, or to occupy for a beneficial purpose pursued during occupation,’’ is too broad, and is properly rejected.</p> <p>Id.—Boom: Sticks and Fastenings—Substantial Inclosube.—Boom sticks fastened together and also fastened to piles, surrounding a boom on all sides continuously, and constituting a boundary and inclosure for the boom sufficient for all of the purposes to which the same was or could be applied, constitutes a substantial inclosure of tide lands within the meaning of section 325 of the Code of Civil Procedure.</p> <p>Id.—Ejectment—Outstanding Title by Adverse Possession—Loss by Statute of Limitations.—In an action of ejectment, an outstanding title in a stranger created by adverse possession, which is barred by the statute of limitations, is not such a present, live, effective, outstanding title as would defeat the plaintiff’s cause of action.</p> <p>Id.—Adverse Possession Created by Different Parties—Privity of Estate.—Privity of estate is absolutely necessary, in order that various periods of adverse possession created by different parties may be tacked together.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco granting letters of administration with the will annexed. Charles W. Slack, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Alameda' County denying appellant’s petition, and granting respondent’s petition for letters of administration with the will annexed. F. B. Ogden, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to grant letters of administration. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates op Deceased Persons—Proceedings op Probate Courts—Presumption op Kegudarity.—Every presumption, not disproved by the record itself, is to be indulged in support of the regularity and validity of the orders and decrees of the late probate courts, made within the limits of their restricted powers, as is indulged with respect to the proceedings of courts of general jurisdiction.</p> <p>Id.—Notice op Probate—Proof of Service.—Where the record pf a proceeding in the late probate court, admitting a will to probate, fails to show whether or not proof was made at the hearing of the service of the notice of probate on the heirs residing within the state, as required by section 1304 of the Code of Civil Procedure, it must be couclusively presumed, in the absence of fraud, that such proof was made, on a motion, made many years thereafter, to set aside the probate for want of such notice.</p>

<p>APPEAL from an order of the Superior Court of Alameda County refusing to grant letters testamentary. W. E. Greene, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Criminal Law—Homicide—Evidence—Threat of Defendant—Impeachment of Witness.—Upon the trial of a defendant accused of murder, a witness for the prosecution, who was sought to he discredited on cross-examination, because he had testified for the first time to a damaging threat of defendant against the deceased, which had not been included in his testimony given on previous occasions, is entitled in rebuttal to give his reasons for the apparent inconsistency, and to explain it, as matter of right and justice; and it is a' question for the jury to determine whether the reasons and explanation were or were not sufficient.</p> <p>Id.—Striking Out Evidence—Instructions—Ruling without Prejudice.— Where such witness stated, under objections, as his reason for his "testimony, that he had had a conversation with defendant’s attorney in which he stated what his evidence would be, and such attorney said he was “not a very good witness for the defense” that this was “damaging testimony,” but he had only to answer questions that were asked “straight as they were asked,” and did “not have to volunteer any testimony,” a great portion, if not all, of the conversation was admissible, and where the whole of it was subsequently stricken out by order of the court, and the jury were instructed to disregard the evidence, this court would not be justified in holding, under these cir-. cumstances, that any substantial error was committed to the prejudice of the defendant in the admission of the evidence.</p> <p>XD.—Bad Reputation of Deceased—Admission of District Attorney.— When the defendant introduced evidence to show that the general reputation of the deceased for peace and quiet was bad, and, thereupon the district attorney admitted that any number of witnesses produced by the defendant would testify to the same effect, and the defendant claimed that the admission was that deceased’s reputation in fact for peace and quiet was bad, the difference between the two admissions, as bearing upon the effect and weight of the evidence before the jury, is scarcely perceptible, and there is no substantial merit in the contention of defendant.</p>

<p>Negligence—Railroad—Coupling Oars—Difference in Elevation of Drawheads.—The mere fact that the drawheads of two freight-cars which a switchman on a railroad was engaged in coupling, and which were otherwise in good condition, differed in elevation from the track by from two to three inches, is not of itself sufficient evidence of the negligence of the railroad to render it liable for an injury suffered by the employee while in the act of coupling. If the risk of the switch-man’s occupation was thus increased, it was a risk which he assumed by his contract.</p> <p>Id.—Fellow-servant—Swiftly Moving Cars. — The fact that the cars were too rapidly moved by the engineer, if negligence at all, was the act of a fellow-servant, for which the company is not responsible.</p> <p>Id.—Rule of Company—Impracticability of Operation—Public Policy.— A rule promulgated by a railroad company, purporting to direct its employees with respect to the manner in which they should perform certain work, which is utterly impracticable in operation, or rendered so by the mode and conditions under which the service is required, and the only result of which would be to relieve the employer from the obligations imposed upon him by law to use ordinary diligence in furnishing safe appliances with which to work, and safe conditions. for the performance of the service, is against public policy and void, and its nonobservance by the employee will not relieve the railroad from liability for a negligence for which it would otherwise have been liable.</p>

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

MOTIONS for substitution of attorneys, and to dismiss an appeal from a judgment of the Superior Court of San Bernardino County. J. S. Noyes, Judge. The facts are stated in the opinion of the court.

