Volume 124 — California Reports

<p>Irrigation District—Assessment of Improvements—Description.—An assessment of improvements on the lands embraced within an irrigation district need not describe the improvements, but they are sufficiently described in the desorption of the land; and all that is necessary is that the valuation of the improvements shall be placed under the appropriate head, in correct figures, with proper dollar and cent marks.</p> <p>In.—Custody of Assessment Book—Immaterial Correction of Assessment.—The action of the assessor in taking away the assessment book while in the custody of the board of equalization, from 5 o’clock Saturday afternoon until Monday morning, and assuming to amend the assessment so as to add an unnecessary description of improvements, is immaterial, and cannot affect the substantial rights of the persons assessed, or vitiate the assessment.</p> <p>Id.—Jurisdiction of Board of Equalization—Action to Restrain Tax Sale—Defective Complaint.—It is immaterial whether the board of equalization of an irrigation district did or did not have jurisdiction to raise or lower assessments, for the purpose of sustaining an action to restrain a sale of lands embraced within the district, for taxes levied thereupon, if the complaint does not show that the assessments of the plaintiffs’ lands were altered, or that the general assessed value of lands in the dis- - trict was lowered, to the injury of plaintiffs, and does not show error in the original assessment, which remained binding, upon the supposition that the action of the board was void for want of jurisdiction.</p> <p>Id.—Notice of Levy of Assessment—Validity of Irrigation Act.—As the irrigation act provides for notice to the taxpayer of the meeting of the board of equalization, the duration of which is fixed by law, and of all the preliminary steps which he can examine and make objection to, it is no objection to the validity of the act that it does not provide for notice to be given of the levy of the assessment, which is the final act, and the outcome of the rest, which he might know with small diligence, and in reference to which he can have nothing to say.</p>

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

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

<p>Criminal Law—Pleading—Information—Signature by Assistant District Attorney.—An information for a felony may be signed in the name of the district attorney, by an assistant district attorney, in a county where the statute provides for such assistant</p> <p>Id.—Homicide—Murder in the Second Degree—Sufficiency of Evidence.—A conviction for murder in the second degree is justified by the evidence, where the testimfony of the defendant himself is sufficient in law to authorize It.</p> <p>Id.—New Trial—Newly-discovered Evidence—Witness Present at Trial—Discretion.—A motion for a new trial based upon alleged newly-discovered evidence of a witness who was subpoenaed by the defendant, and was present as a witness at the first trial, is addressed to the discretion of the court, and where there is no strong or exceptional showing made, to overcome the lack of diligence in securing the evidence, there is no abuse of discretion in denying the motion.</p> <p>Id.—Plea of Self-defense—Reputation of Deceased for Peace and Quietness.—Where the defendant pleaded that the homicide with Which he was charged was committed in self-defense, and offered to prove that the character of the deceased for peace and quietness was bad, which was disallowed, but the permission of the court was then granted him to assail the general reputation of the deceased for peace and quietness, the defendant should have been satisfied to accept such permission, and, where it was refused, he cannot claim reversible error in the ruling made.</p> <p>Id.—Evidence—Conviction of Deceased for Misdemeanor.—Evidence is not admissible for the defendant to show that the deceased had been convicted of a misdemeanor.</p>

<p>Vendor and Purchaser—Contract of Sale—Construction of Will— Decree of Distribution—Specific Performance.—Where the land ' described in a contract of sale was devised to the vendor in the will of a deceased person, and it was objected by the purchaser that the construction of the will left the title questionable, if It appears that the land was distributed to the devisee in fee by a decree of distribution which had become final by failure to appeal therefrom for more than one year, and which had never been modified, and the jurisdiction of the court is not assailed, and no uncertainty appears in the decree as to the title of the vendor, such decree is a judicial construction of the will, which cannot be assailed collaterally; and the contract of sale was properly enforced in an action by the vendor against the purchaser for a specific performance.</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>Contract to Provide for Niece—Parol Gift of Land—Delivery of Possession—Adjudication of Ownership against Heirs.—Where an uncle contracted with the mother of his niece to provide for her as his own child, and, in part performance of Ms promise, purchased certain real estate, the possession oí which he delivered to the daughter, as a parol gift, retaining the legal title in his own name, and the niece cared for him as a daughter until his death, she may, after his- death', sustain an action against his administratrix and heirs-at-law to have it adjudged that she is the owner of the land given to her by the deceased.</p> <p>Id.—Former Adjudication—Contract to Will Property.—A former adjudication against the enforcement of a contract by the uncle to will property to the niece, is not a bar to the enforcement of the executed gift of the land made to her by the uncle In his lifetime.</p>

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

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

<p>Criminal Law—Forgery—Erroneous Instructions—Case Affirmed.— People v. Oompton, 123 Cal. 403, affirmed as to the instructions to the jury therein held to be erroneous, relating to the disregard of corroborated evidence, the attempt to pass forged instruments, the corroboration of an accomplice, and the aiding and abetting of a felony.</p>

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

<p>APPEAL from an order of the Superior Court of San Benito County granting letters testamentary. M. T. Dooling, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from a judgment of the Superior Court of Riverside County and from orders appointing a receiver and denying a new trial. J. S. Noyes, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Divorce—Extreme Cruelty—Evidence—Plaintiff not Corroborated. A divorce cannot he granted upon the uncorroborated testimony •of the plaintiff; and acts of extreme cruelty testified to by the plaintiff without me slightest corroboration, and denied by the defendant, are not proved by evidence upon which the court could base a finding for the plaintiff.</p> <p>Id.—Charge after Desertion—Stealing Wife’s Property—Speculation in Stocks—Absence of Malice.—A charge by the wife against the husband of stealing her diamonds and sealskin saeque, made after his desertion of her, cannot form any justification or excuse for the desertion; and where the evidence indicates that the wife's charge was, not malicious, but was made in the rea son-able Delief that he had taken the property to raise money tfiereon with which to speculate in stocks, after she had declined his request that she would raise money for that purpose, and there is evidence that the husband acknowledged that he deserted his wife by reason of disappointment in money matters, and that he supposed she was wealthy and would let him have money, the charge made by the wife after his desertion of her does not amount to extreme cruelty.</p> <p>Id.—Extreme Crueviy—Questions of Law and Fact.—What constitutes extreme cruelty, as a cause of divorce, is matter of law; hut whether the evidence shows such conduct is a question of fact. Ordinarily, what constitutes extreme cruelty is a mixed question' of law and fact; and where the evidence, assuming it to be true, is not legally sufficient, the court may so decide as a question of law.</p> <p>1 d —Judgment upon Merits—Dismissal—Res Adjudicata.—A judgment •rendered upon the merits after the trial of an action for divorce, dismissing the action, in the usual form in equitable actions, does not permit of a relitigation of the issues, unless the dismissal is expressly made without prejudice to a new action.</p>

<p>Municipal Corporation—Void Contract for Services of Attorney— Implied Contract.—Quantum Meruit.—An attorney who has'rendered services to a municipal corporation of which iit has accepted the benefit, in defending an action against it, and prose- . cuting an appeal in another cause, for its benefit, though rendered under a void contract made while such attorney was the city attorney, may recover under an implied contract, upon a Quantum meruit for the value of the services rendered by him after the expiration of his term of office as city attorney.</p> <p>Id.—Corporate Act not Required.—It is not necessary that the knowledge or assent of the city council be evidenced by any formal corporate act. or vote, or resolution otf the board, or any written Instrument, to sustain an implied contract for services, which is within the scope of the powers of the council; and' where the authority existed in the council to employ the plaintiff, after he ceased to be city attorney, and his services were performed with the" full knowledge of the council, and with their assent as given when plaintiff presented his bill, he may recover upon an implied contract for the value of his services.</p> <p>Id.—Nonsuit—Conditional Payment in Full. —Where the testimony of the plaintiff shows that when payment was made for services in a case not concluded, there was an understanding that he was to continue his services to the end of the cause without further payment, if his bill for other services rendered at the same time was paid, but if not paid, he would expect further compensation, and that such other bill was not paid, there is sufficient evidence to sustain an additional recovery for the further services as against a motion for a nonsuit.</p> <p>Id.—Liability of City—Unappropriated Revenues—Implied Liability —Construction of Constitution.—An implied liability of a city is within the restriction of section 18 of article XI of the constitution, forbidding the incurring of any indebtedness or liability exceeding in any year the income and. revenue provided for it for such year, and making such indebtedness or liability void. The validity of the implied liability depends upon the fact that there were unappropriated revenues when the liability was incurred; and no judgment can be entered thereupon until that fact Is established.</p> <p>Id.—Time of Incurring Implied Liability—Evidence—Condition of Revenues. —The implied liability was incurred when from time to time the services were fully rendered, and the city, with knowledge, accepted the benefit of them, and evidence should be received of the condition of the revenues at that time.</p>

D. J. Murphy, Judge rendering judgment. George H. Bahrs, Judge denying motion to vacate. The facts are stated in the opinion of the court.

<p>Life Insurance—Premium—Power of General Agent—Waiver—Extension of Time.—A general agent of a life insurance company may waive the conditions of a policy, and extend the time of payment o'f a premium, unless specially restricted by limitations and instructions communicated to parties dealing with him. The waiiveir of conditions is within the apparent scope of his authority in the absence of notice to the contrary to the insured.</p> <p>Id.—Implication against Forfeiture, and in Favor of Waiver.—The law looks with disfavor upon forfeitures, and evidence tending to show the waiver of a forfeiture will be favorably regarded, and the forfeiture will he avoided upon any reasonable showing. The amount of evidence required to establish a forfeiture is much greater than that required to establish a waiver; and the waiver may he implied from the acts and conduct of the parties.</p> <p>Id.—Notice of Forfeiture—SubsEQUENi Waiver.—A notice that the policy will be forfeited if the premium is not paid l>y a day fixed, given by a New York company, pursuant to the New York law, does not preclude the subsequent waiver of the forfeiture, by a further extension of time to pay the premium made by the general agent and by treating the policy as in force during the period of such extension, after the time fixed in the notice, and upon the death of the insured Within the period of such extension the company can not claim a forfeiture of the policy.</p>

