Volume 123 — California Reports

<p>APPEAL from a judgment of the Superior Court of Madera County and from an order denying a new trial. J. C. B. Heb-bard, Judge.</p> <p>The facts are stated in the opinions.</p>

<p>Estates of Deceased Persons—Presentation of Claims—Proof Required in Action Pending—Nonsuit.—The plaintiff in an action pending against a deceased person at the time of his death, must duly present his claim to the executor or administrator of the estate of the deceased, and cannot recover in his action unless proof of such presentation is made; and upon failure to make such proof upon a trial had against the personal representative of the decedent, the plaintiff is properly nonsuited.</p> <p>Id.—Pendency of Action—Default Judgment against Decedent—Appeal—Reversal of Order Refusing to Vacate.—An action is deemed to be pending until its final determination upon appeal, unless the judgment is sooner satisfied; and when a default judgment rendered against the decedent in his lifetime was finally vacated as the result of an appeal by the administratrix from an order refusing to vacate it, the action remains pending, and the claim of the plaintiff must be presented to the administratrix.</p> <p>Id.—Satisfaction of Judgment—Payment into Court of Proceeds of Sale.—A judgment against a deceased person, upon which an execution was issued, and property of the estate sold under execution, the proceeds of which were paid into court, pending an appeal by the administratrix, to await the final termination of the action, is not satisfied, so as to terminate the action within the meaning of section 1049 of the Code of Civil Procedure.</p>

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

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

<p>APPEAL from an order of the Superior Court of Santa Clara, county, settling the quarterly account of the assignee of an insolvent debtor. John Reynolds, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS 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 of the court.

<p>Criminal Law—Homicide—Degree of Morder—Intoxication—Instruction.—Upon the trial of a defendant charged with murder in the first degree, where there is any evidence tending to show that the defendant was intoxicated at the time of the homicide, he is entitled to have an instruction given embracing in substance the statutory declaration as to the bearing of intoxication upon the degree of the crime, and a refusal to give such instruction entitles the defendant to a reversal of a judgment of conviction of murder in the first degree.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento county and from an order denying a new trial. Joseph. W. Hughes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

<p>APPEAL from a judgment of the Superior Court of Modoe County. N. D. Arnot, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Assumpsit fob Services—Claim against Estate of Deceased Person— Sufficiency of Complaint—Demurrer.—A complaint in an action upon a claim against the estate of a deceased person, alleging as the basis of the claim that the decedent “was at the time of his death indebted to the plaintiff in the sum of seven thousand five hundred dollars as a balance due plaintiff for nursing, boarding, lodging, counseling, advising and taking care of the decedent almost continuously from the twenty-sixth day of September, 1870, down to the fourth day of November, 1895,” is neither subject to a general demurrer for want of facts nor to a special demurrer for uncertainty.</p> <p>Id.—Services Received—Presumed Request—Implied Promise.—A complaint which shows that the plaintiff rendered services to the defendant which were received by him in person, and were presumptively at his request, and of which he has enjoyed the benefit, expresses a consideration from which a promise is implied in law to give compensation therefor, and states facts from which the liability of £he defendant is presumed, and is good as against a general demurrer, though not affirmatively alleging either the request or the promise.</p> <p>Id.—Items of Claim—Special Demurrer—Bill of Particulars.—A complaint upon a single claim for services of different kinds alleged to have been rendered to a deceased person “almost continuously” between certain dates, sufficiently shows a single claim therefor, and is not a uniting of several causes of action for which separate compensation should be made, or subject to a special demurrer for uncertainty in not showing how much services of each kind were rendered. The items of the claim may be obtained by demanding a hill of particulars, under section 454 of the Code of Civil Procedure.</p> <p>Id.—Times and Amounts of Services—Statute of Limitations.—The complaint is not demurrable for uncertainty or ambiguity because not stating the times at which the services were rendered, or when the items thereof accrued, or the amounts claimed for the several kinds of services, nor because it cannot he determined therefrom what part of the claim is barred by the statute of limitations.</p> <p>Id.—Pleading of Statute of Limitations.—The statute of limitations is an affirmative defense, and must he specially pleaded by demurrer, if the bar of the statute appears upon the face of the complaint, or if otherwise, by answer.</p> <p>Id.—Practice—Motion to Make Complaint Definite and Certain— Demurrer.—A motion to make a complaint more definite and certain, is not proper practice in this state, and it is error to grant such a motion. The only proper remedy under the Code is by demurrer on the ground that the complaint is ambiguous, unintelligible or uncertain, under section 430 of the Code of Civil Procedure.</p> <p>Id.—Norappealable Order.—An order directing that a complaint be made more definite and certain, is not appealable.</p>

<p>Street Assessment—Pleading—Posting oe Notice—Waiver oe Objection.—A complaint in an action upon a street assessment averring that the council directed its clerk to publish and post the resolution of intention for two days “in the manner prescribed by law,” and that it, was published and posted for two days “in the form and manner above-described,” is not fatally defective for not averring- that it was posted “conspicuously,” and objection thereto is waived in the absence of a special demurrer, and the averment is sufficient after verdict.</p> <p>Id.—Premature Publication—Sufficiency op Period—Sunday.—A premature publication of notice of the passage of the resolution by the superintendent of streets, is immaterial, if, treating the notice as commencing at the proper date, a sufficient period of proper publication remains to show a compliance with the statute. Absence of publication on Sunday, upon which day no paper was issued, does not impair the sufficiency of the publication for the number of days prescribed.</p> <p>Id.—Pleading—Contract—Specifications.—The complaint need not set out the contract or the specifications in extenso; and the averment that the plaintiff entered into a contract with the superintendent of streets for doing the work according to the specifications therein, sufficiently alleges that step in the proceedings as a basis for the recovery of an assessment upon the due performance of the contract.</p> <p>Id.—Averment of Performance.—An averment “ that the plaintiff did all the work in said contract mentioned, and duly performed on its part in every respect said work, according to the specifications and terms of the contract,” sufficiently avers performance of the contract. It is not a statutory averment of the performance of conditions precedent referred to in section 461 of the Code of Civil Procedure.</p> <p>Id.—Proof of Posting—Affidavit Made Out of State—Prima Facie Evidence.—If an affidavit of the posting of the resolution of intention be rejected, as made out of the jurisdiction of the state, yet the assessment, diagram and warrant, with the engineer’s certificate, are prima facie evidence of the regularity and correctness of the prior proceedings, and sufficiently prove the posting.</p> <p>Id.—Invalid Contract—"Delegation of Power—Void Assessment.-— A contract delegating to the superintendent of streets the power to determine the amount of fine material to be used, so as to render it impossible for bidders to determine in advance the cost or profit of the work, renders the contract invalid, and the assessment therefor is void and will not create a lien upon the adjacent land.</p>

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

<p>Reference—Court Commissioner—Resignation—Power to Report.— The transfer of an action for money had and received with a counterclaim for goods sold and delivered, made pursuant to the stipulation of the parties, to a person named and designated as “court commissioner,” for an accounting, and requiring “said court commissioner” to report the evidence, and the balance due on the accounting, is, in effect, a reference to the person named under section 638 of the Code; and the power of the referee to report is unaffected by bis prior resignation of the office of court commissioner.</p> <p>Id.—Power of Court Commissioner.—A court commissioner as such has no power to try any issue of fact raised by the pleadings.</p> <p>Id.—Intention of Parties as to Reference—Trial of Issues.—Where the parties acted under the stipulation and order, and tried the whole case before the court commissioner precisely as it should have been tried before a referee, it is to be held that they intended a reference.</p> <p>Id.—Construction of Stipulation and Order.—The stipulation of the parties, and the order of the court following its language, are to be construed in the same sense, and so as to make them lawful and effective; and any language involving an absurdity, and any phrase or clause inconsistent with the object and intention of the parties, is to be rejected.</p> <p>Id.—Finding of Referee—Sufficiency of Evidence.—The finding of the referee will not be disturbed for insufficiency of the evidence, where it is conflicting, confused, and uncertain, if there is any evidence to support it.</p> <p>Id —Evidence—Mutual Accounts—Transactions Prior to Period of Limitation.—It is not error, in settling the mutual accounts of the parties of long standing, to allow evidence of transactions occurring more than two years before the commencement of the action, where it appears that the amount of the claim allowed accrued within the two years’ limitation, and no error or injury resulted in the statement of the account.</p>

<p>Estates of Deceased Persons—Loss by Neglect of Administrator— Commissions.—An administrator is liable for loss to the estate caused by his default or neglect, but he does not for that reason lose his statutory right to his commissions. He should be charged with such loss in his' account, and credited with his commissions.</p> <p>Id.—Waiver of Compensation—Withdrawal without Objection.—A waiver of compensation made by an administrator, which is withdrawn by consent of the court, and without objection made by any one thereto, is not effective to defeat his right to commissions.</p> <p>Id.—Computation of Commissions—Value of Property—Appraisement in Inventory.—The valuation of the property of the estate made in the inventory, though not conclusive, is prima facie evidence of its value; and the administrator should be allowed commissions on that valuation at statutory rates, in the absence of proof that it is not fair and reasonable.</p> <p>Id.—Loss of Money Dub to Estate—Charge to Administrator—Neglect to Appeal.—Where money belonging to an estate was ordered to be charged to the administratrix, though it appeared upon the face of the order that it was in the hands of her mother, the order, if erroneous, must be appealed from, otherwise she is concluded thereby, and is chargeable with the amount, whether collected or not, if necessary for the payment of creditors.</p>

<p>The facts are stated in the opinion of the Court.</p> <p>Dorn & Dorn, for E. B. Long, S. M. Gower et al., Appellants.</p> <p>Charles S. Peery, for Home Benefit Life Association, Appellant.</p>

<p>Mining Corporation—Purchase of Vendor’s Lien by Director—Enforcement of Judgment for Sum Paid—Validity of Sale for. Excess.—A judgment rendered in the name of the plaintiff in ant action to foreclose a vendor’s lien against the property of a mining corporation, obtained for the full amount of the claim,, after a purchase thereof by a director of the corporation at a. discount, may be enforced by sale under execution to satisfy the judgment for the amount paid by the director, whether the transfer of the vendor’s lien was valid or not; and a purchase of the property for the full amount of the judgment would not render a sale under the execution invalid, but the director would merely be responsible for the excess.</p> <p>Id.—Eights of Subsequent Lienholders — Bedemption—Insufficient Tender.— A subsequent lienholder, whose lien accrued after ti e docketing of such judgment and the sale thereunder, must make a statutory redemption therefrom during the period allowed therefor, by tendering with the proper redemption papers the amount which was in fact a valid lien upon the property; and upon his failure to do so, the title will pass to the purchaser, notwithstanding a mere tender of the amount due, without a statutory redemption.</p> <p>Id.— Execution Sales—Several Properties—Equality of Liens — Omission to Find Value. —Where a judgment lienholdor who held liens of equal rank with that of a judgment lien in favor of another person, sold other pieces of property under execution besides the property sold under the other judgment lien, the omission of the court in an action to determine the question of priorities between them, to find as to the value of the respective pieces of property so sold, is material, and renders it impracticable to determine the respective rights of the parties in the property sold.</p>

<p>Execution Sales—Motion to Vacate—Collateral Suit.—In an action brought to have two judgment liens in favor of the plaintiff declared a prior lien to that of two judgments in favor of the defendant, which were not directly appealed from, a motion will not lie to set aside execution sales under the defendant’s judgments, and to vacate the certificates and deeds executed to the defendant. The plaintiff in such collateral suit cannot, by motion, have greater relief than that sought by the complaint.</p> <p>Id.—Laches of Moving Party—Failure to Redeem—Satisfaction of Judgments.— An execution sale cannot be set aside on motion made fifteen months after the sale, and after the moving party has lost his right of redemption from the sale under a lien adjudged to be prior to his own; nor can a motion be entertained where the moving party has himself by execution sales satisfied the judgments under which he claims the right to make the motion.</p>

