Volume 122 — California Reports

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

<p>Resulting Trust—Support of Finding—Conflicting Evidence— Deed and Receipt.—In an action to enforce a resulting trust in an undivided one-third of a ranch, a finding that the consideration paid therefor was six thousand dollars, of which sum the plaintiff paid one-third, is sustained by evidence for the plaintiff to that effect, though contradicted by the deed to defendant’s testator, and by a contemporaneous receipt showing that the money paid was four thousand dollars.</p> <p>Id.—Harmless Finding—Support of Plaintiff’s Claim.—The finding that the consideration paid was six thousand dollars is harmless, even if unsupported by the evidence, where the evidence tended to show that plaintiff paid two thousand dollars toward the purchase. That evidence supports the plaintiff’s claim to at least one-third of the property, if the consideration paid was only four thousand dollars.</p> <p>Id.—Discrediting of Plaintiff’s Evidence—Appeal.—The question of the discrediting of the plaintiff’s evidence by the deed and by the receipt, is matter only to he considered by the trial court, and cannot be reviewed upon appeal.</p> <p>Id.—Estoppel—Misrepresentation as to Price.—If the one who-took the legal title in fact made the purchase for four thousand dollars, after having represented to the plaintiff that the price-to he paid was six thousand dollars, and taking one-third of that amount from plaintiff for the avowed purpose of making the purchase on that basis, he and his personal representatives are estopped from claiming that the money received from the plaintiff was not used in the purchase, but was treated as a loan.</p> <p>Id.—Purchase from Income of Trust Property—Second Resulting Trust not Established.—A second resulting trust in another ranch purchased by the trustee from the income of the • first ranch, in which plaintiff was the beneficiary of a resulting trust as to an undivided third, is not sufficiently established by mere proof of such beneficial ownership and of plaintiff’s-possession in common with the trustee, who was the managing, owner of the first ranch.</p> <p>Id.—Presumption as to Shares of Income.—In the absence of proof of their agreement, or as to what were in fact their respective shares of the income of the trust property, it cannot be presumed that the beneficial owner of the undivided third thereof owned one-tliird or any other fixed proportion of the “income.”</p> <p>Id.—Burden of Proof—Certainty Required.—The burden of proof rests on the one who seeks to establish a resulting trust, to show by clear proof that a definite amount of money belonging to him was furnished by him, and was used in making the purchase. The prevailing effect of the legal title cannot be overcome by surmise or conjecture, or otherwise than by satisfactory proof, showing with certainty the precise amount of money paid by the beneficiary.</p> <p>Id.—Effect of Laches—Scrutiny of Evidence—Measure of Proof.—Laches of the plaintiff, though falling short of barring his claim, should make the court more cautious in scrutinizing the evidence, and gives it strong ground to apply the rule that all the elements of a resulting trust should he clearly proved.</p> <p>Id.—Trust not Barred—Possession of Beneficiary.—Laches cannot he invoked to bar or defeat a resulting trust in favor of one who has been in continuous and undisputed possession of the property, or who is in joint possession with the trustee, who admits the rights of the beneficiary.</p> <p>Id.—Neglect to Assert Rights—Neglect of the claimant to assert his rights as beneficiary for a long period of time while in joint possession with the trustee may lie evidence tending to show that he has no rights as beneficiary, hut cannot of itself const!tute a bar; and laches cannot be set up, so long as the rights of the beneficiary are admitted by the trustee.</p> <p>Id.—Evidence—Deed of Other Lots to Trustee.—A deed of other lots to the trustee made after the purchase by him of the second ranch, without knowledge of the plaintiff, and in which the latter claimed no interest, is admissible as tending to show the use of the incomes by the trustee, and to rebut the claim that he always consulted the plaintiff about business affairs; but such evidence is so slight and inconsequential that its rejection does not require a reversal.</p> <p>Id.—Impeachment of Witness—Names of Persons Present.—In laying the foundation for the impeachment of a witness by contrary declaration, section 2052 of the Code of Civil Procedure does not require that counsel, in stating the names of the persons present, should state negatively that no other persons than those named were present; and where only the two were present, it is superfluous to state that the person spoken to was present.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco, sustaining a demurrer to an application for a writ of review. J. M. Seawell, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Tbust—Bank Deposit Payable to Beneeiciabies—Death oe Depósitos—A trust for the benefit of two sisters of the depositor of money in a savings bank, in the residue remaining at her death, is sufficiently proved by evidence showing that, in her lifetime, the deposit was changed by the bank, upon her order, so as to make it payable to the individual order of either of her sisters, or of herself, for the purpose orally declared to the bank of arranging the deposit so that her sisters could draw it at her death, and have the immediate benefit of it without probate of her estate, and by her addressing them a letter stating what she had done, and that upon her death they could draw the money, and divide it equally between them, and directing them where they could obtain the bank-book.</p> <p>Id.—TBtisr in Pebsonal Pbopebty, How Obeated.—A trust in personal property need not be in writing, and no special form of words is required to create it. The trust in the remainder of the bank deposit for the benefit of the sisters of the depositor was sufficiently created as to the trustor and beneficiaries, under section 2221 of the Civil Code, and was also sufficiently created, as-to the trustee, under section 2222 of the same code.</p> <p>Id.—Acceptance by Beneeiciaby—Demand—Action to Eneobce Tbtjst.—The code does not require that the beneficiary shall be informed of the trust, or shall express an acceptance of it. A demand made by the beneficiaries upon the bank for payment of the deposit, and an action to enforce the trust, is a sufficient acceptance by them.</p> <p>Id.—Mutual Consent oe Teustob and Tbustee—Unbescinded-Tbust.—The mutual consent of the trustor and trustee creates a trust of which the beneficiary may take advantage, in so far as it has not been rescinded or revoked.</p> <p>Id.—Poweb oe Teustob to Withdraw Deposit—Revocation in Pabt.—The power of the trustor to withdraw the deposit does not affect the validity of the trust, as to the remainder thereof; and it is immaterial whether such power be considered a power of revocation under section 2280 of the Civil Code, or a trust in her favor of so much of the fund as she might withdraw, and in favor of her sisters, of the remainder. A power of revocation, exercised as to part of the trust property, does not affect the trust as to the remainder.</p> <p>Id.—Possession oe Bank-book—The possession of the bank-book by the depositor, until her death, is immaterial, and does not affect the known trusteeship of the bank for the sisters, as to-the residue of the deposit, after her death.</p> <p>Id.—Pleading—OwNEBsmp oe Deposit—Evidence—In an action to* enforce the trust, it is sufficient to allege the present ownership of the deposit by the plaintiffs without alleging its original ownership by the depositor. The former ownership is matter of evidence, which need not be directly alleged.</p> <p>Id.—Pbesumption—Depositor’s Ownership—Estoppel.—The presumption is, that the deposit made originally by the depositor in her own name, was of her own money; and the bank is es-topped to deny it, unless a claim is made by another who shows-a better right.</p> <p>Id.—Defect in Complaint Cubed by Answeb.—Where the executors-of the estate of the deceased depositor allege in their answer that the deposit was her property, and now belongs to her estate, any defect in the complaint in not alleging such ownership is cured by the answer.</p>

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

<p>APPEAL from an order of the Superior Court of San Joaquin County setting aside an information. Joseph H. Budd, Judge.</p> <p>The facts are stated in the opinion of the court,</p>

<p>Estates of Deceased Persons—Authority of Administratrix—' Unsealed Letters—Collateral Attack.—The absence of the ' impress of the seal from letters of administration purporting to ■ be sealed, which were issued to an administratrix, who was appointed as such, and took the oath and gave bond, and who claimed to hold valid letters, and was recognized as administra-' trix by the cpurt, in orders reciting that she was such, is not-ground for a collateral attack upon her authority to act as ad-' ministratrix, made by the heirs in an action of ejectment.</p> <p>Id.—Void Sale of Realty—Statute of Limitations.—Upon a void sale of realty by an executor or administrator, the statute of limitations of three years after the settlement of the final ac-r' count, prescribed by section 1573 of the Code of Civil Proced-, ure, begins to run after the lapse of a reasonable time in which to obtain settlement thereof. [Per McFarland, J„ Garoutte, J.," and Van Fleet, J. Beatty, C. 3., contra.]</p> <p>Id;—Pleading—Discovery of Grounds of Action.—A complaint averring a discovery of the grounds of action within three years next before the commencement of the action, without offering any explanation or excuse for the ignorance of the plaintiffs concerning patent facts, does not save the operation of the statute.</p>

<p>Insolvency—Partnership—Trust—Counsel Dees.—In an action by the assignee in insolvency of a partnership to recover shares of stock transferred to a trustee for the partners, within thirty days prior to the insolvency proceedings, the trustee is not entitled to recover counsel fees for defending the action unsuccessfully, merely because he accepted the trust in good faith, in ignorance of the insolvency, and of any intention to defraud the creditors of the partnership, and because he doubted whether the stock was firm property, or was the Individual property of the partners, and defended the action in good faith, for the purpose of having the ownership of the stock judicially determined.</p> <p>Id.—Protection op Trustee—Deposit in Court.—The trustee might properly protect himself, without breach of trust, by depositing the shares o-f stock in court, where the individual partners could claim them if shown to be their individual property.</p>

MOTION in the Supreme Court for a writ of supersedeas to prevent the enforcement of an order vacating and setting aside a sale of certain shares of the capital stock of the plaintiff corporation, appealed from the Superior Court of the City and County of San Francisco. W. R. Daingeriield, Judge. The facts are stated in the opinion of the caurt.

<p>Div oece—Extreme Ceuelty—Conflicting Evidence—Appeal.— Where a divorce is sought on the ground of "extreme cruelty, which was largely mental in its character, it is especially in the province of the trial court to weigh the evidence, and where that is conflicting in all substantial matters, its conclusion will not be disturbed on appeal.</p>

<p>Slander—Pleading—Innuendo—Inducement—In an action for slander, when the words spoken are not actionable per se, the innuendo in the pleading can only be employed to interpret the meaning of the words used; and if the natural import of the language is not actionable, the innuendo cannot serve to introduce a broader meaning to make it so, unless connected with proper introductory averments of matter of inducement, or colloquium, setting forth extrinsic circumstances, which, coupled with the language uttered, affects its construction, and makes it actionable. The innuendo cannot supply the place of the colloquium, or inducement.</p> <p>Id.—Meaning Attributed by Bystanders—A defendant cannot be required to answer to a charge of slander merely because bystanders attributed to his language an actionable meaning, different from the natural import of the terms used, if the complaint does not disclose facts from which the court can see that the hearers had a right to put such construction on the language used, or that, as matter of law, it had such meaning.</p> <p>Id.—Charge oe Selling Hogs—Insufficient Complaint.—A complaint, alleging that the defendant spoke of plaintiff the words: “If he [meaning the plaintiff] continues to sell [meaning steal] my hogs, I will send him [meaning plaintiff] where he was another time [meaning the state’s prison of the state of California],” and alleging that the words were so understood by the persons spoken to, but not alleging facts from which the court can see that the words used were susceptible of the meaning alleged, does not state a cause of action.</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>APPEAL from an order of the Superior Court of Los Angeles County dissolving an attachment. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion.</p>

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

MOTIOU to dismiss an appeal from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. E. W. Wilson, Judge. • The facts are stated in the opinion of the court.