<p>Pleading—Conclusions op Law—Insufficiency of Complaint—General Demurrer.—Under section 426 of the Code of Civil Procedure, the complaint must contain a concise statement oí the facts constituting the cause of action, as distinguished from legal conclusions. Allegations of mere conclusions of law tender no issue, and must be disregarded; and a complaint which depends upon such conclusions, and does not state the facts upon which the legal conclusions are based, is insufficient upon general demurrer.</p> <p>Id .-^Insufficient Complaint for Injunction—Warrants upon Police Belief and Pension Fund.—A complaint "for an injunction to restrain the auditor from drawing warrants upon the Police Belief and Pension Fund, for certain demands, which are alleged, to be “not lawful” and “not allowed by law,” and a portion of which are alleged to have been drawn under section 13 of the> pension law of 1889, which is alleged to be “unconstitutional and void, because of special legislation and many other reasons,” without any averments of the facts from which it can be determined whether the demands are or are not illegal or unauthorized, and without any statement of the character of the demands, from which it could be determined what they were for, is based upon mere conclusions of law, and is insufficient upon general demurrer.</p>

<p>Fees of Jurors in San Francisco—Charge upon Public Treasury—Certificate of Clerk—Mandamus.—There is no statutory provision making the fees of trial jurors in San Francisco a charge upon the public treasury, or directing the clerk to issue a certificate stating the attendance oif the jurors, and the amount payable to each; and mandamus will not lie to compel the issuance of such a certificate by the clerk. The writ of mandate only issues to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust or station.</p> <p>Id.—Unauthorized Certificate—Evidence.—A certificate of ti e county clerk, not authorized by statute, can have no legal effect, and would be hut the mere declaration of a fact which is capable of being shown by other competent evidence.</p> <p>Id.—Right of Juror to Compensation Statutory.—The right to compensation for service of a juror is purely statutory, and, in the absence of any provision upon the subject, the juror cannot claim any compensation for his services; and he can only claim such an amount and mode of payment therefor as is prescribed by statute.</p> <p>Id.—Statutes Regulating Juror’s Fees — Mode of Payment—Provisions Applicable to San Francisco—Repeal.—The Act of 1870, as amended in 1872, providing for a certificate by the county clerk, and the exception of San Francisco therefrom, and the act of 1866, providing the mode in which jurors shall be paid in San Francisco, were not repealed by the act of 1895 establishing the fees of jurors throughout the state, so far as respects the mode of the payment of jurors, though the latter act controls all previous acts as to the amount of fees allowed in all of the counties of the state, including San Francisco.</p> <p>Id.—Repeals by Implication not Favored.—Repeals by implication are not favored in the law, and whenever there are two statutes upon the same subject, courts will endeavor to harmonize them so that, if possible, effect may be given to the provisions of each. It is only when there is a repugnancy or inconsistency between them that the latter act will be held to repeal the prior one.</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.</p>

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

. APPEAL from a judgment of the Superior Court of the City and' County of San Francisco. George H. Bahrs, Judge. - The facts are stated in the opinion of the court.

<p>Criminal Law—Robbery — Sufficiency of Evidence.—The evidence .reviewed, and held sufficient to sustain a verdict of guilty of robbery against the defendant in feloniously taking money from the person of another.</p> <p>Id.—Refusal to Strike out Evidence.—It is not error to refuse to strike out the testimony of a witness called for the prosecution which had some relevancy to the issues in the case, and was not prejudicial to the defendant, nor to refuse to strike out testimony introduced without objection on cross-examination about matters testified to in chief.</p> <p>Id.—Cross-examination.—Where a witness had testified in chief for the defendant that he heard of the prosecuting witness being robbed on a certain date, he may be asked, on cross-examination, how he knew he was robbed at that time.</p> <p>Id.—Questions by District Attorney—Discourteous Language—Misconduct.—The mere asking of a single question by the district attorney, the objection to which was sustained, does not warrant a reversal of the judgment; nor is the use of discourteous language in talking to the jury respecting the counsel of the defendant, a portion of which was withdrawn, and which could not have been in a material sense prejudicial to the defendant, such misconduct as requires the granting of a new trial.</p> <p>Id.—Discrediting of False Witness—Naming of Witness—Modification of Instructions.—It is proper to modify an instruction requested by the defendant to the effect that if the'jury found that a witness named testified falsely in one place, they were at liberty to disregard his testimony entirely, by striking out the name of the witness specified, and inserting in place thereof the words “any witness,” leaving it to counsel to make the application.</p>

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

<p>Attachment Suit—Intervention by Subsequent Lienholder.—A subsequent attachment or execution creditor who has levied' upon the same property attached in a prior, action may intervene therein, , • and upon.a proper showing, defeat the lien of the prior attachment.</p> <p>Id.—Sufficiency of Showing.—When such an intervenor alleges facts showing that the plaintiff in the prior attachment suit has nó ; cause of action against the defendant, and that the attachment therein is null and void, that the property attached is insufficient to pay the intervener’s claim, and that defendant has not sufficient property to pay both the intervenor and the plaintiff, it is error to deny the right of intervention.</p>

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

<p>Water Company—Rights of Stockholders—Void Amendment of Articles—Irrigation of Other Lands—Injunction.—An action may be maintained by stockholders in a water company formed for the purpose of supplying water, within a limited area, for irrigation and domestic uses to its stockholders, in whom the sole ■beneficial use of the water was vested, to enjoin the company from supplying the water for the irrigation of the lands of new stockholders made defendants, to whom stock was issued under a void amendment of the articles of incorporation including additional lands, where the complaint shows that the amendment was adopted and filed by the directors without the consent of the holders oil two-thirds of the subscribed capital stock, and without the required publication of notice of intention to amend the articles, and shows that the supplying of water to the new stockholders will deprive the plaintiffs of a portion of the water which is necessary to irrigate their lands and for their domestic uses.</p> <p>Id.—Pleading—Sufficiency of Complaint—Averments upon Information and Belief.—Material allegations of the complaint relating to facts the truth of which is peculiarly within the knowledge of the defendant, may be made upon information and belief; and the fact that the records of the corporation defendant in relation to the matter of those allegations were open to the inspection of the plaintiff does not affect the rule. Such records may be contradicted, upon information and belief, if they do not speak the truth.</p> <p>Id.—Averment as to Amendment of Articles—Following Language of Code.—An allegation of the complaint as to the amendment of the articles of incorporation, following the language of section 362 of the Civil Code, and negativing the facts therein required to be performed to make the amendment valid, is a sufficient allegation to show that that section was not complied with, as against a general demurrer.</p> <p>Id.—Innocent Purchasers of Stock—Laches—Estoppel—Demurrer— Answer.—Where the complaint does not show on its face that any of the defendants were innocent purchasers of the new issue of stock, or that the plaintiffs were chargeable with laches or estoppel, neither of these matters can be taken advantage of upon demurrer, and eadh of them must be set up in the answer as matter of affirmative defense, in order to render them available.</p> <p>Id.—Unexplained Delay. — An unexplained delay of forty days in bringing the suit after the amended ■ articles of incorporation were filed cannot be held to be laches per se.</p> <p>Id.—Offer of Restitution—Theory of Complaint.—Where the complaint is framed on the theory that the attempted amendment of the articles of incorporation was null and void for noncompliance with the law, it need not aver an offer of restitution of the money paid by the defendants to the corporation.</p> <p>Id.—Improper Order—Material Matter Stricken out.—An order striking out material allegations showing the illegal diversion of the plaintiffs’ water, and that the water in controversy is necessary and useful to the plaintiffs, and leaving the complaint devoid of anything to show any water right either in the water company or in the plaintiffs as its stockholders, is improper.</p> <p>Id.—Striking out Conclusion of Law.—An averment of a conclusion of law drawn from the articles of incorporation and by-laws appearing in the complaint, is properly stricken out.</p>

<p>Assignment of Accounts and Bills—Notice to Debtors—Preference of Subsequent Assignee for Value without Notice.—To complete the assignment of accounts and bills receivable as against the debtors, and in order to protect the prior assignee as against a subsequent assignee of the same accounts and bills, for value, without notice of the rights of the prior assignee, he must give notice of his assignment to the debtors owing the accounts and bills; and as between successive assignees thereof, he will have the preference Who first gives notice to the debtors, even if he be a subsequent assignee, provided at the time of taking the subsequent assignment he had no notice of the prior assignment.</p> <p>In.—Agency of Assignor—Control of Accounts—Protection of Bona Fide Purchaser.—Where the prior assignee was a creditor of the assignor endeavoring to obtain security for his claim, and left the accounts and bills in the possession of the assignor as his agent for collection, without any notice of the assignment to the debtors, and possession of the accounts and bills was delivered to a subsequent Iona fide purchaser thereof from the assignor, without notice of the prior assignment, who immediately notified the debtors of his assignment, such Iona fide purchaser is protected against the prior assignee.</p> <p>Id.—Accounting against Assignor—Failure of Evidence.—The court cannot make an order for an accounting against the assignor In favor of the prior assignee, in the absence of evidence that the assignor had made collections as the agent of such assignee.</p>

PETITION in the Supreme Court for writ of certiorari to review an order of the Superior Court of Santa Clara County, appointing a hoard of directors of a savings hank. W. G. Lorigan, Judge. The facts are stated in the opinion of the court.

<p>Action for Death—Parties—Surviving Widow—Heirs— Waiver of Nonjoinder.—An action for the death of a husband brought by the surviving widow is brought by an heir of the deceased, who may be the sole heir; and where the complaint does not show on its face that there were other heirs, and the answer does not plead nonjoinder of other heirs, the objection to such nonjoinder is waived.</p> <p>Id.—Negligent Injury to Traveler—Joinder of Resident and Nonresident Defendants—Nonsuit—Removal to Circuit Court.—In an action for a death caused by' negligent injury to the deceased while upon the sidewalk passing a building in process of erection, where the resident owner of the building and the nonresident contractor employed in erecting it were joined as co-defendants, in good faith, and not for the fraudulent purpose of preventing a removal of the cause to the circuit court of the United States, and the cause had been removed to that court upon an insufficient petition, and remanded for that reason, the contractor is not subsequently entitled to a. removal of the cause merely because upon the trial the resident owner obtains a non-suit, on the ground that the nonresident defendant was an independent contractor, who was alone responsible for the death.</p> <p>Id.—Petition for Removal—Record must Disclose Right.—The mere filing of a petition for removal of a cause to the circuit court of the United States is not enough, unless, when taken in connection with the rest of the record, it shows on its face that the petitioner has under the statute the right to remove the suit.</p> <p>Id.—Conflicting Affidavits—Presumption as to Finding.—Where affidavits by the defendant contractor and conflicting counter-affidavits by the plaintiff were filed in reference to the right of removal sought by such defendant as a nonresident, after the granting of the nonsuit to the owner of the building, upon the refusal of the court to grant the removal, it must be presumed that it found the facts to be true as set forth in the counter-affidavits of the plaintiff, and not as set forth in the affidavits of the defendant.</p> <p>Id.—Duty to Travelers of Person Engaged with Tools and Materials.—One who is engaged with tools and materials directly over the thoroughfare where people are constantly traveling, and have an undoubted right to travel, is in duty bound to exercise more than ordinary care, and must exercise the greatest care and caution in performance of the work, in order that travelers may not be injured.</p>