<p>APPEAL from a judgment of the Superior Court of the City and County of San Francisco. James M. Trou-tt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action upon Check—Forged Indorsement—Dismissal for Want of Prosecution—Evidence — Judgment Poll in Action to Recover Check—Prejudicial Error.—Upon a motion to dismiss for want of prosecution an action brought by executors of a deceased . person to recover from a bank the amount of a check drawn by it in favor of the decedent, and which had been paid upon a forged indorsement of his name, the check having been delivered np to the executors by the bank a few days prior to the commencement of the action thereupon, a judgment-roll in a former action brought by the decedent to recover possession of the check, showing a want of diligence in its prosecution by him, and its final dismissal after a pendency of four years, is irrelevant and inadmissible in evidence, and its admission must he considered as material and prejudicial error.</p>

<p>Action upon Note—Pleading—Variance—Amendment.—Where thereis a variance between a promissory note set out in haec vervain a complaint thereon, and the form of the note produced in evidence, if an objection is made that they are not the same,, although the variance is not material, good practice requires-that the variance be explained, and that any error found to’ exist in the copy set out in the complaint should be corrected! by amendment.</p> <p>In.— General Denial—Nonpayment — Evidence — Cross-Examination.—A general denial of an unverified complaint in an action upon a note puts in issue the nonpayment of the note, and renders material and relevant any evidence on the subject of payment; and the plaintiff,who has testified on examination in ' chief that only the amount credited in the complaint was paid! on the note, may be cross-examined as to whether there was not another payment, and if he had not so stated at a time and place, and to a person named.</p> <p>Id.—Admission in Separate Defense.—An admission in a separate defense by failure therein to deny the nonpayment of the note is not available by the plaintiff in proof of the issue as to nonpayment raised by the general denial.</p> <p>Id.—Public Policy—Void Contract—Duty of Court.—If the consideration of the note in suit was a contract which was against public policy, good morals, or the express mandate of the law, the note cannot be made the basis of any action, legal or equitable; and it is the duty of the court to make inquiry upon that subject, and to withhold relief, if satisfied that such is the fact. Neither the silence nor the consent of the parties justifies the court in retaining jurisdiction of such an action.</p>

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

MOTION to dismiss an appeal from an order of the Superior Court of Alameda County denying a new trial. S. P. Hall, Judge. The facts are stated in the opinion of the court.

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

<p>Estates of Deceased Persons—Claim fob Funeral Expenses—Presentation—Limitation of Action.—A claim for funeral expenses is not required to be presented to the administrator for his approval, and the three months’ limitation for the commencement of an action upon a rejected claim, does not apply to an action upon such a claim. The fact that the claim was presented to the administrator and allowed in part, is immaterial upon the question of limitation of an action upon the claim.</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.</p>

<p>Taxes—Excess Collected by Assessor—Duty of Treasurer.—Money collected by the assessor for taxes upon personal property, unsecured by lien upon real estate, if found to be in excess of the amount finally determined to be due, must be repaid by the county treasurer, to the person to whom the collection was made, or to his assignee, on demand therefor.</p> <p>Id.—Private Property—Audit not Required—Mandamus.—The excess of money paid to the assessor is the private property of the person who paid it, and constitutes no part of the public funds; and the demand therefor need not be audited, but the treasurer may be compelled by mandamus to repay such excess.</p> <p>Id.—Taxes Due for Previous Year—Offset.—In a proceeding by mandamus to compel the treasurer to repay to the plaintiff an excess of taxes paid to the assessor, the treasurer cannot offset an indebtedness of the plaintiff for unpaid taxes of a previous year.</p>

APPEALS from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to offset judgments. A. A. Sanderson, Judge, The facts are stated in the opinion of the court.

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

<p>Contract to Pay Money—Maturity oe Cause of Action—Determination of Heirship—Abandoned Appeal—Right of Dismissal.—A contract to pay money within one year after the determination-of the right and title of the promisor to the estate of the decedent i-n proceedings then pending, to determine sole heirship of the promisor thereto, under section 1664 of the Code of Civil' Procedure, became due within one year after the promisor’s-, title as sole heir was finally determined upon all appeals prosecuted from the judgment establishing it, and after the right of the only other appellants therefrom was abandoned and lost, though not formally dismissed until within one year prior to an action, on the contract. The right acquired to dismiss the abandoned appeal was, for the purpose of commencing sucia action, equivalent to a formal dismissal.</p> <p>Id.—Subsequent Proceedings—Motion to Set Aside Decree—Distribution—Appeal.—Subsequent proceedings not included within the terms of the contract, cannot affect the maturity of its obligation. The subsequent action of one set of the appellants, whose rights were determined against them and in favor of the one claiming to be sole heir, in moving to dismiss the proceeding as not having been properly entered, and in appealing from an order denying the motion, cannot affect the previous final determination of the rights of such appellant. Subsequent proceedings for distribution to the one determined to be the sole heir, and appeals taken from the order of distribution, are not within the terms of the contract.</p>

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

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

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

<p>Action by Assignee—Whitten Promise to Pay Money—Beal Party in Interest.—The assignee of a written promise to pay money for goods sold is entitled to sue upon it, as the real party in interest, within the meaning of section 367 of the Code of Civil Procedure.</p> <p>Id.—Assignment by Partnership—Fictitious Name.—An assignee of a written instrument for the payment of money to a partnership by its firm name, though fictitious, may sue upon it, without regard to the right of the partnership to sue thereupon.</p> <p>Id.—Waiver of Objection—Appeal.—Any objection to the capacity of the partnership is waived, if not made in the courts below in any manner, and cannot be urged upon appeal for the first time.</p>

<p>APPEAL from a judgment of the Superior Court of Humboldt County. 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 Humboldt County. G. W. Hunter, 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 of San Francisco. James M. Troutt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Vendor and Purchaser—Contract of Sale—Retention of Title as Security—Assignability of Debt Secured.—Under an executory contract for the sale of land, where the legal title is retained by the vendor, as security for the payment of the purchase money, the vendee has only an equitable estate in the land, and the security is in the nature of an imperfect or equitable mortgage, and the land is by express contract held in pledge for such payment, and the interest of the vendor is assignable, and the assignee of notes given for the purchase money is entitled to the benefit of the security.</p> <p>Id.—Indorsement of Note fob Purchase Money—Waiver of Lien.— The lien of a vendor who has made a conveyance of the legal title is waived by an assignment or indorsement of the note or notes given for the purchase money; but the lien existing in favor of a vendor who retains the title as security for the purchase money is not waived by the assignment or indorsement of a note given therefor or by an unsatisfied judgment obtained thereupon, and upon the reindorsement of the note to the vendor, he may enforce a lien upon the land for the unpaid purchase money.</p> <p>Id.—Right to Sue for Purchase Money—Construction of Code—Enforcement of Lien.—The vendor who had retained the title as security for the purchase money, or his assignee of the debt, may sue for and collect the unpaid purchase money in an action ' at law without, in the first instance, resorting to an action to enforce the lien for the debt; and section 726 of the Code of Civil Procedure does not apply to such a case. Such action at law does not waive or affect the right of the vendor or his assignee to enforce the security for any uncollected and unsatisfied portion of the purchase money.</p> <p>Id.—Estoppel—Unsatisfied Judgment.—A proceeding upon the note by the vendor or his assignee, and the obtaining of an unsatisfied judgment upon the debt, cannot operate to estop the vendor or his assignee from foreclosing the lien for the unpaid purchase money; but in such case the amount realized upon foreclosure of the lien must be applied in satisfaction of the former judgment. Defendant cannot be compelled to pay the debt more than once.</p> <p>Id.—Homestead Claim of Defendant—Subjection to Lien of Vendor.— A declaration of homestead filed by the wife of the vendee, though it cannot be declared void as in fraud of creditors, is subject to the legal title and lien held by the vendor as security for the unpaid purchase money, nor is the priority of such lien affected by the indorsement of the note for purchase money, and the bringing of an action at law thereon by the indorsee, prior to the filing of the declaration of homestead.</p> <p>Id.—Oral Agreement of Purchaser to Pay Taxes on Land.—An oral agreement that the purchaser should pay all taxes and assessments that might become due and payable upon the land, is not in violation of the provisions of section 5 of article 13 of the constitution, as respects the forfeiture of interest upon the unpaid purchase money, evidenced by the note given therefor.</p> <p>Id.—Taxes Paid by Vendor—Right of Purchaser to Conveyance.— Where the contract between the vendor and purchaser provides expressly for the execution of a deed upon the payment of the purchase money with interest, the vendor cannot recover taxes paid by him, in an action to foreclose the lien, though agreed to be paid by the purchaser.</p> <p>Id.—Relief against Defaulting Defendant.—Relief cannot be granted against a defaulting defendant in excess of that demanded in the complaint.</p>

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

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

<p>Criminal Law—Seduction under Promise of Marriage—Minority of Parties.—In a prosecution under section 268 of the Penal Code, for the crime of seducing an unmarried female under promise of future marriage, the fact that the defendant, at the time of the promise, was under the age of lawful consent to marriage, thus rendering his promise of.marriage not legal and binding, does not withdraw the offense from the purview of that section. The offense may be committed by an infant upon an infant, “if both have reached the age of puberty.”</p> <p>Id.—Legality of Promise not Requisite—Design of Law—Confidence in Moral Obligation of Promise.—The design of the law is to protect female chastity; and excepting where the promise of marriage is known by the promisee to be base and meretricious, the promise need not be such a legal promise as would support an action for its breach. Although the female seduced may have known that the seducer was unable at that time to.contract a lawful marriage, she had a right to put confidence in his intention to fulfill the moral obligation of the promise when able to do so.</p> <p>Id.—Evidence—Previous Chaste Character of Prosecutrix—Subsequent Unchaste Conduct.—The inquiry in determining the chaste character of the defendant is confined to her previous chaste character, and evidence of her subsequent sexual intercourse with other men is properly excluded.</p> <p>Id.—Meaning of Chastity — Prior Familiarities.—Chastity, in the case of an unmarried female, means simply that she is virgo intacta; and whatever prior familiarities, liberties, or even indecencies, may have been permitted by her, so long as she did not surrender her person until seduced to do so by the defendant under promise of marriage, she cannot be said to have been unchaste, or not to have been “an unmarried female of previous chaste character,” within the meaning of the statute.</p> <p>Id.—Instructions—Assumption of Facts.—Instructions are not chargeable with an improper assumption of facts, where it appears that, so far as assuming facts, they presented merely an abstract consideration of the crime and its elements, and were not directed to the particular circumstances of the case at bar, and that the court, when dealing with the evidence in the case, was careful to leave all questions of fact for the determination of the jury.</p>

<p>APPEAL from a judgment of the Superior Court of San Joaquin County and from an order denying a new trial, and from orders refusing to vacate an order appointing a receiver and settling an account of the receiver. Joseph H. Budd, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Attachment—Redelivery Bond—Dissolution of Attachment—Insolvency of Defendant—Liability of Sureties.—A redelivery bond given for the release of property attached, conditioned that if plaintiff recover judgment in the action, the defendant will, on demand, redeliver the attached property to the proper officer, or that, in default thereof, the defendant and his sureties will, on demand, pay the value thereof, not exceeding the fixed sum, operates to release the property from the attachment and to dissolve the attachment as to the property so released, and upon an adjudication of the insolvency of the defendant, his ability to return the property having ceased, and in case of a recovery of judgment by the plaintiff, the sureties on the bond become liable to an action by him for the value of the property.</p> <p>Id.—Alternative Contract—Impossibility of One Alternative.—If an agreement is in the alternative, and one of the alternatives becomes impossible or cannot be lawfully performed, the party so contracting is bound to perform the other alternative, and the obligation is to be interpreted as if the other alternative stood alone.</p> <p>Id.—Insolvency Proceeding—Previous Dissolution of Attachment.—■ If at the time of commencing a proceeding in insolvency there is no attachment in force upon which the proceeding can operate, an attachment against the insolvent debtor having been previously dissolved, by a bond given for that purpose, the liability of the sureties on such bond is not released or affected by the insolvency proceeding.</p> <p>Id.—Order fob Release of Attached Property—Recital in Undertaking—Presumption.—Where the goods were in fact released as a consequence of the bond being given, and the undertaking for the release of the attached property recited that it was given pursuant to an order of the court requiring it to be given, and the officer accepted the bond and surrendered the property, it must be presumed that an order discharging the attachment was made pursuant to sections 554 and 555 of the Code of Civil Procedure, and that the officer regularly performed his duty in releasing the goods.</p> <p>Id.—Execution against Insolvent.—The issuance of an execution against the insolvent debtor is not a condition precedent to an action on the undertaking against the sureties on the bond given by him for the redelivery of attached property.</p> <p>Id.—Demand for Return of Property not Required.—A demand need not be made upon the insolvent debtor for the return of the property before an action can be maintained against the sureties on his bond to release attached property.</p>

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

MOTION to recall a remittitur, and to dismiss an appeal from an order of the Superior Court of Yolo County denying a new trial. E. C. Hart, Judge. The facts are stated in the opinion of the court.