<p>MOTIOU to dismiss an appeal from a judgment of the Superior Court of Humboldt County and from an order denying a new trial. E. W. Wilson, 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 orders denying a new trial, and denying a motion in arrest of judgment. William T. Wallace, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

PETITION for writ of mandate from the Supreme Court to the City Clerk of the City of Los Angeles. The facts are stated in the opinion of the court,

<p>Mechanics’ Liens—Building Contract—Maturity of Deferred Payment.—A building contract, providing that the last payment “shall be made within thirty-six days after this contract is fulfilled,” does not make the last payment due until the expiration of the thirty-six days; and the privilege of the owner to pay the contractor before its expiration does not render the contract void, so that materialmen and mechanics are thereby' let in for the full amount of their demands, regardless of the contract price.</p> <p>Id.—Construction of Statute—Penalty.—The provisions of section 1184 of the Code of Civil Procedure, requiring that “at least twenty-five per cent of the whole contract price shall be made payable at least thirty-five days after the final completion of the contract,” and providing that “no payment made prior to the time when the same is due under the contract shall be valid for the purpose of defeating, diminishing or discharging any liens,” etc., in so far as they have the effect to make the owner pay more than he has agreed to pay are penal, and should be strictly construed in favor of the owner, and against the exaction of the , penalty, if in reason they can be.</p> <p>Id.—Popular Sense of Words—Meaning of “Due.”—The words of the statute are to be understood in their popular sense, as applied to deferred payments, which cannot be said to be “due” until the creditor can rightfully demand payment. So understood, a contract allowing the debtor a fixed period within which to make the payment, does not make the debt “due” until the expiration of that period, and does not violate the statute.</p> <p>Id.—Identification oe Dbawings and Specifications—Incomplete Contbact—Execution.—A building contract reciting that the material was to be furnished and the work done in accordance with drawings and specifications “identified by the signature of the parties hereto,” is incomplete and invalid, if no such signed drawings and specifications are to be found. In such case, the whole contract is not reduced to writing and signed by the parties, as required by the statute.</p> <p>Id.—Becobd of Unsigned Plans Attached to Contbact—Plan of Building—The fact that unsigned plans and specifications not referred to in the contract were attached to the contract, and the whole filed as one document, and that the house was actually built in accordance with such plans, can have no bearing upon the question whether the whole contract was reduced to writing and signed by the parties, in compliance with the statute.</p> <p>Id.—Matebialmen—Estoppel—Refebenoe to Unsigned Plans.— Materialmen are not estopped from enforcing their liens under the claim that the incomplete contract was void, for want of signature to the plans and specifications referred to in the contract, by the mere fact that they contracted to furnish lumber and made out bills with express reference to the unsigned plans and specifications attached to the contract, it not appearing that the owner was thereby misled or induced to change his position, or that knowledge of the invalidity of the contract was suppressed by them while dealing with the contractor.</p>

<p>Criminal Law—Libel—Ownership op Paper—Evidence—Admissions—Support of Verdict.—Upon the trial of a charge of criminal libel, the oral admissions of the defendant as to his ownership of the paper which published the libel, and also a lease-to him and another person jointly, designated as publishers thereof, and signed by the defendant, are admissible, as tending to prove his ownership, in whole or in part, and are sufficient proof thereof to sustain the verdict of the jury against him, notwithstanding conflicting evidence to the contrary. .</p> <p>In—Corpus Delicti— Confession—Essence of Libel.—The editorship or proprietorship of the paper publishing the libel does not constitute the corpus delicti; and the acts and admissions of the-defendant relative thereto do not constitute, in legal contemplation, a confession of the crime of libel, the essence of which is the malicious publication of the libelous language.</p> <p>Id—Effect of Admissions—Evidence of Guilt.—The guilt of a defendant cannot be proved by his confession or admissions only; but admissions of the defendant, not amounting to a confession of guilt, are not to be rejected because they may, when connected with other facts preyed, tend to establish his guilt.</p> <p>Id.—Venue—Proof of Circulation of Paper.—The venue of the offense of libel in the county in which the persons libeled resided at the time of its alleged publication is conferred by section 9 of article I of the constitution. It may he shown that the paper was circulated in that county, though published elsewhere; and the means by which it became circulated therein are immaterial. It need not be shown that the defendant circulated it, or caused it to he circulated, in the county of the venue.</p> <p>Id.—Liability of Publisher.—It is sufficient to establish the liability of the publisher of the libelous paper to show that he had control and management thereof, and knowingly allowed the paper to have any circulation which exposed it to be seen and read by other persons; and he is responsible thereafter for its publication, wherever it found its way. It need not appear that he personally wrote or printed the libelous article, or circulated it by his personal direction.</p> <p>Id.—Evidence—Understanding oe Witness as to Language Used —Waiver of Objection.—Where objection to a previous question asked of a witness, as to his understanding of the libelous language used in relation to the persons libeled, bad been overruled, and the question was reframed so as to ask as to his understanding of the language used, without reference to particular persons, and was answered without objection, the opposite party cannot afterward object to the answer given.</p> <p>Appeal—Absence of Exceptions.—Rulings not shown by the record to have been excepted to cannot be considered upon appeal.</p>

<p>Attachment—Discharge of Writ as to Particular Property— Appeal.—An order discharging a writ of attachment in respect to particular property claimed not to be liable to seizure under the writ is, in effect, an order dissolving the attachment as to such property, and is appealable under section 963 of the Code of Civil Procedure.</p> <p>Id.—Exemption—Pranchise of Street Railway Company—Personal Property.—The exemption from seizure under attachment or execution of the franchise of a street railway company does not extend to or include its personal property, consisting of cars, trucks, electrical goods and supplies, fire-proof safes, etc., though necessary to be used in the business of operating its line. Such property does not emanate mediately or immediately from the state, and has no character of a personal trust; and it is subject to attachment or execution in like manner as other property not exempt by statute.</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.</p>

<p>Mechanic’s Lien—Notice of Lien—Statement of Contract.—A . notice of lien filed by a contractor with whom the owner of a lot contracted directly for the erection of a house thereon, the ’ terms of the contract being fully known to the owner, is not' rendered invalid by omitting to state that the contract price was to be paid in installments as the work progressed, if no ' incorrect statement of the terms of the contract was made, and no time was given, or condition existed, other than that stated in the notice, and it stated the correct amount of the contract. price, and the amount paid thereon, which exceeded the amount of the installments. Such notice substantially complied with . section 1187 of the Code of Civil Procedure, and entitled the' contractor to enforce the lien for the unpaid part of the purchase price.</p> <p>Id.—Construction of Code-Terms, Time Given, and Conditions of Contract.”—The provisions of section 1187 of the Code of Civil Procedure, that the notice of lien shall contain a state-' ment of the “terms, time given, and conditions of the contract,” is not to be construed as requiring a statement of all the details., of the contract, but is to have a reasonable construction in view of the purpose for which it is required; and the statute, being' remedial, is to receive a liberal construction, for the purpose of carrying its object into effect, and the notices required to be given thereunder have regard to substance rather than to form.</p> <p>Id.—Extra Work—Admission of Pleadings—A statement in the notice of lien that extra work was performed for an agreed price is supported by an allegation of that fact in the complaint, and its admission by failure of the answer to deny it.</p> <p>Id.—Foreclosure of Lien—Order Granting New Trial—Limitation .of Ground to Ins deficiency of Notice—Appeal.—An order granting a new trial, after the rendition of a judgment foreclosing a lien in favor of the contractor, which is expressly lim- ■ ited to the ground of the insufficiency of the notice of lien, will be reversed upon appeal, where it appears from the record that, the notice was sufficient; and such limitation in the order precludes the contention upon appeal that the order may have been' granted for insufficiency of the evidence to support the findings.</p>

<p>action fob Value of Building Plans—Resolution of Boabd of Education—Statute of Limitations.—An action to recover the reasonable value of architectural plans and specifications for an addition to a school building, which had been merely adopted-by a resolution of the board of education, without further action on its part, is upon a contract not founded upon an instrument of writing, and is subject to the limitation of two years provided in section 339 of the Code of Civil Procedure.</p> <p>Id.—Resolution not Actionable as a Wbitten Instbument.—The resolution of the board of education, not having expressed any contract or obligation to pay the plaintiff any sum of money for the plans adopted, cannot, of itself, as a written instrument, be the foundation of an action to compel payment.</p>

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

<p>Estates oe Deceased Persons—Community Property—Distribution—Eights op Widow—Election.—The surviving widow-takes her rights in the community property by succession from the husband; and her rights theiein are concluded by the decree of distribution of his estate, if not appealed from, whether she has elected to take her one-half interest, or to take a life estate in the whole under his will.</p> <p>Id.—Eppect op Decree op Distribution.—The decree of distribution, when final, becomes the measure of the rights of all claimants to the estate, and their rights are to be determined by the terms of the decree.</p> <p>Partition—Allotment op Community Property to Husband and W'ipe.—The community character of property purchased by the husband is not changed by a subsequent decree in partition allotting it to the husband and wife jointly. That decree conferred no new or additional title upon the wife.</p> <p>Homestead—Declaration by Wipe.—A declaration of homestead by a wife must contain the statement required by section 1263 of the Civil Code, “showing that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit,” and if it omits such statement it is ineffectual.</p>

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

WRIT of review in the Supreme Court to annul a judgment of the Superior Court of San Diego County. E. S. Torrance, Judge. The facts are stated in the opinion of the court.

<p>of Defendant.—Upon the trial of a defendant accused of the murder of his brother, where there was evidence that the deCendant fired the fatal shot under the belief that his brother was a tramp approaching toward him in a threatening attitude, and that after the shooting he exhibited signs of great grief, and that he was ill, and under the effects of a large quantity of quinine, at the time of the shooting, witnesses for the prosecution who observed the appearance and manner of the defendant shortly after the homicide, may be asked if they saw anything strange or peculiar in his manner.</p> <p>Id.—Anticipation of Defense—Harmless Error—The prosecution should not have anticipated the defense with evidence as to the manner and appearance of the defendant shortly after the homicide; but error in introducing such evidence at the wrong time will not justify a reversal.</p> <p>Id.—Cross-Examination of Defendant—Impeachment—Perjury.— Upon cross-examination of the defendant as a witness in his own behalf, it is not competent to introduce, for the purpose of impeachment, evidence showing that he committed willful perjury at the coroner’s inquest, upon a matter concerning which he had not testified in chief.</p> <p>Id.—Evidence ‘ of Specific Acts.—Specific bad acts, or specific instances of untruthfulness, cannot be shown for the purpose of impeaching a witness.</p> <p>Id.—Attack upon Defendant’s Character—A defendant cannot be cross-examined as to other matters for the purpose of discrediting him by an attack upon his character, which does not concern the matter about which he has testified.</p> <p>Id.—Constitutional Protection of Defendant.—A defendant accused of crime in this state has a constitutional right to be protected from forced examination as to any matters concerning which he has not voluntarily testified in his own behalf; and no evidence can be wrung from him.</p> <p>Id.—Waiver.—A defendant does not waive his constitutional right to protection by taking the stand as a witness; nor can he bind himself in advance to waive it. He may claim his right when the occasion arises.</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>Justice oe the Peace—Vacancy in Elective Office—County Government Act—Constitutional Law.—The provisions of the-County Government Act of 1893, authorizing boards of supervisors to fill by appointment the office of justice of the peace-•when vacant, are not in conflict with the provisions of the con-, stitution making the office an elective one.</p> <p>Id.—New Township—Vacancy—Appointment by Supervisors.— The board of supervisors has power to appoint a justice of the-peace for á new township created by them under the County-Government Act, to fill a vacancy in the newly created office, which became vacant on the instant of its creation as an existing office without an incumbent.</p> <p>Id.—Eight and Duty to Hold Over—Failure of Election.—A justice of the peace, properly appointed for a new township,, has the right, and it is his duty, to hold over, as an incumbent of the office da jure, until h’"s successor is elected and qualified. The failure to elect his successor at the first general election following his appointment cannot deprive him of his right to act.</p> <p>Criminal Law—Homicide—Preliminary Examination—Jurisdiction of Justice of the Peace—Information.—An information charging the crime of murder cannot be set aside as invalid for want of jurisdiction in a justice of the peace to hold the preliminary examination, on the ground that he had been appointed by the supervisors for a new township created by them, and had held over after failure to elect his successor.</p> <p>Id.—Trial—Separation of Jurors—Discretion—Constitutional Law—The court has discretion hi permit a separation of the jurors in a criminal case, during the impaneling of the jury and the subsequent progress of the trial, after properly admonishing them, without the consent of the defendant or his counsel. Section 1121 of the Penal Code, conferring such discretion, is not in violation of section 7 of article I of the constitution, securing the right of trial by jury.</p> <p>Id.—Instruction Requested—Charge of Court.—Instructions re-, quested upon propositions substantially embodied in the charge of the court may properly be refused.</p> <p>Id.—Inapplicable Instruction as to Manslaughter.—When it clearly appears from the evidence that the defendant, if guilty at all, was guilty of murder of the first or second degree, a requested instruction relating to the crime of manslaughter should not be given.</p> <p>Id.—Harmless Introduction to Charge.—Preliminary statements in a charge to the jury, by way of introduction, commending the attention of the jury, et cetera, and referring to the provisions of the law for securing a fair trial, et cetera, such as are not uncommon, and could not have operated to the prejudice of ttte defendant, are not ground of reversal.</p> <p>Id.—Defining Degrees of Murder—Use of Language of Code.— It is proper for the court to use the language of the Penal Code in defining the degrees of murder; and the fact that such language refers to instances of murder in the first degree, to which the evidence does not apply, cannot prejudice the defendant.</p> <p>Id.—Instruction as to Verdict—Judgment of Jury.—An instruction, under an information for murder, that “the jury may convict the defendant of murder of the first degree, murder of the second degree, or aquit him altogether, as in your judgment the evidence may warrant, in view of the law as given you by the court,” is not misleading, or subject to valid objection, for the use of the words “as in your judgment the evidence may warrant.”</p> <p>Id.—Presumption of Innocence—Reasonable Doubt.—An instruction as to the presumption of innocence, and as to reasonable doubt, given in the language of section 1096 of the Penal Code, to which the court added that such presumption goes with the defendant all through the case and operates in his favor until a verdict is arrived at, and also stated what is a reasonable doubt in language approved many times by this court, fully and clearly states the law upon those subjects.</p> <p>Id.—Reading Fobms of Verdict.—1The court may read to the jury .. the different forms of verdict possible to be used by them under a charge of murder, before handing them to the jury at the close of the charge; and it is not objectionable that the form ' first read was that of conviction of murder in the first degree, and fixing the death penalty, and the form last read that of finding the defendant not guilty.</p> <p>Id.—Evidence—Pbevious Quabbel and Assault.—Evidence show- . ing that the defendant and the woman killed by him, while s living together, had quarreled, resulting in her leaving him and fleeing to a neighbor’s house for protection, and that he had followed her and attempted a murderous assault upon her, and had threatened her when his assault was frustrated, is admissible, as tending to show malice and illwill on his part, and a motive for the murder committed a few days later.</p> <p>Id—Threats Against Life.—Evidence of threats made by the defendant against the life of the deceased prior to the murder is admissible, as tending to show malice.</p> <p>Id—Confessions.—Confessions made by the defendant are admissible, if the proper foundation for the introduction of such evidence is laid.</p> <p>Id.—Motion in Abbest of Judgment.—A motion in arrest of judgment can only he founded on defects appearing upon the face of the information or indictment, and cannot be made for want of a legal commitment before the filing of the information.</p>