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

<p>Criminal Law—Receiving Stolen Goods—Evidence—Accomplice.—The testimony of the thief, as an accomplice, that the defendant accused of receiving stolen goods, knew at the time he purchased the goods that they were stolen, is sufficiently corroborated by circumstances tending, independently of his testimony, to show such guilty knowledge, such as the making of an insufficient description of them In his entry-book, in violation of an ordinance requiring a true and accurate description of each article purchased to be kept for the inspection of the police, a false statement to the officers taking the goods that he had no recollection of before seeing the man from whom he had purchased them, whereas he had a few days before purchased other articles from him, and the paying to him of only two dollars and a half for property worth between fifty and sixty dollars. ,</p> <p>Id.—Suspicion Putting upon Inquiry.—Whether the defendant knew that the goods were stolen is to be determined by all of the facts of the case, and he need not have heard the facts from eyewitnesses. He is required to use the circumspection usual with persons taking goods by purchase, especially when buying at greatly depreciated rates; and that which a man in the defendant’s position ought to have suspected he must be regarded as having suspected so far as was necessary to put him on his guard and on his inquiries. Guilty knowledge may be inferred from inadequacy of price, irresponsibility of the vendor or depositor, and other suspicious circumstances.</p> <p>Id.—Proof of Stealing of Property.—The testimony of the owner of the property that it was stolen from his room, and of the one who sold the property to the defendant that he was the one who stole it from the owner, would sustain a verdict for the larceny, and is sufficient to show that the property received by the defendant had in fact been stolen.</p> <p>Id.—Information.—Name of Thief—Idem Sonans.—The averment in the information of the name of the person who stole the goods received by the defendant is unnecessary and immaterial; and the fact that the information alleged the property to have been stolen by one Mervin, while the evidence showed the name of the thief to be Marvin, did not, within the doctrine of idem someros, constitute a variance.</p> <p>Id.—Entry óf Description of Goods Purchased—Ordinance—Res Gestie— Instruction.—The entry of the description of the goods purchased by the defendant in his book, in accordance with the requirements of an ordinance, is a part of the res gestae, and a fact which the jury have a right to consider; and the charge of the court that the jury could regard the fact that he had failed to make the entry, as required by the ordinance, as tending to show guilty knowledge, was proper.</p>

WRIT of habeas corpus from the Supreme Court to the chief of police of the City of Los Angeles. The facts are stated in the opinion of the court.

WRIT of habeas corpus from the Supreme Court to the sheriff of Sacramento County to test the jurisdiction of the Police Court of the City of Sacramento to convict the defendant of a misdemeanor. George G. Davis, Judge. •The facts are stated in the opinion of the court.

MOTION to dismiss an appeal from an order of the Superior Court of Los Angeles County denying a new trial. Luden Shaw, Judge. The facts are stated in the opinion of the court.

<p>MOTION to dismiss an appeal from an order of the Superior Court of Los Angeles County denying a new trial. Luden Shaw, 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 Bernardino County and from an order refusing a new trial. George E. Otis, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from an order of the. Superior Court of Los Angeles County refusing to dissolve an attachment. Waldo M. York, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Contract bob Sale—Refusal ob Performance by Boyer—Recovery ob Purchase Price.—Under a contract for the sale of personal property, for which the purchase price was partly paid, the purchaser, who had received the immediate possession of the goods, and had agreed that if he failed to pay the balance of the price on a day certain he would restore the possession to the seller on demand, but who, at the time performance was due, refused either to pay or to restore the goods, whereupon they were taken possession of by the seller in an action of replevin and subsequently sold, cannot recover from the seller the amount paid on the purchase price, in the absence of any grounds for equitable relief. In such a case, the remedies given to a seller under a contract of sale, by section 1749 of the Civil Code, are inapplicable.</p> <p>In.—Purchase Price.—A buyer of personal property who without lawful excuse refuses to perform his contract is not entitled either at law or in equity to recover back money paid on account thereof.</p>

<p>Guardian and Ward—Sale of Real Estate—Petition.—A petition for an order of sale of the real estate of a minor need not show how much of his personal estate remains undisposed of. Section 1537 of the Code of Oivil Procedure, requiring such statement in cases' of sales by executors and administrators, is inapplicable to sales by guardians, which are governed, as to the contents of the petition, by section 1781.</p> <p>Id.—Order of Sale.—An order directing a sale “for cash” sufficiently fixes the terms of the sale, within the requirements of section 1791 of the Code of Civil Procedure.</p> <p>Id.—Publication of Order to Show Cause.—Under sections 1783 of the Code of Civil Procedure, the order to show cause why an order of sale of a minor's real estate should not be granted need only be published for three weeks. Sections 1537 and 1544, requiring a publication for four weeks, in case of sales by executors and administrators, are not applicable to guardians’ sales.</p> <p>Id.—Sale of Undivided Interest—Objection to Confirmation.—A purchaser at an auction sale of a lot of land, that was not capable of being partitioned, and of which the title to an undivided interest was in a minor, which interest was being sold by his guardian under proceedings in the matter of his estate, cannot object to the confirmation of the sale of such interest merely because the land was sold as an entirety, when the condition of the title was disclosed by the auctioneer at the time of the sale, with the statement that bids for the land would be considered as pro rata bids for the respective interests therein, and the pro rata amount so received was an adequate price for such interest.</p> <p>Id.—Probate Homestead—Guardian mat Sell.—Under sections 1465 and 1468 of the Code of Civil Procedure, a probate homestead, set apart by the court from community property for the use of the surviving wife and minor children, belongs one-half to the widow and the remainder in equal shares to the children. The widow, and children upon attaining majority, may dispose of their respective interests; and during their minority the children’s interests may be sold by their guardian, under proper proceeding for the sale thereof had in the matter of their estates.</p> <p>Id.—Probate of Will—Service of Notice.—Under section 1304 of the Code of Civil Procedure, personal service of copies of the notice of the time and place for probating a will is equivalent to service by mailing. Section 411 of that code, providing for the service of a summons upon an infant, has no application to the service of such notice.</p> <p>Id.—Child bn Ventre sa Mbre.—The law makes no provision for the service of such notice upon a child who at the probate of the will is en ventre sa mere, and none is necessary.</p> <p>Id.—Proof of Service—Identity of Heir.—Proof of service of such notice upon “Helen” Majora Hamilton is sufficient to give jurisdiction in the probate proceedings over an heir whose real name was “Mien” Majora Hamilton, it being shown that she was the one actually served and was sometimes known as “Helen.” The identity of the persons served was also sufficiently shown by the insertion in the affidavit of service of her middle name in full.</p> <p>Id.—Affidavit of Publication.—An affidavit of publication reciting that the notice of probate was published “fourteen consecutive times, to wit, from the 18th day of October, 1889, to and until the 2d day of November, 1889, both days inclusive, on the 18, 19, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31st October, and 1st and 2d day of November, 1889, every day said newspaper was published during said time, Sundays and holidays excepted,” sufficiently shows a publication on every day the paper was regularly issued, as required by section 1705 of the Code of Civil Procedure, when it is admitted that no publication was made on Sundays and holidays.</p>