<p>Estates of Deceased Persons—Accounts of Joint Administratrices— Division of Commissions— Attorney’s Fees—Discretion.— The superior court has discretion in settling the accounts of two joint administratrices of the estate of a deceased person to divide the commissions between them, and to apportion the allowance of counsel fees between them, and its action will not be disturbed upon appeal, where no abuse of discretion, or errors of law, appear.</p> <p>Id.—Exclusive Possession of Assets—Demand—Riqht to Commissions.—The fact that one of the administratrices, who first qualified, took and held exclusive possession of the assets, and proceeded to administer thereupon, and that no formal demand for possession of the property was made by the excluded administratrix, cannot operate to deprive the latter of her right to commissions, where it appears that such demand would have been useless, and that she was willing and anxious to take part in the administration, and performed some acts of administration, and made report of all the facts to the court.</p> <p>Id.—Payment of Attorney’s Fees—Prior Allowance.—An administratrix is not required to make payment of her attorney’s fees before an allowance thereof by the court, hut has the right to have the court determine in the first instance what amount should he allowed before paying the same.</p>

<p>Insolvency—Agreement of Creditors to Carry on Business—Agency of Assignee—Assumpsit.—A mutual written agreement of the creditors of an insolvent corporation authorizing and directing the assignee for his, their and each of their joint and several interest and advantage to carry on the usual business of the corporation, and authorizing, empowering and directing him to employ the necessary labor and buy the necessary supplies for that purpose, creates an agency of the assignee for such creditors as joint principals, who are liable as such to an action of assumpsit for supplies sold to the assignees on faith thereof.</p> <p>Id.—Partnership not Involved.—Such agreement does not involve any question of partnership or sharing of profits among the creditors, or of engaging in business on their part The question is simply one of agency, and of the liability of principals for acts done by their authority.</p> <p>Id.—Pleading—Agency for Creditors—Order of Court—Lien upon Assets.—In an action of assumpsit against the creditors as principals, for supplies furnished to the assignee as their agent, where the complaint specifically alleged that they were furnished under and in pursuance of the authority conferred upon the assignee by the terms of the agreement of the creditors, an allegation in the complaint that the defendants obtained an order of court authorizing the assignee to carry on the business, and directing that the costs of labor and supplies should be a first charge upon the assets, without, alleging that the supplies were furnished upon the authority of the order, does not show upon its face that the order is available to defeat the cause of action pleaded, or to relieve the creditors from their liabiity as principals, under the agreement, and to cast the whole liability upon the assignee.</p> <p>Id.—Consent to Order—Defensive Matter—Exhaustion of Lien.— The contention that plaintiff consented to be bound by the terms of the order, in seeking payment for his supplies, is affirmative matter of defense; and the utmost that could be claimed under such defense, from the terms of the order, would be, that having been given a preferred claim in the nature of a lien upon the assets of the insolvent, he ought to exhaust such lien before seeking recourse against the creditors.</p> <p>Id.—Powers of Assignee — Continuance of Business — Ineffective Order—Estoppel.—The assignee has no power under the Insolvent Act to continue the business of the insolvent, and there is no authority given in the Insolvent Act to the court to order that the business shall be carried on; and such order cannot operate merely by force of its terms, or be enforced otherwise than upon the equitable principles of estoppel.</p>

<p>Estates op Deceased Persons—Accounting Between Estates—Expiration op Lease—Laches.—An action by the administratrix of the estate of one deceased person against the executors of the will of another, to enforce an accounting of rents and profits alleged to have been collected by the latter decedent from a leasehold interest in his lands turned over to him by the former, the lease of which had expired nearly eight years prior 1» the death of the latter, and more than nine years prior to the commencement of the action, is barred by laches.</p> <p>Appeal—Error against Respondent.—Error committed against the respondent cannot be reviewed or considered upon an appeal.</p> <p>Id.—Findings and Omissions Rendered Immaterial—Laches op Appellant.—Findings against evidence, and omissions to find upon issues tendered, may be rendered immaterial and not ground for reversal upon appeal by a plaintiff, by a finding that the claim of the plaintiff is barred by laches, where such finding is sustained by the record.</p>

<p>Criminal Law—Obtaining Note by False Pretenses—Carelessness oe Signer.—The offense of obtaining the signature of a defrauded person to a promissory note under the false pretense and representation that he was then signing an application for a policy of insurance on his life, and by deception in moving and manipulating said papers, is against the public, and not against the-person defrauded; and the mere carelessness of such person in signing the note is not a material element in the case.</p> <p>Id.— Prestidigitation—Exchange oe Paper—Negligence not Imputed.—Prestidigitation, or juggling, having been practiced in the exchange of the note for the application, which the defrauded person believed he was signing, lack of care or gross negligence cannot be imputed to him in signing the note, under the false pretense and representation that he was signing the application.</p> <p>Id.—Construction oe Penal Code—“ Property”—Promissory Note,— A promissory note is “property,” within the meaning of section 532 of the Penal Code, defining the offense of defrauding a person of money or “property,” designedly by false or fraudulent representations or pretenses.</p> <p>Id.—Sufficiency op Information—Ownership of Property.—An information setting forth all the facts in detail upon a charge of obtaining the signature to a note of a defrauded person named under false pretenses specified, and stating the value of .the note and setting out a copy thereof purporting to be signed by such person, sufficiently shows the ownership of the property In the person defrauded, as fully as though there were a direct allegation in the pleading to that effect, and the absence of such direct allegation is not fatal to the information.</p>

County of San Francisco and from orders refusing to set aside the indictment, overruling a demurrer thereto, and denying motions in arrest of judgment and for a new trial. Frank H. Dunne, Judge. The facts are stated in the opinion.

<p>Criminal Law—Bobbery—Information—Money Taken from Person— Possession.—An information for the crime of robbery, which charges that money was forcibly and feloniously taken “from the person and immediate presence” of the person robbed, sufficiently shows that the money was in the possession of such person, at the time of the taking, and is not subject to demurrer for want of a specific averment of such possession, though it would be better pleading to insert such averment. It would be essential to make such averment, if the information had- only alleged that the money was taken from the immediate presence of the person robbed, and not from his person.</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. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Contract for Labor—Payments to be Made to Sureties—Trust— Assignment by Released Sureties—Notice—Action by Assignee.— An action to recover the balance due under a written contract, for labor, brought by an assignee of a firm of sureties upon a. bond given to secure its performance by the party bound thereunder to furnish the labor, cannot be sustained, although payments for the labor furnished were to be made to such sureties, under the terms of the contract, if the court finds upon sufficient evidence that such payments were to be made to. them as trustees for such party to the contract and for their protection as his sureties on the bond, and that they had been fully released from their bond prior to the assignment, and, at' the time thereof, had no interest in the balance due under the-contract, and that the assignment was made to the plaintiff without the consent of the party entitled to the money, and; with notice of his rights.</p>

WBIT of review from the Supreme Court to annul an order of the Superior Court of the City and County of San Francisco committing the interment of the body of a deceased person to one not of kin to the deceased. ' Charles W. Slack, Judge. The facts are stated in the opinion of the court.

<p>APPLICATION for writ of prohibition from the Supreme Court to the Superior Court of the City and County of San Francisco. Edward A. Belcher, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

HABEAS CORPUS to the Sheriff of the County of Sonoma to test the legality of an imprisonment for contempt by the Superior Court of Sonoma County for nonpayment of alimony. Albert G. Burnett, Judge. The order for payment of alimony was made pendente lite in' a suit for divorce in the case of Leonora Silvia v. John J. Silvia. The plaintiff offered to unite with the defendant in the mortgaging of the homestead, in order to raise means for the payment of alimony.

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

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

<p>APPEAL írom a judgment of the Superior Court of San Diego County, Department One.</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>

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

J. M. Hunt, Judge. The amended answer was allowed to he filed after a motion had heen made for judgment upon the pleadings for insufficiency of the denials of the original answer, upon condition of payment of costs to the plaintiff, after which the' motion was overruled. Further facts are stated in the opinion-of the court.

<p>Negligence of Habbob Commissioners—Insecure Ladder upon TugBoat—Injury to Employee—Liability of State.—The state is not liable for damages to an employee of the board of state harbor commissioner^, engaged in attending to fire-alarm duty upon a tug-boat belonging to the state and used by the board,, though such damage resulted from the alleged negligence off the board, in permitting a ladder thereon to be insecurely fastened, to the injury of such employee.</p> <p>Id.—Act of 1893—Statutory Construction.—The act of 1893 (Stats.. 1803, p. 37) allowing actions upon contract or for negligence against the state, where the claims thereon are not allowed by the state board of examiners, did not create any liability or cause of action against the state where none existed, but merely gave an additional remedy to enforce such liability as. would have existed if the statute had not been enacted.</p> <p>Id.—Governmental Functions of Harbor Commissioners.—The harbor-commissioners exercise governmental functions in the discharge-of the duties enjoined upon them by law, and the fact that tile board is authorized to collect tolls and charges for dock-age and wharfage, to such extent as will enable them to discharge the duties required of them by law, does not affect the-character of the board as a governmental agency, or convert its action into a mere business enterprise. The protection, against fires, or the extinguishment of fires, upon a vessel belonging to the state in the control, of the harbor commissioners,, is the exercise of a purely governmental function on their part,, in the exercise of which the state is not responsible for an injury to a person employed by them for that purpose, caused by negligence on their part.</p> <p>Id.—Action ex Delicto — Master and Servant—Negligence.—An-action for negligence of a master not growing out of the contract of employment of the servant, but merely growing out of the relation existing between them, and arising from the-violation of a duty not enjoined by the contract, and the damages for which cannot be estimated by any rule or standard fixed by the contract, is an action not ex contractu but ex delicto,. and is in tort.</p> <p>Id.—Employment by State—Risks Assumed by ' Employee.—An employee, in entering the service of the state, assumes all the risks-attending his employment, whether arising from its ordinary perils, or resulting from the negligence or misfeasance of other-servants of the state.</p>