<p>APPEAL from an order of the Superior Court of Santa Barbara County refusing to dissolve an attachment. W. B. Cope, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal prom Judgment—Limitation op Time—Review op Evidence.—The limitation of time for an appeal from a judgment does not begin to run until the entry of the judgment, and no valid appeal can be taken therefrom prior to its entry; yet the evidence cannot be reviewed, upon such an appeal, unless it is taken within sixty days after the rendition of the judgment, which consists of its announcement by the court and entry upon the minutes of the clerk, or of the filing of the findings and order for judgment.</p> <p>Id,—Unreasonable Statute—Matter por Legislature.—The fact that the law, without apparent reason, permits the successful party effectually to prevent a review of the facts upon an appeal from the judgment, • by delaying its entry for sixty days after its rendition, is matter for the consideration of the legislature.</p> <p>Id.—Review op Findings—Bill op Exceptions.—If the appeal from the judgment is not taken within sixty days after-its rendition, the evidence contained in the bill of exceptions cannot be looked at to explain or make clear the findings; but the findings must speak for themselves.</p> <p>Water Rights—Appropriation—Railroad Lands—Statute op Limitations.—The statute of limitations in favor of an appropriator of water upon lands embraced in the grant by Congress to.a railroad company began to run from the date of the grant,, if the water was appropriated prior to the grant, and from the date of the appropriation, if made thereafter, and not from the date of the patent subsequently issued.</p> <p>Id.—Public Lands of United States—Act of Congress.—An ap propriation of water upon public lands belonging to the Unite A States is vested in the appropriator by grant under the act of Congress of 1866 (U. S. Rev. Stats., secs. 2339, 2340); and as to lands thereafter acquired by others from the United States, the right of the appropriator rests upon the act of Congress, and not upon adverse possession under the statute of limitations, except as to new acts of the appropriator performed after the acquisition of the title.</p> <p>Id—State Lands—Civil Code.—The state cannot object to an appropriation of water made upon state lands by its permission, in pursuance of the Civil Code; nor can a subsequent purchaser of the lands from the state object thereto; and the statute of limitations can only have application to acts of the appropriator performed after the acquisition of the title of the state by such purchaser.</p> <p>Id.—Change of Place of Diversion—New Diversion—Substitution of Flume for Ditch.—An objection that the place of diversion was changed so materially as to constitute a new diversion, by the construction of a flume which was used in lieu of an open ditch, cannot be sustained as a ground of reversal, if the court found that it was not a new or original division, and if evidence to the contrary cannot be considered upon appeal, and if it further appears that a new diversion lawfully made, as it might be. would not affect the defense of the statute of limitations.</p> <p>Id.—Improper Use of Pipe Line—Reconstruction of Abandoned Flume—Pleading—Judgment Outside of Issues.—A judgment enjoining the use of a pipe line found to have been constructed by the defendant without right along the course of a flume, which was found to have been abandoned and disused, and for the most part destroyed, in so far as it permits the defendant to reconstruct and maintain the dam and flume, and adjudges its right to do so, without any reference in the pleadings to the reconstruction of the flume in any event, is outside of the issues, and must be reversed, with leave to both parties to amend or supplement the pleadings.</p>

<p>Estates of Deceased Persons—Contest for Letters—“Person-Interested”—Public Administrator.—A public administrator, who asserts a right to administer the estate of a deceased person under section 1365 of the Code of Civil Procedure, is a “person interested’ in a contest for letters of administration, within the meaning of section 1374 of that code, and may appear and contest the appointment of another petitioner.</p> <p>Id.—Construction of Code—Nomination by Nephews and Nieces —Discretion—Appeal.—The nephews and nieces of the decedent have not the absolute right of nomination and revocation of letters secured to the first five classes enumerated in sections 1365 and 1383 of the Code of Civil Procedure, but the rights of their nominee are secured only by section 1379 of that code, under which his appointment by the court is discretionary; and the exercise of its discretion to refuse such appointment and to appoint the public administrator, who is next entitled, on the ground that it is for the best interest of the estate, will not be disturbed upon appeal, if no abuse of discretion is made to appear in the record.</p> <p>Id—Legislative Adoption ' of Construed Statute—Vacancy in Administration.—Section 1379 of the Code of Civil Procedure, relative to appointments of nominees of persons entitled to administer, being a re-enactment of section 66 of the former practice act, which was construed to apply only in cases where there was a vacancy in the administration, it seems should be considered as a legislative adoption of the known construction of the latter section.</p>

<p>Trust Deed—National Bank—Corporation—Power to Contract —Estoppel.—The grantor of a trust deed of real estate, securing his indebtedness to a national bank, having dealt with the bank as a corporation having power to enter into the contract of which he received the benefit, cannot be heard to object to a lack of proof of its corporate existence and power to make such contract.</p> <p>Id.—De Facto Corporation—Parol Evidence.—The parol evidence of the bank’s president, received without objection, proving the organization of the bank as a national bank under the laws of the United States, and establishing the fact that for many years before and after the execution of the trust deed it had done business as a national bank, is sufficient to establish its corporate existence de facto.</p> <p>Id.—Power to Loan Upon Trust Deed.—The United States alone can be heard to question the authority of a national bank to make a loan of money upon the security of a trust deed of real estate, under sections 5136 and 5137 of the Revised Statutes of the United States.</p> <p>Id.—Validity of Trust Deed—Restraint upon Alienation.—A trust deed securing a loan of money payable at a fixed time in the future is not invalid as imposing an unlawful restraint upon alienation.</p> <p>Id.—Foreclosure of Prior Mortgage—Trust Deed not Merged. A trust deed is not merged or extinguished in a judgment of foreclosure of a prior mortgage, if no foreclosure of the trust deed was attempted or ordered by the court, and if the bank secured thereby, when made a party to the foreclosure, merely asked for an application of any surplus to the reduction of its debt.</p> <p>Id—Foreclosure Sale of Homestead—Action to Redeem;—Quieting Title under Trust Deed.—An action cannot be sustained to redeem a homestead separately sold to the defendant under foreclosure of the prior mortgage, if the defendant has, prior to such action, acquired title thereto by a valid sale under the junior trust deed which antedated the homestead; and a judgment under a cross-complaint, quieting the title of the defendant as against the plaintiffs, must be sustained.</p>

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

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

<p>Política!, Convention—Fusion Ticket—Minority Nominations— Conflicting Certificates.—A certificate of nominations, made by a regularly authorized state or district convention of a political party, must be received and filed by the secretary of state, and its nominees placed upon the official ballot, notwithstanding it has nominated a fusion ticket representing other political parties besides its own; and a certificate of nominations made by a minority of the delegates withdrawing from such convention, and organizing another, must be rejected, notwithstanding its nominees are members of that political party only.</p>

<p>Fraud—Circumstantial Evidence.—Fraud may In all cases be proved by circumstantial evidence; and in aid of the direct facts proved, legitimate inferences are permitted to be indulged to establish other facts not directly in evidence.</p> <p>Id.—False Representations—Reasonable Ground for Belief.— Where a man makes a representation in the reasonable belief that it is true, fraud will not be imputed to him if it afterward be shown to be untrue; but there must be reasonable grounds for his belief, and if neither his belief of its truth, nor a reasonable ground for such belief, is made to appear, fraud in making the false representation may be inferred from circumstances indicating it.</p> <p>Life Insurance—False Representations by Agent—Defense to Check for Premium—Sufficiency of Proof.—In an action by a managing agent of a life insurance company upon a check given for the first premium upon a policy of life insurance, which was defended on the ground of false representation, made by the special agent who secured the application, as to the favorable nature of the policy to be given, where no belief or reasonable ground for belief of the special agent in the truth of the representations was shown, and it appeared that the policy returned did not conform to the policy represented, and that it was highly improbable that an insurance company doing business legitimately would use such a policy as that represented, the circumstances are sufficient to justify the inference of the fraudulent character of the representations.</p> <p>Id.—Application -in Writing—Parol Evidence of Fraud.—It appearing that the special agent prepared the application, and that its nature was not understood by the applicant, and was not readily understandable by one not versed in insurance matters, the fact that it was in writing, and that the policy conformed thereto, does not preclude parol evidence of false and fraudulent representations made by the special agent concerning the policy, and that the signature of the applicant was secured by misrepresentation and fraud sufficient to vitiate the transaction.</p> <p>Id.—Check Payable to Special Agent—Ownership of Company-Action by Managing Agent—Support of Finding.—In an action by the managing agent personally upon a check drawn by the applicant in favor of the special agent for the amount of the first premium, payable four months after date, a finding that the plaintiff did not purchase the check for value before maturity, or at all, but took it as agent for the insurance company, which was its owner and holder, is supported by evidence that, upon delivery of the policy and its immediate return by the applicant, as not being according to the understood terms, the managing agent wrote to the applicant that the application and check when received by him “immediately became the property of the company, and could not be recalled.”</p> <p>Id.—Payments by Managing Agent.—Such finding is not overthrown by evidence that, when the check was received, the managing agent advanced the commission of the special agent, and that subsequently, after knowledge of the repudiation of the contract by the applicant, he settled and adjusted the remainder of the premium in his accounts with the company as a cash charge against him.</p>

HABEAS COB'PTJS to the Supreme Court to test the validity of an order of imprisonment for contempt of the Superior Court of the City and County of San Francisco. William T. Wallace, Judge. The facts are stated in the opinion of the court.

<p>Evidence—Law oe Another State—Question of Fact and raw.— The law of another state on which depended the obligation of a judgment of that state sued upon in a court of this state, may be proved as a fact; though the effect of the law, when proved, is a legal question for the court.</p> <p>Id.—Parties—Presumptions upon Appear.—Upon appeal from a judgment rendered in this state upon a deficiency judgment rendered in another state, where the record shows that the law of the other state was proved, but its tenor is not disclosed by the record, it cannot be presumed that the failure to make the grantee of the mortgagor a party to the foreclosure rendered the judgment void; but it must be presumed that the court properly considered the evidence, and correctly inferred therefrom that, under the proved law of the other state, the former judgment was rendered by the court in the due exercise of its jurisdiction, and was in all respects valid.</p>

<p>APPEAL from an order of the Superior Court of Los Angeles County refusing to discharge a writ of attachment. Lucien Shaw, 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 the Superior Court of the city and county of San Francisco. William T. Wallace, Judge. The facts are stated in the opinion of the court,

<p>Criminal Daw — Obtaining Money under False Pretenses— Pleading—Falsity op Representations—Negative Pregnant. An indictment for obtaining money under false pretenses, consisting of representations that defendant “was the owner of and in the possession of a certain tract of land,” and had a right to lease it, in which a denial of the truth of the representations is made by a negative pregnant, averring that the defendant “in fact and in truth was not the owner of and in the possession of” the said tract of land, is insufficient to negative the ownership or right of possession of the land, or to overcome the presumption of innocence, and a demurrer thereto should be sustained.</p> <p>Id—False Pretense op Right to Lease—Conclusion op Law.— The representation that defendant had the right to lease the land, having been expressly made to depend upon the fact of the ownership and possession of the land, is a conclusion of law, and an allegation of its falsity cannot render the indictment sufficient, the falsity of the representation as to the ownership not having been properly pleaded.</p> <p>Id.—Representations in Letters—Venue not Shown—Presumption upon Appeal.—The representations complained of having been made in letters sent by mail, and no evidence appearing in the record upon appeal as to where any of them were mailed, or received, and the verdict having been assailed as contrary to the evidence, it must be presumed upon appeal that the bill of exceptions contains all the evidence tending to prove every material fact for the prosecution, and the judgment must be reversed for want of proof of the venue.</p> <p>Id.—Title in Third Person—Disputed Rights—Bona Fide Claim of Dependant—Question por Jury—Though any beneficial right of the defendant in land, the legal title to which was in the name of a third person, was in dispute, and though, on the theory of the beneficial ownership thereof claimed by the defendant, such third person presumptively took both the title and the rents of the land as security for debts due to other parties, and the defendant does not appear to have had a right of possession until such debts were paid, yet it was for the jury to determine whether the defendant, in claiming the ownership and right to lease the land, was acting in good faith, according to what he believed was his right; and if so, he was guilty of no crime.</p>

<p>PEOHIBITION from the Supreme Court to the Superior Court of Lassen County. F. A. Kelly, Judge.</p> <p>The facts are stated in the opinion of the Court.</p>

J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court, and in its opinion rendered upon the former appeal. (Fox v. Sale etc. Min. Co., 108 Cal. 369.)