<p>Municipal Corporations—Change op Grade op Street—Damage to Abutting Lot—Street Railroad.—In an action against a municipality to recover for damages alleged to have been occasioned to a lot of the plaintiff by reason of a change in the grade of a street upon which it abuts, the estimate of the damage should be made by considering the value and condition of the lot as of the time the work Of . changing the grade was done, and not as of the time the ordinance changing the grade was passed; and if, between such times, a street railroad, in pursuance of a requirement of its franchise, lays its tracks on the official grade, the damage thereby occasioned the lot cannot be recovered in such action against the municipality.</p> <p>Id.—City not Liable fob Work of Railroad.—A municipality is not liable to an adjoining proprietor for damage occasioned his lot for work done by a street railroad, acting under a franchise derived from the city, in laying its tracks upon the official grade as required by its franchise. For such damages the railroad is alone liable.</p> <p>Id.—San Diego—Claims fob Damage—Presentation to Common Council.— The city of San Diego cannot be held liable in an action against it to recover damages occasioned an adjoining proprietor from a change of the grade of the street, unless the claim for damages ’ has been presented to the common council within six months after the occurrence from which the damages arose, as required by section 10, chapter 2, of article 2 of its charter. (Stats. 1889, p. 658.)</p>

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

<p>Mechanics’ Liens—Payment by Note—Keobipt—Finding.—In an action to foreclose a lien for materials furnished and used in the construction, alteration, and repair of a dwelling-house, a receipt given by the materialmen expressly stating receipt of “payment by note,” is prima facie, though not conclusive, evidence of the facts recited, but is' sufficient as evidence to sustain a finding that the note was received as payment, and operated to discharge the debt for which the lien was claimed.</p>

<p>Mechanics’ Liens—Invalid Contract—Tlans and Drawings.—Where the original contract for the construction of a building exceeding one thousand dollars in value, upon which mechanics’ liens were claimed, referred to plans, drawings, and specifications signed by the parties, the original plans and drawings thus signed must be filed with the contract and specifications, and where only a sun-print copy of the plans and drawings, bearing a photographic representation of those documents and of the signatures thereto, was filed with the recorder, the filing is insuflacient and the contract is rendered invalid; and in such case the liens of laborers and materialmen are not limited by the amount due to the contractor under the contract.</p> <p>Id. —Memorandum—Pleading—Finding.—Where the complaint averred and the court found that there was no memorandum of the contract, and the answer did not deny the averment of the complaint, the copy of the plans and drawings cannot be considered as a memorandum under section 1183 of the Code of Civil Procedure.</p>

County of San Francisco surcharging the final account of an executor. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.

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

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

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

<p>Canceldation—Insanity of Grantor—Evidence.—In an action on behalf of an insane plaintiff by his guardian, to set aside a conveyance as having been made by him when insane and incapable of contracting, a finding of the court that plaintiff was not insane at the date of the conveyance is sufficiently supported by proof that plaintiff was engaged in business for upward of eleven years after the date of the conveyance before he was committed to an asylum, although it was shown that he was rash in some of his speculations, and erratic in conduct, as well as irascible in temper.</p> <p>.In.—Mortgage—Finding.—Where there was no direct evidence in support of the plaintiff’s claim that the conveyance, though absolute in form, was intended as a mortgage; but it was sought to establish that fact by inferences and argument from other evidence, the court was justified in requiring clear proof of that fact, and, in the absence of such proof, the fact that the deed purported to be absolute is sufficient to support a finding that it was not intended as a mortgage.</p> <p>In.—Notice' to Subsequent Gbantee.—Findings that the grantor of the deed was sane at the time of its execution, and that it was not intended as a mortgage, render it immaterial ta find upon the issue whether the defendant, as a subsequent grantee, had notice of the contrary facts alleged in the complaint.</p> <p>Id.—Evidence—Husband and Wife.—Section 1881 of the Code of Civil Procedure, providing that “a husband cannot be examined for or against his wife without her consent, nor a wife for or against her husband without his consent, nor can either during the marriage or afterward be, without the consent of the other, examined as to any communication made by one to the other during the marriage,” makes no exception, even though the other spouse be incapable of consent; and a deposition of the wife of an insane person is properly excluded as inadmissible.</p>

