Volume 121 — California Reports

<p>Cbiminal Law—Murder—Challenge to Panel.—Upon the trial of a defendant accused o£ murder, the mere fact that some names of persons appeared upon the list of jurors that did not appear upon the last assessment-roll of the county is not of itself a sufficient departure from the demands of the law to justify the trial court in sustaining a challenge to the panel; nor is such challenge justified on the ground that a town of fifteen hundred inhabitants was not represented npon the list, where there is no showing that the township in which it was situated was not so represented.</p> <p>In.—Excuse of Jurors fob Cause—Discretion.—The court has very broad discretion in excusing part of the summoned jurors for cause; and the defendant cannot object to the venire on that ground, but must be satisfied, in that regard, if he is tried by twelve qualified, competent jurors.</p> <p>id.—New Trial—Misconduct of District Attorney—Opening Statement. A new trial may be granted for misconduct of the district attorney in his opening statement, where it is clear that he has in bad faith improperly attempted to influence the jury to the defendant’s damage; hut will not be granted where there is no such palpable wrong in his conduct as to justify the conclusion that he was actuated by had faith in making the statement.</p> <p>In.—Proposed Proof—Arrest of Defendant for Different Offense—Exclusion of Evidence.—An opening statement of the district attorney that he proposed to prove that the defendant was traveling in the same direction with the deceased at about the time and place of the homicide, and knew that officers of the law were approaching in the same, direction to arrest him for burglary, and that he was arrested one day later, about thirty miles distant from the place of the homicide, while traveling toward the arresting officers, for the purpose of showing the improbability of his conduct unless he had been guilty of the murder, does not disclose any bad faith amounting to misconduct on the part of the district attorney, it not being clearly evident that he was wrong as to the admissibility of the proposed evidence, though the trial court excluded the evidence bearing upon the defendant's commission of another offense.</p> <p>Id.—-Circumstantial Evidence—Tracks in Sand—Comparison Before Jury. Where a witness had testified that a few days subsequent to the homicide he visited the scene of the crime, and found peculiar tracks in the sand of a person leading therefrom, which he followed a distance of fifteen miles, and found that a pair of shoes in his possession, taken from the feet of the defendant', exactly fitted those tracks, and thereafter produced before the jury a box of sand containing impressions of shoe tracks, which he testified were made by him with the shoes of the defendant, and that the tracks so made were of an identical character with those found in the sand upon • .the desert, and that the sand in the box was of the same quality and of the same character of hardness and compactness, the introduction of such box of sand before the jury was not erroneous, but was admissible to show by comparison the character of the foot tracks upon the desert, and for the purpose of accurately describing to the" jury the appearance of those tracks. It was an indirect’ but satisfactory and legal way of proving the material link in the chain of circumstances connecting the defendant with the murder.</p>

<p>APPEAL from an order of the Superior Court of Kern County granting a new trial. A. R. Conklin, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Chattel Mortgage—Growing Crop—Lien of Laborer—Priority,—Conceding that a laborer employed by the occupant of land to harvest a crop of grain has a lien upon the harvested grain dependent upon his possession thereof, under sections 3051 and 3052 of the Oivil Code, his lien is subject to the prior lien of a chattel mortgage upon the growing crop.</p>

<p>Divorce—Desertion—“Unreasonable Lapse of Time”—Construction of Code—Absence of Consent of Plaintiff.—A cause of action for a divorce on the ground of desertion is not barred by an “ unreasonable lapse of time” under the provisions of subdivision 3 of section 124 and section 125 of the Civil Code, where all presumption of connivance, collusion, or condonation of the offense, or full acquiescence in the same, is negatived by a showing that defendant deserted the plaintiff and continued such desertion without cause and against the will and without the consent of the plaintiff.</p> <p>Judgment—Recitals.—A judgment inconsistent with the facts it recites to have been proved on the trial will be reversed.</p>

<p>Joint Venture—Agreement to Divide Proceeds—Fund Held by Bank—Indebtedness Between Parties not Payable.—Where a partnership firm and three other individuals were jointly interested in a business venture, and its proceeds, consisting of checks, drafts, bills, and notes, were deposited with a hank for collection, under an agreement that one-fourth of the surplus proceeds should be paid by the hank to the firm and one-fourth to each of the other individuals, the hank, as the party holding the fund, is bound to pay the share-agreed upon to each of the parties, and the fact that two of the other individuals are indebted to the firm, cannot authorize it to control their shares of the fund, or to require the application of their shares to reduce such indebtedness.</p> <p>In. — Setoff Inapplicable.—There being no indebtedness of the other parties to the firm, they held nothing upon which the claim of the firm against them could be set off; hut the several owners of the fund all stand alike, in relation thereto, and each can compel the hank to pay its share, without reference to any indebtedness of some of the parties to any other of them.</p> <p>Pleading—Complaint—Joint Demurrer.—Where a general demurrer to a complaint is joint, it is properly overruled, if the complaint states a cause of action against any of the defendants.</p> <p>Id.—Misjoinder op Parties—Error without Prejudice.—An order overruling a demurrer to the complaint for misjoinder of parties defendant does not constitute reversible error, where it is plain that no rights of the defendants have been prejudiced thereby, although there is united with some defendants another against whom no liability is alleged or recovery sought.</p>

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

<p>Malicious Prosecution—Attachment without Probarle Cause—Pleading. The complaint in an action fox the malicious prosecution of another" action by the defendant for more than two thousand dollars, in which the property of the plaintiff had been attached, which alleges that in' instituting the action and securing the writ of attachment, anilin ■ having it levied, the defendant acted maliciously ■ and without probable cause, and that the defendants were not indebted to plain- • tiff in any amount exceeding fifteen dollars, which they had tendered to him and had always been ready and willing to pay, which Was well known to defendant, who had refused to ■ accept that amount, sufficiently shows a want of probable cause. ■ .</p> <p>In.—Malicious Attachment for More than is Due.—If a person having a i good cause of action against another willfully sues for a much greater amount than is due and attaches the property of the other," and puts him to charges, he is liable therefor in an action for malicious prosecution.</p> <p>Id.—Judgment in Attachment Suit—Pleading—Construction of- ■ Code.— Section 456 of the Code of Civil Procedure, relating to the manner . of pleading judgments, is not applicable to causes litigated" and decided in courts of general jurisdiction; and the judgment rendered in the attachment suit in the superior court need not be pleaded in the manner indicated by that section.</p> <p>Privolous Appeal—Damages.—When an appeal is manifestly frivolou=, damages will be added upon affirmance of the" judgment as a penalty for the delay.</p>

<p>Foreclosure of Mortgage—Enforcement of Judgment After Five Years—Construction of Code—Discretion.—Section 685 of the Code o£ Civil Procedure., as amended in 1895, which provides that “in all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court upon motion, or by judgment for that purpose founded upon supplemental pleadings,” etc., does not impose an absolute duty upon the court to allow execution after the lapse of five years, but is permissive and vests the court with discretionary power to grant or refuse the application therefor; and its refusal to allow the enforcement of a decree for the sale of mortgaged premises after the lapse of five years, no sale having been previously made, will be affirmed upon appeal where no abuse of discretion appears in .the record.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. M. T. Allen, Judge. '</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Obal Contract fob Lands—Statute of Fbauds—Paet Performance.—An oral contract for the sale of real property, or of an interest therein, is invalid under the statute of frauds; but where there has been a part performance thereof, its specific performance will be compelled by a court of equity.</p> <p>In.—Sale of Life Estate—Services—Possession—Notice to Grantee— Specific Pf.rformance.—Where services were rendered by a married woman under an oral agreement with her employer that in consideration for such services he would deed certain lands to her and her husband as a home during their lives, and the contract was fully performed on her part, and partly performed on the part of the employer by surrendering the possession and control of the lands to her and her husband, she could demand and enforce a specific performance of the contract as against the employer and as against his grantee, who must be deemed to have taken with notice of the rights of the possessors.</p> <p>Id.—Action for Value of Services—Surrender of Possession.—Where the purchaser under a verbal contract for land has been put in possession and has rendered services in payment of the price, no action will lie to recover the value of the services, without first surrendering possession of the land; and where possession was retained when such action was commenced, the action cannot be aided by a subsequent offer to restore the possession.</p> <p>In.—Maintenance of Action—Supplemental Complaint.—An action cannot be maintained unless the cause of action existed at the time the action was commenced; and if a party has no cause of action at the time of its commencement, he cannot maintain it by filing a supplemental complaint founded upon matters which have subsequently occurred.</p>

APPJBAL from a judgment .of the.Superior. .Court of Modoe County. G. G. Clough, Judge. Also, from an order denying a. new trial. C.. L. Claflin, Judge. The facts are stated in the' opinion.

<p>APPEAL from an order of the Superior Court of Sacramento County, refusing to dissolve a preliminary injunction. Matt F. Johnson, Judge.</p> <p>.The facts are stated in the opinion.</p>

. .APPEAL from a judgment of the Superior Court of San Diego County and from an order denying a new trial. E. S. Torrance, Judge. The facts are stated in the opinion of the court.

W. H. Clark, Judge. The facts are stated in the opinion of the court. Further facts are stated in the opinion rendered upon appeal from the judgment in 111 Cal. 588.

<p>APPEAL from an order of the Superior Court of Sacramento County setting apart a homestead to the widow of a deceased person. Matt. E. Johnson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Divorce—Premature Default—Effect of Stipulation.—A stipulation extending the time to answer for a week ending Saturday, July 4th, that day and the next being holidays, has the legal effect to permit an answer to be filed on Monday, July 6th, and a default entered on that day, after the service of an answer, and previously to its filing, was premature, although the stipulation was not made matter of record, it being sufficient to repel the imputation of negligence on the part of the defendant.</p> <p>In.—Appearance by Attorney—Answeb by Client—Reversal of Judgment.—Where the defendant had appeared by an attorney who had demurred to the complaint, and who had not been displaced in any manner, the filing of an answer signed only by himself personally was irregular; but where the premature entry o"f default precluded the filing of an answer properly signed, the irregularity is not of sufficient importance to prevent the reversal of the judgment by default, with leave to file an answer properly signed by the attorney of record, within a reasonable time.</p>

PETITION in the Supreme Court to settle and allow alleged exceptions, to be used upon appeal from a judgment of the Superior Court of Kern County, and from an order denying a new trial. J. W. Mahon, Judge. The facts are stated in the opinion of the court.

<p>Judge—Interest in Litigation—Action to Enjoin Municipal Bonds— Judge as Taxpayer.—In an action against a municipality to set aside as illegal and void a contract between the city and a water company, involving the expenditure of a large sum of money to be obtained by the sale of the bonds of the city, which were to be paid, both as to principal and interest, by means of a special tax levied Sor a series of years upon the property within the municipality, and to enjoin the issuance and sale of the bonds to carry out the contract, a judge of the superior court, who is a taxpayer of the city, is “interested” in the litigation, within the meaning of section 170 of the Code of Civil Procedure, and disqualified from sitting or acting therein.</p> <p>Id.—Disqualifying Interest.—A judge is disqualified in any litigation where he has any certain, definable, pecuniary, or proprietary interest or relation which will be directly- affected by the judgment that may be rendered.</p>

APPEALS from a judgment of the Superior Court of San Diego County and from an order refusing a new trial. E. S. Torrance, Judge. The facts are stated in the opinion of the court.