<p>Contest of Will—Evidence—Declarations of Testator—Appeal— Objection of Respondent.—Upon appeal from a judgment rendered in a contest of the probate of a will, rejecting the probate upon the ground of a revocation of the will by the testator, an objection of the respondent to evidence introduced by the appellant showing declarations of the testator made subsequently to the alleged revocation that he had a will and that it was all right, as being no part of the res gestae, and therefore inadmissible, is not subject to review; but the case must be considered upon such appeal in the light of all the evidence disclosed in the record.</p> <p>Id.—Revocation of Will—Cancellation of Signatures.—A will may be revoked by cancellation of the signatures of the testator upon the margin of the pages and subscription to the will, with the intent of accomplishing a revocation.</p> <p>Id.—Burden of Proof—Presumptions.—The burden upon the contestant to prove the revocation of a will proposed for probate is sustained prima facie by proof that the will, when found, bore the marks of cancellation upon it; and it is presumed the marks were made by the testator, with the intent of revoking the instrument.</p> <p>Id.—Corroborative Evidence—Intent to Make New Will.—Writings upon the envelope containing the proposed will, and after the end of the will, in the handwriting of the testator, indicating his intent to make a new will, owing to a depreciation in his property, though not executed with the formalities of a will, and not, therefore, sufficient of themselves to establish a revocation of the will, afford strong corroborative evidence as to the presumed intent of the testator to revoke the will by cancellation,of his signature.</p> <p>Id.—Conflicting Evidence—Support of Finding—Appeal.—Evidence of" the declarations of the testator, made after the cancellation of his signatures, that he had a valid will, when considered upon appeal, though received against the objections of the respondent, presents merely a conflict of evidence as against the presumptions arising from such cancellation, and the corroborative evidence in support of the presumption of intent to revoke the will, and a finding that the cancellation was made for the purpose of revoking the will, cannot be disturbed upon appeal.</p> <p>Id.—Dependent Revocation—New Defective Will—Application of Rule.—The doctrine that where the destruction of a will is connected with the making of another will, so as fairly to raise the inference that the revocation was intended to depend upon the efficacy of the new disposition, such will be its legal effect, and that if the new will is inoperative from any defect, the revocation fails, and the original will remains in force, is dangerous in its application, and must be held inapplicable, where the original will was canceled with intent to revoke it, and there was no attempt to make a new will, although there was an. evident intention to make another will at some future time» owing to a change in the property of the testator.</p> <p>Id.—Finding—“Purpose” of Revocation—“Intent.”—A finding that the testator canceled and obliterated the will and his signature thereto “for the purpose of revoking the same” is not defective ■ for not literally following the language of the statute “with the intent and for the purpose of revoking.” The expressions “intent” and “purpose” are synonymous and identical in meaning.</p> <p>Id.—Sanity of Testator at Time of Revocation—Omission in Findings—Presumption.—The omission of the court to make a finding that the acts of revocation were performed by the testator when he was of a sound and disposing mind is immaterial, where there was no issue as to his sanity or mental competency; and where he was found to be of a sound and disposing mind when he made the will, his sanity is presumed to have continued until it was revoked, in the absence of evidence to the contrary.</p>

<p>Criminal Law—Special Venire—Appointment oe Elisor—Challenge to Panel—Review op Error.—The irregular appointment of an elisor to summon a special venire of jurors in a criminal case Is not ground for a challenge to the panel, if it does not appear that the elisor was biased or prejudiced; but where an exception was reserved to the order of appointment, it may be reviewed upon appeal as an alleged error at law occurring during the course of the trial.</p> <p>Id.—Power to Appoint Elisor—Disqualification of .Sheriff and Coroner.—Under section 4192 of the Political Code, which must be construed together with section 226 of the Oode of Civil Procedure, the court has no power to appoint an elisor, unless it appears that both the sheriff and the coroner are disqualified; and an appointment of an elisor to summon a jury under the latter sec- • tion, by reason merely of the disqualification of the sheriff, without a showing that the coroner was also disqualified, or unable to act, is erroneous.</p> <p>Id.—Bias of Sheriff—Charge of Retiring Jury.—A sheriff who has been proved to be. disqualified for bias to summon a jury should not be intrusted with the charge of the jury when retiring to deliberate upon their verdict; but the court should put them in charge of the coroner, or of an elisor, if the coroner is shown to be disqualified or unable to act.</p> <p>Id.—Instruction as to Reasonable Doubt.—An instruction as to reasonable doubt, given in the approved language of Chief Justice Shaw, is free from error; and it is the better practice to confine. the instruction on that subject to that language, and not to run the risk of error by complex variations of verbiage.</p> <p>Id.—Insanity Produced by Intoxication—Voluntary Act—General Insanity.—A sane person who volun tarily becomes intoxicated is not excused for the commission of a crime because of any mental derangement, mania a potu, or insanity produced by and consequent upon his own voluntary act; but if, by reason of long-continued indulgence in drink, the brain has become permanently diseased, and general insanity has resulted, so that the victim is incapable of distinguishing right from wrong, he is not legally responsible for his acts.</p> <p>Id.—Conflicting Instructions as to Insanity.—Conflicting instructions concerning insanity produced by intoxication, which do not emphasize the distinction between insanity induced by the voluntary act of a sane person in becoming intoxicated, and general insanity resulting from chronic alcoholism, and which leave the subject confused and confusing, are erroneous.</p> <p>Id.—Manslaughter—Inapplicable Instruction.—Where there is no evidence tending to reduce the crime of murder charged against the defendant to the grade of manslaughter, it is not error for the court to refuse an instruction upon the crime of manslaughter.</p>

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

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

<p>Action by Married Woman—Enticing Away Husband.—A married woman, whose husband has deserted her, may maintain an action in her own name for damages against another woman who has alienated her husband’s affections, and enticed and abducted him from her, with intent to deprive her of his companionship, assistance, and support.</p> <p>Id.—Parties—Desertion by Husband—Construction op Code.—Section 370 of the Code of Civil Procedure, which authorizes a married woman to sue alone, without joining her husband as a party, “when she is living separate and apart from her husband, by reason of his desertion of her,” is to be construed together with section 95 of the Civil Code, defining willful desertion; but it is not necessary that the desertion must have continued for the statutory period entitling the wife to a divorce, in order to enable her to sue in her own name.</p> <p>Id.—“Abduction” op Husband—Persuasion and Enticement.—Section 49 of the Civil Code, forbidding “the abduction of a husband from his wife,” and “the abduction or enticement of a wife from a husband,” is not to be construed as limiting the wife to an action where her husband has been forcibly taken from her, or as conferring a more favorable rieht of action upon the husband than upon the wife. The “abduction,” in either case, may be accomplished by persuasion or enticement; and the section confers upon the wife a right of action against another woman for alienating her husband’s affections and enticing him away from her.</p> <p>Id.—Damages—Community Property.—The question whether the damages recovered by the wife would or would not be community property cannot affect the right of the wife to sue in her own name, when expressly given both a right of action and a remedy in her own name by the provisions of the code.</p> <p>Id.—Gist of Action—Pleading—Certainty.-*-The gist of the action by the wife is the enticing or taking away of her husband, and alienating his affections, and although a complaint alleging such gist ought also to state with some certainty during what period of time the enticements of the defendant were brought to bear upon the husband, yet the failure so to do, though specially demurred to, is not ground for dismissing the action, without leave to amend; but the plaintiff would be entitled, under such complaint, to prove' that the conduct of the defendant began while her husband was living with her, prior to his alleged desertion of her, and that defendant enticed him away from the plaintiff,</p>

<p>APPEAL from an order of the Superior Court of Placer County settling the final account of an administratrix. J. E. Prewett, Judge.</p> <p>The facts are stated in the opinion of the court,</p>

MANDAMUS from the Supreme Court to the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge. The facts are stated in the opinion of the court.

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

APPLICATION to the Supreme Court for a writ of mandate to the Secretary of State. The facts are stated in the opinion of the court,

J. W. Hughes, Judge, The mortgage note referred to in the opinion, bore interest at the rate of eleven per cent per'annum, payable semi-annually. Further facts are stated in the opinion.

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

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

<p>PETITION in the Supreme Court for writ of mandate to the State Controller.</p> <p>The facts are stated in the opinion.</p>

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

<p>Negligence—Train Backed Upon Crossing—Contributory Negligence —Question for Juey.—One who, after having looked and listened both ways for an approaching train, without indication thereof, and shortly after having seen a person drive toward him across the track without indication of danger, drove across it at a walk, and was injured hy a train negligently backed upon him, which he could not see approaching by reason of stationary cars and other obstructions, cannot be said, as matter of law, to he guilty of contributory negligence, regardless of whether he did or did not hear the ringing of the hell; but the question as to his contributory negligence is for the jury.</p>

Stanley A. Smith, Judge. The main facts are stated in the opinion of the court. The witness Low, referred to in the opinion, was one of the defendants, and the testimony referred to related to his understandings as to the contract between Epstein and Soward, and particularly to his understanding that the amount paid by Epstein was to be in full payment of the claims of the creditors of the corporation.

APPEALS from judgments of the Superior Court of Los Angeles County and from interlocutory decrees and orders denying new trials. Lucien Shaw, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the" Superior Court of Santa Clara County, setting apart a homestead to an insolvent debtor. M. H. Hyland, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Trover—Replevin—Change of Action—Amendment of Complaint at Trial.—It is not an abuse of discretion to permit an amendment of a complaint in an action of replevin to be made upon the trial after the close qf the evidence, so as to transform the action into one of trover to recover damages for conversion of the property, where it appears from the evidence that the defendant, who, as a constable, had seized the property under execution against plaintiff’s grantor, had sold it before the commencement of the action, and it does not appear that plaintiff knew of such sale when the action was brought.</p> <p>Id.—Motion to Set Cause After Amendment.—A motion of the defendant to set down the cause for trial on the issues raised upon such amended complaint, which “was heard on the papers and the evidence in the case,” without any showing that any further evidence existed than that which had already been produced, which was relevant to the case as it stood on the amended complaint, was properly denied.</p> <p>Id.—Personal Property Seized Under Execution—Verified Claim of Title—Purchase from Two Persons Named.—A verified written claim of title served by the claimant of personal property (which was all of the same kind) levied upon by an officer under execution, pursuant to sections 549 and 689 of the Code of Civil Procedure, which states that affiant acquired title to the property from two persons named, sufficiently apprises the officer of the source of the claimant’s title, whether the property was wholly acquired from such persons jointly, or in part from each of them severally.</p> <p>Id.—Animals Held by Execution Debtor as Agister—Actual and Continued Change of Possession.—Where there was such an immediate delivery and actual and continuous change of possession of animals sold as to sustain a finding of a transfer of title to the property to the vendee as against the creditors of the vendor, the fact that they were afterward delivered to him as an agister for hire will not defeat the vendee’s title.</p> <p>Id.—Evidence—Declarations of Vendor After Delivery.—The declarations of the vendor made after the sale and delivery of the animals, and while they were not in his possession, and not uttered in the presence of the vendee, are inadmissible against the vendee.</p>