<p>Fokeclosuoti of Mortgage—Statute of Limitations — Assumption of Mortgage.—In this state, where the grantee of a mortgagor assumes the payment of the mortgage as part of the purchase price, he becomes, as to the mortgagor, the principal debtor, and the mortgagor becomes the surety, and the liability of the grantee in such case is the indebtedness secured to be paid by the mortgage which is to be enforced against him by foreclosure, and judgment for the deficiency; and the statute of limitations which runs against his obligation is that -which attaches to the mortgage obligation, and not to the promise to pay the mortgage as a new and independent agreement.</p> <p>Id.—Liability not Secured by Mortgage—Attorney’s Fee—Deficiency Judgment against Grantee.—The grantee, by assuming the mortgage assumed only such liability as was secured by the mortgage; and a mere provision in the note for an attorney’s fee,'- which is not made a lien upon the land by the mortgage, cannot warrant the including of such attorney’s fee in the deficiency judgment against the grantee.</p>

<p>APPEAL from an order of the Superior Court of Sierra County refusing to vacate a judgment by default. Stanley A. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from a judgmer ; of the Superior Court of Sau Diego County. W. L. Pierce, Ju je.</p> <p>The facts are stated in the opinion.</p>

<p>Mortgage Pending Attachment Suit—Extension of Time of Payment— "Waiver of Fore closure.—Where a mortgage was given to secure the entire payment of notes pending an attachment suit upon them, in which a portion of the mortgaged property had been levied upon, by the terms of which mortgage the time for payment of the notes secured was extended for one year, the provision of section 726 of the Code of Civil Procedure, that there shall he but one action for the recovery of any debt or the enforcement of any right secured by mortgage, is applicable; and the mortgagee thereafter had only the right to foreclose the mortgáge at the expiration of the credit given, and had no right to continue to enforce the notes in the attachment suit, and if he does so and sells the attached property thereunder, he waives the right to foreclose the mortgage, and cannot maintain a separate suit to foreclose it for any deficiency remaining after selling the attached property.</p> <p>In.—Failure to Defend Attachment Suit—Estoppel.—The defendants in the attachment suit could have interposed the provision of the statute, and could have prevented the judgment being entered in that action; but their failure to do so does not estop them from defending a subsequent suit to foreclose the mortgage for any deficiency.</p> <p>In.—Suretyship—Substitution of Remedy.—The fact that one of the mortgagors was surety for another, whose property had been attached, cannot require or justify the sale of the interest of the principal mortgagor in the attachment suit for the protection of the surety. The interest of the surety could be protected in a foreclosure suit by first selling the property of the principal debtor; and the remedies and rights of the mortgagee against the surety would not have been impaired or suspended by dismissing the attachment suit, and foreclosing the mortgage, which was the remedy substituted by the acts of the parties for the remedy of attachment, and should have been followed in entire disregard of the attachment suit.</p>

<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 of the court delivered in Department Two.</p>

<p>Justices’ Coubt—Defective Summons — Remedy—Cbrtiobabi.—"Where the summons in an action commenced in the justices’ court does not name the plaintiff in the action, but inserts another name as plaintiff, it is fatally defective. To remedy such defect, the defendant may move the court to quash the summons, or within ten days after entry of judgment by default may move the court to set aside the default and judgment, or may appeal to the superior court from the judgment; but, having such remedy by appeal, the defendant cannot resort to a writ of review to annul the judgment.</p>

<p>Action to Quiet Title—Possession of Defendant—Juey Trial.—In an action under section 738 of the Code of Civil Procedure, brought by a party out of possession, against one claiming title and in possession, and asking for a restitution of the premises, either party is entitled to a jury trial as a matter of right.</p> <p>Id.—Avoiding Title under Execution—Mental Incompetency—Nonsuit— Question fob Jury.—Where the action was brought by heirs of a deceased woman, who sought to avoid a title claimed by the defendants under an execution sale had as the result of a litigation begun and carried on while she was mentally unsound and incapable of acting for herself, and was not represented by guardian, the facts being known to the person who sued and obtained the sheriff’s deed and to each of the grantees claiming under him, if the evidence establishes such facts and the knowledge of them, the result of the litigation amounted to nothing, and the title claimed under the execution sale should be avoided at the instance of her heirs; and where the evidence for the plaintiff tended to show them, a nonsuit should not be granted, but the question should be submitted to the jury upon the evidence offered and any further evidence which might be introduced by the defendants.</p>

<p>Partnership—Contribution — Liability of Retiring Partner.—In an action by members of a partnership who have paid off all of its obligations, and taken title in themselves to lands covered by contracts of purchase, which had greatly depreciated in value, to have such lands sold, and judgment rendered by way of contribution against other partners in respect of the deficiency, a previous partner who had retired by consent shortly after he had become a partner, can only be charged with his proportion of any loss shown to have occurred on contracts made previous to his withdrawal from the firm, and if there is no specific showing as against him as to what, if any, loss occurred upon the particular contracts then entered into, he cannot be charged with any liability for contribution, and a judgment in his favor will be affirmed.</p>