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

<p>Street Improvement—Abandonment op Contract—Proportional Assessment-Statutory Construction.—Section 12% of the general street law, as amended in 1889, authorizing a proportional assessment for the amount of the contract completed, upon the completion of two blocks or more of any improvement, instead of waiting until the completion of the improvement, applies only to an existing contract under which the whole work is to be completed, and is not intended to give new life to a dead contract; and the board of supervisors has no jurisdiction under that section to order a proportional assessment, when a portion of the work has been abandoned by the contractor, and the time for completion of the whole contract has expired.</p> <p>In.—Proceedings fob Street Work Statutory.—All proceedings for work upon streets, etc., in the municipalities of the state, under the act of March 18, 1885, and the amendments thereto, are purely statutory, and can only be conducted in the cases and after the manner provided by the statutes; and the authority conferred thereby must be strictly pursued.</p> <p>Id.—Performance of Contract—Limitation of Time—Loss of Jurisdiction.—The contract must be fulfilled within the time specified therein, or such further time as may have been given therefor by a valid extension during the life of the contract; and when the work has not been performed within the time so limited therefor, the contract ceases to have any vitality, and jurisdiction thereafter to extend it or to levy an assessment thereon becomes extinct, and, even if the work is completed thereafter, it forms no foundation for a valid assessment. The only power reserved' is to let the completion of the work anew.</p>

<p>Estates of Deceased Persons—Partial Distribution—Payment of Annuities—Finding of Fact.—Upon petition of legatees to whom bequests-had been made in the nature of a life annuity in equal monthly payments, for a partial distribution to them of unpaid -arrears, and ■ of future monthly payments, a finding that the estate was but little indebted, and that the payments prayed for might be made without loss to the creditors of the estate, and that there would remain, after such payment, sufficient property in the hands of the administratrix to pay in full all debts, costs, and expenses of administration, and all devises and legacies under the will, is a finding of fact which, though placed among the conclusions of law, as a legal deduction from probative facts, embraces tbe essential, ultimate facts which are indispensable under the statute to authorize and empower the court to make the order prayed for. Unless these facts exist, there is no right to partial distribution, no matter what may be the condition of the estate in other respects.</p> <p>Id.—Finding Against Evidence.—Where the evidence shows an estate valued at four hundred and sixty-two thousand dollars, with admitted subsisting liabilities of two hundred and fifty thousand dollars, and a probable and possible additional indebtedness amounting in the aggregate to more than four hundred thousand dollars, and that to take the money necessary to pay annuities would deprive the administratrix of means to pay the interest on the allowed demands and the current expenses of administration, and would probably greatly embarrass the estate by requiring a sacrifice of its property at forced sale, the finding that the estate was but little indebted, and that payment of the annuities might be made without loss or injury to the creditors of the estate, etc., is against the evidence.</p> <p>Id.—Annuities Charged uros Pabticudar Property.—The fact that the annuities were to be paid out of the income of particular property, upon which they were primarily made a charge, does not entitle the persons to whom they were bequeathed to payment of them, when the general condition of the estate will not permit of such payment; but that property is as much chargeable with the debts and other obligations of the estate as any other, if necessary to be resorted to for that purpose, and, where the evidence does not show that resort thereto will not be required, to meet a large actual and possible indebtedness, an order for payment of the annuities cannot be sustained.</p> <p>Id.—Partial Distribution—Bond foe Proportion of Indebtedness.—The only occasion upon which the giving of a bond by persons petitioning for a partial distribution can be dispensed with is where it appears that the time for presenting claims against the estate has expired, and all claims that have been allowed have been paid, or are secured by mortgage upon real estate sufficient to pay them, and the court is satisfied that no injury can result to the estate; and where the evidence shows that a large proportion of the demands were unsecured by mortgage, or otherwise, and that such unsecured demands had not been paid, the court has no authority to dispense with the requirement of a bond.</p>

<p>APPEAL from a judgment of the Superior Court of Napa County. E. D. Ham, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>■Common Carriers—Personal Injury to Passenger—Pleading—Ambiguity. In an action to recover damages against a corporation engaged in operating a line of steamboats for personal injuries inflicted upon the plaintiff while traveling as a passenger upon one of its steamers, a complaint alleging that the injuries described therein were committed “by the defendant’s servants and agents,” who were at said time “in charge of said steamer,” sufficiently distinguishes between those who were authorized to represent the defendant in the management and control of the boat and its business, and those who were merely laborers under their control, and is not ambiguous in that regard.</p> <p>Id.—Continuing Injury—Single Claim of Damages.—Where the complaint alleged that plaintiff had paid the regular fare as a passenger to a certain destination, and that the defendant’s servants and agents in charge of the steamer wrongfully placed handcuffs on the plaintiff, and took him to the lower deck of the steamer, and chained him to a post in such a way as to cause him great bodily pain, and kept him chained thereto until the steamer reached a place short ¿f the destination to which he had paid his fare, and then and there wrongfully ejected him from the steamer against his will, it sufficiently shows a continuing wrong and injury, which in law was one and indivisible, and stated a single ground of recovery, and properly makes a single statement of the entire damage sustained in one sum; and is not demurrable for ambiguity in not showing from what particular acts the damages were suffered.</p> <p>Id.—Wanton Injury by Captain of Vessel.—Where it appears that the acts constituting the alleged wrongs and injuries done to the plaintiff were done and performed on defendant’s steamboat in its operation as a common carrier by the captain in charge thereof, in the line of his employment, the defendant is liable in damages for all that the captain wrongfully did to the plaintiff in the execution or attempted execution of his authority, even though the captain acted from wanton or malicious motives, or resorted to unlawful means in executing it; and that the injuries were willfully or wantonly inflicted does not relieve the defendant from liability.</p> <p>Id.—Compensatory Damages—Wrong not Sanctioned by Carrier—Instructions.—Where the defendant corporation did not direct the captain of the steamboat to perpetrate the wrongs complained of, and it does not appear that it subsequently ratified the acts constituting the injury, the corporation is liable for compensatory damages for the injury, but is not liable for exemplary damages; and it is error in such case to give an instruction which in effect leaves the question of exemplary damages to the jury, and to refuse an instruction that, “in cases of this kind, the plaintiff can recover only the actual damages suffered by him, unless the master authorized the commission of the acts complained of, or participated therein, or ratified it after its commission.”</p> <p>Evidence—Impeachment op Witness—Coddatebad Matter.—Where a witness is cross-examined as to collateral matters not testified to in chief, the party conducting the cross-examination is bound by the answers of the witness as to such matters, and cannot contradict such answers by other evidence for the purpose of impeaching the witness; and, in such case, the fact that the witness was the guardian ad litem of the plaintiff cannot make the examination of impeaching witnesses proper or admissible.</p>

<p>APPEAL from an order of the Superior Court of Placer Cóunty dismissing proceedings upon a motion for a new trial. J. B. Prewett, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Replevin fob Sheep—Evidence—Agre kment Relating to Other Sheep.— In an action of replevin to recover a band of sheep, in which a purchaser thereof from the original defendant was substituted as defendant, evidence of an agreement between plaintiffs and the original defendant with relation to another and distinct band of sheep, apparently not involved in the action, is inadmissible, as appearing to be irrelevant and immaterial; but any error in admitting the same in evidence is cured by subsequent testimony that the agent of plaintiffs called upon the original defendant and proceeded to separate that band from other sheep, but did not get them all, and that such defendant refused to let him have about two hundred of them, and that some of them were taken by the sheriff in the action. This, testimony rendered proof of title to the other band of sheep proper and necessary.</p> <p>Id.—Proof of Ownership.—Where the testimony on the part of the plaintiffs tended to show that the agreement made between plaintiffs and the original defendant was that plaintiffs should retain the ownership of a band of sheep delivered to him until he either paid for them, or executed a chattel mortgage upon them and other-sheep belonging to him, and that the mortgage was prepared and, forwarded to him, but that he refused to execute it, objecting to-the rate of interest charged, the evidence is sufficient to sustain-the decision of the court that plaintiffs retained the ownership of" the sheep.</p> <p>Id.—Parol Evidence—Draft of Chattel Mortgage—Admissions.—A draft, of a chattel mortgage prepared by the plaintiffs to be executed: by the original defendant, but not executed, is not a written instrument within the rule that oral testimony is not admissible to vary its meaning; but its statements coming from the plaintiffs were-merely admissions on their part which were subject to explanation, • equally with like verbal admissions.</p> <p>Id.—Deposition—Misnomer of Witness—Indorsement by Notary—Presumption upon Appeal.—Where the notice of the taking of a deposition! and the certificate of the notary thereto were not set out in the record upon appeal, the indorsement of the notary on the back of the envelope, showing a misnomer of the witness whose deposition was taken, is extraofficial, and forms no part of the document, and cannot be considered; and it must be presumed upon appeal in favor of the judgment that the notice and certificate were in due form, and stated the name -of the witness correctly.</p> <p>Id.—Mortgages to Third Parties—Violation of Agreement.—Mortgages-executed by appellant’s assignor to third parties were admissible in evidence as tending to show a violation of his agreement with the plaintiffs.</p> <p>Id.—Judgment against Substituted Defendant—Purchase Cum Onere.— When, after suit brought, appellant, with full notice, became the-purchaser of the sheep from the original defendant, and procured himself to be substituted as a deféndant in the cause, he took the place of the original defendant cum onere, and the judgment in favor of the plaintiffs for the recovery of the sheep or of their value, if delivery could not be had, was properly entered against him.</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>APPEAL from a judgment of the Superior Court of Santa Cruz County and from an order denying a new trial. Lucas F. Smith, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Substitution of Attorneys.—The right of a party to change his attorney of record is conferred by section 284 of the Code of Civil Procedure, and it is only necessary for such party to prefer a request for such change in order to justify the court in making an order therefor.</p> <p>Id.—Request of Corporation for Substitution—Question of Fact—Review upon Appead.—Whether the request for the substitution of attorneys that was presented to the superior court was made by the corporation defendant was a question of fact for that court to determine, and its conclusion that the corporation did make the request will not be reviewed in the appellate court upon the suggestion of the displaced attorney that the superior court did not properly consider the evidence before it on that question.</p>

<p>Eire Insurance—Award of Loss—Direction to Arbitrators—Pleading— Ambiguity—Inconsistent Counts.—In an action to recover for insurance on the property of plaintiff destroyed by fire, where the complaint averred in one count that the question of loss was submitted to arbitrators, who, after due investigation, fixed the aggregate loss of plaintiff at $90,000, and that the loss was adjusted at that sum, and averred in another count that the defendant and other insurers instructed and directed the arbitrators to fix and adjust the aggregate loss and damage of plaintiff at $90,000, and that the loss was so adjusted, the complaint is not demurrable for ambiguity and uncertainty, by reason of inconsistency and contradiction in the two counts, there being no ambiguity or uncertainty in either count considered alone.</p> <p>Id.—Code Pleading—Demurrer to Separate Counts.—A demurrer under subdivision 7 of section 430 of the Code of Civil Procedure, to a particular count of a pleading, on either of the grounds therein mentioned, cannot be aided by reference to another count, or to a separate cause of action found in the complaint; and a cause of action arising out of the same transaction may be separately stated in different ways in different counts of the complaint, even though they are inconsistent with each other, without being demurrable for ambiguity or uncertainty merely by reason of such inconsistency.</p> <p>Id.—Cross-complaint—Trial—Waiver of Answer—Appeal.—Where the defendant answered in part by cross-complaint, to which no formal answer was made by the plaintiff, but no judgment upon the pleadings was moved for at the trial, and no objection was made to the introduction of evidence for want of such formal answer, and the cause was tried by both parties as if all the allegations of the cross-complaint were denied, it cannot be urged upon appeal for the first time that the defendant was entitled to judgment upon the pleadings for want of an answer to the cross-complaint.</p> <p>Id.—Promise of Insurance Company—Immaterial Variance—Waiver of Objection.—Where the complaint alleged a promise of the insurance company defendant to pay a specified sum as its proportionate amount of the loss, on or before a specified date, and the court found that defendant promised to pay that sum in full settlement for its proportionate amount of said loss within sixty days from the time when formal proofs of loss were prepared, and that the same were prepared and presented to defendant at a date sixty days anterior to the date specified in the complaint, the omission to plead the fact that payment was to follow the proofs of loss does not constitute a material variance between the pleading and finding; and it is too late to urge the objection to such variance upon appeal for the first time, no objection having been made to the evidence in the court below upon that ground, and plaintiff being thus deprived of an opportunity to amend the complaint to obviate the objection of variance. ,</p> <p>Id.—Action upon Agreement to Pay Loss—Decision upon Former Appeal —Change of Facts—Conflicting Evidence.—Where it was held upon a former appeal that a cause of action upon an agreement to pay the loss after it had been ascertained by arbitrators was distinct from a cause of action upon the "policy, and that a finding that no such promise was made was fatal to a recovery upon such a cause of action; and upon a second trial upon the same cause of action the court found, upon conflicting evidence, that such promise was made, the decision upon the former appeal does not control the case upon the changed facts, nor can this court upon a second appeal review the record of the first trial to ascertain the relative weight of the proofs adduced upon the two trials; and where there is some evidence tending to support the finding as made upon the second trial, it will not be disturbed upon appeal.</p> <p>Id.—New Oral Agreement.—Where the agreement sued upon, though founded upon the policy, was in its essential elements the substitution of a new contract upon a new consideration to make and accept payment of less than the amount of the insurance, and less than the amount claimed under the policy, such new agreement need not be in writing, and where all the parties acted under such new agreement, and awards were made, and written proofs given and filed thereunder, and the amount of the ascertained loss would have been paid, but for the alleged discovery of frauds and concealments, it cannot be objected by defendant that the new agreement was void because not reduced to writing.</p> <p>Id.—Fraud—Conflicting Evidence—Findings.—Where the evidence is conflicting as to alleged fraud and concealment of value on the part of the plaintiff, and there is sufficient evidence to support the findings of the court in favor of - the plaintiff, they will not be disturbed upon appeal.</p> <p>Id.—Presentation of Books to Insurers—Credibility of Witnesses.— Where there is testimony tending to show that all of the books of the plaintiff were furnished to the defendant and other insurers, and fairly examined by them before the making of the award of the amount of loss, it is immaterial whether the books showed the cost of construction and value of the property insured; and the question whether the testimony of the witnesses was credible or worthy of belief was matter for the trial court to determine.</p> <p>ID, Evidence—Declarations of Deceased Agent.—Declarations of a deceased agent, who acted for all the insurance companies in the matter of the adjustment of loss, and assumed to represent them all in the submission to arbitration, were admissible as against the defendant insurance company.</p> <p>Ld.—Value of Machines—Seasons for Estimate.—When a witness had testified that harvester machines destroyed by fire were unsalable, and had no value except for the material that was in them, conceding that he might properly have stated his reasons for so estimating them in his evidence in chief, it is not reversible error to exclude such reasons.</p> <p>Id.—Operation and Value of Machines not Destroyed.—The operation and value of other machines not destroyed cannot be proved by the defendant, to show the insufficiency of similar machines destroyed by fire.</p>