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

<p>Estates op Deceased Persons—Final Account of Administrator— Charge op Interest—Burden op Proof.—An administrator is not to he charged in the settlement of his final account even with simple interest upon the funds of the estate which have come into his hands, unless it is made to appear that some loss has been caused by his negligence or fault. He is not to be charged with compound interest, unless he is shown to be guilty of some positive misconduct or willful violation of duty. The burden is upon the contestant of his account to show that be should he charged with any interest.</p> <p>Id.—Commingling op Funds—Deposit in Bank—Compound Interest.— Mere evidence that an administrator mingled the funds of the estate with his own funds, would not justify charging him with interest thereon; and evidence that he deposited moneys of the estate in a bank, managed by his brother, who was a surety on his bond, does not justify a finding that he embezzled the estate, or warrant charging him with compound interest, in the absence of proof that the bank made any other use of the funds deposited than that made by banks of deposit in general.</p> <p>Id.—Errors in Account.—Errors in the account in the omission of items in respect of which there is no evidence of embezzlement or conversion, does not justify a charge of compound interest thereon; nor can the administrator be charged with simple interest on any omitted sum of money prior to the date at which it was received.</p> <p>Id.—Finding Assailing Integrity op Administrators—Insufficiency op Peoof.—A finding which assails the integrity of the administrators may be challenged by them for insufficiency of proof, although it does not affect the result of the accounting.</p> <p>Id.—Payment op Allowance to Widow—Receipt as Evidence.—The production of a voucher from the widow, showing a receipt of payment of “one thousand dollars balance payment of the eighteen hundred dollars allowed by the court for widow’s allowance,” is prima facie evidence that only one thousand dollars of the allowance was then unpaid, and threw upon the contestant the burden of showing the contrary; and in the absence of counter-proof the court should credit the payment of the allowance in full.</p> <p>Id.—Order for Payment into Court—Discharge of Administrator— Liability to Creditors.—The court has no power to order an administrator to pay the balance of the estate into court, and that he thereupon be discharged. He is responsible for the assets until paid out by him under the directions of the court; and upon the entry of the order for the payment of claims, he becomes liable therefor, both personally and upon his bond, to the creditors who are entitled to execution, which liability he cannot escape by complying with an order to pay the money into court, which the court had no power to make.</p>

<p>Estates of Deceased Persons—Distribution~dnder Will—Construction—Ambiguous Reference to Deeds—Parol Evidence.—In construing the will of a deceased person for distribution thereunder, deeds referred to therein, in order that they may be considered as incorporated therein and made part thereof, must be so clearly, explicitly and unambiguously described in the will itself, as to leave their identity free from doubt, otherwise the will is not wholly in writing as the law requires; and a patent ambiguity in the description cannot be explained or aided by parol evidence. Parol evidence is never" admissible to modify, change or vary the expressed intent of the testator.</p> <p>Id.—Failure of Bequest or Devise—Partial Intestacy.—If the intent of the testator in reference to a particular bequest or devise cannot be deduced from the face of the will, the bequest or devise fails, and there is a partial intestacy, as to the subject matter thereof.</p> <p>Id.—Nondelivery of Deeds — Failure to Devise Lands.—Deeds of lands executed and acknowledged by the testatrix and her husband, but not delivered by her during her lifetime, can have no validity, if not suffibiently referred to and made part of the will of the testatrix; and if the lands therein described are not made the subject of a devise by the terms of the will, there is an intestacy as to such lands.</p> <p>Id.— Ineffective Provision for Future Delivery.—A provision in the will for,the future delivery of deeds to the husband of the testatrix, after her death, and for delivery to the" grantee after her husband’s death, assuming the deeds to be identified, could not give to them as deeds any validity, or operate to vest any interest in the grantee. Such delivery, if performed as directed, would amount in law to nothing.</p> <p>Id.—Construction of Will as to Intestacy—Intention of Testator— Legal Effect of Language.—Courts have leaned to such construction of a will as will avoid intestacy; but such construction cannot be permitted, where the terms of the will fail to make a legal devise; and if the legal effect of the expressed intent of the testator is intestacy, he must be presumed to have intended ■that result. The intention of the testator to be sought after is not that merely which existed in his mind, but that which is expressed in the language of the will.</p> <p>Id.—Bequest of Money—Void Trust—Appeal by Heirs.—A bequest of money vesting a present gift in a legatee is not affected by a void trust postponing the time of enjoyment; and heirs appealing from a decree of distribution of the amount of the bequest to a trustee for the legatees are not injured thereby, and are not entitled to a reversal of the decree upon that ground, of which the legatee alone can complain.</p> <p>Id.—Note and Mortgage Executed to Deceased Wife—Disputable Presumption—Common Property—Title of Husband.—A note and mortgage executed to a deceased testatrix are presumed to be her separate property; but such presumption is disputable, and the court may receive evidence to show that they were common property, and not subject to administration in the wife’s estate; and if the court so finds, upon sufficient evidence, the property is not subject to administration or distribution as any part of the wife’s estate, but is properly left to the legal control of the husband.</p> <p>Id.—Homestead Declared by Wife upon Separate Property—Title of Husband.—A homestead declared by the wife on her separate property by a declaration proper in form and in substance, if the property is of such a kind that it could be impressed with the homestead characteristics, descends upon her death absolutely to the husband.</p> <p>Id.—Public Inn—Admission of Homestead.—Under a petition by a husband for the setting apart of a homestead declared by his deceased wife upon a public inn, which was her separate property, and which was alleged in the petition to be a homestead, where no issue was joined in the superior court sitting in probate as to the validity of the homestead, but the contestants expressly admitted its homestead character, the validity of the homestead cannot be assailed upon appeal from a decree setting it apart to the husband.</p>

<p>APPEAL from a judgment of the Superior Court of Contra Costa County and from an order denying a new trial. Joseph P_ Jones, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Criminal Law—Making and Uttering Fictitious Order—Indictment.— An indictment charging a defendant with making and uttering a fictitious order for the payment of money which alleges that the order was uttered to a person named with intent to defraud a carriage company named, need not allege that such person was connected with the carriage company, but such fact can be proved, if necessary, under the allegations made, and such allegations fully satisfy the requirements of the statute.</p> <p>Id.—Inadmissible Evidence—Assumed Names — Drunkenness.—Evidence for the prosecution in chief that the defendant, prior to the making and passing of the order,had gone under assumed names, and had been arrested for drunkenness, is inadmissible, and its admission is prejudicially erroneous.</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.</p>

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

<p>Cbiminal Law—Evidence—Laying Foundation fob Impeachment of Defendant—Objection upon Appeal.—Questions asked on cross-examination of tiie defendant by the district attorney, in good faith, for the purpose of laying a foundation for the impeachment of the defendant as a witness, by proof of inconsistent statements, and calling his attention to time, place, and parlies present, specified with particularity, are not reprehensible, notwithstanding a claim of the defendant urged upon appeal that they tended to show that he was guilty of another offense, if it appears that the questions were not asked for that purpose, and the permission of them, and of proof of the incousistent statements, is not ground for reversal.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order denying a new trial. E. P. Unangst, 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. Geo. H. Bahrs, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Sale of Fig Crop — Contract with Partnership—Incorporation— Novation—Pleading.—In an action to recover the agreed price of a crop of figs sold and delivered, in which the complaint alleges a sale and delivery of the figs at the agreed price directly to the defendant corporation, averments therein regarding a previous contract with a partnership whose members formed the corporation, are but of evidentiary matter, and might have been omitted. Such complaint is not demurrable for not alleging a novation of the contract and a release of the partnership from its obligations.</p> <p>Id.—Assumption of Obligations of Partnership by Corporation—Release of Partnership not Essential.—Where it appears that the corporation succeeded directly to the business of the partnership, and assumed the duties of the partnership in reference to the figs which it received from the plaintiff, it is not essential to plaintiff’s right of action against the corporation that there should have been a formal novation of the corporation in the contract, and a release of the partnership from liability thereon.</p> <p>Id.—Contract by Agent—Authority to Exercise Option to Purchase —Failure to Disclose Limitations—Instruction.—Where the evidence was conflicting as to the authority of an agent of the defendant corporation, who received a delivery of figs, to exercise an option given by the contract with the partnership to purchase the crop of figs at time of delivery, at the agreed market value, it was erroneous for the court to instruct the jury that if such agent did not disclose any limitations upon his authority to contract with the plaintiff, and the plaintiff did not know that he was not authorized to contract for the purchase of the figs, and that if he contracted for the purchase of the figs, on behalf of the defendant, they should find for the plaintiff.</p> <p>Id.—Limitations upon Authority—Power of Agent.—An agent cannot bind his principal by any express definition of his agency, and cannot by mere silence concerning limitations upon his authority render such limitations ineffective; nor can it he inferred that an agent possesses power to purchase goods from the mere fact that he was an agent to represent the partnership or the corporation in some undefined dealing with the owner regarding the same.</p>

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

G. W. Nicol, Judge. The information charged the defendant, F. J. Gross, with the murder of F. E. Gross, committed on the ninth day of November, 1897, at Tuttletown. The defendant was an uncle of the deceased. J. F. Black testified that the threat referred to in the opinion was made in the latter part of January, 1897. Bernard McDonald testified to hearing similar threats made against the Gross family in July, 1897. Further facts are stated in the opinion.

APPEALS from an order of the Superior Court of Nevada County fixing fees of the attorney for an executor, and directing payment thereof from funds of the estate. F. T. Nilón, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from a judgment of the Superior Court of Fresno County, and from an order denying a new trial. E. W. Bisley, Judge.</p> <p>The facts are stated in the opinion of the court in this case, and more fully upon the former appeal, reported in 109 Cal. 221.</p>

Superior Court of San Mateo county denying a petition to set apart life insurance moneys. to widow and minor children of a deceased person. George H. Buck, Judge. The facts are stated in the opinion of the court.