<p>Certiorari—Office of Writ.—The writ of certiorari runs to review the action of an inferior tribunal exercising judicial functions only upon a showing that such tribunal has exceeded its jurisdiction, and that the legal remedies in the caste are inadequate. It cannot to be used to review legislative, executive, or ministerial acts, nor the acts of a judicial tribunal in the exercise of its discretion.</p> <p>Id.—Non judicial Action of Fire Commissioners—Permit to Build Blacksmith Shop—Requirements of Ordinance.—The action of the board of fire commissioners of Los Angeles in determining, under the requirements of a municipal ordinance, whether three-fourths of the property owners of the block have petitioned for a permit to build a blacksmith shop in the block, and in deciding whether to grant or refuse the permit, is not judicial, but is ministerial and discretionary; and its action in granting such permit is not subject to review on certiorari, notwithstanding the petition for the writ avers that three-fourths of the property owners in the block did not petition for the permit.</p> <p>Id.—Judicial and Nonjudicial Decisions.—Decisions, to be judicial, must declare the law, and define the rights of the parties under it. The decisions of political, executive, legislative and ministerial boards, bodies, and officers, in the exercise of their judgments, respecting the conduct of matters intrusted to them, and determining the existence or nonexistence of facts, are not judgments pronounced by a judicial tribunal.</p>

• APPEAL from an order of the Superior Court of Fresno County refusing to vacate a judgment. E. W. Risley, Judge. The facts are stated in the opinion of the court.

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

<p>Criminal Law—Violation of Fish Laws—Jurisdiction óf Superior Court—Minimum Punishment.—Under section 636 of the Penal Code prescribing only a minimum punishment “by a fine of not le<s than one hundred dollars, or by imprisonment in the county :.t:I not less than fifty days, or by both such fine and imprisonment,” for violation of the fish laws, the punishment may be adjudged at anything not less than the minimum; and the superior court has jurisdiction of an information filed under that section.</p> <p>Id.—Construction of Code—Maximum Punishment not Fixed.—Section G36 of the Penal Code cannot be construed together with sec-t-on 19 of the same code, as fixing a minimum punishment in the former section and a maximum punishment in the latter section. Section 19 of the Penal Code is to be construed as intended to apply only to cases where some other punishment is not prescribed by the code, and not to be joined and invoked with, some other section of the code which provides a penalty.</p>

<p>APPEAL from a judgment of 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>

<p>Assignment for Benefit of Creditors—Election of Assignee—Major- , tty of Demands Represented—Construction of. Code.—At a meeting of creditors for the election of an assignee under, an assignment for the benefit of creditors held in pursuance of the provisions of section 3449 of the Civil Code, as amended in 1895, providing that “a majority in amount of demands present or represented by proxy shall control all questions and decisions,” no assignee can be elected who does not receive such a majority, and the claims of creditors present and failing to vote must be counted against the person receiving the highest number of votes in determining whether he has received a majority.</p> <p>Id.—Representation of Creditor by Proxy—Power of Attorney— Sworn Statement'of Demand.—A power of attorney from a foreign creditor authorizing an agent in this state to protect in every respect the interests of the creditor in all parts of the United States, and to act in his name for that purpose, to collect debts, bring actions, and do everytliing necessary with reference to claims in dispute, entitles the agent to represent the claim of such creditor by proxy in the election of an assignee for benefit of creditors; and such agent may make a statement under oath as to the amount of the demand represented by him, which the sheriff must accept as correct for the purpose of voting.</p> <p>Id.—Injunction—Affidavits—Denial of Indebtedness for Want of Information or Belief.—For purposes of evidence no weight can be allowed to an affiant’s denial based on the want of information or belief as to the fact denied.</p> <p>In.—Pleading—Representation of Creditors.—The complaint of the creditor seeking such injunction need not allege that the action is prosecuted for the benefit of all the creditors.</p>

<p>Fire Insurance—Title of Property—Unrecorded Deed—Foreclosure of Mortgage —Parties.—A policy of fire insurance providing that it should he void if the interest of the insured be other than unconditional and sole ownership, is violated, unless the wa, runty of such ownership is waived, where the insurer failed to record a deed from a mortgagor, and the title was divested by foreclosure and sale of the mortgaged prem'ses, though the insurer was not made a party to the foreclosure suit. The sale under the decree as conclusively divests the title of the insurer under the unrecorded deed as though he were a party litigant in the foreclosure suit.</p> <p>Id.—Warranty of Ownership.—A warranty of unconditional and sole ownership is established by the use of the pronoun “her” in the statement of the plaintiff’s interest in the premises insured, in which the amount of the insurance is stated to he “on her two-story metal roof building.”</p> <p>Id.—Waiver of Warranty —Findings—Sufficiency of Evidence.— Where the court finds that the defendant waived the warranty expressed in the Contract by issuing the policy to the plaintiff with full knowledge of the condition of the plaintiff’s title, the warranty could be thereby waived; and if there is some evidence tending to support such finding, it cannot be disturbed upon appeal, though the preponderance of the evidence against the waiver may he such that the trial judge would have b en warranted in discrediting the testimony in favor the. eof, an.l finding against a waiver.</p> <p>Id.—Pleading—Issue as to Waiver—Affirmative Defense—New Matter.—It was incumbent upon the plaintiff to aver a performance of all conditions and promissory warranties upon her part to be kept and performed; but it was not necessary to plead the truth of an affirmative warranty of title. Where the answer pleaded the warranty of the title, and the falsity of the evidence, in discharge of the liability, such affirmative defense is new matter which is deemed to be controverted by way of replication; and the plaintiff may prove a waiver of the warranty under the issue thus raised.</p> <p>Id.—Finding—Amount of Damage—Absence of Exception—Review upon Appeal.—A finding that the plaintiff was damaged by the fire in the amount of the policy, to which no exception was taken, is conclusive as to that question upon appeal.</p>

<p>Deed of Trust—Appointment op Substituted Trustee—Corporation— Copy of Resolution op Directors—Validity op Transfer.—Under a deed of trust executed to secure the indebtedness of the grantor to a corporation, which provided that the corporation might by a resolution of its board of directors appoint a substituted trustee in whom the title should vest upon conveyance thereto by the designated trustees, it is not necessary to the validity of the transfer that a copy of such resolution should be annexed thereto.</p> <p>In.—Evidence op Appointment—I rovision in Deed.—A provision in the deed of trust that a copy of the reso’utlon of the board of directors certified by its secretary should be c.n in ive evidence that the substituted trustee had been duly appointed, does not render such copy the exclusive mode of showing that a substitution had been made, and the resolution may be proved by the records of the corporation.</p> <p>Id.—Special Meeting of Directors—Presumption of Notice.— Where the resolution was spread at length upon the records of the corporation, and was authenticated by the signature of one purporting to be its secretary, the fact that it was passed at a special meeting of the directors, at which all of them were not present, and that it did not appear that notice of the meeting had been given to all of the directors, does not vitiate the resolution. In the absence of evidence to the contrary, it will he presumed that proper notice was given.</p> <p>Id.—Finding as to Notice—Sufficiency of Evidence.—Evidence by the secretary that he had given notice of the meeting to each of the directors by sending to them by a messenger written notices, at least twenty-four hours prior to the meeting, in the absence of any evidence to the contrary, is sufficient to authorize the court to find that proper notice of the meeting was given.</p> <p>Id.—Sale of Lands bv Substituted Trustee—Action to Quiet Title— Election of Directors .—For the purposes of an action to quiet title to lands sold by a substituted trustee appointed by the directors of the corporation secured by a deed of trust, it is Immaterial whether the election of the directors was regular or not, where it appears that they assumed the trust, and became, at least, de facto directors.</p> <p>Id.—Publication of Notice of Sale—Recital in Deed—Omission of Date—New Deed to Purchaser.—Where the notice of sale by the substituted trustee was in fact properly given, and was correctly recited in general in the deed to the purchaser, but there was a defective omission in the particular recital of the dates of publication, assuming without deciding the Invalidity of the first deed, the powers of the trustee were not exhausted until a valid deed with proper recitals was executed by the purchaser, so as to vest in him all the title with which the trustees were vested; and a new deed to the purchaser from the substituted trustee with correct recitals in every particular, is admit-sible in evidence, in support of the title of the purchaser.</p>

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

<p>APPEAL from a judgment of the Superior Court of Riverside County. J. S. Noyes, Judge,</p> <p>The facts are stated in the opinion.</p>

<p>Trial—General Objections to Evidence.—Where a specific objection to evidence is not needed to expose a latent vice lurking in the question, which is relied upon by the party objecting, and the question is objectionable from every standpoint, the general objections that the evidence asked for is irrelevant, immaterial, and incompetent, are sufficient.</p> <p>Slander—Charge of Drunkenness against Master Mariner—Evidence—Cross-examination—Barratry.—In an action to recover damages for an alleged slander in charging the plaintiff, who was a master mariner, with drunkenness, evidence offered upon cross-examination tending to show the willingness of the plaintiff to commit the crime of barratry, a matter not involved in the case, and which neither explained or discredited any statement made by the witness upon his direct examination, is improper cross-examination, and is not competent, in any aspect of the case.</p> <p>In.—Reports of Drunkenness—Malice in Fact.—A witness for plaintiff, who has testified nothing in his examination in chief concerning plaintiff’s drunkenness, or reports of his drunkenness, cannot he properly asked on cross-examination how many reports came to him while in command of the vessel that the plaintiff was drinking. But the defendant may testify in chief that various officers and sailors under command of plaintiff told him that plaintiff was in the habit of getting drunk upon voyages, as bearing upon the questions of malice in fact, and as to \ whether the communication made by the defendant to an ia- ' ' surance company was privileged.</p> <p>Id.—Justification of Charge—Pleading—Evidence.—Where the complaint alleged that defendant had made charges that plaintiff was a drunkard and in the habit of getting drunk, a general justification of the truth of the charges made as alleged in the complaint is sufficient; but evidence of drunkenness outside of the times specified and covered by the plea of justification is inadmissible.</p> <p>Id.—Broad Charge op Drunkenness—Injury as to Occupation.—A charge that a “master mariner has been in the habit of getting drunk” is sufficiently broad to cover his conduct upon his voyages, as well as between his voyages, and tends to injure him in relation to his occupation, by imputing to him a general disqualification in those respects which the occupation peculiarly requires, and is an actionable slander.</p> <p>Id.—Privileged Communication — Pleading. — Such a charge is not privileged, where no claim is made in the answer that it is a privileged communication.</p> <p>Malicious Prosecution for Assault—Evidence—Use of Pistol—Explanation of Possession.—In an action for a malicious prosecution for an assault, where it became a material fact whether or not plaintiff used a pistol in an assault upon the defendant, and the parties contradicted each other as to such use, the plaintiff cannot be permitted to show the circumstances under which he came into possession of the pistol, in proof of his innocent possession thereof.</p>