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

<p>■Guabdian and Wabd—Investment by Guabdian in Individual Name— Accounting.—Where a guardian invests the funds of his wards in a note and mortgage taken in his individual name, he will be held liable for any resulting loss upon rendering an account of his guardianship, without regard to any question of good faith or honest intention on his part.</p> <p>Id.—Liability of Tbustee—Constbuotion of Code.—The provision of section 2236 of the Civil Code, that “a trustee who willfully and unnecessarily mingles the trust property with his own, so as to constitute himself in appearance its absolute owner, is liable for its safety at all events,” is broad enough to include land as well as money® which are the property of the trust, and applies to a case where the' trustee takes the title to trust land in his own name, or invests trust, moneys in a note and mortgage thus taken, so as to constitute himself in appearance its absolute owner.</p>

■ APPEAL from a judgment of the Superior Court of Monterey County and from an order denying a new trial. FT. A. Dorn,. Judge. The facts are stated in the opinion of the court.

<p>Jurisdiction—Superior Court—Claim of Complaint.—In an action to recover the value of services, the jurisdiction of the superior court is determined by the claim made in the complaint, where there is no evidence of bad faith, for the fraudulent purpose of giving jurisdiction; and when the claim made in the complaint was sufficient to give jurisdiction to the superior court, an admitted deduction made by plaintiff’s counsel when the case was called for trial, on account of discovered errors in the account, reducing the plaintiff’s claim below three hundred dollars, though such admission was binding upon the plaintiff, could not affect the jurisdiction of the court to try the case; and it was error in the court to dismiss the case, upon such admission, for want of jurisdiction.</p>

<p>New Tbiai—Statement—Insufficiency of Evidence.—In a statement on motion for a new trial, the specifications of the particulars in which the evidence is insufficient to justify the decision must not be a mere repetition of the ground of insufficiency of the evidence upon which the notice of the motion is based, nor a mere statement of the insufficiency of the evidence to sustain a general finding in favor of a right of recovery; but the specification of particulars must be of such probative facts, or particular facts necessarily involved in the findings, as it is claimed are not sustained by the evidence, so as to direct the attention of the court and counsel to the particulars relied upon, to the end that the evidence bearing upon the specifications of such particulars may be inserted in the statement and considered by the court.</p> <p>Id.—Amendments not Required.—Where the statement does not contain proper specifications of particulars in which the evidence is claimed to be insufficient to justify the decision, the opposite party has the right to assume that the court will follow the statute, and disregard the statement.</p> <p>Id.—Ejectment—Insufficient Specifications.—In an action of ejectment, a specification of insufficiency of the evidence to justify the decision that the' plaintiff was the owner and entitled to possession of the premises, and that the defendant, without right or title, ejected the plaintiff therefrom and unlawfully withholds the possession thereof from the plaintiff, is substantially a repetition of the general ground of insufficiency of the evidence to justify the decision designated in the notice of intention to move for a new trial, and is insufficient. The specifications in such case should relate to the probative facts, involved in the question of title.</p> <p>In.—Form of Specifications.—The specification should he merely of the particular probative facts or particular findings which it is claimed that the evidence was insufficient to prove, such as would constitute the points of a brief upon the evidence to show grounds of reversal, hut the specifications should not state “what the evidence shows,” as matter of argument to the contrary of the specifications of insufficiency of the evidence. Such matter of argument should not be made or considered until the hearing of the motion.</p>

<p>Brokers—Finding Proposed Purchaser op Realty—Commissions—Change op Terms.—Where brokers were employed to find a purchaser and effect a sale of real estate for a specified sum or any less sum thereafter fixed by the owner, and were to receive a specified commission of five hundred dollars when the property was sold or a purchaser found, and the brokers found no purchaser for the specified sum, but finally found one ready and willing to pay two hundred and fifty dollars less, and contracted a sale for that price, but informed the owner that the price bid was five hundred dollars less, whereupon the owner ratified the sale on condition of receiving a net sum two hundred dollars less than the reported bid, but the'purchaser finally declined to purchase on account of a defect in the title, such proposed sale cannot be deemed to have been made under the old contract, but must be deemed made under the new contract proposed in the ratification, and though under such new contract the brokers might have retained as commission upon the sale any amount realized in excess of such net sum, if the sale had been consummated, yet they cannot recover the sum of four hundred and fifty dollars for finding the proposed purchaser, but only the sum of two hundred dollars difference between such net price and the bid reported to the owner, which is all the owner can be held to have agreed to pay for finding a purchaser ready and willing to buy, but who does not do so because of failure of title.</p>

<p>APPLICATION for an order from the Supreme Court to the clerk of the Superior Court of the City and County of San Francisco.</p> <p>The facts are stated in the opinion of the court.</p>

<p>County—General Fund—Excessive Transfer to Salary Fund—Manda-. . mus.—Under section 220 of the County Government Act of 1893, the county treasurer has only power to transfer from the general fund to the salary fund such an amount of money as was required to pay all salaries due or to become due at the end of the month in which , the transfer was made. If he transfers more, the surplus still belongs to the general fund, and it is his official duty to retransfer the same to that fund without any order. Upon failure so to do, the board of supervisors, under the jurisdiction and power conferred . upon it to “supervise the official conduct of all county officers,” , . by section 25, subdivision 1, of the County Government Act, was authorized to pass an order requiring him to do so, and upon his refusal, to proceed against him by writ of mandate.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Kings County. Justin Jacobs, Judge.</p> <p>The facts are- stated in the opinion'.</p>