<p>Eibe Insurance—Loss Payable to Mortgagee—Cessation of Interest— Supplemental Complaint—Parties—New Agreement with Owner.— Where a policy of fire insurance named the owner of the property as the insured, and stipulated for payment of loss to a mortgagee, and a supplemental complaint in an action upon a new agreement made by the insurance company with the owner to pay a specified sum as its proportionate share of an adjusted loss, showed that the mortgagee, who was a party coplaintiff, had ceased to have any interest in the property, and that the mortgage had been fully paid and discharged since the commencement of the action, it is not essential to a recovery by the owner of the property that such mortgagee should have been a party to the new agreement, it being sufficient that she joined in the action, and remained a party thereto, and would he estopped by the judgment therein in favor of the owner.</p> <p>Id.—Amended and Supplemental Complaints—Statute of Limitations.— Where the amended and supplemental complaints set up the same policy and the same new agreement with the defendant by way of compromise that were set forth in the original complaint, the difference being that in the original complaint the new agreement was described as being with the plaintiffs, while in the amended and supplemental complaints it was described as being with the owner of the property, and the mortgage was alleged to have been satisfied in the supplemental complaint, the cause of action is not changed by the amended or supplemental complaint, and the statute of limitations does not apply as of the date of either of them, but only as of the date of the original complaint.</p> <p>Id.—Interest of Mortgagee—Ratification—Pleading— Judgment—Parts in Interest.—The interest of the mortgagee was still the same, and she ratified or adopted the new agreement, so far as she was concerned, by joining in the action thereupon; and, the policy being payable to her by its terms, she was a proper party in all forms of the complaint; and when her mortgage was paid, it was proper so to state by supplemental complaint, in order that the judgment, if any, might be for the party in interest.</p>

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

<p>APPEAL from a judgment of the Superior Court of Lake County. Bodney J. Hudson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Mortgage—Power of Attorney from Wife—Debt of Husband—Gift Subject to Lien.—Where a husband executed a deed of gift to his wife of property subject to a deed of trust executed by him to secure his indebtedness, and she executed to him a power of attorney authorizing him to mortgage the property, and he, under the power, executed a note and mortgage for himself, and for his wife as attorney in fact, to an assignee of his creditor, to secure the same indebtedness secured by the trust deed, and in consideration of the new note and mortgage to such assignee the old notes were delivered up and a quitclaim deed was executed by the trustee and by the husband jointly to the wife, all at the same time, and as parts of the same transaction, the mere change in the form of lien did not change the position of the wife, and the facts do not show any legal limitation of the express power given to the husband to execute the mortgage; and the principle that an attorney with = power to mortgage cannot make a mortgage for his own personal debt, and for his own personal advantage alone, does not apply.</p> <p>Id.—Description of Lands—Subdivisions of Mexican Grant.—Where the owner of a Mexican grant has surveyed and subdivided the grant :■ in the same way as if the grant were a part of the public domain, a description of lands mortgaged within such grant by such subdivisions is sufficient.</p>

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

<p>Indian Wab Bonds—Interest on Coupons—Liability op State.—The state is not liable to pay interest on its debts, unless its consent to do ■ so has been manifested by an act of the legislature, or some lawful contract of its executive officers; and interest cannot be recovered against the state on interest coupons attached to Indian war bonds, issued under the act of February 15, 1851. No right to recover interest on such coupons was created by the act of February 28, 1893, allowing the state to be sued.</p>

<p>Mining Partnership—Working of Mine ín Common—Partnership Property.—The partnership property of a mining partnership not formed by actual agreement, but by the actual working of a mining claim owned or acquired by two or more persons for the purpose of working the same, under section 2511 of the Civil Code, consists only ■of the mining ground so owned or acquired and actually worked, unless other property has been acquired by the partnership for the purpose of aiding in working it, such as a mill or millsite, or other mining property has been acquired by it for the purpose of working it with the mining ground already being worked, and so situated that it can be worked with the original claim as parts of one mine, or has been acquired with partnership funds.</p> <p>In.—Distinction in Code—Agreement for Work upon Contingency.— Section 2511 of the Civil Code, defining a mining partnership, distinguishes between mining ground owned or acquired for the purpose of working it, and such ground actually worked; and it is ■only the latter that in general can be regarded as partnership •property when not acquired by the partnership or with partnership funds. A mere agreement to work a mining claim in the future upon the happening of a contingency does not make it partnership property.</p> <p>In.—Action for Dissolution—Contradictory Findings—New Trial.— Where the court, in an action for the dissolution and settlement of a mining partnership, has made contradictory findings as to the actual working of more than one of the mines described in the complaint, by the partners, and it is not distinctly found that other mines worked by members of the partnership were worked by the partnership, a decree of sale of more than one of the mines must be reversed and a new trial ordered.</p> <p>Id.—Forfeiture of Mines—Findings Outside of Issues.—Where no allegations have been made, or issues formed as to the forfeiture of any of the mines described in the complaint, a finding as to such forfeiture must be disregarded as outside of the issues.</p>

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

<p>Criminal Law—Larceny—Evidence—Possession of Stolen Property— Corroboration.—Where the defendant was found in the possession of a recently stolen mare, slight corroborative evidence of other inculpatory circumstances tending to show his guilt, in the absence of evidence on his part is sufficient to authorize submission of the case to the jury.</p> <p>Id.—Arrest of Defendant—Distinct Offense.—Evidence of the arresting officer that prior to the arrest of the defendant he had been searching for him upon another and distinct criminal charge, in no way connected with the one before the court, is inadmissible, and it is prejudicial error to overrule an objection thereto, and to refuse-to strike it out.</p>

<p>Appeal—Notice—Proof of Service—Separate Affidavit—Dismissal.— 1 The fact that proof of service of the notice of appeal is not attached to the notice, hut is embodied in a separate affidavit filed in the court below and printed in the transcript, is of no consequence, and does not entitle the respondent to a dismissal of the appeal, whether the proof of service is or is not required to be brought up in the record, under section 950 of the Code of Civil Procedure.</p> <p>Mortgage—Rents, Issues, and Profits—Chattel Mortgage upon Crop.— A subsequent chattel mortgage upon a crop takes precedence of a mortgage upon the land, “and the rents, issues, and profits thereof,” which was not executed as the code requires chattel mortgages to be executed; and the proceeds of the sale of the harvested crop cannot be applied to the payment of any deficiency arising upon foreclosure of the real estate mortgage.</p> <p>Id.—Execution of Chattel Mortgage—Affidavit—Partnership.—Where one of the parties to a chattel mortgage is a partnership firm, the affidavit may he made, on the part of the partnership, by one of the members of the firm, described as “of and for the firm.”</p> <p>XD—Notice of Real Estate Mortgage.—The real estate mortgage, not haying been executed as a chattel mortgage, did not cover the crop, but constitutes a lien upon the land only; and it is immaterial whether the mortgagee of a chattel mortgage upon the crop had notice of the real estate mortgage or not.</p> <p>Id.—Foreclosure—Rights of Mortgagee of Crop—The holder of a chattel mortgage upon the crop, made a party defendant to the foreclosure oí the mortgage upon the land, has an interest in the crop, and need not seek a foreclosure of the chattel mortgage, nor be entitled to such foreclosure, upon the filing of an answer, in order to be entitled to resist the wrongful application of the crop to the deficiency arising upon foreclosure of the mortgage upon the land, which constituted no lien upon the crop.</p>

<p>APPEAL from a judgment of the Superior Court of Placer ■County and from an order denying a new trial. J. E. Prewett, 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. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

Walter Van Dyke, Judge. The facts are stated in the opinion of the court, and in its opinion rendered upon the former appeal. (Banning v. Marleau, 101 Cal. 238.) The portion of the sixth instruction referred to in the opinion of the court is embodied in the first syllabus.

<p>Sale of Patent Rights—Executory Contract—Attachment—Vendor’s Lien.—An attachment may issue in an action to recover purchase money due under an executory contract for the sale of patent rights. The claim therefor is not secured by a vendor’s lien upon the property sold, as no such lien exists under an executory contract for the-sale .of personal property, where title has not passed; and a motion-to discharge the attachment on account of the alleged existence of such a lien is properly denied.</p> <p>Id.—Lien upon Sale of Personal Property—Construction of Code—Common Law.—Section 3049 of the Civil Code, which provides that “one who sells personal property has a special lien thereon dependent upon possession, for its price,” etc., is merely declaratory of the common law, under which such a lien does not exist, unless there has been a complete sale which passes the title to the property to the vendee, without delivery of possession, and does not attach when there is a mere executory contract to sell upon compliance with certain conditions by the party proposing to buy.</p>

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

<p>Mortgage—Declaration of Homestead—Priority of Record.—A mortgage, executed by a husband, duly acknowledged and deposited in the recorder’s office after the usual hour of closing in the evening, with direction to the recorder to record it, though not marked by the recorder as filed for record until the following morning, will prevail over a declaration of homestead made by the wife upon a portion of the mortgaged premises which was handed to' the recorder on his way to the office on the following morning, and marked filed for record at the same time with the mortgage.</p> <p>Id.—Deposit of Instrument for Record—Filing—Indorsement.—An instrument is deemed to be recorded when, being duly acknowledged, or proved and certified, it is deposited in the recorder’s office with the proper officer for record, and it is filed for record when so deposited with directions to record it. Indorsing the fact and time of its deposit is not an essential part of its filing.</p> <p>Id.—Delivery Out of Recorder’s Office.—The delivery of an instrument to the proper officer at a place other than the office where it is required to be filed is not sufficient, even though the officer should indorse it as properly filed when so delivered.</p> <p>Id.—Deposit for Record after Dsual Hours.—The fact that the mortgage was deposited in the recorder’s office, and delivered to the recorder therein for record after the usual hour for closing the office, does not preclude that it should be deemed filed for record at the time of such deposit. Office hours are established to define a duty of the officer, and for the convenience of the public, and are not to be construed as limiting the time within which individuals may avail themselves of rights elsewhere conferred by statute.</p> <p>Id.—Attorney’s Fees—Province of Court.—The court may determine whether the whole or a portion of the amount stipulated in the mortgage as attorney’s fees for its foreclosure was a reasonable fee, even if no evidence was presented in reference thereto.</p>