<p>Husband and Wife—Gift to Wife Causa Mortis—Recovery of Husband—Failure of Gift.—A gift of personal property by a husband to his wife to secure the property to her in the event of his anticipated death when sick, fails to be effective in the event of h"s recovery, and use of such property in his business in the same manner and at the same place as before his sickness.</p> <p>Id.—Sale to Wife—Statute of Frauds—Possession and Control by Husband.—A sale of personal prdperty by a husband to his wife is Void under the statute of frauds, as against his creditors, if not followed by an immediate delivery and actual and continued change of possession, and if the possession and control thereof •by the husband remains the same as before the sale.</p> <p>Id.—Inventory by Wife Immaterial—Construction of Code—Oase Affirmed.—The fact that the wife subsequently made and recorded an inventory of her separate property including the personal property for which a hill of sale was given her by the husband, cannot dispense with the necessity of a delivery and actual and ■ continued change of possession of the goods sold, to make the transfer valid as against existing creditors of the husband. Section 165 of the Civil Code is not entitled to such a construction as would nullify the provisions of section 3440 of that code as to fraudulent transfers of personal property.</p>

<p>Appeal—Reversal after Death of Respondent—Validity of Decision —Remittitur—Loss of Jurisdiction.—A decision rendered by this court reversing the judgment of the trial court, after the death of the respondent, where no suggestion of his death, or motion to substitute his representatives has been made, is not void, but at the most erroneous; and where no fraud or Imposition has been practiced upon this court, upon the issuance of the remittitur, the judgment of reversal becomes a finality, beyond the power of this court to modify or amend.</p> <p>Id.—Motion to Recall Remittitur—Substitution of Representatives. Where the attorneys who represented the respondent upon the appeal after his death, after the lapse of more than two years therefrom, and long after the filing of the remittitur in the superior court, moved to recall the remittitur, and to substitute the personal representatives of the respondent in this court, without any explanation or excuse for the delay, held, that such motion should he denied, and that the proper substitution should be left to be made upon the new trial in the superior court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Solano County and from an order denying a new trial. A. J. Buckles, Judge.</p> <p>, The facts are staled in the opinion of 'the court.</p>

<p>Estates oe Deceased Persons—Building Association Stock—Order— Assignment.—An order given by a wife to her husband for the payment to him of building association stock which would be to her credit, after the maturity, does not amount to an assignment of the stock; and upon her death before maturity of the stock, and upon the husband becoming her administrator, and collecting and receipting for the stock as such administrator, he is chargeable with the collection of the stock as part of the estate of the deceased wife.</p> <p>Id.—Accounting in Equity with Estate oe Deceased Administrator— Cross-complaint.—In an action in equity for an accounting against the estate of a deceased administrator, where a demurrer was sustained to a cross-co-mplaint filed by the defendant, and no amended cross-complaint was filed, and the action was tried upon the complaint and answer, which were sufficient to justify the findings of the court with reference to the account, the so-called cross-complaint may be- disregarded as surplusage.</p> <p>Id.—Judgment against Administrator op Deceased Administrator.— The judgment rendered in such action against the administrator of the deceased administrator must be made payable out of his estate in due course of administration.</p>

<p>Pleading—Service of Amended Complaint—Recital in Judgment— Presumption upon Appeal.—An amendment to the complaint must be served on all the defendants to be affected thereby; but where the judgment recites that certain defaulting defendants were regularly served with the complaint, and that their defaults were regularly had and taken, it will be presumed upon their appeal from the judgment, in the absence of a showing to the contrary, that amendments to the complaint were duly served on them, and that evidence of such service was before the court when making its decree.</p> <p>Id.—Judgment-roll—Proof of Service.—The statute concerning the contents of the judgment-roll does not require the proof of service of amended pleadings to appear therein.</p> <p>Id.—Sufficiency of Complaint—Certainty—Exhibits.—A complaint which, when taken in connection with the exhibits thereto shows a cause of action, though subject to a demurrer for uncertainty, is sufficient to support a judgment against defaulting defendants.</p>

<p>Principal and Agent—Ostensible Agency—Belief of Authority.— He who seeks to charge a principal with the acts of an ostensible agent must himself believe that the agent had authority as such from the alleged principal.</p> <p>Id.—Ostensible Agency of Purchaser fob Mortgagee—Goods Charged to Purchaser—Finding.—An action for goods sold and delivered cannot he maintained against a mortgagee of the purchaser, oh the ground of ostensible agency of the purchaser for the mortgagee, from whom the money was borrowed by the purchaser to carry on the business in relation to which the goods were sold, where it appears that the plaintiff knowing the relations between the purchaser and the mortgagee, charged the goods to the purchaser, and not to the mortgagee. In such ease, a finding against the ostensible agency is supported by strong evidence tending to show that plaintiffs did not believe that the goods were purchased for the mortgagee.</p> <p>Id.—Incidental Benefit to Mortgagee.—The incidental benefit to the mortgagee arising from the delivery to the mortgagee of crops grown and harvested by the purchaser which were the subject of the mortgage, and from the furnishing of the goods to the purchasers, to enable them to grow, mature, and harvest the crops so delivered, though having some weight as evidence, in connection with other circumstances, to show the existence of a contract, express or implied, made by the mortgagee or through his agent to pay for the goods, is not sufficient, standing alone, to base a right of action against the mortgagee for goods sold and delivered.</p>

<p>Judgment Lien—Death op Judgment Debtor.—The lien of a judgment docketed against the judgment debtor during his lifetime is not released or affected by his death pending the time limited by the statute for the continuance of such lien.</p> <p>Id.—Presentation op Judgment—Continuance op Lien—Merger.—The fact that the judgment is required to he presented as a claim against the estate of the judgment debtor, and to be paid in the due course of administration, and is not enforceable by execution, is not inconsistent with the continuance of the lien, which is ranked with the recognized lien of a mortgage; and the presentation and allowance of the judgment as a claim does not destroy or merge the judgment lien.</p> <p>Id.—Allowance of Claim not a Judgment—Merger op Judgments.— The allowance of a claim is not, in any true sense, a judgment; and none of the grounds upon which one judgment has been held to he merged in another, apply to the ease of the allowance of a judgment as a claim against an estate.</p>

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

<p>Claim and Delivery—Action against Corporation and Superintendent—Verdict for “Defendant.”—In an action of claim and delivery against a corporation and its superintendent and manager, where the questions at issue were whether the plaintiffs were the owners and entitled to the possession of certain raisin trays, and no affirmative relief was sought by the defendants, a verdict for the “defendant” is not so uncertain and informal that it cannot form a basis for a judgment that" plaintiffs take nothing, and that the defendants named recover from the plaintiffs their costs.</p> <p>Id.—Evidence—Purchase of Raisin Trays—Books of Lumber Company. The trade books of a lumber company from which the trays in controversy were purchased, containing entries showing that the tvays were charged to the plaintiffs, who had advanced money on the raisin crop of the defendants, which required -additional trays to handle, and that the trays were shipped to the defendants, are consistent with a sale to the defendants, to be paid for out of the proceeds of defendants’ crop of raisins when sold by the plaintiffs, and are not admissible to show title to the trays in the plaintiffs.</p> <p>In.—Instructions of Manager as to Entries—Hearsay.—The testimony of the witness by whom the entries were made that he made them by direction of the shipping clerk, and in accordance with instructions from the manager of the lumber company, is hearsay and inadmissible. The manager, who made the sale, should he called to testify to the facts of the transaction; and the court should then instruct the jury whether these facts constituted a sale to the one party or the other.</p> <p>Id.—Refusal of Instructions—Burden of Proof.—Instructions requested by the plaintiffs which were covered by other instructions given at their request, were not improperly refused; and a requested instruction placing upon the defendants the burden of proving by a preponderance of evidence that the trays were purchased by them, was properly refused.</p> <p>Id.—New Trial—Newly- discovered Evidence—Testimony of Manager of Lumber Company.—The proposed testimony of the manager of the lumber company that furnished the trays, as to the purchase thereof by the plaintiffs, which it appears must have been known to the plaintiffs at the former trial, is not newly-discovered evidence; and where the manager was- not subpoenaed nor even notified that his presence was desired at the trial, no diligence is shown to procure his testimony; and a new trial upon the ground of such proposed testimony is properly refused.</p> <p>Id.—Notice of Claim of Defendants.—The answer of the defendants denying the title of plaintiffs to the trays in controversy, and pleading that the corporation defendant purchased the trays at a time specified, is notice of the defendant’s claim, of which the plaintiffs cannot urge ignorance, as an excuse for not procuring the evidence of the manager of the lumber company.</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. 11. Seawell, Judge.</p> <p>The facts are stated in the opinion.</p>

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

<p>Partnership—Individual Mortgage by Surviving Partner—Foreclosure—Rights of Judgment Creditor.—In an action to foreclose a mortgage made by a surviving partner on the partnership real estate, to secure his individual indebtedness, only the personal interest of the surviving partner in the mortgaged property is involved, and the extent of his interest in the partnership property, after a settlement of the partnership, cannot be considered; and the right claimed by a judgment creditor of the partnership to show that the partnership interest may, upon an accounting, absorb the interest covered by the mortgage, is adverse to the mortgage, and cannot be litigated in the action.</p> <p>Id.—Pleading by Judgment Creditor—Res Adjudicata.—The fact that the judgment creditor was made a party to the foreclosure suit, and set up his judgment therein as against the mortgage, cannot preclude him from a future adjudication of his rights, when they are properly involved.</p> <p>Id.—Parties to Foreclosure—Receiver of Partnership.—In the foreclosure of such mortgage, the receiver of the partnership property is not a proper party defendant as representing the partnership.</p>