<p>APPEAL from a judgment of the Superior Court of the County of Sacramento and from an order refusing a new trial. Matt. F. Johnson, Judge.</p> <p>The facts are stated in the opinion.</p>

se for trial and directing the entry of judgment. J. M, Seawetl, Judge. and County of San Francisco and from an order refusing to set The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Siskiyou -County and from an order denying a new trial. Edward Sweeney, Judge. • ' , ;</p> <p>, The facts are stated in the opinion.</p>

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

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

<p>Mortgage by Administratrix—Pleading—Verified Petition—Ambiguity— Default—Appeal.—In an action to foreclose a mortgage executed by an administratrix pursuant to an order of the probate court, where the complaint averred that the petition for the order was verified, and the order attached as an exhibit to the complaint and made part of it and the mortgage made in pursuance thereof each recited that the order was made upon a verified petition, the fact that a copy of the petition, also attached as an exhibit to the complaint and made part o"f it, did not contain a verification, docs not control the averment of the complaint, and the recitals in the order and mortgage to the coi> trary, nor render the complaint fatally defective, but, at most, it only makes the complaint subject to a special demurrer for ambiguity, and where no such demurrer was interposed, and judgment was rendered upon default of the defendants, the objection to the complaint cannot be maintained upon appeal from the judgment.</p> <p>Id.—Oonclusivenbss of Order—Jurisdiction—Presumption.—No appeal having been taken from the order authorizing the mortgage to be executed, its validity cannot he questioned; and a verification to the petition having been recited in the order and in the mortgage, and alleged in the complaint, it must he presumed that, if it was essential to the jurisdiction to make the order, it appeared upon the original petition as filed, though not appearing upon the copy of the petition exhibited, which was no necessary part of a good complaint.</p>

<p>Mortgage—Right to Crops—Assignment.—The owner of land in possession thereof subject to a mortgage is entitled of right to crops grown thereon prior to foreclosure of the mortgage; and he may transfer title thereto as against the mortgagee of the land, who has no right to the possession of the land, nor any lieu upon or right to crops not growing thereon when title passes after foreclosure and sale. - Id.—Tithe of Assignee—Receiver—Order for Possession.—An assignee of the owner of the crop who took title prior to the taking possession thereof by a receiver appointed ex parte in a suit for foreclosure of the mortgage, without knowledge of such ex parte appointment, is entitled to an order directing the receiver to deliver the crops to him, rather than to the mortgagee plaintiff in the foreclosure suit.</p> <p>Id.—Order Appointing Receiver—Time of Possession.—An order appointing a receiver does not constitute ipso facto a possession of any property which the party at whose instance the appointment is made has no estate in, or right to, or lien upon, prior to and independent of the appointment of the receiver; and such an order made in a suit for the foreclosure of a mortgage of land which creates no lien upon the growing crops confers no possession thereof upon the receiver prior to an act upon his part taking possession of the crop.</p> <p>Id,—Transfer of Crop to Attorney for Defendant.—The circumstance that the assignee of the crop was an attorney for the owner who made the transfer is immaterial. The owner of the crop has the right to dispose of it to whomsoever, and in whatever manner, he may please.</p>

<p>Attachment—Bond fob Release—Extent of Liability of Shbeties.—Under a bond to secure the release of an attachment given in pursuance of section 540 of the Code of Oivil Procedure, and reciting that in consideration of such release, the sureties “do hereby jointly and severally promise and undertake in the sum of five hundred dollars, and promise that in case the plaintiff recover judgment in the said action the defendant will, on demand, pay the said judgment . . . . or, in default thereof, the said defendant and his sureties will, on demand, pay to the said plaintiff the full value of the property so released, not exceeding the sum of five hundred dollars,’' the liability of the sureties is limited to the value of the property released.</p>

<p>Stheet Assessment—Trtaxgvíar Shaped Lot.—Under the street improve-' ment act of 1885, .as amended in 1891 (Stats. 1891, p. 196), a block •of land, in the form of a right-angled triangle, bounded by main streets, and which touches another street on which an improvement has been made only at the point of its acute angle, is properly assessed, under section 7, subdivision 3 of that act, for its part of the work done on the crossing formed by the intersection of the improved street with the intersecting street forming the base of the triangle, and, under section 7, subdivision 4 of that act, is also properly assessed for its portion of the work "done on the improved street opposite the termination of a street forming the hypotenuse of the triangle.</p>

<p>APPEAL from an order of the Superior Court of San Diego County fixing a date for the execution of a judgment of death. E. S. Torrance, 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. W. B. Cope, Judge.</p> <p>The facts are stated in the opinion of the court,.</p>

<p>MOTION for a supersedeas, on an appeal from a judgment, of the Superior Court of Los Angeles County. W. H. Clark, Judge.-</p> <p>The facts are stated in the opinion of the court.</p>

APPEAL' from an order of the Superior Court of Yolo County granting letters of administration to the public administrator, and refusing letters to the next of kin of a deceased person, and from an order denying a new trial. W. H. Grant, Judge. The facts are stated in the opinion.