<p>Settlement of Partnership—Receiver- -Intervention.—The right of a third person to intervene in an action for the settlement of partnership affairs is not enlarged or diminished by the action of the court in appointing a receiver, nor by his conduct after such appointment. Whatever error may have been committed by the court in the exercise of its jurisdiction to appoint the receiver, or in not controlling his conduct, can only be corrected at the instance of the parties to the action, and does not confer upon a stranger the right to intervene in the action.</p> <p>Id.—Incompetent Partner—Order Appointing Guardian — Collateral Attack.—The action of a court of competent jurisdiction in appointing a guardian of an incompetent partner is not open to collateral attack, and, in the absence of a direct attack, the order therefor will be presumed to have been correctly made.</p> <p>Id.—Right of Intervention—Attachment of Partner’s Interest.—An applicant for intervention in an action, in order to avail himself of the right conferred by section 387 of the Code of Civil Procedure, must have a direct interest either in the matter in litigation, or in the success of one of the parties to the action, or against both of them, and such interest must not be consequential, and must be one which is proper to he determined in the action. A creditor of an individual partner, who has merely an attachment upon his interest in the partnership, has no such interest in an action to wind up the affairs of the partnership as to entitle him to intervene.</p> <p>Id.—Rights of Attaching Creditor.—The attaching creditor who has levied upon the interest of an individual partner in the partnership assets has no right to' delay the action to wind up the affairs of the partnership until the recovery of judgment in the attachment suit; but if he shall obtain judgment and sell the interest of the individual partner, such sale will entitle the purchaser to receive from the court whatever may be found to belong to such partner.</p> <p>Id.—Fraudulent Mortgages.—If the partner whose interest is attached has made fraudulent mortgages upon the attached property, their invalidity is to be determined when the purchaser of the property under execution shall become clothed with title thereto, and the question can give no ground for intervention by the attaching creditors in the suit to settle the partnership.</p> <p>Id.—Conspiracy to Defeat Attachment Suit.—If the partners have conspired to defeat the attachment suit, the resistance to such conspiracy must be made in that suit, and not by intervention in the suit to settle the partnership.</p>

<p>Justices’ Court—Berkeley—Effect of Freeholders’ Charter on Existing Courts—Provision for New Courts.—The justices’ court of the town of Berkeley, created by the act of April 1, 1878, incorporating the town, ceased to exist, and the provisions of the act providing for the election and duties of justices of the peace and defining their . jurisdiction, became abolished, under section 8 of article XI of the constitution, upon the approval by the legislature, on March 5, 1895. of the freeholders’ charter adopted by the town on February 26, 1895; and the provisions in that charter for the creation of a justice’s court in the town, and the' election of justices therefor, was ineffective, upon the authority of People v. Tool, 85 Cal. 333.</p> <p>Id.—Special Act Creating Court — Constitutional Law.—The act of March 27, 1895, purporting to create a justice’s court solely for the town of Berkeley is special and local legislation, within the prohibition of the constitution, and therefore void.</p>

APPEAL form a decree of the Superior Court of the City and County of San Francisco distributing the estate of a deceased person. Charles W. Slack, Judge. The facts are stated in the opinion of the court.

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

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

<p>APPEAL from a judgment of the Superior Court of Stanislaus County. William 0. Minor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

PETITION to the Supreme Court, for a writ of mandate to compel the settlement of a bill of exceptions to be used upon appeal from a judgment of the Superior Court of San Mateo County, and from an order denying a new trial. George H. Buck, Judge. The facts are- stated in the opinion of .the court.

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

<p>Receiver—Stipulation—Deposit of Funds—Bonn—Order for Payment-Appeal.—Where a receiver of the rents and profits of real estate in controversy was discharged under a stipulation that the net proceeds received by him should be placed in the county treasury, subject to future order of the court, and that defendant should give bond to pay and account for rents and profits to be thereafter received by ' him, and to pay any judgment which might be recovered against him therefor, the pendency of an appeal from a judgment against the plaintiff for costs, and the fact that no bond upon appeal from the judgment was necessary or authorized by the code to stay proceedings as to the money held by the county treasurer, and that the statutory bond was given upon the appeal, besides a bond in double the amount of the judgment for costs, did not operate to stay the authority of the court to deal with the receiver, and with the funds paid into the treasury by him under the order of the court, and an order directing the funds to be paid to the defendant will be affirmed under the stipulation, upon the ground that the money so paid to him became subject to the terms of the bond given by him thereunder for rents and profits thereafter to be received by him.</p>

MOTION in the Supreme Court to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco and also another appeal from an order refusing to restrain the sheriff from executing a writ of assistance. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court rendered upon-the present motion, and upon a former motion, reported in Pignaz v. Burnett, 119 Cal. 157.

<p>Foreclosure—Junios Mortgage—Credit ot Surplus—Right to Foreclose upon Other Property.—A junior mortgagee made a party defendant in foreclosure, may plead his mortgage, and ask that any surplus derived from the sale of the property subject to both mortgages, be applied as a credit upon his note; and, by so doing, he in no sense brings an action to foreclose his mortgage, and is not barred from thereafter bringing an action to foreclose the mortgage upon other property included therein, which was not subject to the prior mortgage.</p> <p>In.—Answer—Cross-complaint — Parties—Stipulated Judgment.—Where-the junior mortgagee filed an answer merely admitting all the allegations of the complaint, and also filed a cross-complaint, in which the junior mortgage was fully pleaded, and a judgment' of foreclosure thereof was asked, but a necessary party to such judgment was not brought in, and no súch judgment was had, but a stipulated judgment was rendered for foreclosure of the plaintiff’s mortgage, and the application of the surplus upon the indebtedness due the defendant, and the case was not tried and submitted to the court, upon the cross-complaint as a pleading demanding affirmative relief, it must he deemed that the court exercised its power to treat the cross-complaint as an answer setting up the junior note and mortgage, and asking for an application of the residue of the proceeds of the sale thereon, and the judgment so rendered is no bar to A subsequent action to foreclose the junior mortgage upon other property.</p>

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

<p>Injunction—Description of Mining Claim—Variance—Appeal.—In an action to enjoin the obstruction of a creek by a dam to the injury of a mining claim of plaintiffs, where the mining claim is described in the complaint as “the Island,” and in the findings by metes and bounds, upon an appeal based upon the pleadings, findings, and judgment, without the evidence, error to invalidate the judgment cannot be presumed, and it cannot be held that there is any inconsistency between the two descriptions, or any variance between the complaint and findings.</p> <p>Id.—Gross-Complaint—Dumping of Tailings — Use of Water—Findings Outside of Issues.—Where the cross-complaint of the defendants complained only of the dumping of tailings and debris from plaintiffs’ mining claim upon the mining ground of defendants, the right of the plaintiffs to use surplus water from another claim and to pass it as water from their ground into the waterway of the creek, and thereby to increase the servitude upon defendants’ ground, not being presented by the pleadings as a cause of action, is not involved, and-findings as to such use and running into the creek of suiplus water-are outside of the material issues in the case, and are not ground for reversal of a judgment for the plaintiffs.</p> <p>Id.—Judgment—Matters not Litigated—Modification.—"Where the court, in addition to giving to plaintiffs a judgment for the relief sought and denying to defendants the relief asked by the cross-complaint, proceeded to prescribe the line of conduct to be followed in the-future by the parties to the litigation as to the manner of dealing with tailings, and as to the use of the creek and the pro rata expense of keeping it in condition for the purpose of carrying off thetailings, such matters not being involved in the litigation and no such relief being sought by the pleadings, the judgment must be-modified by striking the additional directions therefrom.</p>

<p>APPEAL from a judgment of the Superior Court of San Bernardino County. 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 San Joaquin County and from an order refusing a new trial. Ansel Smith, 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. J. C. B. Hebbard, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>APPEAL from an order of the Superior Court of Humboldt County settling the accounts of the administrator of the estate of a deceased person. G. W. Hunter, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Defrauding Innkeeper—Constitutional Law. — Section 537 of the Penal Code, making it a misdemeanor to commit frauds and impositions upon innkeepers and the like persons, is not unconstitutional.</p> <p>Id.—Distinction Between Offenses.—Section 537 of the Penal Code contemplates three classes of offenders who are amenable to its provisions: 1. Those who obtain food or accommodation at such a resort, without paying therefor, with intent to defraud; 2. Those who obtain credit thereat by the employment of any false pretense; and 3. Those who, after obtaining such credit or accommodation, abscond and surreptitiously remove their baggage without paying their score.</p> <p>Id.—Habeas Corpus — Sufficiency of Complaint. — On a proceeding on habeas corpus, to be relieved from a conviction under said section, a complaint which states facts sufficient to constitute an offense as first defined therein will be held sufficient to support the judgment notwithstanding it contains other and insufficient allegations of obtaining credit by the use of false pretenses.</p>

<p>Trust—Mining Claim—Timber Patent—Fraub—False Testimony.—A bill in equity will lie in favor of the locators of a mining claim who had been for many years in its exclusive possession, had expended large sums .of money in developing it, and had complied with all the de-, mands of law to support a valid location of the claim, to enforce a trust against the holder of a patent obtained under the timber act, without actual notice to the mining claimants, and by false and fraudulent testimony that the land was not occupied, contained no-improvements thereon, and no indications of deposits of mineral therein, and was chiefly valuable for the timber growing thereon, whereby the officers of the government were deceived and misled and induced by belief of such false testimony to issue the patent.</p> <p>Id.—Cancellation of Patent—Privity with Source of Title.—It is a rule without exception that when the government has grounds for the cancellation of a patent theretofore issued by it, based upon imposition and fraud, an individual who is properly connected with the para-' mount source of title may bring an action to enforce a trust against the patentee and compel a conveyance from him.</p> <p>Id.—Occupancy—Right to Purchase.—A stranger or occupant without right cannot assail a patent for fraud practiced against the government; but an occupant with a right to purchase and obtain a patent, irom the government may attack a patent issued in fraud of his rights, and upon equitable terms may demand a conveyance from the patentee.</p> <p>Id.—Rights of Mining Claimants—Enforcement of Trust.—A mining claim, properly located and held in accordance with the laws of the federal government, is the property of the locators and transmissible as real estate, needing only a patent to render the title perfect; and until the patent is issued the government holds the title in trust for the locators, or their heirs or vendees; and they occupy such a status as to entitle them to control the legal title and obtain a patent from the government, upon compliance with required conditions, and to enable them to enforce a trust against a fraudulent patentee and compel him to make conveyance of the title.</p> <p>Id.—Timber Patent—False Testimony—Forfeiture—Title.— A timber patent obtained upon false testimony carries the legal title to the patentee, though the timber act declares that he “shall forfeit the money which he may have paid for the lands, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void.” If he has no title, there would be none to forfeit; and his grant to a bona fide purchaser could not vest title, unless it rested in the patentee.</p> <p>Id.—Forfeited Monet not to be Returned.—The rule that, when the government attacks a fraudulent patent, the fraudulent patentee is not entitled to a return of his money as a condition precedent to the cancellation of the patent, applies to the enforcement of a trust by the owners of a valid mining claim against a fraudulent patentee who has forfeited his money to the government under the timber act, and the plaintiffs should not be required to make such money good. The labor and expense of prosecuting the action, necessarily entailed by the fraudulent acts of the defendant, counterbalance any alleged claim of equity in his favor.</p>

<p>Foreclosure oe Mortgage—Sale of Parcels en Masse.—Where a judgment for the foreclosure of a mortgage embraced ten parcels of land which were separately described, and ordered to be sold in satisfaction of the plaintiff’s claim, and the administratrix of the deceased mortgagor was present at the sale but gave no directions respecting it or the order in which the parcels should be sold, and the sheriff offered each parcel for sale separately, and could effect a sale of only one separate parcel, it was proper for him to sell the remaining parcels en masse, to the plaintiff, as the highest bidder therefor, for the amount due upon the claim.</p> <p>In.—Inadequacy of Price—Assessed Value—Appraisement.—Where the lands were sold for an amount equal to their assessed value for the preceding year, and no attempt was made to show their value in the year when the sale was made, the court was not bound to s.t aside the sale for inadequacy of price because an appraisement of value, made two years previously in the administration of the estate of the deceased mortgagor, was very much greater than the amount bid at the sale.</p> <p>In.—Relative Value of Parcels and Mass—Presumption. —It must be assumed from the fact that the sheriff was unable to sell the several parcels separately, and could only sell them as a whole, that the lands were more valuable taken together than separately.</p> <p>Id.—Refusal to Allow Redemption of Parcels.—The refusal of the mortgagee, after the sale, to fix a sum for which it would allow redemption of each of the parcels bought by it en masse, did not afford ground for setting aside the sale. The right of redemption is purely statutory; and any redemption must be of the land sold, and according to the parcels in which it is sold.</p> <p>Id.—Withdrawal of Bid.—The sale by the sheriff being at auction, the rule of auction sales, that a bidder may withdraw his bid at any time before the hammer falls, is applicable; and it was not irregular for a bidder for a parcel to withdraw his bid upon being informed by the sheriff, in answer to his inquiry, that the title to the land sold was not guaranteed.</p> <p>In.—Payment upon Judgment—Omission from Order of Sale.—The fact that a payment had been made upon the judgment of foreclosure, and that the order of sale, annexed to a certified copy of the judgment, issued subsequently to such payment, made no reference thereto, does not vitiate the order of sale; but the sheriff can only sell parcels enough to cover the amount actually due, although if he sells the lands as a single parcel for more than that amount, the sale is not void, and the surplus belongs to the judgment debtor; and where the plaintiff bids for the property the exact amount due, after deducting the payment apd the costs of sale, the sale is authorized.</p> <p>Id.—Ebror in Costs—Printing Points.—An item of costs charged for “printing points” does not represent an obligation of the defendant, and the plaintiff was not authorized to include it in the bid for the amount due; but such error does not justify setting the sale aside.</p> <p>Id.—Taxes Paid by Owner—Deduction from Judgment.—It is only the tax levied upon the security that the owner may pay and have the amount thereof deducted from the amount-of the security; and where there was no assessment of the security, and the assessment for which the taxes were paid by the owner after the judgment of foreclosure had been rendered was upon the land without any deduction for mortgage or other obligation, the owner is not authorized to have the taxes so paid deducted from the judgment.</p>