<p>Equity—Pleading — Insufficient Complaint.—A complaint seeking equitable relief is insufficient, if it does not state facts showing ■' the existence of a right to enforce, or a wrong to redress, as . distinguished from mere epithets, however profuse or vehement, • ,and does not show that the plaintiff has been damaged, or shows that he is seeking equity without. doing equity.</p> <p>Id.—Cancellation of Instruments—Injunction—Compelling Conveyance—Complaint without Equity.—A complaint seeking to cancel a' note and mortgage, and to enjoin its pending foreclosure, and •. for equitable relief against the foreclosure of prior mortgages, , and to compel a conveyance of title obtained thereunder, which shows that the mortgagee agreed to use the money to buy in the property under the prior foreclosure for plaintiff’s benefit, but avers that he fraudulently conspired with another defendant to buy in the prior mortgages before the decree, and to' obtain title under foreclosure thereof, which was obtained at an expenditure of one thousand dollars less than the face of the note and mortgage given him, but does not aver any payment or offer . of payment of the money actually advanced, does not show any ground for equitable relief, or state facts sufficient to constitute a cause of action.</p> <p>Id.—ILelief in Pending Action.—If the plaintiff is entitled to any relief growing out of the transactions set forth in the complaint, such relief may he amply afforded in the pending action to foreclose the mortgage sought to be canceled; and he cannot institute another action to enjoin further proceedings in that action, hut is bound to seek any relief to which he may be entitled, either by answer, or by cross-complaint in the foreclosure action.</p>

<p>Divorce—Findings—Falsity of Complaint—Corroboration of Plaintiff—Appeal.—In an action for a divorce, where the court finds that the" allegations of the complaint are not true, and also that the testimony of the plaintiff relative thereto was not corroborated, and the evidence is conflicting as to the truth of the averments, the judgment for the defendant will not be reversed upon the ground that there was some corroboration of the plaintiff’s testimony by other witnesses at the trial.</p>

<p>Life Insurance—Fraud of Agent—Rescission of Policy—Recovery Back of Premium — Sufficiency of Complaint—Exhibit. — A complaint to recover back a premium paid upon a life insurance policy examined, and held to state a cause of action founded on the fraud of the agent of the insurance company perpetrated in obtaining plaintiff’s application for the policy.</p> <p>Id.—Pleading—General Demurrer—Inferential Averments—Absence of Fault of Plaintiff—Fraudulent Intention of Agent.—The fact that the complaint in such action is subject to a demurrer for uncertainty, in not showing directly that plaintiff signed the application, misconceiving its meaning, and without material fault on his own part, and that the promises of the agent of the defendant were false and fraudulent, and that he had no intention that they should be performed, is not material, in the absence of such demurrer, if such statements sufficiently appear to be true by reasonable and necessary inferences from the facts averred. These inferences, questioned by a general demurrer only, must be imputed to the complaint for verity in like manner as if they had been directly charged.</p> <p>Id.—Fraud of Agent Attaching to Principal—Knowledge—Retention of Money.— 1 he provision in the policy that the unwritten statements and promises of the agent do not affect the rights of the company does not confer upon the company the right to retain money received in consequence of fraud practiced hy the agent, after it has knowledge of the fraud.</p> <p>Id.—Fraud upon Both Parties—Absence of Free Consent—Voidable Contract.—The agent having practiced a fraud upon both the insurer and the insured, and there having never been a free consent to the apparent contract, the contract is justly voidable at the instance of either party, if 'injured thereby.</p>

<p>Certiorari—Office of AVrit.—The writ of certiorari can only issue to review the action of a hoard or inferior tribunal, when performed in the exercise of judicial functions, and in excess of its jurisdiction; and it cannot issue where the act complained of is merely legislative.</p> <p>Id.—Legislative Act of Supervisors Relating to Streets—Discretionary Power.—The act of the board of supervisors in determining whether a street shall be opened or closed, or widened or contracted, or otherwise improved, is a legislative act, and the exercise of its judgment in determining what is to be done in the premises is but the exercise of a discretionary power intrusted to them as a legislative body, and is not the exercise of any judicial function, which may be reviewed upon certiorari.</p> <p>Id.—Power to Diminish Width of Street.—The authority torcióse a street in whole or in part, conferred by the act of March 7, 1889, authorizes the board to diminish the width of the street, and the adoption of the order is a determination that it is required by the public interest or convenience.</p> <p>Id.—Objections—Hearing Authorized, not Judicial—Ascertainment of Public Interest.—The hearing authorized by the statute to consider objections made to the improvement or change of a street is not judicial, but merely a mode of procedure for ascertaining the public interest, and its decision on that question is final and conclusive.</p> <p>Id.—Closing up Part of Street—Question of Damage—Determination of Board not Subject of Certiorari.—In closing up the whole or '• part of a street, the necessity of an assessment of damage is to be determined by the board, and may be determined by them irrespective of any previous notice, or after such hearing and objection as it may deem appropriate. While the board is not-authorized to determine the amount of damage which may be caused, it is authorized in the exercise of its legislative discretion to determine in the first instance whether any damage will or will not result, and any error in such determination cannot be reviewed under a writ of certiorari.</p> <p>Id.—Rights op Abutting Owners—Oonpormity op Width to Other Streets.—The owners abutting upon a street which is so diminished in width by the city authorities that thereafter it will have the same width as the majority of the streets of the city, cannot claim that the proposed reduction will interfere with their enjoyment of light and air, or that access to their lots is in any degree impaired.</p> <p>Id.—Construction op Constitution—Damage to Property.—The provision of the constitution forbidding that property shall be damaged for public use without compensation, applies only to such damages as may be recovered under established rules of law, and does not apply to any mere diminution in value of abutting lands by the closing up of a street in whole or in part, nor to any mere inconvenience to abutting owners thereby occasioned if access to their land is not prevented.</p> <p>Id.—Absence op Private Remedy—Certiorari.—Abutting owners not entitled to a private remedy for damages by reason of the order of a municipal board diminishing the width of a street, are not entitled to question the validity of the order by means of certiorari.</p> <p>Id.—Title to Vacated Portion op Street—Jurisdiction of Board.— The jurisdiction of the municipal board to diminish the width of the street is not dependent upon the effect it may have upon the title to the vacated portion of the street, and it cannot be considered upon certiorari whether it will vest in the owner abutting upon the strip vacated or remain public property to be disposed of according to law.</p>

<p>Pledge of Bank Stock—Special Property of Pledgee—Invalid Sale— Transfer of Pledge.—A pledgee of a certificate of bank stock indorsed in blank by the former owner has a special property in it, and not a mere lien thereupon, and does not lose all rights and interest In the stock by an invalid private sale thereof, without complying with the requirements of the code, but in such case the purchaser becomes a transferee of the pledge, and is entitled to hold the stock as a pledge, with the rights enjoyed by the original pledgee, until the extinguishment- of the original obligation.</p> <p>Id.—Pledge of Indorsed Certificate by Agent—Bights of Pledgee and Owner.—An owner of a certificate of bank stock who has indorsed the same in blank, and delivered it to his agent, thus putting it into his power to negotiate the same, cannot recover from a bona fide pledgee of such agent for value, though pledged for the private account of the agent, without refunding or offering to refund the amount advanced by the pledgee to the agent thereupon.</p> <p>Id.—Title or Authority of Agent not Involved—Estoppel of Owner. The rights of the pledgee in such case do not depend upon the actual title or authority of the agent, but are derived from the acts of the real owner, which preclude him from disputing as against the pledgee the title or power which, through negligence or mistaken confidence, he caused or alloived to appear to be vested in the pledgor.</p> <p>Id.—Action for Conversion of Pledge — Evidence—Assignment of Claim against Insolvent Pledgor.—In an action by the original owner for a conversion of the pledged certificate of stock by the pledgee of his agent, by means of a sale thereof, where it appears that the proceeds of the sale were applied toward the payment of the indebtedness of the pledgor to the pledgee, an assignment by the pledgee of the claim for the residue of the indebtedness in an insolvency proceeding against the insolvent pledgor, and the subsequent assignment thereof to the plaintiff, not being relevant to the issues on which the ease was tried, are not admissible in evidence.</p> <p>Id.—Application to Amend Pleading—Discretion.—The application of the plaintiff to amend the complaint, so as to allege such assignment, was in the discretion of the court, and the refusal to grant such application will not be disturbed where no abuse of discretion appears.</p> <p>Id.—Pledge to Savings Bank by Director—Prohibition of Borrowing —Construction of Code—Bights of Bank.—The provision of section 578 of the Civil Code, that no director of a savings bank shall borrow its funds, and that upon so doing his office shall become vacant, cannot be availed of to defeat a pledge made by such director for money borrowed from the bank, especially after the transaction is executed. The violation of the provision can only be availed of by the sovereign power. The bank may sue to recover the money loaned, and can hold the pledged stock, or its proceeds, in a suit for the recovery of the same, until the money lent on faith of the pledge is repaid.</p> <p>Id.—Demand of Stock from Pledgee—Claim of Ownership—Conflicting Evidence—Appeal.—Upon demand of the stock from the defendant by the plaintiff, while the stock was in the hands of the defendant, if the evidence is conflicting as to whether the defendant asserted unqualified ownership of the stock, and refused to deliver it up on that ground, or merely claimed the rights of a pledgee, to -whom no tender or offer of payment was made, and the jury found for the defendant, it must be assumed upon appeal that the facts are as contended by the defendant.</p>

<p>Estates of Deceased Persons—Probate of Foreign Will—Assignment by Devisee—Right to Letters.—Upon the probate of a will in this state, which had been duly admitted to probate in a territory of which the deceased was a resident, one living in this state who is an assignee of part of the interest of the nonresident sole devisee and executor of the will is entitled to letters testamentary, as being a person interested in the will, in preference to the public administrator.</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 ih the opinion of the court.</p>

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

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

<p>Quieting Title—Transfer by Defendant—Election by Transferee— Nominal Party.—In case of a transfer of the interest of a defendant in real property involved in an action to quiet title, to one having notice of the pendency of the action, the transferee may elect either to be substituted therein as defendant, or to continue the defense of the action in the name of the original defendant, who is thereafter a mere nominal party, having no further interest in the action, and having no further power to control its defense.</p> <p>■Id.—Death of Nominal Party—Substitution—Continuance of Action in Name of Deceased.—Upon the death of the nominal party defendant, his executor or administrator cannot be substituted as defendant; and for the purposes of the litigation, such death is immaterial, if the action is still continued by the transferee in the name of the deceased defendant, without substitution of himself as the real party in interest.</p> <p>Id.—Appeal—Use of Name of Deceased—Jurisdiction.—An appeal taken by the transferee in the name of the deceased party defendant, which is heard in the supreme court upon its merits, will be deemed, in all matters material to the appeal, as taken by such transferee as a party to the action, under the name of such defendant; and his death is wholly immaterial as affecting the aspect or situation of the litigation, or the jurisdiction of this court over such appeal.</p> <p>Id.—Judgment Directed upon Appeal—Second Appeal—Review of Exceptions—Case Affirmed.—After judgment entered by the trial court under the direction of this court given upon a first appeal, a second appeal may be taken therefrom, not only to review the question whether the judgment was entered in conformity with the mandate of this court, but also to review the merits set forth in a bill of exceptions which was not involved upon the first appeal.</p>

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

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

APPLICATION in the Supreme Court for mandamus to the Judge of the Superior Court of San Diego County, to compel the settlement of a statement on appeal from a judgment of the Superior Court of that county. E. S. Torrence, Judge. The facts are stated in the opinion of the court.