<p>Criminal Law—Forgery—Evidence—Testimony of Accomplice—Conspiracy—Corroboration.—Before a defendant accused of forgery can be convicted upon the testimony of an accomplice, showing a conspiracy between himself and the defendant and several other persons, by means of the alleged forgery, to defraud the corporation named, the testimony of the accomplice must he corroborated by evidence independent of that of the accomplice, showing the existence of the conspiracy to defraud, and the fact that the defendant was a member of that conspiracy.</p> <p>Id.—Character of Corroborating Witness—Question for Jury.—The question as to the character of the corroborating witness, and as to whether or not he was an accomplice, is one of fact for the jury.</p> <p>In.—Acts and Declarations of Co-conspirator—Order of Proof— Discretion—Exception to Rule.—The order of evidence prescribed by subdivision 6 of section 1870 of the Code of Civil Procedure, that the acts or declarations of a co-conspirator may be received after proof of the conspiracy, is not mandatory; but that section presents the proper order of proof, and it is only in exceptional cases that the court should exercise its discretion to allow a departure therefrom, when the facts from which the conspiracy is to be inferred are so intimately blended with other facts going to constitute the crime that it is difficult to present the evidence in intelligible form without first admitting the testimony of the accomplice.</p> <p>Id.—Instruction—Liberty to Disregard Testimony—Province of Jury. An instruction that the jury are “not at liberty to disregard the testimony of a witness” where they may “believe from the evidence that such witness is corroborated by other competent evidence, and the circumstances in proof in the case,” is misleading if the word “disregard” is used as meaning to “refuse to consider”; and if that word is used in the sense of “reject,” the instruction is an invasion of the province of the jury, who are the sole judges of the credibility of a witness, and of the . weight to be attached to Ms testimony, and are at liberty to discredit his testimony, or any corroborative evidence thereof, however competent it may be, if they regard it as unworthy of belief.</p> <p>Id.—Uttering Forged Instrument—Attempt—Overt Act—Delivery to Agent or Co-conspirator—Improper Instruction.—An attempt to utter or pass a forged instrument by delivery to an agent or co-conspirator, with the design that the agent or co-conspirator shall utter or pass it, is not complete until some overt act is done by tbe agent or co-conspirator in uttering or passing it. An instruction that if the defendant “delivered said instrument to any one, knowing it to be forged, with intent to have it uttered, published and passed as a true and genuine instrument, with intent to cheat and defraud,” etc., they should find the defendant guilty, is erroneous, as not necessarily including any overt act toward the commission of the crime, other than the mere act of preparation for its commission.</p> <p>Id.—Instruction as to Corroboration of Accomplice.—An instruction to the effect that evidence in corroboration of an accomplice “need not tend to establish the precise facts testified to by the accomplice,” and that “it is sufficient if- such corroborative evidence tends in any way to connect the defendant with the commission of the crime charged,” is incorrect in not taking into account the essential condition that the corroborative evidence, standing alone, “without the aid of the testimony of the accomplice,” must tend to connect the defendant with the commission of the crime.</p> <p>Id.—Accessary before the Fact—Aiding and Abetting—Disjunctive Instruction.—In order to hold an accessary before the fact as a principal in case of felony, he must aid and abet in the commission of the offense, though not present. A disjunctive instruction that such an accessary may be charged as a principal, if he aids or abets in the commission of the felony, is erroneous.</p> <p>Trial—Change of Judge—Bias or Prejudice—Affidavits—Construction of Code—Knowledge of Judge.—Section 170 of the Code o1 Civil Procedure, as amended in 1897, contemplates that the question of the bias or prejudice of the judge about to try a case, by reason of which it is claimed that a party cannot have a fair and impartial trial before him, shall be determined wholly from the affidavits and counter-affidavits on file, and the judge is neither to be called upon nor permitted to use his own knowledge of the matter. If it appears from the affidavit or affidavits on file that the party presenting the same cannot have a fair and impartial trial before such judge, and there are no counter-affidavits, and no conflict upon the facts, the duty of the trial judge is plain, and a motion for change of the judge must be granted.</p>

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

<p>Conflicting Jurisdiction of State and Federal Courts—Comity— Prior Possession of Subject of Litigation.—There is no common arbiter between the state and federal courts, and comity between them becomes a necessity and is a law which cannot be disregarded; and when a federal court is first in possession of the subject of the litigation, it must be left to determine when its possession and control of the property has ended, without interference from a state court.</p> <p>Id.—Execution of Decree of Federal Court—Custody of Check by Clerk—Garnishment.—The claim of the United States district court that the possession of a check by its clerk payable to the receiver of a railroad appointed by a state court in Oregon, was in execution of its decree distributing the surplus proceeds of a steam vessel operated by such receiver, and which was taken from his custody and sold by order of said district court in admiralty proceedings, will preclude an effective garnishment of the check by a creditor of the railroad company, in a court of this state.</p> <p>Id.—Agency of Federal Court for Transmission of Fund.—In executing the intention of the United States district court to transfer the surplus funds, and the jurisdiction to determine conflicting claims respecting them to the court which appointed the receiver of the railroad in Oregon, the Oregon receiver and Ms proctor must be regarded as in effect officers or agents of the United States district court, for the transmission of the fund in execution of the decree.</p> <p>Id.—Transfer of Property by Federal Court to Another State—Purpose of Transfer.—It seems that a federal court cannot rightfully transfer property from this state to another state for the mere purpose of giving to the courts of that state jurisdiction to distribute such property, thereby depriving the courts of this state of such jurisdiction; but a United States district court may, without violation of that principle, order the distribution of the surplus proceeds of a vessel taken under a libel in admiralty from the custody of a receiver of a state court in Oregon, to be made to such receiver as the only person having a vested interest therein.</p> <p>Id.—Proceedings Supplementary to Execution—Orders Limiting Conduct of Receiver—Review up.on Appeal.—Upon proceedings supplementary to execution in a superior court of this state, by which it was sought to reach a check in the possession of the clerk of the United States district court, orders limiting the conduct of the receiver appointed by the court to enforce a garnishment of the check made under execution, so as to confine his action to the taking of such proceedings, in the United States district court, as he might be advised, and not elsewhere, will be affirmed both upon the ground that reversal would be useless, it appearing that the fund in controversy had been actually transferred to Oregon by order of the district court prior to the decision upon appeal, and also upon the- ground that comity required that there should be no interference with the jurisdiction of the district court over the disposition of the fund in its possession, made by its decree.</p>

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

<p>Negligence—Damage for Nondelivery of Telegram—Liability of Plaintiff to Third Person—Insufficient Complaint.—A complaint in an action for damages for the negligent failure of the defendant to deliver a telegram to the plaintiff with promptitude, in which the only damage alleged is that plaintiff was prevented thereby from discharging its contract obligation to a third person to whom damage resulted from breach of the contract between plaintiff and such third person, who demands damages against plaintiff, and threatens suit therefor, does not state a cause of action entitling the plaintiff to recover.</p> <p>Id.—] S ominal Damages.—The complaint not having alleged any damages for breach of the defendant’s duty to the plaintiff directly, but only for the breach of the defendant’s duty to a third person, the plaintiff is not entitled to recover nominal damages.</p> <p>Id.—Liability of Plaintiff, not Actual Loss—Double Liability of Defendant.—There must be actual loss caused to the plaintiff before there can be actual compensation therefor from the defendant and the actual liability of the plaintiff to a third person is not the equivalent of actual loss. The defendant is liable to such third person for actual loss occasioned to him by its negligence, and cannot be subjected twice to its payment; nor can the defendant be compelled to pay the amount of it to the plaintiff unless it has been first actually discharged by the plaintiff.</p> <p>Id.—Construction of Code—Certainty of Detriment.—The provision of section 3283 of the Civil Code providing that “damages may be awarded in judicial proceedings for detriment resulting after the commencement of the action, or certain to result in the future,” has no application to a claim for damages in favor of a third person against the plaintiff for breach of a contract which took place before the commencement of the action, and in respect to which there is no certainty that "an action will be brought in the future to compel the plaintiff to pay it.</p>

<p>Obiminal Law—Tbial—Challenges to Jtjboes—Actual Bias—Appeal. A challenge to a trial juror in a criminal ease for actual bias can only be reviewed upon appeal when the question presented is one of law; and the action of the trial court upon such a challenge will not be reviewed where the question is one of fact, or of conflicting statements, or where the evidence would justify a finding either way.</p> <p>Id.—Homicide—Self-defense—Reasonable Doubt—Instbuction.—An instruction to the effect that a defendant charged with murder cannot be acquitted upon his plea of self-defense, unless the jury “believe” from the evidence that at the time of firing the fatal shot the defendant honestly believed that his life was in danger and that he was about to receive great bodily injury from the deceased, is erroneous, as eliminating the right of the defendant to an acquittal if the evidence created a reasonable doubt as to whether he acted in self-defense.</p> <p>Id.—Duty of Aggbessob, in Declining Steuggle—Notice to Advebsaby. An instruction to the effect that if the deceased was the first aggressor, and had honestly and in good faith endeavored to decline further struggle before the fatal shot was fired, there was no self-defense, is erroneous in failing to recognize that the aggressor must make known his declination to his adversary.</p>

<p>APPEALS from judgments of the Superior Court of Alameda County. John Ellsworth, Judge.</p> <p>The facts are stated in the opinion,</p>

<p>Action for Death—Evidence—Declarations of Deceased—Res Gestas. In an action for a death, where it appeared that the deceased had been caught under a wheel of one of the ears, and was still under the wheel, held there firmly by the weight of the car, at the time of malting the declaration sought to be proved, it is error to refuse to permit questions to be asked as to what he said while in that condition and what he said as to the cause of the accident; but if the answer given should disclose that what he said as to the cause of the accident, was in its nature a mere narrative of past events, it should be stricken out as not being part of the res gestae.</p> <p>Id.—Test of Res Gesta:—Narrative of Past Events—Application of Principles to Facts.—A declaration, to be admissible as part of the res gestae, must be an undesigned part or incident of the occurrence in question, and must be the natural and spontaneous outgrowth of the main occurrence. It must exclude the notion of deliberation, or calculation, or design to make evidence for future purposes; and if it be a narrative of past events, it is inadmissible hearsay, and must be excluded. The difficult task is always to apply established principles to the facts of the case in hand.</p> <p>Id.—Erroneous Instructions—Burden of Proof—Knowledge of Defendant as to Defective Crossing—Contributory Negligence.— It is erroneous to instruct the jury that plaintiff must establish by a preponderance of evidence “that the defendant had no notice or knowledge that the crossing was out of repair, and that such absence of knowledge was not due to defendant’s neglect in examining the crossing”; and it is also erroneous to instruct the jury that “plaintiff must prove by a preponderance of evidence that the deceased was free from contributory negligence.”</p>

MOTION in the Supreme Court for a writ of supersedeas to stay proceedings for the enforcement of a judgment of the Superior Court of Riverside County, pending an appeal therefrom. J. S. Noyes, Judge. The facts are stated in the opinion of the court.

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

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

<p>Constitutional Law—Municipal Affairs in San Francisco—Acts Increasing Pay of Firemen and Policemen.—The people, in adopting the constitutional amendment of 1896, amending section 6 of article XI of the constitution, so as to except municipal affairs from being subject to and controlled by the operation of general laws, are deemed to have done so in view of the decision of this court distinguishing and classifying the municipal officers of San Francisco, including the officers of the police and fire departments. The pay of those officers clearly falls within the term “municipal affairs”; and the acts of the legislature of 1897 increasing the pay of officers in each of those departments, in municipalities of the first class, are unconstitutional and void.</p>

<p>Action fob Death of Tenant’s Wife—Lease by Executors—Fraud— Individual Liability.—An action for the death of a' tenant’s wife, alleged to have been caused by the deceit and fraud of the executors of a deceased person, in leasing the premises to the plaintiff, under a misrepresentation as to their safe condition, if it can be maintained at all, is properly brought against the lessors individually, and could not, in any event, be sustained against the estate of the decedent.</p> <p>Id.—Concealed Defect—Absence of Fraud—Assertion as to Safety of Premises—Caveat Emptob.—Where it affirmatively appears that the defect in the leased premises was so latent that none of the family of the tenant discovered it during five months’ occupation, and that the assertion made by the lessors as to the safety of the premises was not fraudulently made, but was warranted by the appearance of the premises, and was believeá to be true when made, they cannot be charged with fraud in making it, but the rule of caveat emptor applies, and an examination of the premises and discovery of the defect rested as much upon the tenant as upon the lessors.</p>

MOTION to dismiss an appeal from an order of the Superior Court of Sonoma County setting apart an estate to the widow of a deceased person. Albert G. Burnett, Judge. The facts are stated in the opinion of court.

J. M. Seawell, Judge. The facts are stated in the opinion of the court, and in the opinions rendered upon the former appeals therein referred to.