<p>Criminad Law — Homicide — Pursuit of Another Person — Continuous Transaction.—Where the defendant was accused of a murder committed while he was in pursuit of another person, whom he was attempting to kill, and who had ran into the house where the deceased lived, and the deceased was killed while interrupting such purer it and because of such interruption, the attempt to kill the person pursued, and the shooting of the deceased, were parts of one continuous transaction.</p> <p>Id.—Evidence—Motive of Pursuit—Arrest at Instance of Pursued Person.—For the purpose of showing the motive for such pursuit and attempt to kill the person pursued, the complaint, warrant of arrest, and minutes of the police court in the matter "of a charge by such person against the defendant for disturbing the peace are admissible in evidence. Such documents cannot be considered as proving the commission of another offense or as tending to establish the truth of the charge made, but solely as showing the fact that a criminal charge had been made against him by the person pursued.</p> <p>Id.—Mdbdeb or the Fibst Degbee—Attempt at Bueglaey—Instructions. Murder committed in the perpetration of or attempt to perpetrate burglary is murder of the first degree, and entering a house with intent to commit a felony therein is burglary; and, where there is evidence from -which the jury might properly find that the defendant went up the steps for the purpose of entering the house where the deceased lived for the purpose of killing another person, it is sufficient to justify a correct instruction upon the subject of murder committed in the attempt to commit burglary.</p>

<p>APPEAL from an order of the Superior Court of Orange County granting a new trial. J. W. Towner, Trial Judge. J. W. Ballard, Judge granting the new trial.</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. V. A. Gregg, Judge.</p> <p>The facts aré stated in the opinion.</p>

<p>Estates of Deceased Persons—Life Insurance—Payment to Administrator—Exempt Property—Distribution to Widow.—Money received by the administrator from a policy of insurance upon the life of the decedent, which by its terms was made payable to his administrator, was the property of the deceased in his lifetime and belongs to his estate; and where the annual premiums did not exceed five hundred dollars the money collected from such policy is exempt from execution, and is properly set apart to the widow as such. The order setting it apart is a species of distribution to the widow of part of the estate of the decedent.</p>

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

APPLICATION in the Supreme Court for a writ of mandate to compel the setting of a cause for trial in the Superior Court of San Joaquin County. Edward I. Jones, Judge. The facts are stated in the opinion of the court.

<p>Municipal Corporation—Ordinance Fixing- Water Bates—Indebtedness-Interest—Value oe Plant—Capital Stock.—For the purpose of fixing the rates to be charged or collected for furnishing water to the inhabitants of a city, provision should not be made for the bonded or other indebtedness of the company, or of the interest thereon; but ■fbe fair value of the property -which is necessarily used in furnishing the water is the basis upon which to determine the amount of revenue to be provided by the ordinance fixing the rates, which should be the same whether the works are acquired or constructed by the company with its own resources, or with money borrowed from others. The amount of the capital stock paid into the water company by its stockholders, and the amount of its bonded and floating indebtedness, and the interest thereon, are immaterial factors in the question of reasonableness of rates.</p> <p>In.—Percentage upon Stock—Luterests of Public.—It cannot be said that a corporation serving the public is entitled as of right, and without reference to the interests of the public, to realize a given per cent on its capital stock. The rights of the public, as well as those of the stockholders, are to be considered; and the public cannot be subjected to unreasonable rales in order simply that stockholders may earn dividends. The corporation has the right to receive only what, under all the circumstances, is such compensation for the use of its property as will he just both to it and to the public.</p> <p>Id.—Invalidity of Ordinance—Burden of Proof—Record upon Appeal.— In order to establish the invalidiiy of an ordinance fixing water rates, which was regularly adopted and is in proper form, it is incumbent'on the water company to allege and prove in the superior court, and to have incorporated in the record on appeal, the extrinsic facts showing such invalidity; and where the evidence upon which facts are found is not in the record, it must be assumed that it fully supports the findings of fact in support of its validity.</p> <p>Id.—Value of Plant not Shown —Net Income—Support of Findings— Error not Appearing.—Where the value of the piant, which is essential to be shown before the rates fixed can be held unreasonable, is not averred or shown, and the evidence is not returned, it must be assumed that findings showing that a net income will be received, after deducting operating expenses, taxes, and costs of maintenance and repairs, were supported by the evidence, and it cannot be said to appear from the record that the rates fixed by the ordinance will not yield a fair compensation, or that the court did not properly consider all the elements involved in the question of plaintiff's right to any greater compensation than will be received from the rates fixed by the municipal board, or that it erred in refusing to annul the ordinance.</p>

<p>Judge—Disqualification—Validity of Bonds—Stockholdeb in -Bank Owning Bonds.—In an action involving the question of the validity of cer-. tain bonds issued by an irrigation district, a portion of which is held by a bank, a judge of the superior court, who is a stockholder in the bank, is an “interested” party within the meaning of section 170 of the Code of Civil Procedure, and is disqualified from sitting or acting as such therein, irrespective of the pecuniary value of his interest; and the fact that after he has heard the evidence, and before the rendition of judgment, he disposes of his stock in the bank, does not remove his disqualification, so as to qualify him to render judgment.</p> <p>Id.—Belief of Judge as to Qualification.—The belief of the trial judge that he was qualified to try a cause pending in his court cannot affect the fact of his disqualification.</p>

<p>Gift Causa Mobtis—Unindobsed Negotiable Papeb.—The holder of negotiable paper payable to his order may make a valid donatio causa mortis thereof without indorsement; and under section 1052 of the Givi! Code, title thereto passes by a delivery, and the transferee may maintain an action thereon in his own name.</p> <p>Pbactice—Disregard of Ebboneous Instruction.—A judgment will not be reversed or a new trial granted on account of the disregard by the jury of an erroneous instruction which clearly appears to have been without injury to the appellant.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco vacating an order settling the final account of an administrator of the estate of a deceased person. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal—Obdbb Vacating Obdbb Settling Administbatob’s Account.—Mo appeal lies from an order of the superior court vacating a prior order settling the final account of the administrator of the estate of a deceased person.</p>

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

ACCUSATION in the Supreme Court, at the instance of the Bar Association of San Francisco, to disbar an attorney. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Stanislaus County directing a partial distribution of the estate of a deceased person to legatees. William 0. Minor, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>"Wills—Contbact fob Testamentaby Disposition—Specific Peefoemance— Uncbbtainty.—A mán may make a valid agreement binding himself to dispose of his property by last will and testament in a particular way, and a court of equity will, under certain circumstances, specifically enforce such an agreement; but no agreement can be enforced the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable, and, before an agreement for testamentary disposition can be enforced by a court of equity, it terms must not only be fair, but free from doubt.</p> <p>Id.—Uncebtain Agbeement to Pay fob Loss of Intebest in Paetneeship. An agreement to make good by will any loss sustained by reason of plaintiff coniinuing in the service of the testator, and giving up a proposed membership in a partnership carrying on a rival business, is too uncertain in its nature either to be enforced in equity or to sustain an action for damages against the estate of the testator.</p>

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

■APPEAL from an order of the Superior Court of Sacramento County, admitting a will to prohate and issuing letters of administration thereon, and from an order denying a new trial of a contest of the will. Matt. E. Johnson, Judge. The fact's 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. Gatlin, 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 Cruz County. J. H. Logan, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

MOTION to dismiss an appeal from a judgment of the Superior Court of San Diego County. J. W. Hughes, Judge. The facts are stated in the opinion of the court.

<p>Diet Causa Mobtis—Deposit in Savings Bank—Agency.—In order that money deposited in a savings hank may be the subject of a gift causa mortis, the delivery to the donee of the means of obtaining the money must he as a gift ira presentí, conferring upon the donee a present title and property in the thing given, and not for the purpose of making a future disposal of it under the directions of the donor. If the donee is merely empowered to draw the money, and is thereafter to dispose of it in accordance with instructions from the donor, he is only an agent of the donor, and his agency terminates with the death of the latter.</p> <p>In.—Titls Remaining in Donob.—Unless the property in the thing given vests in the donee, it remains in the donor; and a mere purpose on his part to make a future gift is incapable of enforcement. It is the delivery by the donor with intent at that time to vest title, and not the possession by the donee, that makes the gift effective.</p> <p>Id.—Absolute Gift—Condition—Testamentary Disposal—Estate of Deceased Donob.—The law requires a gift causa mortis to he absolute at the time it is given, but adds to it the condition that it may be revoked at the will of the donor, and that it is revoked by his recovery; but if by the terms of the gift it is not to take effect until after the death of the donor, the disposal is testamentary and not a gift, and the thing given is a portion of the estate of the deceased donor at the time of his death.</p> <p>Id.—Direction to Pay Debts of Donob.—A direction by the donor to the donee to pay certain debts of the donor is inconsistent with an intention to make a gift of the money to the donee.</p> <p>Id.—Charitable Gift—Selection of Institution.—A charitable gift was not consummated by the donor by reason of his having designated the amount intended to be given, where he expressly left it to the person drawing the money to select the institution to which the money was to be given, and no such selection was made or agreed upon by the donor in his lifetime.</p>

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

<p>Stbeet Assessment—Invalid Gontbact—Delegation of Pówüb'to' 'Súbeéintendent of Stbeets. —A contract for a street improvement; under the street improvement act of 1885, which delegates to. the, superintendent of streets power to determine whether more or less work shall be done by the contractor, and what materials shall be used in certain events, and whether or not the right kind Of material' hais ' been used, is invalid; and no assessment can be enforced thereunder.</p>

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

<p>Action upon Accepted Obdbb—Insufficient Complaint — Equity not Shown.—In an action upon an accepted order “to be paid as equity is collected,” from certain wheat in a warehouse, described as sold to a person named, and by the terms of which one-third of the amount collected, after the amount borrowed on the wheat had been paid, was to be paid upon the order until the amount specified therein should be fully paid, a complaint which does not state facts showing the existence of an “equity,” or the amount borrowed, or that the wheat had been pledged as security for any sum, or what the maker of the order had to do with the wheat after it had been sold, or that he had a lien upon it, and does, not directly allege that the price of the wheat was to be collected by the persons accepting the order, is insufficient upon both special and general demurrer.</p> <p>Id.—Inconsistent Findings—Suppoet of Judgment.—Where it affirmatively appears from the complaint and a portion of the findings that the entire fund which could have existed, applicable to the debt represented by the order, had been paid by the defendants thereupon, but it is elsewhere found that the full purchase price which the defendant should have received would have yielded a much greater sum to the plaintiff than the amount paid, such finding being irreconcilable with the allegations of the complaint and with the other findings, the findings being inconsistent upon an essential fact, cannot support the judgment.</p> <p>Id.—Sale of Wheat—Chattel Mobtgage—Depbeciation in Value—Loss of Vendobs.—Where the accepted order sued upon was drawn by one of a firm of vendors, who had sold the stored wheat, for his proportion of the surplus price which might be collected by chattel mortgagees of the vendee, above the mortgage debt, interest, charges and costs, and the chattel mortgage provided that if the wheat deteriorated in quality or depreciated in price the vendee would correspondingly reduce the debt or increase the security, and upon failure to do so, the chattel mortgagees might immediately sell the wheat without notice, upon such deterioration and depreciation in fact occurring, the chattel mortgagees might, with the consent of the partner holding the accepted order, take a portion of the wheat in payment of the depreciated value, or it appearing that the wheat was worth no more than the amount of the loan, might, with the consent of such partner, surrender the wheat to the purchaser upon receiving payment or other security; and any resulting loss must fall upon the partnership, and not upon the mortgagees.</p>