MOTION in the Supreme Court to vacate and set aside a sale, and to quash an execution issued, pending an appeal from an order of the Superior Court of San Bernardino County, denying a new trial. Frank F. Oster, Judge. The facts are stated in the opinion of the court.

<p>Street Assessment—Second Supplemental Assessment—Dower op Council.—Under the street opening act of 1889 (Stats. 1889, p. 70), where a deficiency has arisen in the collections under the original assessment for the opening and extension of a street, and a supplemental assessment to reimburse money advanced from the general fund to meet such deficiency, has proved insufficient for that purpose, the municipal council has authority, if the proceedings were regularly pursued, to make a second supplemental assessment to complete such reimbursement.</p> <p>Id.—Objections to Assessment—Notice op Hearing—Stated Hour— Premature Adjournment—Loss op Jurisdiction.—Where the time for the hearing of objection to the second supplemental assessment was fixed by the city council for the stated hour of 9:15 P. M. of a specified date, and notice was given of such hearing to the objectors, who attended at the hour designated; but, previously to that hour, without notice to the objectors, the meeting was adjourned until the next evening, the council thereby lost jurisdiction to consider the objections, or to make a valid assessment without giving a new notice to the objectors.</p> <p>Id.—Void Assessment—Threatened Sale—Payment under Protest— Recovery prom City.—Money paid under protest to the superintendent of streets to prevent a threatened sale and deed by him for a delinquent street assessment which is void, may be recovered back- from the city irrespective of whether section 3819 of the Political Code applies to local assessments.</p> <p>Id.—Effect of Deed—Cloud upon Title—Loss of Property.—The deed of the superintendent of streets under a sale to enforce a street assessment is made prima facie evidence of the regularity of the proceedings, and conclusive evidence of the necessity of taking or damaging the lands taken or damaged and of the correctness of the compensation awarded therefor; and would cast a cloud upon the plaintiff’s title and cut off his rights, if he had not paid the assessment or enjoined the sale.</p> <p>Id.—Liability of City—Advance to Street Opening District—Control of Funds.—The liability of the city to return money paid to the city treasurer which was illegally exacted from the plaintiff under a void street assessment, is not affected by the fact that money was advanced from the general fund to the street opening district, and that the assessment was for the purpose of reimbursing the general fund. The city council levies all street assessments, and retains the -control of the funds from first to last, through its proper officers.</p> <p>Id —Presentation of Claim to Council—Neglect to Act.—The plaintiff is not required to present any claim to the city council for the money illegally exacted, before bringing an action to recover it back from the city; and where it appears that the claim was presented to the auditor and sent to the council, and there referred to a committee without action, the council cannot avoid suit thereupon by refusing or neglecting to act upon the claim.</p> <p>Id.—Sufficiency of Complaint—Authority of Street Superintendent. A complaint stating all the proceedings of the council, and of the superintendent of streets up to the point of advertising the property for sale to pay the tax in question, and showing that the assessment was invalid, and that the tax was delinquent, and that payment was made under protest to prevent a threatened sale and deed by the superintendent of streets of plaintiff’s property, sufficiently states a cause of action, without expressly averring that the superintendent of streets was clothed with authority to make the sale. The statute clothed him with authority to carry out his avowed purpose to selL</p>

<p>Cemetery—Lawful Avocation—Tendency not Injurious.—The establishment and maintenance of a cemetery for the burial of the dead, for the purpose of deriving profit therefrom, is a lawful avocation, which does not presumably have an injurious tendency.'</p> <p>Id.—Nuisance—Police Power.—A cemetery cannot he regarded as a nuisance per se, in measuring the extent of the police power to regulate it, though cemeteries are within the power of reasonable regulation by cities, towns, and counties.</p> <p>Id.—Reasonableness of Regulation — Population.— An ordinance passed pursuant to-the constitutional grant of power to make • police regulations may be reasonable as applied to the regula- ■ tlon of cemeteries by a city or town within its limits, which would be entirely umreasonable when put in operation in all ' parts of a county thinly populated in many of its parts.</p> <p>Id.—Restriction of Individual Rights.—Any restrictions of the rights of individuals to pursue a lawful avocation, by virtue of the police power, must extend to all individuals who'might exercise that right within the same district.</p> <p>Id.—Invalid County Ordinance—Unreasonable and Unequal Regulation— Arbitrary Will of Supervisors.—A county ordinance making it unlawful to establish, extend, or enlarge any cemetery within the limits of the county, without first obtaining permission of the supervisors, but impliedly permitting burials in cemeteries already established, without restriction, is both Unreasonable in making the right to pursue a lawful avocation depend upon the arbitrary will of the supervisors, and unequal in its operation, in assuming to limit the unrestricted privilege of burial to one class of citizens, and to deny it to another class within the same district, or to make the latter subject to the arbitrary will of the supervisors to grant or to refuse that privilege. Such ordinance is invalid, and cannot be enforced by the county.</p>

<p>Pueblo Lands of San Francisco—Title of United States—Qualified Rights of City.—The title to the unappropriated pueblo lands of San Francisco passed to the United States upon the conquest of California in 1846;' though the city, as successor of the pueblo, had an inchoate and imperfect right thereto, qualified as a trust ■for the benefit of the inhabitants of the city, and subject to governmental control. The city could not alienate the lands in violation of the trust; nor could it by ordinance divest the power of Congress to modify its inchoate rights. The lands were confirmed to the city by Congress, with such restrictions as it chose to impose, and for the uses and purposes specified in the ordinances of the city ratified by the state legislature March 11, 1858.</p> <p>Id.—Operation of Van Ness Ordinance — State and Congressional Legislation.—The Yan Ness ordinance passed by the common council of San Francisco, in 1855, granting the pueblo lands to persons in possession thereof, with the exception of lands reserved for streets and other public purposes, was provisional in its effect, and not operative per se, but derived its operative force from tbe ratification thereof by the state legislature and the relinquishment of the title of the United States to tbe city by Congress for the uses and purposes specified in that and other ordinances ratified by the legislature of the state.</p> <p>Id.—Title of Possessors—Obligation of Contract—Public Square-Adverse Possession.—The Van Ness ordinance granted only such title to possessors as the city whs permitted by Congress and the state to convey; and it did not operate as a contract of the ■city with the possessors of land reserved as a public square, and so create an obligation beyond legislative impairment. Compensation was not required to be made to adverse possessors of part of such square; nor could title be acquired thereto by adverse possession.</p> <p>Id.—Reservation of Lafayette Park—Ordinance No. 845—Van Ness Map—Dedication to Public Use.—The reservation of Lafayette Park as a public square, as shown upon the Yan Ness map, was made ostensibly under the Van Ness ordinance and the supplementary Ordinance No. 845, and said map had been adopted as a city .map by order of the supervisors, prior to the legislative ratification of the Van Ness ordinance, which included also the ratification of such supplementary ordinance and order; and by the operation of that ratification and of the act of Congress conveying the pueblo lands to the city for the uses and purposes specified in the ordinances so ratified, Lafayette Park was dedicated to public use as a public square, and no possessor could acquire title to any part thereof.</p> <p>Id.—Decree Confirming Claim of City—Possessor of Park not Aided. The decree of the United States court confirming the claim of the city to the pueblo lands “in trust for the benefit of the lot holders, under grants from the puehio, town, or city of San Francisco, or other competent authority, and as to any residue in. trust for the use and benefit of the inhabitants of the city,” did not aid any possessor of Lafayette Park, which had been dedicated by competent authority to public use, and who did not hold under any grant from the. pueblo, town, or city.</p>

<p>APPEAL from a judgment of the Superior Court of Sacramento County. Matt. F. Johnson, 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. Carroll Cook, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action upon Open Account—Value of Services—Pleading—Objection to Evidence—Amendment.—In an action against the executor of a deceased person to recover the balance due on a mutual, open, and current account between the plaintiff and the deceased, an itemized statement of which had. been presented to the executor, upon an objection taken to evidence of the value of services of the plaintiff included 'in the account, upon the ground that it was not germane to any issue, for the reason that the complaint, though alleging that the work was done under an agreement to pay what the services were reasonably worth, did not allege their value, it was error not to permit the plaintiff to amend the complaint so as to state the value of the services, and to persist in excluding all evidence thereof.</p> <p>Id.—Evidence—Proof of Account—Items.—The court cannot properly require the account to be proved before allowing the plaintiff to prove the items thereof. The only way in which an account can ordinarily be proved is to establish its several items.</p> <p>In.—Primary and Secondary Evidence—Oral Proof of Items—Books of Account.—The oral testimony of persons having personal knowledge of the transactions involved in the items of an account is the best evidence of such items, if they do not result from a written contract, and is primary evidence thereof, notwithstanding the existence of books of account showing them. Such' books of account are only secondary and supplemental proof of the items.</p> <p>Id.—Action against Executor—Nonpayment After Death of Deceased —Testimony of Plaintiff.—In an action upon an account with a deceased person, brought against his executor, inquiries of the plaintiff as a witness, as to whether anything had been paid to him since the death of the decedent, on account of any services rendered by him to deceased during his lifetime, if he rendered any such services, and whether, if any balance of account was due to him upon such death, such balance still remains unpaid, do not relate to matters occurring prior to the death of the deceased, and do not fall within the prohibition of section 1880 of the Code of Civil Procedure.</p> <p>In.—Nonpayment by Deceased—Books of Account—Foundation for Introduction.—Books of account kept by the deceased, if not containing proof of the payment of plaintiff claim, may be looked to for evidence of the negative fact of nonpayment by the deceased during his lifetime; and notwithstanding the inhibition of section 1880 of the Code of Civil Procedure, the foundation for the introduction of such account hooks, if kept by plaintiff for the deceased, may be laid by the testimony of the plaintiff.</p> <p>Id.—Nonproduction of Books by Executor—Nonsuit—Appeal—Error not Presumed Harmless.—Where the books of the deceased were last seen in the possession of the executor, and he failed to produce them upon the order of the court, and it appeared that they could not be found, the objection of the executor as respondent, upon appeal of the plaintiff from a judgment of non-suit, that error occurring at the trial must be presumed harmless, because nonpayment of the claim during the lifetime of the deceased was not proved, will not be entertained, 'in the absence of explanation under oath by the defendant as to why the books were not produced in compliance with the order of the court.</p> <p>Id.—Erroneous Exclusion of Proof of Claim—Proof of Nonpayment not Required.—Where the court erroneously refused to allow the plaintiff to prove the existence of his claim, or to amend his complaint, to justify such proof, he was not required to prove nonpayment of the claim which he had failed to establish. The law does not require a vain tiling.</p>

APPEALS from judgments and orders of the Superior Court of Los Angeles County. Frank F. Oster, Judge. The facts are stated in the opinion of the court.