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

<p>Appeal—New Trial—Notice of Intention.—The notice of intention to move for a new trial is not a part of the record on appeal, and need not appear therein. If, as a matter of fact, there was no notice as a basis of the motion in the court below, that fact must be affirmatively shown by the appellant, and he must cause it to be included in a statement or proper bill of exceptions.</p> <p>In.—Appellant’s Final Brief.—Unless good cause appears therefor, an appellant will not be allowed to discuss new points in his final brief, and points so raised will not be considered.</p>

<p>Griminal Law—Homicide—Evidence—Dying Declarations Admissible fob Defendant.—The dying declarations of the deceased made in extremis, are admissible' as evidence for the defendant; and the fact that there is evidence of circumstances from which the jury might infer that the deceased was mistaken as to the identity of the party who was his assailant does not affect the admissibility of his dying declaration as to the person by whom he was shot.</p> <p>•In.—Practice—Management of Prosecution.—It is better practice for both the prosecutor and the court to he liberal in regard to the matter of objections to evidence for the defendant, and under all ordinary conditions to resolve doubtful questions in favor of the defendant; and it is dangerous practice to attempt to hew to the very line of the law, as the slightest encroachment upon the other side may result in a mistrial.</p> <p>In.—View of Scene of Homicide—Discretion.—It rests with the appellant to show error affirmatively in the action of the court in allowing a view to be taken by the jury of the scene of the homicide. The court has absolute discretion in granting or refusing an application for such a view; and, under ordinary circumstances, the safer course would be to refuse it, owing to the danger that something may occur in taking the view which will create a mistrial of the cause.</p>

<p>County Government Act—Claim of Supervisor—Presentation to District Attorney—Action by County.—The authority conferred upon the district attorney by section 51 of the Oounty Government Act, providing that all claims against the county presented by members of the board of supervisors for any service rendered by them must before allowance be presented to the district attorney, who must indorse thereon in writing his opinion as to the legality thereof, and, if he declare the claim illegal, must state specifically wherein it is illegal, and the claim must then be rejected by the board, is valid; and a claim of a supervisor for services performed by him as ex offieio</p> <p>■ road commissioner, allowed and paid without presentation to. and indorsement by the district attorney, is invalid, and the amount thereof may be recovered by the county.</p> <p>Id.—Constitutional Law—Uniformity of Operation.—The claims of its own members are on a footing before the board of supervisors so different from claims in general that special conditions for their allowance may be justly imposed by the legislature; and, as the requirement of section 51 of the County Government Act for submission of such claims to the district attorney, applies alike to all claims within the category thus peculiarly circumstanced, the statute has uniformity of operation within the meaning of section 11 of article I of the constitution, and is not unconstitutional.</p> <p>Id.—Decision of District Attorney not Final—Action by Supervisor.— No authority is conferred upon the district attorney to adjudge conclusively upon the legality of the claim of a supervisor; and the supervisor whose claim is rejected has still the right to sue the county therefor in the proper court.</p>

<p>APPEAL from a judgment of the Superior Court of Modoc County. G. G. Clough, Judge.</p> <p>The facts are stated in the opinion of the court. G. F. Harris, for Appellant.</p>

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

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

<p>Vendor and Purchaser—Rescission of Contract of Sale—Waiver—Affirmance.—The right of the purchaser of land to rescind the contract of sale and purchase, for alleged fraud of the vendor, is waived, where it appears that the purchaser went into possession of the land, and one year after making the deed, and after discovery that he had been imposed upon, conveyed city property to the vendor in part payment of the purchase money, and one year later, after default in the payment of interest, executed a new note and mortgage, which included the unpaid interest, whereupon the earlier note and mortgage were canceled. No fraud nor imposition having been practiced by the vendor to secure these new arrangements, they were distinct acts of affirmance of the contract by the purchaser after knowledge by him of the fraud, and precluded his right to rescind the contract.</p> <p>Id.—False Representations—Means of Knowledge—Discovery—Duty to Investigate.—Where a person is justified in relying and does in fact rely upon false representations, his right of action is not destroyed because means of knowledge are open to him, and no duty is devolved upon him in such case to employ such means of knowledge; but when, thereafter, he discovers that he has been deceived and defrauded as to one material matter, he has notice that he may have been otherwise defrauded, and is bound to make full investigation.</p> <p>Id.—Election to Rescind or Affirm.—A defrauded party has but one election to rescind, and he must exercise that election with reasonable promptness after discovering the fraud; and delay in rescission is evidence of a waiver of the fraud, and of an election to treat the contract as valid, and any acts evincive of an intent to abide by the contract are evidence of an affirmance of the contract, and of a waiver of the right of rescission.</p> <p>Id.—Findings—Offer to Rescind—Acts of Affirmance — Ignorance of Law.—Where the plaintiff had knowledge of facts and of law sufficient to perform the legal duty of offering to rescind, which the court finds that he did, a finding that he did not know his rights in the premises when subsequently entering into the new arrangements with the vendor is to be construed as a mere declaration of his partial ignorance of the law in relation to his acts of affirmance, which could not excuse those acts, or prevent them from binding him.</p> <p>Id.—Ignorance not Palliated—Weakness of Mind and Confidential Relations Disproved.—The ignorance of the legal rights of the plaintiff is not palliated nor excused by alleged weakness of mind and confidential relations, where the court does not find that the plaintiff was of weak mind, and his own evidence proved the contrary, and where the business relations between the parties were not in fact such as to constitute the defendant a trustee of the plaintiff, nor to establish the confidential relationship defined in section 2219 of the Civil Code; and the fact that plaintiff reposed confidence in the defendant did not cast any duty upon the defendant, where it does not appear that defendant voluntarily assumed a relation of personal confidence with the plaintiff, and it appears that no such relationship was imposed by operation of law. to.—Discovert op Fraud and Hostility—Duty as to Legal Advice.— Where it appears from plaintiff’s testimony that plaintiff early discovered that defendant had made false representations as to the character of the land and the income derived from it, and that defendant was not' his friend, but was hostile and false to him, from that time he was not justified nor excused in taking upon faith any declarations made to him by the defendant, and it was his duty to have obtained legal advice, if he purposed to prosecute his right of rescission.</p>