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

' APPEAL from a judgment of the Superior Court of Kings County and from an order denying a new trial. Justin Jacobs, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Tulare Oounty settling the final account of a guardian. William W. Cross, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Election Contest—Malconduct of Election Boabd—Insufficient Statement—Dismissal.—A statement of contest of an election, which merely' specifies malconduct of the judges of election in not opening the polls at- sunrise of the day of election, and in not keeping the polls open for the length of time .required by law, and in allowing persons to vote whose names did not appear upon the precinct register, and in not being all present during all of the time that the polls were held open, and that votes were received during the absence of certain members of the board, is insufficient to sustain the contest, and should be dismissed.</p> <p>Id.—Pbesencb of Election Officers.—The law does not require the presence of all the election officers during all the time that voting is in progress.</p> <p>Id.—Illegal Votes.—The mere fact that illegal votes were received by the judges of election is no ground for rejecting the whole vote of a precinct, where there is nothing to show that they were received through fraud or conspiracy, or in such manner as to discredit the presumptive integrity of the board, or to show that there is no practicable means of ascertaining the true vote, and purging the poll.</p> <p>Id.—Opening Polls at Sunrise—Delay Consistent with Honesty—Nonobstbuction of Suffbage.—Some latitude must be allowed for judgment as to the time of sunrise in the opening of polls; and where delay in opening them precisely at sunrise is not alleged to be inconsistent with honest intent, and the violation of the letter of the law is not alleged to have operated to obstruct the full and fair expression of the suffrage of the precinct, the bald fact of such delay is not sufficient to disfranchise the precinct.</p>

<p>Appeal — Conclusiveness of Findings—Agreed Statement of Facts.— . Where the cause was submitted to the decision of the trial court upon an agreed statement of facts, but the agreed statement is not set out in the record, the findings made by the court are conclusive.</p> <p>Fees of Justice of Peace—Settlement with County Under Act of 1895 —Claims Under County Government Act.—A settlement by a justice of the peace with a county for his fees in criminal cases, pursuant to the act of March 28, 1895, and prior to the decision of the supreme court declaring that act unconstitutional, cannot be revoked, and a claim for such fees cannot be subsequently allowed by the board of supervisors under the County Government Act, merely crediting thereupon the amount previously paid under the act of 1895.</p> <p>Id.—Understanding of Law at Date of Settlement Conclusive.—The understanding of the law at the time of the settlement of a contract, though erroneous, will govern the settlement, and the subsequent determination of the question of law by judicial decision to the contrary does not create such a mistake of law as courts will rectify, nor can it have a retroactive effect to overturn the settlement which was legal and valid when made.</p> <p>Id.—Entire Demand cannot be Split.—A party having an entire demand cannot split it up into separate causes of action; and this rule applies to claims against counties equally with those against individuals.</p>

<p>Husband and • Wife —Agreement fob Sepaeation—Annuity Ciiaeged upon Husband’s Estate—Notice to Mobtgagee.—An agreement .{or separation between husband and wife, providing for the payment of an annuity to the wife during her life, to constitute a lien upon his “estate,” which is duly acknowledged and recorded, creates á ■• lien upon all of the lands of the husband for arrearages of the' hn- nuity, and is notice to ¿ subsequent mortgagee of particular Iahds , belonging to the husband, and entitled to priority over, the mortgage.</p> <p>Id.—Consteuction of Agreement—Meaning of “Estate”—Identification of Lands—Evidence.—The term “estate” used in the agreement lor separation to denote the subject of the lien, though, having a diversity of legal meanings, is to be understood in the sense which will accomplish and not defeat the obvious purpose to create a lien, and as comprehending property susceptible of being impressed with a lien, and, being used without qualification, includes all the lands of the husband. Failure to indicate the locality of the lands, or specifically to describe them, is not fatal to the lien; but the principle that “that is certain which is capable of being made certain,” is applicable; and extrinsic evidence is admissible, under proper pleading, to identify the property.</p>

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

<p>APPEAL from an order of the Superior Court of Merced County setting aside an information. J. K. Law, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEAL by the people from orders of the Superior Court of Riverside County sustaining demurrers to two several indictments for perjury. J. S. Noyes, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Sending Threatening Letter with Intent to Extort Money—Information—Duplicity.—An information specifically charging the crime of sending a threatening letter with intent to extort money is not subject to the objection that it states two offenses, because it mistakenly describes the crime charged as “extortion,” in the general designation of the offense with which the accusation opens; but that word may be disregarded as surplusage, and the defendant could not be misled by its unnecessary use".</p> <p>Id.—Instruction—Nature, of Offense Charged.—It was proper for the court to instruct the jury as to the nature of the offense charged in the information, and that the charge was not an accusation of an extortion committed.</p> <p>Id.—Evidence—Deposition as to Other Charges.—A deposition taken upon the preliminary examination of the defendant upon other charges of crime against him, so far as not made applicable by stipulation to the preliminary examination for the offense on trial, is not admissible in evidence against the defendant, by reason of the death of the witness.</p> <p>Id.—Stipulation—Ibeelisvani Pasts of Deposition.—Notwithstanding a' stipulation that the evidence of the witness should be considered as taken upon the preliminary examination of the defendant upon each of three distinct criminal charges of a different nature, including the one on trial, so much of the deposition as was solely applicable to the other criminal charges is not made relevant by the stipulation, and the admission thereof against the objection of the defendant is prejudicially erroneous.</p>

D. Arnot, Judge rendering judgment. Walter A. Lamar, Judge denying new trial. 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. J. S. Beard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Indemnity—Assignment of Securities.—A mortgagee, whose mortgage purported to indemnify him against any loss which he might sustain on account of an assignment of securities made by him to secure a debt of the mortgagor to a third party, must have sustained actual loss, as distinguished from liability therefor, resulting proximately from the assignment, in order to vest him with any right of action upon the mortgage on account of such assignment. .</p> <p>In.—Pledge—Title of Pledgor.—The securities having been assigned and held by way of pledge for the payment of the mortgagor’s note, the title of the mortgagee, as pledgor, was not divested merely by force of the assignment; and he cannot claim to have sustained loss, by reason of the assignment, to the extent of the face value of the securities.</p> <p>Id.—Liability of Mortgagor—Face Value of Securities.—The mortgagor cannot be held liable for the face value of the pledged securities, there having been no sale thereof, and no agreement that the mortgagor should become responsible for their face value to the mortgagee, security therefor not being within the terms of the indemnifying mortgage, interpreted in the light of the surrounding circumstances.</p> <p>Id.—Prospective Operation of Indemnity.—The natural import of a mortgage by way of indemnity is to indemnify against contingent loss not yet accrued; and agreements for indemnity are to be construed as having a prospective operation, when a different intent is not expressed.</p> <p>In.—Action upon Pledged Securities—Conversion.—The action of the pledgee in suing upon the assigned securities, for the purpose of collecting the money due thereon, is lawful, and cannot constitute a conversion thereof by him.</p> <p>Id.—Depreciation in Value of Securities.—The mere decline of the securities in market value, which is not attributable to the assignment thereof by way of pledge, and which so far as appears would have been the same had the assignment not been made, cannot be held as a loss for which the mortgagor is liable.</p> <p>Id.—Enforcing Object of Mortgage—Parol Agreement.—The mortgagee can enforce the mortgage only to accomplish the object for which it was made; and where the terms of the mortgage properly interpreted, show that it was intended to indemnify against the consequences of a pledge, it cannot be enforced as securing some other and different engagement of the mortgagor resting in parol.</p> <p>Id.—Note Accompanying Mortgage for Indemnity.—The fact that a note absolute in form purports to be secured by a mortgagee, which is expressly made by way of indemnity, is unimportant, and does not determine the liability of the mortgagor.</p> <p>Id.—Delay of Pledgee $o Sue—Pleading.—The mortgagee canhot recover upon the indemnifying mortgage for loss caused by failure of the pledgee of the securities to sue earlier thereupon, without alleg ing and proving such loss.</p>

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

<p>Criminal Law—Commitment—Police Court of Los Angeles—'Verification of Complaint.—The police court of Los Angeles is a valid court, the judge of which has jurisdiction as a magistrate to commit a defendant charged with felony; and its clerk is authorized to administer oaths, and to receive the verification of the complaint upon which the warrant of arrest is issued.</p> <p>Id.—Preliminary Examination — Joint Charge.—One who is charged jointly with another person with the commission of a felony, has no statutory right to demand a separate preliminary examination; and the refusal of such demand is not a ground for setting aside the information.</p> <p>Id.—Grand Larceny—Information—General Description of Articles Stolen.—An information for grand larceny which charges that the defendant did take, steal, and carry away from the person of one named, certain articles described in a general way, sufficiently states the offense, and lays the foundation for a plea of former conviction in the event of a second prosecution.</p> <p>Id.—Instructions—Reasonable Doubt—Harmless Modification.—In an instruction requested to the effect that the jury must be convinced of the guilt of the defendant “beyond all reasonable doubt,” a modification by the change of “all” to “a,” though without apparent reason, is harmless.</p> <p>In,—Refusal of Instructions as to Circumstantial Evidence—Direct Proof.—The refusal of instructions requested upon the subject of circumstantial evidence, is not ground for reversal, where the main reliance of the prosecution was not upon circumstantial evidence, but upon the direct proof of eye-witnesses to the fact of larceny by the defendant from the person of the prosecuting witness, while the latter was asleep.</p> <p>Id.—Repetition of Charges Given.—It is not error to refuse instructions which are a repetition of charges already given by the court.</p> <p>Id.—Misconduct of District Attorney — Cross-Examination — Eorhbr Charge of Larceny.—The district attorney is not guilty of misconduct in the cross-examination of a witness who testified to the good moral character of the defendant accused of grand larceny, in asking a question which hinted at a former charge of larceny against the defendant, if it was asked in good faith, with reason to expect an affirmative answer, and the impropriety of the cross-examination was not so Clear that it might not properly be submitted to the judgment of the court.</p>

<p>Election Contest —Masked Ballot.—Upon the trial of an election contest a ballot so marked by the voter when it is voted, that it can be identified, should be rejected.</p> <p>Id.—Time of Mask—Conflicting Evidence—Review upon Appeal.— Where there is a substantial conflict of evidence as to whether a peculiar mark upon a ballot was placed thereupon by the voter, or was made after it was taken from the ballot box, a finding of the court that the mark was not upon the ticket when taken from the box, and that it was made subsequently, and its action in accepting and counting the ballot, will not be disturbed upon appeal, though the evidence apparently preponderates the other way.</p> <p>Id.—Evidence— List of Illegal Votes.—The plaintiff, in an election contest cannot introduce evidence of an illegal vote not specified in the list of illegal votes served by him upon the defendant, as required by section 1116 of the Code of Civil Procedure; and the fact that the voter’s name was upon a list of illegal votes served upon the plaintiff by the defendant cannot justify evidence of such illegal vote on the part of the plaintiff.</p> <p>Id.—Testimony of Illegal Voter—Impeachment—Credibility.—An illegal voter who testified for plaintiff that he voted for the defendant, may be impeached by proof of declarations made by him to other witnesses that he did not vote for any one for the office in controversy, and that for certain reasons he would not vote for the defendant. The credibility of the witness thus impeached is to-be determined by the trial court; and it may refuse to deduct the vote from the tally of the defendant.</p> <p>Id.—Clear Proof Required as to Person Voted Por.—The evidence must be very clear as to how an illegal voter voted, before his vote can be deducted from the total of any candidate. Where a voter declined" to answer for whom he voted, his mere statement that if he had voted he supposed he would have voted for the defendant, and that: he did not know but he would have voted for the office in controversy, if he had voted at all, does not amount to evidence as to the person voted for, notwithstanding other evidence tending to show that he had voted, and that he was not a legal voter.</p> <p>Ed.—Residence of Voter.—A finding in favor of the residence of a voter at the place of voting, will not be disturbed, where he testified that he was often absent therefrom, performing different jobs of work, but that he always left with the intention of returning when his * work was done.</p>

<p>Exemption from Execution—Threshins Outfit.—A threshing outfit, which is necessary for the proper carrying on 'of the farming operations of the judgment debtor upon a large farm, is exempt from '• execution, irrespective of whether he would need it in cultivating á smaller tract.</p> <p>1$,—Use fob Hire.—The threshing outfit does not cease to be exempt from execution merely because of its customary use by the judgment ' debtor for hire to thresh the crops of others, after having threshed his own, provided the outfit is needed and used in conducting hia own farming operations.</p> <p>Id.—Legislative Policy.—Whether any property shall be exempt from execution, as well as the character and amount of property to be exempted, is purely a question of legislative policy.</p> <p>■Id.—Farming Utensils and Implements oe Husbandry—Limitations not Imposed.—The farming utensils and implements of husbandry of the judgment debtor are declared by the statute to be exempt from execution; and no limitations having been imposed by the legislature, a court is not authorized to refuse the exemption because, in its opinion, they are not necessary for the judgment debtor, nor because they are not needed for cultivating a smaller tract, if needed and used by him for the proper cultivation of any larger tract, regardless of limit; nor because the implement is an improvement, whatever may be its character or value.</p>

W. M. Conley, Judge. The action was brought to compel the execution of a sheriff’s - 'deed to plaintiff as the assignee of a certificate' of redemption, by a redemptioner from a sale under foreclosure of a mortgage, and to quiet the plaintiff’s title to the property redeemed. Fur-, ther facts are stated in the opinion.