<p>Toll-bo ad Company—Extension op Fbanchise undeb Code—Right to Collect Tolls.—A toll-road company incorporated under the act of 1853, for a period of twenty years, which, during the life of its franchise, elected to continue its existence under sections 287 and 402 of the Civil Code for the term of fifty years, though thereby losing its right to determine its own tolls, yet has the right, for the extended period, to collect such tolls as may be fixed by the hoard of supervisors.</p>

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

<p>Water Front—Control of Piers—Power of Harbor Commissioners— Construction op Code—Delegation of Authority.—Section 2524 of the Political Code, granting power to the harbor commissioners to “set apart and assign suitable wharves, berths, and landings for the exclusive use of vessels,” is to be construed as making the assigning dr setting apart of the use of the wharves and landings “exclusive” as against other vessels, and not as including the power to lease the piers, or to give the entire control and occupancy of a pier to the assignee. The power and control over the waterfront, vested in the harbor commissioners by the statute, cannot be delegated to third parties, and it cannot enable a steamship company to grant an exclusive privilege to one transfer company to solicit, upon the pier occupied by its vessels, the carrying of the baggage of passengers therefrom.</p> <p>Id.—Rival Transfer Companies—Injunction—Findings.—In an action by a transfer company to enjoin a steamship company, having the exclusive use of certain piers as against other vessels, from interfering with its use of the piers in the interest of a rival transfer company, where the court finds from sufficient evidence that the business of the, steamship company does not demand that the plaintiff should be excluded from the piers, a judgment enjoining such interference will be affirmed upon appeal.</p> <p>Id.—Regulation by Harbor Commissioners.—The matter of granting or refusing privileges to transfer companies to conduct their business upon the piers, is with the harbor commissioners alone, and is a matter which they should control and manage by i‘easonable rules and regulations.</p>

<p>APPEAL from a judgment of the Superior Court of Siskiyou County and from an order denying a new trial. J. A. Beard, Judge.</p> <p>The facts are stated in the opinion of the court5</p>

<p>Cbiminal Law—Evidence—Admissions of Defendant—Menace.—Declarations of the defendant in a criminal case, not amounting to a confession of guilt, are admissible, without regard to the question whether they were made under menace and undue influence.</p>

<p>Husband and Wife—Community Property—Deed of Bargain and Sale to Wife—Presumption.—Under section 164 of the Civii Code, as it stood prior to the amendment of 1889, and the subsequent amendments, a deed of bargain and sale to a married woman must be presumed to have been paid for from community funds, and to have vested the title in the marital community; and this presumption could only be overcome by clear and satisfactory evidence.</p> <p>Id.—Amendment of Code not Retroactive.—The presumption established by section 164 of the Civil Code, prior to the amendment of 1889, became a rule of property in respect of conveyances previously made; and the amendment changing the presumption cannot operate retroactively so.as to alter or affect the presumption attaching to a previous conveyance.</p> <p>Id.—Evidence—Oral Proof as to Deed—Delivery and Loss not Shown. The oral evidence of a notary as to the acknowledgment of the deed executed to the wife, and as to its character, as having been a quitclaim deed, is not the best evidence, and cannot be admitted as secondary evidence without proof of the delivery and loss of the deed; and where no such proof was supplied, it was error to refuse to strike out the evidence given by the notary.</p> <p>Id.—Assessment Lists—Admission.—The assessment lists of the property deeded to the wife, showing an assessment made to her by the assessor, are not an admission that it was her separate property, and do not require an explanation from the husband as to his interest in the property.</p> <p>Id.—Delivery of Deed — Presumption.—The presumption is that a deed duly executed was delivered at its date; and the fact that it was not recorded until after the death of the grantor, does . not render the deed insufficient evidence of its delivery at its date.</p> <p>Id.—Recital in Deed of Wife—Separate Property—Finding against Evidence.—The recital in a deed executed by the wife, that the property conveyed was her separate property, acquired while living separate and apart from her husband, is not evidence of the fact recited, as against the husband; but is evidence to contradict a finding in favor of her grantees that the property was acquired by gift.</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.</p>

<p>Toll-road Franchise—Vacation or Public Highway—Private Eights. The vacation of a public highway over the line of a former toll-road, the franchise of which had expired, operated to destroy the road as a public highway, and to vest the rights of way, roadbed, bridges, and other structures in the owners of the private lands; and the right to these would not pass by a subsequent grant of a franchise to construct and maintain a toll-road over the line of the former wagon road.</p> <p>Id.—Possession or Eoad—Collection or Tolls—Presumption—Forfeiture.—One who is authorized to construct and maintain a toll-road over the line of a vacated highway, and who has been for years in possession thereof, collecting tolls according to established rates, must be presumed to have constructed the road, and, if he did not, a forfeiture could not be declared in a suit to recover tolls.</p> <p>Id.—Assignment of Franchise—Ratification.—An assignment of a toll-road franchise, which was expressly recognized by the board of supervisors, who required the assignee to give a bond as owner of the franchise, and approved and filed the bond, was thereby ratified and approved, and is not subject to the objection that the franchise was a personal trust, which could not be assigned without consent of the granting power.</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 axe stated in the opinion of the court.</p>

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

<p>Criminal Law—Instruction Assuming Facts as Proved.—An instruction to the jury in a criminal case, which assumes that the crime charged is proven, or that certain facts are established by the evidence, is erroneous.</p> <p>Id.—Alibi—Reasonable Doubt—Erroneous Instruction.—A defendant accused of felony, who has introduced evidence tending to prove an alibi, is not required to prove it by a preponderance of evidence, or to the satisfaction of the jury, but it is sufficient if, upon the whole evidence relating to that subject, a reasonable doubt is raised as to the guilt of the defendant; and it is erroneous to instruct the jury that an alibi, “when satisfactorily proven, is a good defense in law,” and that if the jury “believe from all the evidence” introduced before them that the defendant “was not present at the time it was alleged or proven that the crime was committed, and therefore could not have committed the crime charged in the information, and did not aid or abet in its commission,” then they should find him not guilty. Id.—Evidence—Impeachment oe Witness—Form op Questions.— There is no inflexible rule as to the form of the questions to be put to witnesses called to impeach the general reputation of a witness for truth, honesty, and integrity, and objections going more to the form than the substance of such questions, if there is no such deviation from the general course to be followed, as marked out by the decisions of this court, as to result in injustice to the defendant, are not ground of reversal.</p>

<p>APPEAL from a judgment of the Superior Court of Riverside county removing an executrix and appointing the public administrator as administrator with the will annexed. J. S. Hoyes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Judgment of Dismissal—N onappear ance of Plaintiff at Trial—Res Adjudícala.—A judgment of dismissal of an action for want of prosecution for nonappearance of the plaintiff at the time set for trial is not an adjudication of the cause upon its merits, and is not a bar to another action for the same cause.</p> <p>Id.—Plea in Abatement—Prior Action Pending.—The judgment of dismissal not having the elements to constitute a bar to another action, it has not the elements to support a plea in abatement thereto; and the fact that the time for appeal from the judgment of dismissal had not expired when the second action was commenced is not ground for a plea in abatement of the second action, upon the ground that the prior action was still pending.</p> <p>Action for Breach of Promise of Marriage—Statute of Limitations. An action for a breach of promise of marriage is not barred by the statute pf limitations upon the ground that promises of marriage had been made more than two years before the commencement of the action, if a new and independent promise of marriage was made within that period, which the defendant refused to perform.</p> <p>Id.—Evin -nce—Cross-examination op Dependant—Character op Detective Employed.—It is prejudicial error to question the defendant on cross-examination as to the character of a detective employed by him, who was not called as a witness in the case.</p> <p>Id.—Impeachment op Witness.—A witness cannot be impeached on cross-examination by proof that the witness had been living with her husband before marriage, and cannot be questioned relative thereto on cross-examination, if no testimony was given in chief hearing on that subject.</p>

<p>Judgment oe Fobeclosure—Saleen Masse—Appeal by Insolvent Mobtgagob—Assignee an Advebse Pabty—Seevice oe Notice—Dismissal. Upon an appeal taken by an insolvent mortgagor from a judgment of foreclosure, which ordered the whole of the mortgaged premises to be sold in one parcel, and the surplus proceeds to he paid to the assignee in insolvency, and from an order refusing to set aside the sale and to order the land resold in two parcels, the assignee in insolvency is an adverse party who must be served with the notice of appeal; and if he is not served therewith, the appeal must be dismissed.</p>

<p>APPEAL from a judgment of the Superior Court of Madera county. W. M. Conley, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action by Wife for Permanent Support—Desertion—Cruel Treatment—Pleading.—A complaint in an action by a wife against her husband for permanent support, without divorce, which sets forth acts of extreme cruelty of the husband, and avers that by reason thereof plaintiff was compelled to depart from the family dwelling-place, and that the cruel treatment was such as to render it impossible for plaintiff to continue to live with him, states facts which constitute desertion under section 93 of the Civil Code, and from which desertion followed as a legal conclusión, and need not specifically aver willful desertion of the plaintiff by the defendant; but sufficiently states a cause of action for permanent support and maintenance of the plaintiff, under section 137 of the Civil Code.</p> <p>Id.—Amount of Allowance—Issuable Fact—Extent of Belief.—In an action for a support without divorce, though the amount of the allowance is largely within the discretion of the court, and it retains subsequent control thereof and may increase or diminish the allowance, yet the amount to be allowed is an issuable fact, and cannot be made in the first instance in excess of the amount asked for in the complaint.</p> <p>Id.—Date of Findings and Judgment—Presumptions—Appeal.—When the findings and judgment were signed and filed of the same date, it will be presumed that the findings were first filed; and, upon appeal from the judgment, it will be sustained upon the presumption either that findings were first filed, or that they were waived.</p>

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

<p>Appeal—Review of Evidence—Bill of Exceptions—Specifications.—• A bill of exceptions containing no specifications of the insufficiency of the evidence to justify the decision, cannot be considered upon appeal for the purpose of reviewing the evidence embodied therein.</p> <p>Id .—Admissibility of Evidence—Harmless Rulings.—Rulings against the admissibility of evidence are harmless, where the same facts are subsequently proved and included in the findings.</p> <p>Id.—Review of Findings—Probative and Ultimate Facts.—In reviewing the sufficiency of the findings to support the judgment, regard will be had to the ultimate facts found, and not to mere probative facts, which are not shown by the findings to be the only facts proved, from which alone the court finds the ultimate facts; and in the absence of such showing, the mere circumstance that some of the probative facts are inconsistent with the ultimate facts, will not prevent the ultimate facts found from controlling the probative facts.</p> <p>Foreclosure of Mortgage—Assumption of Mortgage Debt by Grantees —Deficiency Judgment.—Deeds of mortgaged premises merely specifying that the lands conveyed are “subject to the mortgage,” do not create any assumption of the mortgage debt by the grantees, or subject them to a deficiency judgment upon foreclosure of the mortgage.</p> <p>Id.—Subsequent Verbal Promise by Grantee—Want of Consideration —Forbearance to Sue.—A subsequent verbal promise by the grantee to pay the mortgage debt, made without consideration, is not binding; and a subsequent voluntary forbearance of the plaintiff to sue, not based upon any promise of the grantee to pay the debt, nor made a condition thereof, cannot support the promise.</p>

<p>Criminal Law—Homicide—Suspension of Judgment to Try Insanity— Insufficient Showing.—A motion to suspend a judgment convicting a defendant of murder in the first degree (upon whose trial no question of insanity was raised), pending an inquiry as to his insanity under section 1201 of the Penal Code, based upon an affidavit of his attorneys upon information and belief that he was not of sound mind, and that from bis conversation and actions they believed and alleged him to be insane, is based upon too slight evidence to warrant disturbing upon appeal an order denying the motion, on the ground stated that no doubt had arisen in the mind of the court as to the sanity of the defendant, .such as to require the question of insanity to be tried.</p> <p>Id.—Instructions as to Degree of Murder—“ Enormity of Act”— Harmless Error.—Where the instructions, taken as a whole, clearly and fully gave the distinction between murder in the first degree and murder in the second degree, and there was evidence from which the prosecution claimed that it was committed with malice aforethought, and by means of “lying in wait,” an instruction that if he so took the life of the deceased he was guilty of murder in the first degree, and that, “irrespective of this, if he took the life” of the deceased “unlawfully and with malice aforethought,” he was “guilty of murder of the first degree or murder in the second degree, according to the enormity of the act,” though not to be approved in using the phrase “according to .the enormity of the act,” is not prejudicially erroneous.</p> <p>Id.—Evidence of “Lying in Wait”—Question for Jury.—Evidence that the deceased was in the habit of traveling along a street upon which be was killed at night by the defendant while passing thereupon, after the close of his business, tends to support the claim of the prosecution that he was killed by means of “lying in wait,” and though weakened in the absence of proof that the defendant knew of his habit of traveling along that street at night, its weight and importance were to be determined by the jury.</p>