Frank F. Oster, Judge. The nature of the motion is stated in the syllabus. The fact? and principles involved are stated at length in the opinion of the court given upon the appeals, supra, p. 368.

WRIT of habeas corpus to the sheriff of the City and County of San Francisco to review a commitment for contempt by the Superior Court of the City and County of San Francisco. Carroll Cook, Judge. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Mariposa County, allowing alimony, counsel fees, and expenses of suit, pending an action for divorce. John M. Corcoran, Judge.</p> <p>The facts are stated in the opinions.</p>

<p>Injunction—Discharged Employee Assuming to Act as Partner—Insolvency.—One who, under a written contract with the owner of a business, for employment under a salary, with a contingent right to a share of the net profits, has been discharged for neglect of duty, hut continues to trespass upon the business premises, and, without any interest as partner, assumes control over the business, intercepts money due to the owner, and holds himself out to the public as a partner having the right to do these things, and who is admittedly insolvent, may be enjoined from the continuance of such conduct, there being no adequate remedy at law therefor.</p> <p>Id.—Interest in Net Profits—Access to Premises—Offer of Owner to Submit Books.—The fact that the employee had a contingent right to share in the net profits of the business does not require that he should he allowed free access to the business premises, in order to protect his interest therein, where the existence of such profits is disputed, and it is not shown that, if there were profits, his presence in the store is necessary for the protection of his share thereof.</p>

<p>Appeal—Order Denying New Trial—Insufficient Statement.—An appeal from an order denying a new trial cannot be considered where the statement on the motion for a new trial does not contain, as part thereof, any specification of errors, but there is merely appended thereto what is designated as an “assignment of errors,” which forms no part of the statement, and is not authenticated as part of the record, and does not appear to have been considered on the motion for a new trial.</p> <p>Id.—Review upon Appeal from Judgment.—Where the statement used in the motion for a new trial is insufficient for want of a proper specification of errors, the review upon appeal from the judgment must be confined to determining only whether the findings support the judgment.</p> <p>Id.—Action for Services of Physician—Statute of Limitations—Review of Findings—Evidence not Considered.—In an action to recover for the services of a physician, where the court finds that the services were rendered without express agreement for any stipulated time or sum of money; that the charges made were for each visit; that the physician might at any time have rendered his bill or have been discharged from further service; and concludes that all items of service rendered more than two years prior to the commencement of the action were barred by the statute of limitations; such findings support a judgment for plaintiff only for the items of service not so barred; and if the evidence cajrmot be examined to determine whether it supports such findings for want of a proper statement on motion for a new trial, the judgment and order denying a new trial must be affirmed.</p>

<p>Negligence—Collision of Electric Car with Sprinkling Cart.—The motorman of an electric ear, in approaching at high speed, in the rear of an unwieldy sprinkling cart, weighing about five tons, which was known to him to be rightfully upon the track, in its customary position, for the purpose of sprinkling the street, could not reasonably assume that the street-car track could be quickly cleared by such cart, nor that a warning given by him, by the sounding of a gong, seven hundred feet away, would necessarily be heard by the driver of the cart. The motorman would not be justified in quickening bis speed and advancing without further warning, on the assumption that the signal so given would' be heard and obeyed by the driver of the sprinkling cart in. time to clear the passing car; and the street railway company is responsible for damages resulting to the driver of the sprinkling cart from a collision therewith by the electric car.</p> <p>In.—Contributory Negligence—Reckless Collision.—Persons cannot be recklessly and wantonly run down on a.railroad track, however negligent themselves, where the circumstances are such as to convey to the mind of a reasonable man a question whether they will be able to get out of the way; and this rule applies especially where the person recklessly collided with is driving an unwieldy vehicle.</p>

<p>Vendos and Purchaser—Loan to Purchaser—Promise op Mortgage-Judgment upon Note—Action to Set Aside Homestead Claim.—One who has loaned money to a purchaser of land with which to complete the purchase, and obtain title, and who has taken a note from the purchaser and his wife, under promise of a mortgage to secure it, when title was obtained, cannot, after their refusal to execute the mortgage, as promised, and the filing of a homestead claim upon the premises, and the subsequent obtaining of judgment by him upon the note, maintain an action to set aside and cancel the declaration of homestead, and to apply the land to the payment of the judgment.</p> <p>Id.—Subrogation to Bights op Vendor—Pleading.—If the complaint in such action does not contain the contract between the vendor and purchaser, or show that the vendor had rights which he could enforce against the purchaser, or show when the money. was paid, or the land conveyed, it does not show that the plaintiff was subrog-ated to any rights of the vendor. As the vendor retained the title until the purchase money was paid, there was no vendor’s lien to which the plaintiff could be subrogated.</p> <p>Id.—Equitable Mortgage not Superior to Homestead.—Assuming that the agreement by the purchaser to give a mortgage to the lender of the money constituted an equitable mortgage, it cannot be superior to a declaration of homestead filed by the purchaser, if no mortgage was in fact executed and filed for record, prior to the filing of the declaration of homestead.</p> <p>Id.—Personal Judgment—Election—Waiver op Equitable Mortgage. There can be but one action for the enforcement of a debt secured by mortgage; and by putting the promissory note into a personal judgment without seeking in that action to enforce an equitable mortgage against the homestead claimants, the owner of the note thereby elected to look only to the personal obligation of the makers, and waived and was deprived of any equitable mortgage that he might have, by failure to .enforce it in that action.</p>

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

D. J. Murphy, Judge rendering judgment. A. A. Sanderson, Judge awarding alimony. Edward A. Belcher, Judge ordering amendment of judgment. The facts are stated in the opinion.

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

<p>Criminal Law—Bobbery—Support op Verdict.—The evidence reviewed, and held sufficient to support a verdict of guilty of the crime of robbery. The verdict is conclusive evidence that the jury believed the testimony in support of it.</p> <p>Id.—Misconduct op District Attorney—Unauthenticated Appidavit. An unauthenticated affidavit setting forth certain language of the district attorney, which is claimed to amount to misconduct, not made part of the bill of exceptions, nor marked as having been read on the motion for new trial, forms no part of the record and is not entitled to consideration.</p> <p>Id.—Opinion op District Attorney—Latitude in Comment.—A mere expression of opinion of the district attorney during the argument, not involving a statement of any fact, or a suggestion of something as being true which had not been proved, and which was within the reasonable latitude which should be allowed the district attorney in commenting upon the case, is not ground (for setting aside the verdict.</p>

<p>Street Assessment—Defective Certificate of Engineer—Signature by Employee.—No lien can be acquired under a street assessment without the record of a valid certificate of the city engineer required by law to be recorded with the warrant, assessment, and diagram in the office of the superintendent of streets. If such certificate is not signed by the city engineer either in person or by deputy, but his name is signed thereto In the hand■writing oí a mere employee, who did the surveying and measuring required to be done and certified by the city engineer, it is fatally defective and invalid, and its record cannot constitute the basis of a lien.</p> <p>Id.—Recitad in Subsequent Certificate—Defect not Aided by Proof. A subsequent certificate signed by the city engineer, merely certifying that the record of the former certificate shows certain specified facts, cannot have the effect to aid or cure the defective certificate, but is at best only secondary evidence of its contents. The defective certificate cannot be cured by any proof that the facts stated therein are true.</p>

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

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

<p>Street Improvement—Invalid Contract—Specifications not Annexed. A contract for a street improvement which requires the work to be done in accordance with" specifications declared to be annexed to the contract and made part thereof is invalid, if no specifications are shown to have been prepared, and none appear ever to have been annexed to the contract.</p> <p>Id.—Mandamus to Compel Assessment.—If no valid contract has been made for doing the work, the superintendent of streets is justified in refusing to issue an assessment therefor, and mcrnddmus will not lie to compel him to issue it.</p>

<p>APPEAL from a judgment of the Superior Court of Yolo County and from orders denying a new trial and denying a motion in arrest of judgment. E. E. Gaddis, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

CERTIORARI in the Supreme Court to review an order of the Superior Court of Madera County remanding a cause appealed to it from a Justice’s Court. W. M. Conley, Judge. The facts are stated in the opinion of the court.

<p>Public Lands—Grant to Railroad in Praesenti.—The public lands of the United States granted in praesenti to the Southern Pacific Railroad Company by the act of Congress of July 27, 1866, included onlythe odd sections within the primary limits (other than chose reserved, sold, or otherwise appropriated), which were free from pre-emption or other claims or rights, when the plat of the designated line of the road was filed.</p> <p>In.—Right to Indemnity Lands—Necessity of Selection.—The right to indemnity lands from which lands were to be selected In lieu of lands within the primary limits otherwise disposed of, does not spring from a grant thereof in praesenti, either of sections or of quantity; and no right to any section thereof inured to the railroad company until the selection thereof was made, under the direction of the secretary of the interior, where it is not made to appear that all of the indemnity sections were insufficient to meet the deficiencies existing within the primary limits.</p> <p>Id.—Relation op Title to Selected Lands.—The title obtained to lands selected within the indemnity limits relates only to the date of the selection, and not to the date of the act granting the lands.</p> <p>Id.—Judicial Action of Secretary.—Under the provision for the selection of indemnity lands “under the direction of the secretary of the interior,” the secretary acts judicially in determining whether the alleged loss has occurred within the primary limits, and whether the land selected is subject to selection.</p> <p>Id.—Effect of Map of Definite Location.—The map of definite location and construction of the Southern Pacific Railroad, filed in 1889, did not perfect the title of the railroad company to any indemnity lands.</p> <p>Id.—Withdrawal from Pre-emption or Sale—Map of General Route —Order of Secretary.—The filing of the map of the general route of the Southern Pacific Railroad in 1867 did not have the effect to withdraw the indemnity lands from pre-emption or sale. The withdrawal thereof made by order of the secretary of the interior did not imply any vested right therein in the railroad company, but was merely designed to give the company a reasonable time to ascertain deficiencies and make selections.</p> <p>Id.—Revocation of Withdrawal — Right of Pre-emption—Judicial Notice.—The revocation of the withdrawal made by the subsequent order of the secretary of interior in August, 1887, bad the effect to allow unselected indemnity lands to be pre-empted and title thereto secured by private individuals. The order of revocation being a public record, this court will take judicial notice thereof, and of its conclusiveness, as being within the power of the department of the interior.</p> <p>Id.—Patents to Pre-emptioners — Paramount Title — Trust not Enforceable.—Patents issued to pre-emption claimants upon indemnity lands, whose rights accrued after the revocation of withdrawal thereof by the secretary of the interior, and prior to any selection thereof by the railroad company, are paramount to any subsequent attempt at selection thereof by the railroad company; and the latter cannot enforce a trust in such patents, under a complaint disclosing no prior vested right to the lands included therein.</p>