<p>Life Insurance—Forfeiture—Nonpayment of Premium—Waiver — Agency—Verdict—New Trial—Specifications.—In an action upon a life insurance policy which stipulated that failure to pay any premium or part thereof, or any note given therefor when due, should cancel the insurance and contract, and that agents could not give credit or waive forfeiture, where the complaint alleged in one count compliance with all the conditions, and also in another count admitted a failure to pay the annual premium immediately preceding the death, and averred that the condition was waived and a credit given, and the answer pleaded that the policy was forfeited for the nonpayment of that premium, a general verdict for the plaintiff involved a finding that the condition was waived by the corporation, but involved no finding in regard to the agent; and specifications of insufficiency of the evidence to sustain probative facts in regard to waiver or credit given by the agent, are sufficient; and where there is no evidence to sustain any waiver of nonpayment, or credit given, an order refusing a new trial must be reversed.</p> <p>Id.—Reinstatement upon Condition of Payment and Health Certifi" cate—Noncompliance with Conditions.—A customary practice by the company to allow a reinstatement of a lapsed policy within a reasonable time upon condition of procuring a health certificate and paying the premium, can be regarded only as a contract to renew upon compliance with the conditions, and where the insured died without having paid the premium, and without having furnished a health certificate, and without any agreement to extend a credit, no recovery can be had of the amount of the policy.</p> <p>Id.—Stipulation for Paid-up Policy—Option fob Extended Insurance. Where the policy stipulated that, upon failure to pay an annual premium, the company guaranteed, without any action on the part of the insured, a paid-up policy in a specified sum, and also gave the insured the option upon application within two months to give extended insurance for the full amount of the policy for a specified time, it seems that the policy was transferred into a paid-up policy for the specified sum, no option having been exercised to continue the whole policy in force for the specified period.</p>

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

<p>APPEAL from a judgment of the Superior Court of Stanislaus County and from an order denying a new trial. Wm. 0» Minor, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Constitutional Law—Act Creating Exempt Firemen’s Relief Fund— Gift.—The act of March 26, 1895, to create an exempt firemen’s relief fund in the several counties of the state, for the benefit of exempt firemen resident therein, is unconstitutional, as violating the provisions of sections 31 and 32 of article IV of the constitution, which prohibit the legislature from making or authorizing the gift of the public moneys to any person, and as assuming to create a liability on the part of the municipality where none existed before, by requiring it to aid exempt firemen who never rendered it any service. <</p>

<p>Chattel Mortgage upon Crops to be Grown—Potential Existence.— A chattel mortgage, duly executed and filed as such, which expressly covers all crops to be grown upon two parcels of land particularly described, during the continuance of the mortgage, is good, in any event, to the extent of crops planted during the life of the note secured by the mortgage. The potential existence of the unplanted crop of a subsequent year is sufficient to sustain the lien of the mortgage, as against subsequent purchasers or proceedings of any kind.</p> <p>Id.—Insolvency—Homestead.—The commencement of proceedings in insolvency by the mortgagor does not affect the lien of the mortgage upon the crop to be planted during the year of his discharge, nor can the filing of a declaration of homestead upon the premises before the planting of the crop, and the subsequent setting apart of it to the insolvent mortgagor, affect the lien of the mortgage upon the crop of that year.</p> <p>Id.—Foreclosure—Sale of Crop by Receiver.—Upon foreclosure of the chattel mortgage, a receiver may be appointed to take possession of and sell the crop planted during the year in which the mortgagor was discharged in insolvency, and had the homestead set apart to him.</p> <p>Id.—Limitation upon Lien fob Future Advances.—A chattel mortgage to secure future advances is not unlimited in its duration. After notice of subsequent sale or incumbrance made by the mortgagor, any further advance is equivalent to a new mortgage, the lien of which is subject to such subsequent sale or incumbrance.</p> <p>Id.—Continuing Services of Mortgagor—Covenant for Possession.— It cannot be successfully objected that the lien of the mortgage is defeated by a provision for the continuing services of the mortgagor, after his discharge in insolvency, if the mortgage expressly stipulates that, in default of the rendition of the service by the mortgagor, the mortgagee may take possession of the crops and harvest them.</p> <p>Id.—Answer of Wife in.Foreclosure—Declaration of Homestead— Findings—Immaterial Omission.—Where the wife of the mortgagor answered in the foreclosure suit as his wife, declaring herself to be such, and pleaded a declaration of homestead filed by her upon her husband’s property, and the court found that she had declared such homestead, the mere failure to find specifically that she was the wife of the defendant mortgagor is not prejudicial.</p> <p>Id.—Decree of Foreclosure—Order for Payment of Moneys—Exhausting Jurisdiction.—Where the decree provided for the payment to the mortgagor of the moneys received from sales of the crops of two years by receivers, a clause in the decree barring and foreclosing any right of redemption should be referred to the sales of the crops; and where no right to further proceedings is reserved in the decree, the jurisdiction is exhausted, and the foreclosure clause is not prejudicial.</p>

MOTIOH in the Supreme Court to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco, made after final judgment. George H. Bahrs, Judge. The facts are stated in the opinion of the court.

HABEAS CORPUS for admission to bail of an appellant pending his appeal from a judgment of conviction of extortion in the Superior Court of the City and County of San Francisco. Carroll Cook, Judge. The facts are stated in the opinion.

<p>Mortgage—Beneficial Interest—Agreement by Trustee—Pro Rata Payment—Purchase under Foreclosure—Trust.—Under a contemporaneous written agreement accompanying a note and mortgage executed rfi the name of one of two persons jointly interested therein, by which the mortgagee named agreed to collect or foreclose the mortgage, and to pay to the beneficial owner his pro rata share out of any sums paid on the mortgagee the foreclosure of the mortgage with the consent of the beneficial owner, in' an action brought by a subsequent lien holder, and a purchase made thereunder in the name of the mortgagee, does not constitute a payment, and does not render the purchaser liable to an action upon the agreement. He is merely a trustee for the co-owner as to his proportionate interest in the title obtained by the foreclosure.</p> <p>Id.—Receipt to Sheriff—Explanation.—A receipt may always be explained; and never so well as when given to the sheriff to make up his record in a foreclosure sale.</p> <p>Id.—Purchase in Name of Mortgagee—Conversion—Maturity of Cause of Action—Absence of Demand and Refusal.—The purchase under foreclosure in the name of the mortgagee did not constitute an appropriation of the property to his own use, nor force a maturity of the agreement to pay the beneficial owner out of any sums paid on the mortgage, in the absence of any demand and refusal to make a declaration of trust, or to convey to the beneficial owner his interest in the property.</p> <p>Id.—Action befobb Maturity of Obligation—Res Ad judicata—General Judgment.—An action brought before the maturity of the obligation to pay money upon which the action is based, is no bar to any subsequent action or proceeding by the plaintiff; and his rights cannot be prejudiced by a general judgment for the defendant in such action.</p> <p>Id.—Election of Remedy.—The beneficial owner of the interest in the mortgage may elect to await a change of the property into money, and then collect his proportionate share of the proceeds at law; or to proceed in equity to enforce his interest in the purchase.</p>

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

PROCEEDING in the Supreme Court in Bank for the disbarment of an attorney. The facts are stated in the opinion of the court.

<p>Corporation—Change of Name by Court—Constitutional Law.—The provisions of the Code of Civil Procedure, sections 1275 to 1279, providing for the change of the names of corporations upon petition to the superior court, is not unconstitutional as delegating legislative power to the judiciary. The legislature cannot itself create a corporation, or change its name by special act; but it may by a general law authorize the corporators who selected the name to petition the superior court for leave to change it.</p> <p>Id.—Construction of Code—Enumeration of Charitable Corporations —General Language—Inclusion of Private Corporations.—Section 1276 of the Code of Civil Procedure, providing that “any religious, benevolent, literary, scientific, or other corporation, or any corporation having for its name, or using or being known by the name of, any benevolent or charitable order or society,” may apply to the superior court for a change of its corporate name, is not to be construed as limiting the terms “or other corporation” to corporations merely of the same kind with those specially enumerated, but the necessity or desirability of a change of name being as likely to occur in the case of a private corporation organized for profit as any other, a change of name is to be considered as permitted to such private corporations by the language of that section.</p> <p>Id.—Petition by Savings Bank—Change of Cumbersome Name.—A petition by a savings bank to change a cumbersome name to one more convenient is within the purview of section 1276 of the Code of Civil Procedure.</p>

<p>Mechanics’ Liens—Void Contract—Action <bt Assignee of Contractors —Pendency of Actions by Subcontractors—Continuance—Setoff of Costs.—In an action by an assignee of building contractors for the reasonable value of services performed and materials furnished by.them under a void building contract, where it was pleaded in the answer and admitted at the trial that actions were pending for the foreclosure of liens in favor of subcontractors, it is the duty of the court to continue the trial of the case until the actions in favor of the subcontractors should be tried and determined, in order to secure to the defendant the right of setoff of the amount of costs and attorney’s fees in such actions-against the claim of the contractor, it being his duty to have paid his debts to the subcontractors, or to have defended the suits brought by them at his own expense.</p> <p>Id.—Claims of Subcontractor—Privity of Contract—Enforcement of Liens—Defense by Owner.—There is no privity of contract between subcontractors, and the owner of the building, and he is not personally liable to them; but, where the contract is void as not having been properly recorded, they are entitled to enforce their liens against his property, if valid, and the owner may defend the suits for the foreclosure of their claims of lien . at the expense of the contractor.</p> <p>Id.—Quantum Meruit—Interest not Allowable.—In an action of quantum, meruit, to recover the reasonable value of services and materials, the amount, character, and value of which could only be established by evidence, and which are not susceptible of ascertainment, either by computation, or by reference to market rates, interest cannot be allowed prior to the decision of the ease.</p>

John F. Finn, Judge, granting original motion, January 25, 1889. J. M. Seawell, Judge, granting order of October 25, 1895, appealed from. The facts are stated in the opinion.

<p>Street Assessment—Description of Improvement—Work “ Where not Already Done”—Power not Delegated.—A. description of a street improvement in the resolution of intention calling for curbing within certain specified limits, “where not already done,” involves no delegation of power to the superintendent of streets, and leaves nothing to be determined as to the amount of work to be done, and does not render invalid an assessment for the improvement.</p> <p>Id.—Evidence—Prima Facie Case—Burden of Proof.—The street assessment,put in evidence in an action to enforce it, makes a prima facie case, which cannot be overcome without affirmative proof of a failure of the board to perform some act essential to its validity.</p> <p>Id.—Incomplete Records—Resolution of Intention—Unsatisfactory" Identification—Validity.—The prima facie case made by the assessment is not sufficiently overcome by mere proof that the resolution of intention was not entered in full in the minutes of the meeting at which it was adopted, and that such minutes merely referred, by number of the resolution, to a numbered book of resolutions of intention kept by the clerk of the board, containing printed forms, filled out with the number and description of the work adopted by the board, without providing any mode of authentication or certification thereof, other than the printed name of the clerk. Such book is not a satisfactory mode of identification of the resolution adopted, but the resolution is not thereby rendered invalid.</p> <p>Id.—Resolution Extending Time—Description of Work.—A resolution extending time for the performance of the work is not jurisdictional in the absolute sense, but is an act within the exercise of the jurisdiction assumed to be vested in the board; and where the description of the work in such a resolution is sufficient as between the board and the contractor to indicate what contract it was intended to extend, nothing more is required.</p> <p>Id.—Declaration of Bid—Absence of Proof in Minutes—Void Assessment.—The requirement in the Vrooman act that the proposals or bids shall in open session be examined and publicly declared by the city council is imperative; and where the minutes of the board put in evidence showed no such proceeding to have been had at any time, it must be concluded that it was not done; and the assessment is rendered void by the failure of such proof.</p>