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

<p>APPLICATION for a writ of certiorari to review the action of the board of supervisors of Contra Costa county in granting a franchise.</p> <p>The facts are stated in the opinion of the court,</p>

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

<p>Trust—Express Trust in Land cannot be Established by Parol Evidence.—An express trust in land cannot be established by evidence of the oral declarations of the alleged trustor respecting his purpose in executing the deed therefor, or of oral admissions of the alleged trustee relative to the title of the plaintiff: in the land.</p> <p>Id.—Deed erom Father to Daughter—Constructive Trust—Presumption.—The mere fact that a deed was made from a father to his daughter, without consideration, is not sufficient to raise a presumption of fraud, nor to raise a resulting trust in favor of oilier children of the grantor.</p>

<p>APPEAL from a judgment of the Superior Court of Colusa County. Frank Moody, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Estates or Deceased Persons—Setting Apart Exempt Property to Widow—Implements oe Husbandry.—The farming utensils and implements of husbandry used by the decedent in the operation of a farm of three hundred acres, may be set apart to the widow as property exempt from execution, although, by the will of the decedent, only the dwelling-house and about forty acres of orchard and vineyard lands were devised to her, and the residue of the estate was devised to the children and grandchildren.</p> <p>Id.—Classes oe Husbandry not Regarded.—The law does not recognize classes of husbandry, nor limit its exemption of farming utensils and implements of husbandry to one particular class of several that may be followed by the farmer, and will not inquire whether they were used in agriculture, horticulture, or viticulture.</p> <p>Id.—Jurisdiction op Superior Court.—Upon a petition of the widow for an order setting apart to her the exempt property of the decedent, the superior court had jurisdiction to grant the prayer of the petition under section 1465 of the Code of Civil Procedure, and it is immaterial whether it granted the relief under a sense of compulsion, or in the exercise of a sound discretion, where nothing appears in the record to indicate an abuse of discretion.</p> <p>Id.—Presumption as to Future Allowance.—If the widow should petition for an allowance under section 1466 of the Code of Civil Procedure, after an order setting apart to her the exempt property, it must be presumed that the court will act with due regard to its previous order, and to the subsequent condition or the estate.</p> <p>Id.—Value of Exempt Implements—Amendment of Code—Immaterial Question.—If the inventory shows that exempt implements of husbandry set apart to the widow were of less value than one thousand dollars, it is not material to decide whether the amendment of March 27, 1897, to section 690 of the Code of Civil Procedure limiting the exemption to implements of the value of one thousand dollars, which took effect after the death of the decedent, but prior to the order setting them apart, controls the exemption or not.</p> <p>Id.—Correctness of Inventory—Cost of Replacing Implements Used. The correctness of the inventory, and its effect as evidence of the value of the exempt implements, is not disputed by evidence that they could not be replaced for a sum greatly exceeding the appraised value, and greatly exceeding one thousand dollars. The cost oi replacing exempt implements used by the decedent with new implements is no measure of the value of the implements used.</p> <p>Id.—Findings—Exemption—Omission of Value.—Findings that the property set apart to the widow was exempt from execution at the death of the decedent, and still is so exempt, involves a finding that the property did not exceed the statutory limit of value if applicable thereto, and it is not prejudicial error to omit to find as to its value.</p> <p>Id.—Omission to Find as to Funds.—Where there is no petition for an •allowance accompanying a petition to set apart exempt property to the widow, it is unnecessary to find upon an allegation of the answer that there were funds sufficient to support the widow. The order setting apart the exempt property does not involve any question as to the sufficiency of the funds.</p>

<p>Action upon Note—Proof of Nonpayment—Production of Note.—In an action on a promissory note, under a denial of the allegation of nonpayment, the production of the note in evidence for plaintiff, without any indorsement of payment thereon, is sufficient prima facie proof of nonpayment.</p> <p>Id.—Possession of Note.—The possession of the note by the attorney for the plaintiff was the possession of the plaintiff.</p>

<p>Reclamation District—Organization—Jurisdiction of Supervisors.— The board of supervisors cannot acquire jurisdiction to organize a new reclamation district unless a petition therefor, purporting to bear the requisite number of signatures of the owners of one-half of the acreage of the district as organized, is presented to the board, in which case the board is authorized to determine and adjudicate questions of fact arising upon such petition.</p> <p>Id.—Proceeding in Invitum—Enforcement of Assessment—Attack upon Corporation.—The organization of a reclamation district results in putting a burden on property against the will of the owners, and the requirements of the law as to such a proceeding cannot be evaded by calling it a corporation; and in an action to enforce an assessment levied by the district, if its organization is denied, the question is not whether the district has so acted as to become a corporation de facto, but whether there has been in fact a substantial compliance with the law, and the exercise of jurisdiction by the board of supervisors • to determine facts presented before it by a petition sufficient in form and purporting to be sufficiently signed.</p> <p>Id.—Signature by Administratrix—Adjudication by Supervisors.— Though the administratrix of an estate is not competent as such to sign a petition for the organization of a reclamation district, yet if the petition was otherwise sufficient, and did not show that one of the signers was an administratrix of any estate, but merely showed that the word “administratrix” was appended to her signature, the question of her ownership was one of fact, upon which the determination of the board was conclusive; and no proof to the contrary is competent.</p> <p>Id.—Assessment—Proportion to Benefits—Evidence—Opinions.—In an action by a reclamation district to enforce an assessment, it is not competent to ask witnesses for their opinions, upon the precise issue being tried by the court, as to whether the assessment as made constituted a charge upon each tract in proportion to benefits; but if such questions were allowed, the opposing party, upon cross-examination, would be entitled to ask upon what the opinion was based.</p> <p>Id.—Improper Assessment—Old Levee.—An assessment by a reclamation district to pay for an old levee used as part of the plan of reclamation, so as to credit each owner with the estimated value of that part of the levee which was upon his land, at twelve and one-half cents per cubic yard, it appearing that a break in the levee at any point would flood the whole district, and that work on any part of the levee was of as much benefit to any other landowner as to him upon whose land the work was done, and that no two tracts were assessed alike, or in proportion to the altitude of the land, is not in proportion to benefits, and cannot be sustained.</p>

<p>Practice—Appearance by Demurrer—Justice’s Court—Prohibition— Summons—Appeal.—A defendant by demurring to a complaint in a justice’s court, submits himself to the jurisdiction of the court, under sections 416 and 1014 of the Code of Civil Procedure, notwithstanding a recital in the demurrer to the contrary, and that his appearance is only for the purpose of demurring; and upon the overruling of such demurrer, and the entry of his default for failure to answer, cannot maintain prohibition against the further proceedings of the justice’s court, on the ground of irregularities in the service and return of the summons. Conceding that such irregularities were not waived by the demurrer, the right of the defendant to have his objections thereto reviewed on appeal, where his previous motion to quash the service has been denied, is a plain, speedy, and adequate remedy.</p>

<p>Partnership—Agency for Sale of Land—Payment from Conventional Profits.—A contract between the owner of a tract of land, who had subdivided it fdr sale, and a real estate broker, that the latter should sell the subdivided tracts, at prices to be fixed by the owner, and when all the land was sold, there should be paid out of the proceeds of the sales the cost of the land, with interest, and the expense of selling, and that the residue, if any, should be divided equally, does not constitute a partnership, but is an agreement to share conventional profits with the broker, as a mode of compensation for his services as an agent in selling land in which he owned no interest.</p> <p>Id.—Profit-sharing not a Test of Partnership.—Profit-sharing is not made a test of partnership by the code, which requires “the association of two or more persons for the purpose of carrying on business together,” as a distinguishing feature of a partnership.</p> <p>Id.—Agent’s Eight to an Accounting—Misnomer of Relation Immaterial.—The real estate agent, having an interest in the conventional profits realized from the sales of the land, is entitled to an accounting thereof, irrespective of any partnership relation between the parties; and the fact that the relation is wrongly averred to be that of partners is not material.</p> <p>Id.—Jurisdiction of Accounting—Equity.—If a plaintiff has a cause of action of which the superior court has jurisdiction, and it is necessary to have an accounting to determine his rights, such accounting may be had in that court, regardless of whether the facts would have given jurisdiction to a court of equity. The superior courts afford the remedies to which the facts may show the parties entitled, whether legal or equitable.</p> <p>Id.—Performance of Contract by Agent—Accepted Purchasers—Risk of Loss.—Evidence tending to show that purchasers for the entire tract, who were acceptable to and accepted by defendant, and with whom satisfactory contracts were made, were found by the plaintiff as his agent, notwithstanding conflicting evidence to the contrary, is sufficient to sustain a decision that plaintiff had performed the contract on his part; and plaintiff is not required under the contract to share in the risk of loss from the fact that some purchaser on credit might fail to complete his purchase.</p>

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

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

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

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

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

<p>Mortgage—Personal Liability not Made a Lien—Counsel Pees.—A provision in a mortgage given to secure the payment of a promissory note, imposing a personal obligation on the mortgagor for the payment of counsel fees and other costs and disbursements of the mortgagee, without directly or indirectly making the same a charge on the mortgaged premises, or payable from the proceeds of the foreclosure sale, does not secure such items by the lien of the mortgage.</p>

<p>Judgment upon Pleadings—Sufficiency of Answer—Statute of Limitations—Estoppel of Former Judgment.—A plaintiff is not entitled to a judgment upon the pleadings, if the answer pleads the statute of limitations, and an estoppel by a former adjudication of this court between the same parties.</p> <p>Motion for New Trial—Skeleton Statement.—Where the judge certifies that the engrossed statement on motion for a new trial is a mere skeleton, and does not contain all the evidence offered at the trial tending to prove the allegations of the answer, and where it appears that it does not adequately present the evidence in respect to which errors are claimed, the statement may be disregarded.</p> <p>Id.—Documentary Evidence—Decree of Distribution—Color of Title —Adverse Possession.—A decree of distribution, under which defendants entered into possession and claimed adversely, even if not regularly made and entered, is admissible in favor of the defendants, as showing color of title, under which they claimed In support of adverse possession.</p> <p>Id.—Unavailable Exception—Absence of Evidence—Presumption.— An exception to the admission of documentary evidence and of the testimony of witnesses to show adverse possession, is unavailable, where none of the evidence excepted to is set out in the statement; and it must be presumed, in the absence of the evidence admitted, that it was relevant and material.</p> <p>Id.—Res Ad judicata.—Questions of law already decided by this court between the same parties, upon former appeals, will not be reviewed upon a subsequent appeal.</p>

<p>Appeal—Refusal to Vacate Judgment—N on appeal able Order—Dismissal.—An order refusing to vacate a judgment of dismissal for the want of findings demanded by the appellant, is not appealable; and an appeal therefrom must be dismissed.</p> <p>Id.—Validity of Judgment—Absence of Demanded Findings—Review upon Appeal.—A judgment of dismissal is not rendered void by the absence of findings demanded by the party against whom it was rendered; and any alleged error therein can only be reviewed upon a direct appeal from the judgment, and not upon appeal from an order refusing to vacate it.</p>

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

<p>Criminal Law—Robbery—Evidence—Corroboration of Accomplice.—• The conviction of a defendant charged with robbery is not rendered insufficient by the testimony of an accomplice directly connecting the defendant with the commission of the crime, where it appears that there is evidence, in addition to that of the accomplice which, without its aid, tends to connect the defendant with the crime charged.</p> <p>Id.—Declarations of Defendant as to Distinct Offenses.—Evidence of declarations of the defendant as to the intention of himself and another person to commit other and distinct offenses of robbery, is inadmissible.</p> <p>Id.—Evidence of Collateral Facts Inadmissible.—Drider the rule that testimony must be confined to the issues, evidence of collateral facts, which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute, is inadmissible.</p> <p>Id.—Cross-examination—Bias of Witness—Collateral Imprisonment of Defendant.—A witness for the defendant, who had merely testified in chief that he knew the defendant, and that defendant had money the day before the alleged robbery, could not properly be asked on cross-examination if he had not once been with the defendant in the county jail in another county. Such evidence is not sufficient to justify an inference of bias on the part of the witness, and is inadmissible evidence of a collateral imprisonment of 'the defendant, erroneously adapted to furnish an inference pointing to the probability of his being guilty of the offense charged.</p> <p>Id.—Instruction as to Testimony of Accomplice.—An instruction as to the testimony of an accomplice should clearly point out the rule that the evidence of the accomplice is insufficient of itself to justify a conviction, and also clearly point out what degree of proof is sufficient as corroborative of that of the accomplice.</p>

from an order denying a new trial. A. C. Hinkson, Trial Judge; J. W. Hughes, Judge denying a new trial. The facts are stated in the opinion of the court.