<p>Mortgages—Lien Created in Deed—Pumping of Overflowed Land—Consideration.—A lien created in a deed of overflowed land, situated within the boundaries of an irrigation district, to secure the payment by the grantee to the grantor of a stipulated sum annually per acre so long as the grantor should hold the title to pumping machinery used to reduce the water level, the payment to be refunded if pumping was unnecessary in any year, is valid, and imports a consideration, and the fact that there was no obligation to pump the water from the land conveyed is not material, there being an inducement to the vendor to do so if necessary to reduce the level, in order to demand and retain the stipulated price per acre.</p> <p>Id.—Priority of Vendor’s Lien—Mortgage to Raise Purchase Money.— A lien created in favor of the vendor by the purchaser of real property, at the time it is conveyed, has priority over all other liens created against the purchaser, subject to the operation of the recording laws; and a lien created in the deed given to the purchaser, which is first recorded, will prevail over a mortgage subsequently recorded given by the purchaser to a third party, though the money raised thereon was applied upon the purchase money of the land, and even though it be considered a purchase money mortgage.</p> <p>Id.—Protection of Mortgagee for Purchase Money—General Mortgage-Liberty to Use Money.—The rule of equity that the execution of a deed to the purchaser and of a mortgage by the purchaser to secure the purchase money are considered simultaneous acts, so that the title does not rest in the purchaser for a single moment for the acquisition of any subsequent lien, extends also to the protection of a third person who has furnished purchase money upon mortgage security, for the express purpose of paying for the property, but does not extend to the protection of such third party against any prior lien, where the money was not advanced for such sole and express purpose, notwithstanding the money was in fact applied upon the purchase of the property, if the purchaser had liberty to use the money for any other purpose, and the mortgage was for money advanced to the general use of the borrower.</p> <p>Id.—Foreclosure of Lien against Purchaser—Covenant Running with Land—Immaterial Question.—Where the lien created in the deed was foreclosed by the vendor against the purchaser and a subsequent mortgagee, the question whether the covenant sued upon against the purchaser for which the lien was created as security for his performance thereof did or did not run with the land is immaterial, and can be of no consequence to" the subsequent mortgagee.</p>

<p>Ceiminal Law—Abson—License of Owneb—Occupation by Othebs.—Where it appears by pleading and proof that the building burned by a defendant convicted of arson was occupied by third parties, the defendant cannot urge a presumed license from the owner to burn the building, the owner himself having no right to burn it in such case, nor to give anyone a license to do so.</p> <p>Id.—Intent to Defbaud Insubanoe Company—Motive of Abson Immatebiad.—The fact that defendant may have burned the building with intent to defraud an insurance company, and thus have laid himself liable to a prosecution under section 548 of the Penal Code, does not require that he be prosecuted under that section, nor change the character of the crime of arson, of which the defendant may be convicted, where the facts constitute that offense, regardless of the motive for which the arson was committed.</p> <p>Id.—Instbuction—Intent to Destboy Building.—An instruction that “arson is the willful and malicious burning of the building with intent to destroy it,” and that “there must be, to constitute the crime of arson, a willful and malicious burning of the building, and, as contained in the definition of the crime, there must exist an intent to destroy it,” is sufficiently full upon the subject of intent.</p>

<p>APPEAL from a judgment of the Superior Court of Santa Barbara County. John L. Campbell, 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 orders denying a new trial, and denying a motion in arrest of judgment. B. N. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION in the Supreme Court to dismiss an appeal from an order of the Superior Court of San Joaquin County appointing a guardian for an alleged incompetent person. Joseph H. Budd, Judge. The facts are stated in the opinion of the court.

<p>Estates oe Deceased Persons—Account—Payment op Part of Disputed Claim.—Where a disputed claim against the estate of a deceased person was allowed in part, and rejected in part, and the allowance was not accepted by the claimant, but an action was brought upon the whole claim, which was pending upon appeal, the court had no jurisdiction to order payment of the allowed portion of such disputed claim, in advance of the settlement of the administrator’s account, and without statutory notice of such order given in the manner provided for the settlement of accounts; and such order being invalid cannot be conclusive, nor bind the court upon settlement of the final account of the administrator, to allow credit therein for a payment made by the administrator pursuant to such order.</p> <p>Id.—Contest of Account of Predecessor.—It is the duty of an administrator to protect the estate against the unlawful claims of creditors, and it is the duty of the court to do so at the suggestion of any person, or upon its own motion; and a subsequent administrator may contest the allowance of an item in the final account of a previous administrator, and may join with a nonresident heir in contesting such item, and in supporting upon appeal the action of the court in rejecting it.</p>