APPEALS from a judgment of the Superior Court of Madera County and from an order appointing a receiver. W. M. Conley, Judge. The facts are stated in the opinion in this case, and in the opinion in San Jose Safe Deposit Bank of Savings v. Bank of Madera, ante, p. 539.

<p>Habbob Masteb fob Poet of E ubek a—Obe ation of Office.—The office oí harbor master for the port of Eureka was created and its fees regí ulated by the act of April 4, 1870, to create a board of harbor commissioners for that port, which act was substantially carried into ; the Political Code, section 2570 of which makes the town marshal of Eureka the harbor master of the port. Under the act of 1874, . incorporating the city of Eureka, the city marshal was made harbor master of the port.</p> <p>In.—Natdbe of Office—Marshal, as Habbob Master.—An office is the right to exercise a public function or employment, and to take the fees and emoluments belonging to it. The duties of the office of harbor master .concerned the public, and the compensation came from the public treasury; and in the performance of the duties prescribed to the marshal, as harbor master, he was acting as harbor master, and not performing added duties as marshal.</p> <p>Id.—New City Charter-Abolition of Office of Marshal—Code Provi- , sions Unrepealed,—The approval of the new freeholder’s charter of the city of Eureka, February 8, 1895, which suspended the charter of 1874, and abolished the office of city marshal, without making any provisiqn therein for any officer of the city to perform the duties of harbor master, did not abolish the latter office, nor operate to repeal sections 2570 and 2572 of the Political Code, so far as they relate to the office, of harbor master, but only operated to repeal them so far as they relate to the duties of the marshal.</p> <p>Id.—Vacancy—Appointment by Governor."—Under the new charter of the city of Eureka, no person being designated by law to perform the ■ ’ duties of the office of harbor master, that office became vacant; and there being no mode specially provided by the constitution or the law for filling such vacancy, the governor was authorized to fill it under the provisions of section 8 of article V of the constitution.</p> <p>Id.—Compensation of Habbor Master— Liability of City—Services Outside City Limits.—The harbor master of the port of Eureka may claim compensation from the city of Eureka for services performed in Humboldt bay outside of the city limits, in removing sunken logs so as to clear the channel of the bay from obstructions, for the benefit of the port, and in aid of its commerce, although incidentally benefiting other places.</p> <p>Id.— Jurisdiction of Habbob Commissioners — Employment of Habbor Masteb.—The board of harbor commissioners of the port of Eureka has jurisdiction beyond the city limits to protect navigation in Humboldt bay, and to remove obstructions to the regular ebb and flow of the tide; and whatever the law authorizes the board to do or to cause to be done, it may cause to be done by the employment of its executive officer, the harbor master, whose duty it is to enforce and carry into effect such rules and regulations as the board of harbor commissioners may adopt.</p> <p>'In.—Power to Fix Compensation—Mandamus to City Council.—The board of harbor commissioners of the port of Eureka has jurisdiction under section 2572 of the Political Code, which was not superseded by, the new city charter, to fix the compensation of the harbor master, and it cannot rest with the city council to reject a claim for services of the harbor master, allowed by that board; but the amount allowed by it must be paid monthly by the city, and it is the duty of the city council to order a warrant drawn in favor of the harbor master for the amount allowed and certified by the harbor commissioners; and mmdamus will issue to compel the city council so to do.</p>

<p>Criminal Law—Evidence—Corroboration of Accomplice.—Under section 1111 of the Penal Oode, the testimony of an accomplice must be corroborated by other evidence which in itself, without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the crime charged; and the testimony of one accomplice cannot be deemed corroborated by that of another accomplice.</p> <p>Id. — Character of Corroborating Witness — Question for Jury.— Whether a- witness corroborating an accomplice was also himself an accomplice is a question of fact, to he determined by the jury, upon competent evidence.</p> <p>In.—Presumption—Conclusiveness of Verdict.—It must be presumed from a verdict of conviction based upon the testimony of a witness in corroboration of an accomplice, where the fact was in dispute whether such witness was also an accomplice, and the jury were properly instructed as to the corroboration required by section 1111 of the Penal Code, that the jury found that the witness was not an accomplice; and their verdict must be accepted as conclusive of the fact.</p> <p>In.—Incompetent Evidence—Complicity in Eorgery—Acquittal—Hearsay.—Upon the question whether a corroborating witness was an accomplice to a forgery charged against the defendants, evidence that the witness had been tried for complicity in the forgery, and had been acquitted thereof, is incompetent. Such evidence is hearsay, and has no legal tendency to show that he was not an accomplice in the crime, and its admission was prejudicial error.</p> <p>Id.—Opinion of Accomplice.—The testimony of the accomplice whose testimony was sought to be corroborated, that he did not consider that the corroborating witness was guilty of the forgery charges, is incompetent, and should be stricken out.</p> <p>Id.—Basis fob Comparison of Handwbiting—Incompetent Explanation— Similar Offense.—Where a paper is introduced in evidence as a basis for a comparison of the handwriting of the defendant, upon a charge of forgery, evidence explaining the circumstances under which the paper was written is improperly received; and where such evidence tended to connect the defendant with a previous attempt to commit a. similar offense, it is irrelevant and. incompetent to establish the present charge.</p> <p>Id.—Insufficient Evidence of Complicity in Eorgeby.—The evidence reviewed, and held insufficient to sustain a conviction of one of the defendants of complicity in the forgery charged.</p>

<p>Submission of Agreed Case—Validity of Tax—Jurisdiction.—The submission of an agreed case without action, under section 1138 of the ; Code of Civil Procedure, between the owner of assessed property and . the tax collector of the county, involving the validity of a tax, gives the court no jurisdiction of the subject matter.</p> <p>Id. — Authority of Tax Collector — Parties—Taxpayer and County.— The tax collector has no authority to submit such a controversy without action, or to represent the county therein, he being merely the agent of the county for the collection of the tax, with no interest in the question of its validity. The taxpayer and the county are the only parties to the question in difference as to the validity of the tax.</p>

<p>Shipping—Charter-party— Implied Obligation—Negligence.—Under a. charter-party containing no express stipulation for the safe delivery of the cargo, but showing that the entire control and management of the vessel, and of the loading and unloading of the cargo, were-in the hands of the managing owner of the vessel, there is an implied obligation that the loading and unloading thereof shall be-so done as to cause no unnecessary injury thereto, and an implied liability for injury resulting from the negligence of the carrier.</p> <p>Id.—Personal Liability of Managing Owner—Principal and Agent.— The manager or managing owner of a vessel, when acting as general agent for the owners, must disclose his agency unmistakably in a charter-party signed by him, in order to escape liability therein: as principal; and where the charter-party was signed by a corporation owning nine-sixteenths of the vessel, which described itself in. the body of the instrument as managing owner, but without disclosing the identity of the other parties represented by it as agent, or their interest in the vessel, and in that assuming to act for them as agent in the execution of the instrument, it is personally liable-thereon as principal for any breach of the contract on its part, in respect to the management of the vessel and cargo.</p> <p>Id.—Ownership of Chartered Vessel—"When the general control and management of a vessel and crew for a voyage or for a term specified in a charter-party are given up to the charterer, he becomes the owner pro hac vice; but when the general owner of the-vessel retains possession, command, and navigation thereof, and contracts to carry a cargo on freight for a voyage, the charter-party is a mere contract of affreightment sounding in covenant, and there is no pro tempore ownership of the vessel by the charterer, but the responsibility of the general ownership continues throughout the voyage.</p> <p>Id.—Finding as to Part Ownership and Agency.—In an action upon a. charter-party signed by the defendant corporation in its individual and corporate capacity, a finding that it was part owner of the vessel, and the manager thereof, and that as such owner, and as agent of the other owners, the defendant made the charter-party, is not prejudicial to the defendant, which is personally liable under the contract, when regarded as part owner and acting as agent for the-other owners, even though the other part owners may also be liable.</p> <p>Id.—-Action against Part Owner—Nonjoinder of Parties—Plea in' Abatement.—If an action is brought against one or more part owners-upon a contract relating to the ship, which should regularly be brought against all the part owners jointly, the defendants sued can only object to the nonjoinder of other part owners by a: plea in abatement; and if such plea is omitted, the plaintiff may recover his whole demand, and the defendants must afterward seek contribution from the other owners.</p> <p>Id.—Act of Congress—Limitation of Liability—Breach of Contract.— Act of Congress of «Tune 2G, 1884, which limits the liability of a shipowner to his proportionate share of all the debts and liabilities, is confined to the liability imposed on the part owners by law, in consequence of their ownership of the vessel, and does not prohibit part owners from so contracting as to become liable for the entire damage for breach of the contract.</p> <p>Id.—Damages—Loss on Sale of Cargo—Pleading—Finding—Variance.— Where the verified complaint in an action for damages for breach of a charter-party specifically alleged as damages the difference in value between the cargo as shipped, and as delivered, owing to the careless and negligent manner in which the cargo was loaded and unloaded, the plaintiff cannot recover any greater measure of damages than that so averred, though a greater sum is alleged in a general ad damnum clause; and a finding of a greater amount of damages than such differences in value is at variance with the allegations of the complaint and is not saved by the general ad damnum clause.</p> <p>•Judgment in Excess of Pleadings—Appeal—-Modification.—A judgment for damages, based upon a finding for an amount greater than the averments of the complaint, may be modified on appeal, without the necessity of a reversal of the judgment.</p>

<p>Pledge oe Goods by Bailee—Conversion.—Personal property intrusted to a bailee for safekeeping only, without any other indickm of ownership than the mere possession of it, cannot be pledged by the bailee; and the refusal of the pledgee to deliver the property to the rightful owner upon demand is a conversion thereof, for which an action of trover may be maintained by the owner to recover its value from the pledgee.</p> <p>Id.—Protection oe Pledgee—Construction of Code—Limitation to Purpose oe Transfer.—In section 2991 of the Civil Code which protects a pledgee of one who has been allowed by the owner to assume the “apparent ownership” of personal property, “for the purpose of making a transfer of it,” the words expressive of such purpose are words of limitation upon the power of the apparent owner to make the pledge; and that section has no application, where no apparent ownership is conferred for the purpose of sale or transfer, but the property is merely intrusted to another for safekeeping.</p> <p>Change of Judgment—Erroneous Conclusions of Law—Amendment— Appeal.—Under section 663 of the Code of Civil Procedure, as established by the act of March 3, 1897, the superior court should vacate the judgment upon motion, when the conclusions of law are incorrect or erroneous, and not consistent with the findings of fact, and should enter up a different judgment sustained by the findings of fact, and should amend the conclusions of law accordingly; and when such motion is denied, the superior court may be directed to do so upon appeal.</p>

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

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

<p>Account Stated—Implied Agreement.—The agreement between the parties to an account stated, that all the items therein are true, need not be express, but may be implied from circumstances, such as the sending of the account from one to the other, who makes no objection thereto within a reasonable time.</p> <p>Id.—Account between Commission Merchants and Consignors—Statute of Limitations.—Where the date of an account rendered between commission merchants and a consignor of merchandise to them, and of the last item on either side in the open account between them, was less than two years before the commencement of the action, no part of the account is barred by the statute of limitations, whether the account be deemed stated or open.</p> <p>Id.—Discharge . in Insolvency—Fiduciary Capacity.—Commission merchants who receive goods consigned to them on commission to be sold, and the proceeds, less commission, to be transmitted to the consignor, and who sell the goods and fail to transmit the money, create a debt in a fiduciary capacity, which is not barred by their discharge in insolvency; and the statement of the account between the parties does not so change the fiduciary quality or character of the indebtedness as to take it out of the exception declared in the Insolvent Act.</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.</p>