<p>Consequential Injury to Land—Deflection of River by Levee—Trespass—Case—Statute of Limitations.—An action for damages for injury to the plaintiff’s land, caused by the deflection of a river into a new channel, as the result of the construction of a levee by the defendant, is not for a “trespass upon real property,” within the meaning of subdivision 2 of section 338 of the Code of Civil Procedure, limiting three years for the commencement of such an action; but it is in the nature of an action upon the case, at common law, for a consequential injury, and is barred in two years by subdivision 1 of section 339 of the same code.</p>

<p>APPEAL from a judgment of the Superior Oourt of Plumas County. Stanley A. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Corporations—Misappropriation by Directors—Construction of Constitution—Action at Law—Bill in Equity.—Under section 3 of Article Nil of the constitution, which provides that “the directors or trustees of corporations and joint stock associations shall be jointly and severally liable to the creditors and stockholders for all moneys embezzled or misappropriated by the officers of such corporation or joint stock association during the term of office of such director or trustee,” conceding it be self-executing, an action at law on behalf of one or more of the creditors of the corporation cannot be sustained, but the only proper remedy, on behalf of the creditors, is a bill in equity where all the creditors are parties, or are represented, and in which there can be an accounting and adjustment of equities, after ascertainment of all the facts.</p>

APPEALS from a decree of the Superior Court of San Luis Obispo County distributing the estate of a deceased person. E. P. Hnangst, Judge. The facts are stated in the opinion.

<p>Appeal from Justice’s Court—Disputed Claims for Wages—Jurisdiction of Supreme Court.—The supreme court has no jurisdiction, under the constitution, of an appeal from a judgment rendered in the superior court, upon appeal from a justice’s judgment in an action brought under section 1206 of the Code of Civil Procedure, to enforce disputed claims of employees of an exe>■cution debtor for wages, of which payment was claimed out of the proceeds of sale of personal property levied upon by the sheriff, whether the action be viewed as a suit in equity to enforce liens upon personal property, or as an ordinary action for wages due.</p>

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

<p>Void Street Assessment—Threatened Sale of Property—Injunction. An injunction will lie to restrain the threatened sale of the real property of the plaintiff by tbe city treasurer to pay an amount claimed to be due on a void bond, and assessment for a street improvement, under the provisions of the act of March 17, 1891 (Stats. 1891, p. 116), and of the so-called Vrooman act of March 18, 1885. (Stats. 1885, p. 147.)</p> <p>Id.—Cloud Upon Title—Effect of Deed as Evidence.—Such sale, if consummated, would cast a cloud upon plaintiff’s title. The deed to be executed thereunder is by statute made prima faoie evidence that the property was duly assessed, and conclusive evidence of the regularity of all other proceedings, and to defeat the assessment and deed, the plaintiff must resort to extraneous evidence, which is the test of his right to invoke the aid of equity to restrain the sale.</p> <p>Id.—Tender Unnecessary.—No tender is necessary to be made of any part of a void assessment as a condition of equitable relief against its enforcement.</p> <p>Id.—Appeal to City Council.—An appeal to the city council is not required where the assessment is void by reason of incurable defects.</p> <p>Id.—Notice of Intention—Unauthorized Publication—Want of Jurisdiction.—An unauthorized publication of the notice of intention to do street work in a paper other than that designated by the council for that purpose, as required by section 3 of the act of 1891, is in effect no publication thereof, and cannot give jurisdiction to order the work to be done.</p> <p>Id.—Void Contract—Improper Delegation of Power.—Specifications in the contract for street work delegating duties which the council alone can perform render the contract and the assessment thereunder void.</p>

<p>■Cropping Contract—Division op Grain—Attachment Against Cropper. Under a cropping contract by the terms of which the entire crop of grain raised was to belong to the owner of the land until division should be made, and one-half of the crop was to be segregated 'on the ground, to be given to the cropper at the conclusion of the threshing and sacking of the crop, where it appeared that all of the crop, excepting one stack, had been threshed and sacked, and one-half thereof delivered by the cropper to the order of the owner of the land, and the remaining half remained in the field, such remaining half of the threshed and sacked crop is to be deemed the property of the cropper, and is subject to attachment by his creditor.</p> <p>Id.—Construction of Contract—Division of Threshed Part op Crop.— Under the provision in the contract that one-half of the crop was to be segregated on the ground for the cropper, at the conclusion of the threshing and sacking of the crop, the parties could have postponed the division and segregation until the whole crop was threshed and sacked; but they were not required to do so, and might divide the threshed and sacked portion thereof, though another portion thereof was still unthreshed.</p> <p>Id.—Bill op Sale—Change op Possession.—A bill of sale made by the cropper to the owner of the land for a valuable consideration, but without any act purporting to be a delivery or change of possession of the sacks segregated on the ground to the cropper, could not affect the right of the creditor of the cropper to attach the same.</p> <p>Id.—Security for Advances—Waiver of Bight.—A provision in the contract that the owner of the land might retain possession of the cropper’s half of the crop as security for advances, cannot be enforced against the claims of the creditors of the cropper, while such half remains in the cropper’s possession; and the division and segregation to him of his half of the crop is to be regarded as a surrender of the right to retain the same as security.</p>

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

<p>Act fob Payment of Wages by Cobfobations—Constitutional Law— Special Legislation—Abbitbaby Classification.—The act approved May 31, 1891, “to provide for the payment of wages of mechanics and laborers employed by corporations” (Stats. 1891, p. 195), is special legislation inhibited by the constitution, as purporting to create liens in favor of a special class of laborers, and attempting a mere arbitrary, classification, not founded upon natural differences, or differences defined by the constitution.</p>

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

<p>Negligence—Action eor Death—Evidence—Poverty of Plaintiff.—In an action for a death caused by the alleged negligence of the defendant, evidence of the poverty of one of the plaintiffs, a daughter of the deceased, who was living with him at his death, is not competent, and its admission is prejudicial error.</p> <p>Id.—Full Age of Dependent Daughter.—The fact that the daughter of the deceased, who was living with him, was of full age, does not entitle her to prove her lack of means of support, as against the defendant, against whom the action is prosecuted by her solely as one of the heirs-at-law of the deceased.</p> <p>Id.—Repetition of Testimony—Single Exception.—The fact that only one exception was taken to the testimony admitted to prove the poverty of one of the plaintiffs, and that such plaintiff afterward gave testimony on the same subject without objection, does not preclude the defendant from taking advantage of the exception.</p> <p>Id.—Impeachment of Witness—Insufficient Foundation.—The evidence of a witness cannot he impeached by proof of contradictory statements, unless a foundation is first laid for such impeaching testimony; and a conversation about which the witness was interrogated as having taken place during the progress of the .trial, cannot justify evidence of a conversation had in the preceding year.</p> <p>Id.—Instruction—Measure of Damages—Loss of Society—Comfort and Care.—An instruction that the jury had the right to take into consideration the pecuniary loss suffered by the death, and also the loss of the comfort, society, and protection of the deceased to his widow and children, is erroneous in not instructing that the plaintiffs can only recover for the pecuniary loss suffered by the death, and that the loss of society, comfort, and care can only he considered for the purpose of estimating such pecuniary loss; and the vice in such instruction is not cured by a separate instruction, given at defendant’s request, that the jury should confine their verdict to the pecuniary loss.</p> <p>Id.—Neglect to Ring Bell or Sound Whistle Continuously.—An instruction to the jury that negligence of the defendant might he inferred if it did not “ring the bell or sound the whistle continuously for the distance of eighty rods before reaching the crossing,” imposes a greater burden upon the defendant than that charged by the statute, which only requires in the alternative that the whistle be kept sounding at intervals.</p> <p>Id.—Crossing of Track by Elderly Person—Knowledge of Defendant—Presumption.—Where it appears that the deceased, though an elderly man, was strong and healthy at the time he was killed while crossing a railroad track, if the defendant did not know, or have reason to believe, that he was not in the full possession and enjoyment of his faculties, the defendant had the right to presume that he was able to care for himself, and would take ordinary precaution to protect himself from injury; and an instruction implying that his age and condition called for greater care from the defendant, with nothing in the evidence to sustain such implication, and ignoring the element of knowledge on the part of the defendant, is erroneous.</p>

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

<p>Appeal—Order Denying New Trial—Statement—Specifications.—An order denying a motion for a new trial made upon the minutes of the court cannot be reviewed upon appeal, if in the settled statement there is no copy of the notice of the motion or of its specifications, and no reference to them, and no specifications in any form appear therein.</p> <p>Id.—Specifications upon Motion—Notice—Certificate of Clerk—Presumption.—The appellate court cannot look beyond the judgment-roll and the settled statement, and consider the motion and the ground stated therein, and the specifications found with the notice of motion, though printed in the transcript and certified by the clerk. The clerk cannot supply by certificate specifications which the law requires should be embodied in the statement; nor can this court supply them by presumption from the argument of the motion in the trial court.</p> <p>Action upon Partnership Settlement—Part Payment—Evidence— Former Judgment.—In an action upon a settlement alleged to have been made upon a dissolution of a partnership, under a plea that the sum of five hundred dollars was paid to plaintiff by defendant on a former judgment recovered for that sum against the defendant and a former client of the firm, the judgment-roll in that action is admissible for the defendant to prove the payment of that sum in part payment of plaintiff’s claim; and its admission opens up no controversy beyond the fact of such payment.</p> <p>Id.—Pleading—Admission of Answer—Plea of Payment—Findings.— Under a complaint alleging an agreement of the defendant to pay seven thousand five hundred dollars to the plaintiff upon dissolution of the firm, and the receipt of that sum by the defendant for the plaintiff, an answer denying an agreement to pay or the reception of any sum greater than one thousand dollars, admits the sum of one thousand dollars; but if it further specially pleads the recovery of five hundred dollars by plaintiff, and payment of that sum by defendant to plaintiff, and also pleads that all of defendant’s agreements were performed, paid, satisfied, and discharged, it makes the question of payment an issuable fact, upon which the court might properly find part payment of the sum of one thousand dollars, and limit plaintiff’s recovery to the sum of five hundred dollars.</p> <p>Id.—Objection upon Appeal—Finding—Trial of Issue.—An objection will not be heard upon appeal for the first time that a finding is not within the issues, where the parties proceeded to trial upon the answer, without objection to its sufficiency to raise an issue passed upon by the finding, and evidence was received thereupon upon the trial.</p>

<p>Sale of Raisin Grapes—Written Contract—Oral Promise of Agent —Advance Payment—Fraud.—The breach of a written contract for the sale of a growing crop of raisin grapes, to be gathered and cured by the vendor, and paid for by the purchaser on delivery, cannot be excused by mere breach of a cotemporaneous oral promise of the agent of the vendor that an advance should be made on the price of a specified sum, to enable the vendor to pick and cure the grapes, provided sucn promise was honestly made; but, if the oral promise was made without any intention of performing it, and for the purpose of securing the execution of the written agreement by the vendor, it is fraudulent, and entitles the vendor to avoid the contract.</p> <p>Id.—Pleading—Absence of Intention to Fulfill Promise.—In pleading the fraud of the agent in making the oral promise, it is not essential that the answer should charge in so many words that there was no intention to fulfill the promise at the time it was made; but it is sufficient that such is the effect of the averments» made upon the subject.</p> <p>Id.—Nonpayment of Promised Advance—Proof of Damage Immaterial.—The payment of the promised advance, to enable the vendor to gather and cure the raisin crop, if fraudulently promised, was a condition precedent to the duty of the vendor to deliver the cured crop; and it is not necessary for the vendor, in such case, to prove that he was damaged by failure to receive the expected advance.</p>