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

<p>Criminal Law—Homicide—Self-defense—Burden of Proof—Appeal— Conflicting Evidence.—Upon the trial of a defendant accused of murder, if the voluntary killing of the deceased by the defendant is established and admitted, a prima facie case is made to sustain a verdict of guilty of murder in the second degree, and it devolved upon the defendant to justify or excuse the killing; and although the claim of self-defense may find much support in the evidence, if there are circumstances in evidence conflicting therewith, which may have led the jury to discredit the evidence for the defendant, the verdict cannot be disturbed upon appeal for insufficiency of the evidence.</p> <p>Id.—Theory of Ambuscade—Presumption—Argument upon Appeal— Reflection upon Trial Court.—Where the record upon appeal showed that the prosecution prepared the case for trial in reliance upon the theory that the defendant was lying in ambuscade, behind a hollow stump, to await the approach of the deceased to the junction of the trail where the homicide occurred, and that evidence upon such theory was introduced by the prosecution before the trial court referred thereto, it is to be presumed that the theory was developed in the opening statement of the district attorney; and it is improper and without foundation for defendant’s counsel, in their argument upon appeal, to reflect upon the trial court as having first suggested and announced that theory.</p> <p>Id.—Evidence—Maps and Photographs—Scene of Homicide—Question for Jury.—Maps and photographs of the scene of the homicide, and evidence as to the position of the hollow stump, and the relative elevation of the stump and the junction of the trail where the homicide was committed, and as to the view of the trail from the stump, are admissible to show the facts surrounding the homicide, and in support of the theory of the prosecution, it' being for the jury to determine whether that theory had or had not sufficient support in the evidence.</p> <p>Id.—Rulings upon Evidence—Remarks of Court.—It was not error for the court in ruling upon the admissibility of such evidence, to state that it was admitted as tending to sustain the theory of lying in wait, advanced by the prosecution; and that it was for the jury to determine whether that- fact was proven.</p> <p>Id.—Creating . Appearances to Justify Counter-assault—Instruction—Effect of Verdict.—If there is any evidence to sustain the court in submitting the question to the jury, it is proper to instruct them that if the defendant created appearances to justify the deceased in making a deadly counter-assault in self-defense, and the defendant slew him while making such counter-assault, and did not, or from the suddenness of the counter-assault could not, notify him that he had abandoned the contest, the killing was unjustifiable. Any part of such instruction based upon the hypothesis of a deliberate purpose to create such appearances, is rendered immaterial by a verdict acquitting the defendant of murder in the first degree; and the instruction will be considered as if based upon the hypothesis of their creation without preconceived design.</p> <p>Id.—Evidence—Opinion of Physicians—Direction of Bullet.—A practicing physician and surgeon who conducted the autopsy of the deceased, and who, though having small previous experience in gunshot wounds, had specially studied the subject, and was qualified to answer a hypothetical question, and able to state the grounds of his opinion, is qualified to testify to his opinion as to the exit and entrance of the bullet with which the deceased was killed. The value of the testimony is a question for the jury.</p> <p>Id.—Threats of Deceased—Admissibility of Conversation—Error without Prejudice.—A witness testifying to threats made by the deceased in a conversation should be permitted to testify to so much of the conversation between them as may show the true meaning and significance of what the deceased actually said. Technical error in limiting the evidence to the threats made by the deceased, is without prejudice, where the whole conversation was subsequently stated by the witness, and the parts originally excluded were not essential to an understanding of all that the deceased said.</p> <p>Id.—Challenge to Grand Jubobs—Motion to Set Aside Indictment— Case Affirmed.—A defendant who though not held to answer at the time of the formation of the grand jury, was at that time in actual custody, charged with murder, and was brought into court before the grand jurors were sworn, and offered the privilege of challenging, which he declined to exercise, cannot thereafter move to set aside the indictment upon statutory grounds of challenge to the panel of grand jurors, or to any individual grand juror, or avail himself of such grounds of challenge. People v. Geiger, 49 Cal. 650, affirmed on this point.</p> <p>Id.—Misconduct of Jubobs—Incomplete Affidavits—Motion to Sub.poena Jubobs—Discretion.—Upon the filing of affidavits on motion of the defendant for a new trial, alleging that one of the jurors was seen during the trial in earnest conversation with a brother of the deceased, but not showing that the conversation related to the case on trial, and alleging upon information that another juror had publicly stated during the trial that the defendant ought to be hanged, without naming any person who heard the statement, a motion of the defendant to postpone the hearing of the motion, and for a subpoena to the jurors that they may be examined as to their alleged misconduct, is addressed to the discretion of the court; and though it would be a wise exercise of discretion to investigate fully the alleged charges, the denial of the motion is not an abuse of discretion.</p> <p>Id.—Newly Discovered Evidence—Failure of Cboss-examination.— Newly discovered evidence from a witness for the prosecution, which was so closely related to evidence given by him at the trial that it might have been called out upon cross-examination at that time, is not ground for a new trial.</p> <p>Id.—Evidence—Experiments fob Prosecution—Rebuttal.—Experiments for the prosecution made for the purpose of contradicting defendants’ witnesses as to the hearing of certain sounds in the night time in the vicinity of defendant’s cabin, are admissible, though made in the day time, if the principal conditions were the same. The jury can weigh the evidence, and make allowances for any difference in atmospheric conditions between the day-time and the night-time.</p> <p>Id.—Misconduct of District Attorney.—There is no misconduct of the district attorney, requiring a reversal of a judgment of conviction, in a line of cross-examination to discredit witnesses for the defendant, a failure in which could only prejudice his own case, or in charging acts and motives against the defendant which were a part of the theory of the prosecution, or in improperly reading a telegram to the jury, to which the defendant failed to object, having the opportunity to do so, or in asking improper questions which were disallowed by the court, where the impropriety, though obvious, was not of a flagrant character.</p>

<p>APPEAL from a judgment of the Superior Court of Ventura 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>Criminal Law—Assault with Intent to Murder—Evidence—Motive— Attempt to Escape prom Jail.—Upon the trial of a defendant charged with an assault with a deadly weapon with intent to commit murder, evidence is admissible for the purpose of showing the motive and intent of the assault, to prove that the defendant was then confined in the county jail awaiting sentence under conviction for burglary, and that the assault was made upon the deputy sheriff in charge of the jail, for the purpose of attempting to make an escape.</p> <p>Id.—“Deadly Weapon”—Loaded Stocking—Possibility op Death— Blow upon Temple.—A “deadly weapon” is one “likely to produce death or great bodily injury;” and where the assault was made with a loaded stocking filled with salt and plaster hardened by wetting, it was admissible, though inconclusive, to inquire whether a man could be killed with that weapon, and then it was proper to show how it could be done, and that it was an instrument likely to produce death when used with sufficient force in a blow upon the temple, in the manner in which the evidence showed that it was used.</p> <p>Id.—Change of Ruling upon Evidence—Appeal—Ruling in Favor op Appellant.—The fact that the objection of the defendant to the question whether a man could kill another with the weapon used, was at first sustained, does not make erroneous a second ruling overruling the same objection to a similar question when repeated. The first ruling, being in favor of the defendant, cannot be objected to as erroneous upon his appeal.</p> <p>Id.—Cross-examination—Weapon not Referred to in Chief.—A medical witness who has testified only as to the weapon used by the defendant cannot properly be asked on cross-examination as to another and different weapon called a “billy,” and as to whether the witness would call that a deadly weapon.</p> <p>Id.—Intent to Murder—Sufficiency of Evidence.—For the purpose of determining whether the assault was made with intent to murder, the character of the instrument used, the manner in which it was used, and the purpose to be accomplished are all to be considered; and where it appears that a purpose to kill the deputy with a deadly weapon might have been formed to avoid alarm and pursuit in the attempt to escape, it cannot be said the verdict of guilty was not justified by the evidence.</p> <p>Id.—Deadly Weapon Depending upon Mode of Use—Mixed Question of Law and Fact.—If the testimony shows that the question whether the instrument used was such as would be likely to produce death depends upon the manner of its use and the portion of the body upon which it Was used, it becomes a mixed question of law and fact whether it was a deadly weapon, which the jury must determine under proper instructions from the court</p>

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

<p>Mining Cobpobation—Action by Stockholdeb—Findings—Sufficiency of Evidence.—In an action by a stockholder of a mining corporation to recover, from a defendant stockholder for the benefit of the corporation made defendant, a payment of fifty thousand dollars, out of which it is alleged that the defendant stockholder conspired to defraud, and did defraud, the corporation with the aid and connivance of the directors, evidence that the defendant stockholder was a director of a bank which was the treasurer of the mining corporation, and that the superintendent of the mine, to.whom the money was paid by the mining corporation for extraordinary services, was indebted to the bank in the sum of about fifty thousand dollars, which was amply secured, by collaterals, but was paid out of the allowance made, whether sufficient or not to show a legal wrong against the mining company, is not sufficient to charge the personal defendant with liability, if the court finds, upon sufficient evidence, that such defendant was not a party to the transaction, nor a conspirator or participant therein in any way, and was not in the state when the money was voted or paid, and knew nothing thereof, and personally derived no pecuniary benefit therefrom.</p>

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

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

<p>Vendor and Purchaser—Exchange of Land—Specific Performance— Removal of Defect in Title.—It is no objection to a specific performance of a contract for the exchange of land that the abstract of title of one of the parties disclosed a defect in respect of an unredeemed tax sale, if such defect was removed within a reasonable time, and prior to the tender of a deed by such party.</p> <p>Id.—Completion of Title—Delay without Prejudice.—Delay in the ' completion of title by a vendor, even when time is specified in the contract, is no bar to a specific performance, if the delay is sufficiently explained and excused, and was without prejudice to the other party, beyond the means of reparation.</p> <p>Id.—Findings—Sufficiency of Evidence—Supplemental Contract.—A finding that there was no supplemental contract between the parties is not overthrown by evidence that one of the parties proposed to examine the land of the other, as well as to have the abstract of title examined, to which the other did not object, in the absence of proof of an agreement that the trade was to depend upon the inspection of the land.</p> <p>Id.—Fairness of Agreement—Adequacy of Price.—Where the evidence showed that the agreement for the exchange of lands was fair and reasonable and the properties were about of the same value, there is no ground for a discussion of the rule as to when inadequacy of price will prevent a specific performance.</p> <p>Id.—Definiteness of Description—Waiver of Objection—Appeal.— Where the complaint described specifically the land agreed to be conveyed by the plaintiff, in exchange for the land of the defendant, and the allegation is not denied, but the answer avers that the title of the land described was “not clear or good,” and the case was tried with reference to the description, and it was found to be correct by the court, objection thereto for indefiniteness is waived, and cannot be urged upon appeal for the first time.</p>

APPEAL form a judgment of the Superior Court of Alameda County and from an order denying a new trial. S. P. Hall, Judge. The facts are stated in the opinion.