<p>Landlord and Tenant—Lease—Rent Payable in Produce.—A contract by which farming lands were demised and let for a term of years to one who agreed to give annually for the use thereof a certain portion of the crops of grain and other products grown thereon is a lease, creating the conventional relation of landlord and tenant between the parties, and not a cropping contract. The portion of the grains and fruits to be delivered to the landlord, when gathered, is rent, which is a compensation for the use of the land, and may be made payable in any chattels or products of the soil, equally as well as in money.</p> <p>In.—Cotenancy in Crops—Property of Tenant—Rent.—Though a landlord and tenant, who are not cotenants of the land, may be made cotenants in the crops to be raised, such cotenancy does not exist, where there are no appropriate words in the lease to indicate it; and, in the absence of such words, the products to be delivered to the landlord after harvest will be deemed the property of the tenant until the delivery is made, and treated as rent to be then paid.</p> <p>Id.—Sale of Leased Land under Foreclosure—Apportionment of Rent to Purchaser.—A sale under the foreclosure of a mortgage upon leased land, upon which a portion of the products of the soil was to be delivered annually as rent, and which became due and payable for the year, after the purchase from the sheriff, and before the expiration at the time for redemption, does not entitle the purchaser to the whole of the rent; but he is entitled, under section 707 of the Code of Civil Procedure, only to an apportionment of a share of the annual rent, in proportion to the unexpired part of the lease-year existing after the purchase.</p> <p>Id.—Assignment of Lease—Recovery of Rent.—The effect of the sale by the sheriff under foreclosure was equivalent to an assignment of the lease by the landlord to the purchaser for such portion of the lease-year as existed between the time of purchase and the expiration of the time for redemption, white the purchaser held the certificate of sale; and his recovery of rent is limited to the amount of rent earned for that time.</p> <p>In.—Certificate of Sale—Interest in Crops.—The certificate of sale of land, issued by the sheriff, does not pass any interest in the crops grown upon the land and ripened and harvested during the period of redemption.</p>

<p>Guaranty Appended to Contract—Original Undertaking.—A guaranty appended to a contract before its delivery, to the effect that the contract shall be performed according to its conditions, is part of the same transaction with the contract, and the two instruments make but a single contract on the part of the guarantors, and is an original undertaking by them.</p> <p>Id.—Commensurate Liability.—The liability of the guarantor upon such original undertaking is commensurate with that of the principal contractor, and is absolute, when he becomes absolutely liable for breach of the principal contract.</p> <p>Id.—Guaranty of Note Payable out of Profits—Sale of Business.—Under a note payable out of the profits of a business, the payment of which is originally guaranteed in accordance with its conditions, the liability both of the maker and of the guarantors becomes fixed and absolute, when the maker voluntarily puts it out of his power to make any profit out of the business, or to fulfill the contract according to its terms, by a sale and conveyance of the business.</p> <p>Id.—Insertion of Name in Guaranty—Execution.—The insertion of one only of the names signed to a guaranty, in the body of the guaranty, does not make the person so named the sole guarantor, where it appears that another person also executed it, not as a witness, but as one who made and subscribed the guaranty.</p> <p>Changing Place of Trial.—An application for a change of the place of trial is properly refused, where the defendants did not appear, or answer or demur at the time when the motion was made.</p> <p>Setting Aside Default—Rule Requiring Copy of Answer—Demurrer.— A rule of court requiring the copy of an answer proposed to be filed, to he served with the notice of a motion to set aside a default is proper; and a demurrer is not an “answer” within the meaning of such rule.</p>

Charles W. Slack, Judge. The action was brought to recover from the defendants, the surviving trustees of the Lick trust, the amount of taxes and penalty for the year 1895 paid by plaintiffs, as executors of the will of James G. Fair, deceased, upon a mortgage of three hundred thousand dollars executed by said Fair to said trustees. The mortgage was paid by plaintiffs after the assessment of the taxes thereupon for 1895.

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Charles W. Slack, Judge.</p> <p>The action was brought to recover from the defendants, the surviving trustees of the Lick trust, the amount of taxes and penalty for the year 1895 paid by plaintiffs, as executors of the will of James G. Fair, deceased, upon a mortgage of three hundred thousand dollars executed by said Fair to said trustees. The mortgage was paid by plaintiffs after the assessment of the taxes thereupon for 1895. The taxes were subsequently levied, and were paid by plaintiffs, together with a penalty of four hundred and seventy-two dollars and fifty cents added April 13, 1896. The amount of taxes and penalty paid was six thousand seven hundred and seventy-two dollars and forty-eight cents, for which sum, with legal interest from the date of payment, judgment, was rendered in favor of the plaintiffs.</p>

<p>APPEAL from an order of the Superior Court of the City and County of San Francisco settling the annual account of an administrator. J. V. Coffey, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Mortgage by Deed Absolute — Foreclosure of Street Assessment — Parties.—Upon the foreclosure of a valid street assessment, the holder of the apparent record title is properly made a party defendant, under the street law of 1885, though he may be in fact holding only as a mortgagee by deed absolute.</p> <p>In.—Foreclosure op Mortgage—Hostile Title—Parties.—The title acquired .under the sheriff’s sale upon foreclosure of the street assessment, against the mortgagee by deed absolute, is not subject to the-asserted mortgage, but is superior and hostile thereto, and cannot be litigated in a subsequent action to foreclose the mortgage; nor is the claimant of such title a proper party to the latter action.</p> <p>Id.—Effect of Decree—Unrecorded Assignment of Certificate of Sale —Lis Pendens.—The decree of foreclosure of the mortgage is not binding upon the holder of an unrecorded assignment of the certificate of sale, who had become entitled to a sheriff’s deed under foreclosure of the street assessment against the mortgagee by deed absolute prior to the commencement of the action to foreclose the mortgage. The claim of such assignee is adverse to the mortgagor; and, not being a proper party to the action, nor made a party thereto, he is unaffected by the decree, or by a notice of lis pen-dens filed at the commencement of the action.</p> <p>Id.—Construction of Code—Unrecorded Instruments—Title Adverse to Mortgagor.—Section 722 of the Civil Code, making a decree of foreclosure of a mortgage conclusive against persons claiming under the mortgagor, whose conveyances or liens were not of record when the action was commenced, applies only to those holding from or under the mortgagor, and does not apply to a purchaser ■ at a sale for a street assessment or for a tax, or to the claimant of a title adverse to that of the mortgagor.</p>

<p>Criminal Law—Conviction of Mubdeb—Appeal—Absence of Abgument.— Upon submission by the attorney general without argument of an appeal from a conviction of murder in the first degree and a judgment of death, there being no argument or brief of counsel for the appellant, the appellate court will examine the transcript to determine whether error appears in the record.</p> <p>Id.—Absence of Evidence—Refusal of Requested Instructions—Presumption.—In the absence of the evidence, the refusal of abstractly correct instructions requested by the defendant upon the subject of insanity, and upon other subjects, must be presumed to have been upon the ground that they were • not pertinent to any question of fact before the jury; and it cannot be said that their refusal was improper, or in any way prejudicial to the defendant’s rights.</p>

<p>Estates of Deceased Persons—Judqment upon Claim of Administrator.— A judgment in favor of an administrator upon a claim presented by him and rejected by the judge, recovered in an action pursuant to section 1510 of the Code of Civil Procedure, has no greater force and effect than a judgment upon any other rejected claim. It merely establishes the claim in the same manner and to the same extent as if it had been allowed.</p> <p>Id.—Contest of Judgment—Prima Facie Evidence—Burden of Proof.— A judgment upon a rejected claim is subject to be afterward contested by any person interested in the estate, as if it were an allowed claim. Upon a contest thereof, the judgment is admissible as prima facie evidence of the correctness of the claim; and the burden is on the party contesting to show the claim was not properly allowed.</p> <p>Id.—Contest of Administrator’s Account—Exceptions—Duty of Court.— In contesting an administrator’s account, the contestant must file his exceptions thereto in writing, stating specifically the grounds of his objections, and at the hearing should be held limited to the exceptions so presented; but, whether exceptions are filed or not, the court should carefully examine the account, and reject all claims of the executor or administrator which are illegal or unjust, and should be satisfied of the correctness of the account before ordering it settled.</p> <p>Id.—Payment of Judgment—Specifications of Fraud—Evidence,—Upon the contest of an item in an administrator’s account showing the payment by the administrator of a judgment in his own favor - against the estate, as to which specific charges were made of collusion, fraud, and conspiracy in the obtaining of the judgment, the contestants are entitled to demand that the judge shall consider all proper evidence bearing upon the question of the disputed claim upon which the judgment was rendered; and the previous depositions and testimony of witnesses taken in the action and in other actions against the estate, which are relevant and material to the questions put in issue by the contestant, and which tend to show that one of the items of the account upon which .the judgment was rendered had not been presented for allowance, and that the account should be largely reduced, are admissible in evidence, and it is -error, to exclude them. ‘</p>

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

<p>APPEALS from a judgment of the Superior Court of Sacramento County. A. P. Gatlin, 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 denying a new trial. John H. Campbell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>■Criminal Law—Labceny—Evidence—Impeachment of Witness—Harmless Ebrob.—A witness in a criminal case may be impeached by evidence of his general reputation for truth, honesty, and integrity, and it is error to confine the question to his general reputation for truth and veracity; but such error is not prejudicial where the witness, upon the trial of a defendant charged with larceny in the stealing of cattle, gave direct evidence of his own dishonesty by testifying that he and the defendant had stolen the cattle.</p> <p>I.D.—Pabticudab Wbongful Acts—Charge of Cattle Stealing. —Evidence of particular wrongful acts cannot be shown for the purpose of impeachment, excepting proof of the conviction of the witness of a felony. A witness cannot he asked for such purpose whether he was not confined in jail upon a charge of cattle stealing.</p> <p>Id.—Evidence of Accomplice—Instruction—Rule of Coubt.—Under section 2061 of the Code of Civil Procedure, it is the duty of the court, upon a proper occasion, to instruct the jury that “the testimony of an accomplice ought to be viewed with distrust”; and it is error to refuse to give such an instruction in a proper case when orally requested by the defendant, on the ground that counsel had not handed up to the court the charge in writing, as required by a rule of the court. Such request did not come within the reason or spirit of the rule, and should have been granted. Id.—Object of Rule—Suspension — Duty of Court. — A rule of court requiring instructions to be handed up in writing before the argument begins is proper, and is designed to give the court an opportunity to determine the correctness and propriety of the instruction, so as to prevent error and promote justice; but when its strict observance would defeat or impede justice, the court may suspend the rule, and it is its duty to do so.</p>

<p>■Counties—Bonds of County—County Roads—Sacramento.—The board of supervisors of Sacramento county have no power, in the absence of statutory authorization, to issue the bonds of the county to raise funds for the construction of a county road, such as a road extending from the city of Sacramento to Folsom. Such authorization is not conferred by section 25 of the County Government Act of 1897 (Stats. 1897, p. 460), which provides that “any county may incur or refund a bonded indebtedness for any purpose for which the board of supervisors are herein authorized to expend the funds of the county.”</p> <p>Id.—Road Tax cannot be Imposed on Municipality—Injunction.—The authority given to the board of supervisors to expend the funds of the county in constructing county roads is limited to localities outside of incorporated cities, and no tax can be levied for county road purposes upon any property in such city; and as property within the limits of the city of Sacramento would necessarily have to be taxed for the payment of the bonds of the county issued for the construction of such road, it follows that such bonds, if issued are illegal, and the levy of a special tax for their payment will be enjoined at the instance of a taxpayer of the municipality.</p>

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

<p>Partnership—Note of Partner—Share of Firm Debt—Indorsement by Firm.—The liability of a partnership upon a note of an individual partner given to the firm for his share of the firm’s indebtedness to a bank, one-half of which had been paid by the other partner, and indorsed by the firm to the plaintiff, who advanced the money therefor to the firm, with the understanding that it was to be applied in payment of the remaining indebtedness of the firm to the bank, to which it was in fact applied, is merely that of an indorser, and not that of a principal debtor to the plaintiff for money borrowed.</p> <p>Id.—Payments by Checks in Firm Name. —The payment of installments of interest on such note by checks drawn in the firm name by the maker of the note, or by the bookkeeper, under his direction without the knowledge of the other partner, does not prove that the note was a principal obligation of the firm.</p> <p>Id.—Release of Firm as Indorser—Renewal of Note by Maker—Unauthorized Indorsement.—After release of the firm as indorser of such note, by failure of the holder to make demand upon the maker, and to give notice of nonpayment, upon subsequent renewal of the note by the partner who was the maker thereof, such partner is not authorized to use the name of the firm in an indorsement of the renewed note, and the other partner cannot be held liable thereon.</p>