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

<p>Criminal Law—Instruction—Power to Produce Stronger Evidence.— An instruction based upon subdivisions 6 and 7 of section 2061 of the Code of Civil Procedure, in reference to the effect of the failure of a party to produce stronger and more satisfactory evidence than that offered when in his power to do so, ought rarely, if ever, to be given in a criminal case in which the jury are the sole and exclusive judges of the weight of evidence; and if the only plausible application of such an instruction is to the failure of the defendant to testify in his own behalf, it is prejudicially erroneous.</p> <p>Id.—Attempt to Kill by Poison—Evidence—Collateral Facts.—Upon the trial of a defendant charged with an attempt to kill a person named by the administration of poison, consisting of strychnia, the evidence of which was circumstantial, evidence of collateral facts, tending to connect the defendant with other events and offenses of a different character and in relation to other persons, occurring some time previous to the offense charged, which did not in any appreciable decree tend to show a motive for the attempted murder, is inadmissible.</p> <p>Id.—Purchase oe Chloroform by Defendant.—It may be proved that chloroform was purchased by the defendant, and was in bis possession when arrested, as tending to show to some degree his intention toward the person to whom poison was administered.</p> <p>Id.—Conversations with Defendant—False Explanations.—Conversations had with the defendant by a witness, in which he gave false reasons for being in the place where the poison was administered, on the day of its administration, are relevant and competent evidence for the prosecution.</p> <p>Id.—Motive of Offense—Rivalry of Suitors—Evidence that the defendant was an unsuccessful rival of the person poisoned, and a persistent suitor for the hand of a young lady to whom the person poisoned was engaged to be married, and that that person had seen one who resembled the defendant in company with her and another young lady prior to the date of the poisoning, is admissible as tending to show a motive for the alleged crime. Id.—Reprehensible Details Inadmissible.—The rivalry of the suitor should only be sho-wn generally; and it was not admissible to prove reprehensible details of the defendant’s courtship.</p> <p>Id.—Purchase and Possession of Strychnia—Rebutting Evidence.— After -proof by the prosecution of the purchase of strychnia by the defendant, and his possession of it when arrested for the crime of administering it with intent to kill, it is error to exclude rebutting evidence tending to show that defendant was a farmer, and that the farmers generally in the neighborhood where he resided purchased strychnia, and had it in their possession for the purpose of poisoning “varmints.”</p> <p>Id.—Sufficiency of Information—Single Offense—Error in Date.—■ An information charging an attempt to kill by administering poison does not charge tivo offenses, and a false date inserted therein is not fatal to the information. Such date should be corrected, but the failure to correct it is immaterial where the pleader charged the offense to have been committed in the proper year, and prior to the filing of the information.</p>

<p>Fire Insurance—Combined Harvester—Insurance Limited “While in Use”—Storage not Included.—A policy insuring the owner of a combined harvester against loss by fire “while in use” in the county, for a period of three months, does not cover a loss occurring during that period, while the harvester was not in use for harvesting purposes, but was dismantled and stored away for safe keeping in a shed on the ranch of the owner, after the harvest was over.</p> <p>$d.—Diminution of Risk—Evidence.—The stipulation of the policy limiting the risk to the use of the harvester cannot be avoided by showing that the risk to the machine by fire was less when stored in the shed than when in use in the field, and evidence to that effect is inadmissible.</p> <p>Id.—Construction of Code—“ Alteration of Use or Condition.”—Section 2754 of the Civil Code, providing that “an alteration in the use or condition of a thing insured from that to which it is. limited by the policy, which does not increase the risk, does not affect a contract of insurance,” has reference to policies which do not in terms stipulate against the use for certain purposes, or do not restrict the use to certain definite purposes, and does not apply to policies containing such express stipulation or restriction.</p> <p>Id.—Right of Insurer to Select Risk.—An insurer is at liberty to select the character of the risk he will assume, and he is not liable except upon proof that the loss occurred within the terms of the policy.</p>

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

<p>Criminal Law—Unlawful Practice of Medicine—Sufficiency of Information—Existence of Medical Societies.—An information charging the defendant with the crime of willfully and unlawfully practicing medicine in the state of California, without having first procured the certificate so to practice, as required by law, from some one of the medical societies named in the statute, states facts sufficient to constitute a public offense. It is not necessary to allege the existence of the medical societies referred to.</p> <p>Id.—Negative Averment—Evidence—Burden of Proof as to Certificate.—The averment in the information that defendant practiced medicine without having first procured the certificate to do so required by law is a negative averment as to a fact which is peculiarly within the knowledge of the defendant; and, upon evidence of the practice of medicine by him, the burden is devolved upon him to prove that he had a certificate to practice medicine as provided by law, and, in the absence of such proof, it must be taken as true that he had not procured such certificate.</p>

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

<p>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 Tolo County, and from an order denying a new trial. W. H. Grant, trial Judge. E. E. Gaddis; Judge denying new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Mortgage—Vbsted Future Interest—Lands Devised by Deceased Person—Postponement of Enjoyment.—Upon the death of a testator, each devisee of lands devised by him, and directed to he kept and remain intact and undivided and undistributed until the youngest son becomes of age, acquires a vested future interest in the lands of the deceased, which is subject to be transferred or mortgaged by the devisee in like manner as if It were an estate in possession.</p> <p>Id.—Foreclosure—Estate of Purchaser.—Upon the foreclosure of a mortgage of the estate devised, given by one of the devisees, the purchaser will take only the share and interest in the estate of the decedent, which, but for the mortgage and foreclosure, the mortgagor himself would have taken; and the “intact” quality impressed by the testator upon the lands by the will, cannot he affected by the mortgage and sale thereunder.</p> <p>Id.—Finding—Subordination of Interests of Codevisees.—In the action to foreclose the mortgage In which the co-devlsees answered claiming an interest in the mortgaged property, a finding that the interest of the co-devisees are subordinate and subject to the lien of the mortgage will be construed to mean merely that they have no rights in the share of the mortgagor which is not subordinate to the lien of the mortgage.</p>

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

<p>Insolvency—Adjudication—Prior Levy under Execution—Subsequent Sale.—Under the Insolvent Act oí 1880, a levy under execution against an insolvent debtor made within one month before the ■ adjudication of insolvency, is not dissolved or affected by such adjudication, and the property levied upon may be sold under the execution after such adjudication.</p> <p>Id.—Effect of Prior Attachments.—The fact that there were prior attachments in other suits for an amount in excess of the value of the property, and also an attachment in the subsequent suit, all of which were dissolved under the operation of the insolvent act, is immaterial, and does not prevent the subsequent execution levy and sale in the last suit from being effective, in the absence of any charge of actual fraud or collusion with the insolvent, or of any act done by him with intent to give preference to a creditor.</p>

CERTIORARI from the Supreme Court to review and annul an order of the Superior Court of the City and County of San 'Francisco, imprisoning the petitioner for contempt. W. H, Dangerfield, Judge. The facts are stated in the. opinion of the court.

<p>Injunction—Use of Steamboat Landings—Pleading—Irreparable Injury.—In an action by one steamboat company against another to prevent- its use of landings and wharves erected by the plaintiff for its exclusive use under contract with the owner of the land, a complaint averring generally daily and continuous damage to-plaintiff, which he cannot determine or calculate, and which cannot be recovered without a multiplicity of suits; and that defendant, if not restrained from a continuance of its acts, will acquire an easement in the property, without further statement of facts showing how or why plaintiff will sustain irreparable injury, is insufficient to show irreparable injury, or to sustain the extraordinary remedy by injunction.</p> <p>Id.—Construction of Pleading.—The rule is that pleadings are to be construed most strongly against the pleader.</p>

<p>Pleading—General Demurrer—Statute op Limitations.—Where but one cause oí action is stated in a complaint, if a recovery can be bad for any part of the claim, a general demurrer thereto, for want of facts, and that the cause of action is barred by the statute of limitations, should not be sustained in part, but should be overruled with leave to answer.</p> <p>Id.—Answer—Plea op Statute—Waiver op Error—Presumption of Consent.—Where a demurrer to the complaint was erroneously sustained in part, and an answer was filed pleading the statute of' limitations, as to part of the claim, upon which a trial was had without objection, with tne same result as that of the order upon, the demurrer, the plaintiff is not prejudiced by the erroneous-ruling thereupon, and it will be presumed upon appeal-that the answer was filed by consent, and the judgment thereafter rendered is not affected by the irregularity.</p> <p>County—Claim op Supervisor—Per Diem—Service as Boad Commissioner—Limitation.—A claim of a Supervisor against a county of the thirty-ninth class for his regular per diem for services rendered-while acting as road commissioner, covering a period of three years, is not barred by section 41 of the County Governmeint Act, as to that portion of the claim preceding one year from the date of its presentation, if presented within one year after the last item of the account or claim accrued.</p> <p>Id.—Statutes op Limitation- -Construction.—Statutes of limitations are to be construed strictly, and the court must find the intention of the legislature in the statute itself.</p> <p>Id.—Per Diem Compensation—Account—Single Cause of Action.— Where the statute does not fix a time for the payment of the per diem compensation of a supervisor, such per diem is the proper subject of an account to be embraced in a single cause of action, and to- be presented as one itemized claim to the board' of supervisors.</p>

<p>Action Against Oorpobation—Oontbact fob Sale of Land—Place of Tbial—Conflicting Affivavits—Support of Obdeb.—In an action against a corporation upon a contract for the sale of land situated in the county where the suit was brought, upon motion of the defendant to change the place of trial to the county in which it has its principal place of business, if the affidavits are conflicting as to whether the contract sued upon was made in the county in which the suit was brought, an order of the court denying the motion will not be disturbed upon appeal.'</p>

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

<p>Criminal Law—Homicide—Escape op Convict—Appeal—Conditional Dismissal.—The appeal of a defendant convicted of murder, who has escaped from custody, and is at large, will be ordered to stand dismissed, unless the defendant shall within a time specified return to the custody of the sheriff.</p>

<p>Estates of Deceased Persons—Quieting Title—Evidence—Competency of Plaintiff as Witness—Delivery of Deed by Decedent.—An action by a widow to quiet her title to land conveyed to her by her husband during his lifetime, as against his administrator, is not an action “upon a claim or demand against the estate of the deceased,” within the meaning of section 1880 of the Code of Civil Procedure; and she may testify in such action that the deed was delivered to her by her husband in his lifetime.</p> <p>Id.—Privileged ‘ Oojimcnication”—Husband and Wife—Delivery of Deed.— The delivery of a deed from a husband to a wife is not a privileged “communication” within the meaning of subdivision 1 of section 1881 of the Code of Civil Procedure.</p> <p>Id.—Subsequent Conduct of Wife—Question of Fact—Appeal.—■ Whether .the subsequent conduct and acts of the wife, after the alleged delivery of the deed, was such as to authorize the inference that it had not been delivered, was a question of fact for the trial court to determine, and is not open to review upon appeal.</p> <p>Id.—Intent to Defraud Creditors—Question of Fact—Consideration of Deed.—The intent of the husband to defraud his creditors by the conveyance to the wife is made a question of fact by the statute, and under section 3442 of the Civil Code, as it formerly stood, the transfer cannot be adjudged fraudulent solely on the ground that it was not made for a valuable consideration.</p>

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

<p>Promissory Note—Collateral Security for Mortgage Debt—Extension of Time to Grantee—Release of Sureties.—Sureties who executed and deposited a note as collateral security for the payment of another note secured by mortgage, are released and exonerated from liability by an extension of time given by the mortgagee to a grantee of the mortgagor, who had assumed payment of the mortgage debt.</p> <p>Id.—Assumption of Mortgage Debt—Privity of Grantee—Surety-ship.—A grantee of the mortgagor who assumes payment of the mortgage debt is not a mere stranger to the principal obligation, but becomes the principal debtor, and his grantor becomes his surety; and the doctrines concerning suretyship must control the dealings between the mortgagor, mortgagee, and such grantee.</p> <p>In.—Consent to Extension of Time—Pleading—Negative Averment in Answer—Burden of Proof.—A negative averment in the answer of the sureties to a complaint on the collateral note that time for payment was extended to the grantee of the mortgagor, “without their consent,” is unnecessary, and the absence of such consent need not be proved by them. It is sufficient for them to show that the principal contract was «hanged; and the burden of proof is upon the plaintiff to show that it was changed with their consent.</p> <p>Id.—Extent of Injury to Sureties Immaterial.—The extent to which the sureties were injured by the extension of time on the principal obligation is immaterial, and is not a legitimate subject of inquiry in an action to enforce their liability.</p> <p>Appeal—Immaterial Findings.—Immaterial findings which do not affect the correctness of the judgment, though erroneous, are not ground for reversal of the judgment.</p>

APPEALS from judgments of the Superior Court of Sierra County and from an order denying a new trial. Stanley A. Smith, Judge. The facts are stated in the opinion.

<p>Vacation of Judgment—Ignorance of Trial—Discretion.—The vacation of a judgment taken by the plaintiff at a trial had in the absence of the defendant, whose attorneys were ignorant that the cause had been regularly set for trial, is in the discretion of the court, and its refusal to vacate the judgment upon the prompt motion of the defendant, as soon as its rendition was discovered, is not a plain abuse of discretion.</p> <p>Id.—Duty of Attorneys—Negligence—Notice of Trial.—It is the duty of attorneys engaged in a cause to inform themselves whether or not it has been set for trial, and it is negligence for them not to do so. It is not the duty of the attorneys for the opposite party to give notice of the trial.</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. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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