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

<p>Life Insubance—Nonfobfeitube Law of New Yobk—Consteuction of Contbact.—The nonforfeiture law of New York requiring notice of nonpayment of a life insurance premium to be addressed and mailed to the person assured, or to the assignee of the policy, if notice of the assignment has been given, requiring payment thereof within thirty days, to prevent a forfeiture of the policy, enters into and becomes part of the contract of life insurance with a New York company, and so far modifies its conditions that no forfeiture for nonpayment of premium can take place without such notice.</p> <p>Id.—Notice to “Pebson Assubed”—Beneficiabt not Included.—The notice required by the statute of New York to be given by a life insurance company of that state to the “person assured,” denotes the person whose life is assured, and does not include the beneficiary named in the policy.</p> <p>Id.—Pleading—Tender of Premium—Forfeiture.—The plaintiff in an action upon a policy of life insurance in a New York life insurance company, is not required to allege or prove the tender of the annual premiums when due. There can be no forfeiture for nonpayment of premiums, unless the defendant alleges and-proves nonpayment after due service of the notice required by the statute.</p> <p>Id.—Waiver of Notice—Power to Declare Forfeiture.—A waiver of notice on the part of the insured cannot be construed to confer a power to declare the policy forfeited for nonpayment of premiums, which the law has taken away, and does not permit, unless the notice is given.</p>

<p>University of California—Public Corporation—Will—Validity of Bequest.—The “ University of California” is a public corporation and is recognized by that name in the laws of the state, notwithstanding the requirement that the board of directors shall incorporate under thb name of the “Regents of the University of California.” A bequest by will to the “University of the State of California,” for the purpose of founding a designated professorship, is not invalid, by reason of insufficiently designating a corporation entitled to take.</p> <p>In.—Right to Take by Will—Interpretation of Statute—Exemption of Sovereign Power.—The University of California being formed for educational purposes, is within section 1275 of the Civil Code, permitting corporations formed for said purposes to take by will. The rule of interpretation of statutes that rights and-interests are not to be construed as embracing the sovereign power, unless expressly-named or included by necessary implication, has no application to the University of California, which, though a public corporation, is not clothed with any part of the sovereign power of the state.</p> <p>Id.—Peoportionate Share op Estate—Sufficiency op Fund.—The question whether the bequest exceeds one-third of the estate of the testator, is one of fact, which should be distinctly passed upon. The sufficiency of the fund to accomplish the designated purpose of endowing a chair in the State University, cannot be objected to, where there is no evidence to justify a finding that the gift has failed for that reason.</p>

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

<p>Money Had and Received—Void Contract with Minor.—An action for money had and received will lie against one who has attained the age of majority, to whom the money claimed was loaned during his minority when over eighteen, under a parol agreement that he would upon becoming of age convey his interest in certain real estate as security for the loan, which agreement he refused to perform upon becoming of age. The void feature of the transaction does not preclude a recovery, it being inequitable for the defendant, under the circumstances, to retain the money.</p> <p>Id.—Action by Assignee—Consistency oe Pleading—Attempted Substitution of Note—Nondelivery—Nonacceptance—Offer of Return.—In an action of assumpsit by an assignee of the right to recover the money loaned to the minor, where it appeared that the defendant had obtained possession of the original notes given for the loan, under promise that the contemplated security would be given, and after having marked them paid without authority from the payee attempted to deliver to the payor a substituted note payable eleven months after date, and upon refusal of the payee to accept it, left it upon a table in the payee’s presence, who indorsed it merely to allow the assignee to produce it at the trial, the fact that the complaint by the assignee, under the circumstances, denies that the substituted note was delivered or accepted, and yet offers to return it with the payee’s indorsement thereon, does not render the complaint inconsistent, or felo de se.</p> <p>Id.—Loan to Minor over Eighteen—Restoration—Identity of Money. Under section 35 of the Civil Code, where money was loaned to a minor over eighteen years upon specified conditions which ' are disaffirmed when he becomes of age, the money loaned must be restored, “or its equivalent paid,” and it is not essential in such case in this state, that there should be ability to restore the identical money received, in order to sustain an action against him for money had and received.</p> <p>Id.—Finding Against Substitution of Note—Conflicting Evidence— Acceptance—Interest—Indorsement.—A finding that there was no substitution of the note left by defendant with plaintiff’s assignor, will not be disturbed, where the evidence is conflicting. The payment of interest on the note, and the indorsement thereof to plaintiff, are only evidence tending to show acceptance of the note, which may be explained and rebutted by the plaintiff.</p> <p>Id.—Rescission not Required—Return of Interest.—The finding being sustained by evidence against the acceptance of the substituted note, no rescission or offer to rescind is required; and the plaintiff is not required to return any interest paid on the loan, which is regarded merely as compensation for the use of the money, and defendant is not entitled to the return thereof.</p> <p>Id.—Surrender of Note—The offer to return and surrender the note and bringing it into court to be canceled is sufficient to protect the defendant against any other action on the note.</p> <p>Id.—Appeal—Argument—General Objection to Rulings—A general objection in appellant’s points that “each and every ruling of the court below which was made the object of objection and exception was erroneous,” merely citing the folios of the transcript, may be ignored by the appellate court.</p>

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

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

<p>Maintenance without Divorce—Cube of Desertion—Bona Fide Offer op Husband Pendente Lite—Defeat of Action.—An action by a wife for permanent maintenance by the husband without divorce, is defeated, where the desertion by the husband is cured pendente lite, by a bona fide offer of the husband to provide a home for the wife at any reasonable place of her own choosing, and to return and live with her as husband and wife, although such offer is made more than one year after the desertion.</p> <p>Id.—Limited Divorce.—To enforce, the duty of support against a defendant who seeks in good faith to fulfill his obligations, and at the same time to exonerate the plaintiff from the correlative duty of dwelling with the defendant at some reasonable place of abode, would be the granting of a limited divorce, for which our law makes no provision.</p> <p>Id.—Good Faith of Offer—Question of Fact—Duty of Wife.—The good faith of the offer of the husband is a question of fact, and where his good faith is ascertained as a fact it is the duty of the wife to test his professions by acceptance, and she cannot capriciously refuse to be satisfied of the good faith of his offer. If he thereafter proves derelict, her complaisance will not prejudice her claims upon him.</p> <p>Id.—Solicitation of Condonation.—A bona fide offer by the deserting husband to return and provide a home for the wife, and expressing his willingness for a reconciliation, and offering to fulfill the marriage contract, with a request to her to do likewise, implies a request for conditional forgiveness which is condonation, and involves a solicitation of condonation for his offense of desertion.</p>

<p>Estates of Deceased Persons—Personal Liability of Executors— Services of Attorneys—Reasonable Value.—In the absence of an agreement to limit the liability of executors for the services of attorneys employed by them to such sum as may be allowed from the estate by the court sitting in probate, they are personally liable for the reasonable value of such services, and an action may be maintained against them to recover such reasonable value.</p> <p>Id.—Settlement of Accounts—Attorney not “ Interested in Estate.” An attorney for an executor or administrator is not “interested in the estate” within the meaning of sections 1635 and 1637 of the Code of Civil Procedure and is neither required to contest the accounts of the executor or administrator, nor concluded by the settlement of his accounts.</p> <p>Id.—Allowance for Attorney’s Fees.—The estate is not liable to an attorney, and the allowance for attorney’s fees is made to the executor or administrator, and not to the attorney.</p> <p>■ Id.—Contest of Accounts by Attorney—Estoppel—Credit of Amount Received.—The actual appearance of an attorney in the court sitting in probate, and his filing of exceptions to the account of attorney’s fees contained in an executor’s account, is immaterial, except as evidence bearing upon the question whether he expected to look to the estate or to the executor for his fees. The settlement of the account does not conclude him from claiming a larger sum from the executors personally; but the amount received from the executors must be credited in a personal action against them.</p> <p>Id.—Joinder of Executor with Administrator of Deceased Executor —Construction of Code.—Under section 379 of the Code of Civil Procedure allowing any person to be made a defendant “who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein,” an executor may be joined with the administrator of a deceased executor in an action to recover the reasonable value of services rendered to both executors jointly by an attorney; but the recovery against the administrator of the deceased executor must be limited to payment in due course of administration.</p>

<p>Dedication op Street—Question op Intent.—The dedication of a public street is a question of intent, and the acts of the owner of property are sufficient to prove a dedication only when they are evincive of such intent, or are such as to estop him from denying that such was his intent.</p> <p>Id.—Street upon Marsh Land—Charter op City—Designation op ' Boundaries.—An act granting a charter to a city, and describing therein, as part of its exterior boundaries, a street called “A” street, which in fact was not open to travel or used as a street, though designated as “A” street upon an unauthorized map in the recorder’s office, as crossing marsh lands on the water front, no cross streets or connecting streets being referred to in the act, and the board of trustees of the town being required therein to lay off the water front in such lots as would accommodate mill owners and other occupants, and to sell the same to bona fide possessors, cannot be construed as intended to dedicate such street or to operate as a dedication thereof.</p> <p>Id.—Unauthorized Map—Offer of Dedication—Legislative Adoption. An unauthorized map deposited in the recorder’s office by a person having no interest in the land cannot amount to an offer of dedication; and an act of the legislature incorporating a city, which does not refer to such map, cannot be construed as an adoption thereof, because merely referring to a street by the same designation which is indicated upon the map.</p> <p>Id.—Municipal Ordinance—Survey of Town.—A municipal ordinance employing a surveyor to survey the town, “and set stakes at the corner of all blocks lying between A and N streets,” does not operate as a dedication of “A” street, which had never been dedicated to public use, nor opened or used as a street, nor does it authorize the surveyor to lay out a new street or to file a map showing new or any streets.</p> <p>Id.—Deed by City—Boundaries Including Unopened Street.—A deed executed by the city to an occupant of land, specifically describing boundaries which include part of an unopened and unused street which had not in fact been dedicated to public use, without any reservation made in the deed, carries the title to the grantee of all the land granted, and indicates that the city did not then believe itself to have dedicated the street to public use.</p> <p>Appeal from Judgment—Stipulated Facts—Reversal—New Trial.— If the facts in a case are stipulated by the parties, and the judgment is reversed upon an appeal therefrom, it is not necessary to order a new trial, but judgment will be ordered upon' the stipulated facts in favor of the opposite party.</p>

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

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

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

<p>Accounting—Mortgagee in Possession—Agreement Reciting Ownership and Repurchase—Complaint—Demurrer.—A complaint for an accounting against an alleged mortgagee in possession, which alleges that plaintiff was the owner of the property at all times, and that after the time fixed by the original agreement for payment of the indebtedness seemed, a new agreement was entered into for the purpose of securing the remainder of the indebtedness, by the terms of which it was recited that the mortgagee was “now the owner of the residue of the property,” and declared that the property should be repurchased by the plaintiff within a specified time, and that time was of the essence of the agreement, is not subject to a general demurrer for want of sufficient facts, on the ground that the recitals of the new agreement control the allegations as to security and estop the plaintiff from alleging that defendant was not the owner of the property.</p> <p>Id.—Form of Instrument—Purpose of Security—Estoppel.—The court will not look to the form of the instrument, hut to its real character as having been given for the purpose of securing indebtedness; and conceding that the new agreement -bears no visible earmarks of a mortgage, if the fact be, as the complaint alleges, and the demurrer admits, that it was entered into for the purpose of such security, no form of words, however adroit, can estop the plaintiff from pleading and proving that fact</p> <p>Id.—Purpose of Instrument a Question of Fact.—Whether it was the real purpose of the instrument to secure the residue of the indebtedness of plaintiff to defendant, as alleged, or whether Its object was to establish the relation merely of vendor and purchaser, is a question of fact which the plaintiff is entitled to have tried as an issue of fact upon answer.</p> <p>Id.—Stipulation Making Time of Essence.—The stipulation purporting to make time of the essence of the contract can only have effect if the real object of the contract was to establish the relations of vendor and purchaser between the parties. It can have no effect where the admitted relation between them is that of mortgagor and mortgagee.</p> <p>Id.—Jurisdiction of Superior Court—Construction of Constitution— Relation of Mortgagor and Mortgagee.—Section 5 of article VI of the Constitution, requiring actions for the enforcement of liens to he commenced in the county where the property is situated, does not preclude an inquiry by the superior court as to whether the relation of mortgagor and mortgagee exists between parties, in aid of an action of which it has jurisdiction, though the mortgaged property is out of the state.</p> <p>Id.—Jurisdiction of Accounting—Property out of State.—The superior court of this state has jurisdiction of an action in equity for an accounting between a mortgagor and a mortgagee where it has jurisdiction of the parties, although the property mortgaged is out of the state, and in the territory of Alaska; and it may require the defendant to pay over any balance found due to plaintiff upon such accounting.</p> <p>Id.—Equity—Decree in Personam—Collateral Effect in Rem.— Equity generally operates by its decree in personam; and if the court has jurisdiction of the person of the defendant, the decree may run against him, though it may collaterally act in rem, and affect property out of the jurisdiction of the court.</p>