<p>Specific Performance—Pleading—Adequacy of Consideration—Reasonableness of Contract—Nonsuit.—In an action to enforce the specific performance of a contract for the purchase of land, the complaint must state the value of the land, or state facts from which the court may determine whether the consideration is adequate, and whether the contract is as to the defendant just and reasonable; and if no such facts are averred or proved, a motion for a nonsuit should be granted.</p> <p>Id.—Option to Purchase — Allegations as to Improvements. — Allegations and proof as to improvements made by the plaintiff on leased land, which he was given an option in the lease to purchase, cannot obviate defects in his case in not averring and proving facts showing adequacy of the consideration and fairness of the contract.</p> <p>Id.—Allegation of Answer—Defects of Plaintiff’s Case not Aided. An allegation made in the answer that there was no adequate consideration to support the option to purchase cannot supply the want of an affirmative allegation in the complaint on that subject. Much less can it cure the absence of evidence of an adequate consideration.</p>

<p>Trust under Will—Discretionary Power over Profits—Stipulation of Beneficiaries—Consent to Decree of Distribution—Appeal.— Where the beneficiaries of a trust created by will, giving discretionary power to the trustee over the disposition of the profits of the trust estate, stipulated for a decree of distribution to the trustee requiring him absolutely, without discretion, to pay the profits or interest on the trust funds to the beneficiaries at stated periods, the decree, showing upon its face a valid trust, will not be reversed upon appeal at the instance of the parties consenting thereto, on the ground that the trhst declared in the will is invalid; nor can they complain of error in the decree in departing from the terms of the will which was induced by themselves.</p>

<p>Taxes—Assessment of Railroads—Political Code—Constitutional " Law.—Sections 3664 to 3669 of the Political Code, providing for the ■assessment of taxes upon railroads by the state board of "equalization and for the apportionment of county taxes thereon to the respective counties traversed by each railroad assessed, are constitutional and valid.</p> <p>Id.—Apportionment to County—Subsequent Division—Right to Unpaid Taxes—Assets not Divided.—The assessment and apportionment of county taxes made by the state board of equalization, in conformity with the Political Code, upon the portions of the railroad traversed by a given county in any year or years, accrues to such county, which is entitled to collect the same in a subsequent year, if unpaid; and a subsequent division of the county prior to payment thereof cannot affect the right of the original county thereto, if the legislature has made no division of assets or of any part of such taxes to the new county.</p> <p>Id.—Reassessment by State B9ARD—Jurisdiction.—The state board of equalization is a limited tribunal having limited jurisdiction, and has only such powers as are expressly conferred upon it by statute. It has no power to make a reassessment and reapportionment of taxes upon a railroad for previous years, if the taxes for such years were originally validly assessed and apportioned.</p> <p>Id.—Taxes Paid to New County after Reassessment—Recovery by Original County.—Taxes paid to a new county upon the portiono£ the railroad traversed by it, under a subsequent reassessment made by the state board of equalization for previous years, in which the new county had no existence, and in which the original assessment and apportionment of county taxes had been made to the original county, may be recovered from the new county by the original county, whether the reassessment for those years be regarded as valid or invalid, the new county having received the money knowing that it was paid for county taxes assessed for those previous years.</p> <p>Id.—Money Had and Received—Implied Promise.—Where money is received by one party which belongs to another, the law implies a promise on the part of the receiver to pay it over, and the party entitled to it may maintain an action for its recovery.</p>

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

<p>_ Foreclosure of Mortgage—Deed and Defeasance—Absence of Note —Statute of Limitations.—The statute of limitations of four years prescribed by section 337 of the Code of Civil Procedure, in reference to written instruments, is applicable to the foreclosure of a mortgage by deed and defeasance securing the repayment of money loaned, in the absence of a note, and for the purposes of the foreclosure is also applicable to the debt secured by the same written instruments.</p> <p>Id.—Maturity of Debt—Time not Fixed—Presumption.—No time being fixed in the written defeasance for the repayment of the money loaned, it must be presumed to be payable on demand, and to be due Immediately, and not at any future time, certain or uncertain, for the purposes of the statute of limitations.</p> <p>Id.—Simultaneous Limitation of Debt and Mortgage.—When the debt secured by the mortgage is barred, the mortgage is also barred.</p>

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

<p>Foreclosure oe Prior and Junior Mortgages—Sheriff’s Sale to Prior Mortgagor—Merger of Junior Mortgage — Right of Redemption.—Where, in an action for the foreclosure of a prior mortgage, a junior mortgagee, made a party defendant, filed a cross-complaint seeking the foreclosure of his mortgage, and the court decreed a foreclosure of both mortgages, and a sale under them, and a sheriff’s sale under the decree was made to the prior mortgagor in satisfaction only of the prior mortgage, the junior mortgage is merged in the decree under which the property is sold, and the junior mortgagee has no mortgrge lien subsequent to that on which the property was sold, entitling him to redeem the property from the sale.</p> <p>Id.—Docketed Judgment—Case Affirmed.-—BiacJc v. Gerichten, 58 Cal. 56, affirmed on the point that there can be no redemption by a junior mortgagee under a judgment docketed in his favor after a sale made under foreclosure cl; his mortgage; and held that the rule in that case is applicable whether the docketed.judgment is in the form of a deficiency judgment or not.</p> <p>Id.—Right to Sheriff’s Deed—Mandamus.—The sheriff cannot properly refuse to execute a deed to the prior mortgagee on account of an attempted redemption from the sale by the junior mortgagee; and, upon such refusal, he may be compelled by mandamus to execute the deed.</p>

<p>Landlord and Tenant—Defective Condition of Porch Floor—Injury to Tenant—Liability of Landlord.—In the absence ot any covenant by the landlord for repairs in the lease of rented premises, or of any fraudulent representation or concealment on his part, or knowledge by him that the premises when rented were unfit for occupancy, he is not liable for injury to the tenant caused by the breaking away of the defective floor of a porch.</p> <p>Id.—Tenantable Condition of Premises—Construction of Code—Obligation of Landlord Limited by Privilege of Tenant.-—The obli- , gation imposed by section 1941 of the Civil Code upon the lessor of a building intended for the occupation of human beings, to put and keep it in a condition fit for such occupaion, in the absence of an,agreement to the contrary, is limited by the extent of the privilege conferred upon the tenant by section 1942; . and, the only consequence of a breach of the landlord’s obligation is that the tenant may either vacate the premises or expend one month’s rent for repairs.</p> <p>Id.—Instruction—Statement of Testimony—Absence of Notice to Agent of Landlord—Burden of Proof.—An instruction stating . the testimony showing an absence of notice to or knowledge by' the agents of the landlord of the defective condition of the floor of the porch, and stated to the jury: “If you are satisfied that that testimony is true, you can find a verdict in favor of the defendant. If not, you will find for such damages as you shall think proper to allow, hearing in mind that, in a case of -this kind, the duty of proving notice and knowledge upon the part - of the agents rests upon the plaintiff,” is properly given, and ■ does not violate section 608 of the Code of Civil Procedure, re- . quiring that if the testimony is stated, the court must inform the jury that they are the exclusive judges of all questions of fact.</p> <p>Id.—Inapplicable Instruction—Assumption of Knowledge of Defects. An instruction requested by the defendants assuming that the defendants had knowledge of defects in the floor, rendering it unsafe and dangerous, in the absence of any evidence to that effect, is properly refused as inapplicable.</p> <p>Id.—Requested Instruction as to Notice to Repair.—An instruction requested by plaintiff as to giving notice to the landlord to repair defects or dilapidations is properly refused where there is no testimony upon that subject, and it was given substantially in the charge of the court, and where plaintiff, in his brief, while conceding the correctness of the charge as to the rights of a tenant for injuries resulting from dilapidations arising subsequent to the inception, of the lease, alleges its irrelevancy to the claim of the plaintiff.</p>

<p>Receiver—Dismissal oe Action—Jurisdiction to Settle Account.— The entry of a judgment of dismissal by the clerk at the' request of the plaintiff before the issuance of summons, or the appearance of any defendant, cannot deprive the court of jurisdiction to settle the account of a receiver appointed by the court at the instance of the plaintiff, to take possession of the property described in the complaint. The receiver is still amenable to the court as its officer, until discharged by the court, and it may direct the application of the funds in his hands.</p>

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

<p>Trust under Will—Suspension of Power of Alienation.—A trust created by will to pay one-third of the net annual income of the trust estate to the widow for life, such income and one-third of the principal, upon her death, to inure to the benefit of three minor children named, and to pay the income of the residue of the estate for their benefit in equal shares, during minority, and one-ninth of the estate to each of them at majority, based upon an appraisement to be made at the majority of the eldest, and the residue in equal shares to each of them upon attaining the age of twenty-five years, based upon a like appraisement, does not create a perpetuity, or suspend the power of alienation of the subject of the trust beyond the continuance of lives in being.</p> <p>Id.—Possible Death of Beneficiaries—Failure of Trust for Want of Beneficiary.—The possible death of any of the children named before distribution made to them under the trust cannot affect the present validity of the trust; but, in the event of such death, the trust would merely fail and determine for want of a beneficiary as to the interest of any deceased child. The trust is several and distinct as to each beneficiary, and does not survive the death of the beneficiary.</p> <p>Id.—Failure of Appraisement—Death of Eldest Child.—If the appraisement required to be made at the majority of the eldest child, as a basis of distribution, should fail by reason of the prior death of such child, and it should result that no distribution could be made to the minor children, the trust, upon that supposition, would fail as to them, not by reason of its present invalidity, but upon a future contingency not within the prohibition of the statute.</p> <p>Id.—Property not Vested until Distribution—Effect of Prior Death —Resulting Trust for Heirs of Testator.—The trust property does not vest in the beneficiaries until distribution, and upon the death of one or more of the children before distribution, the share of any deceased child does not vest in the cobeneficiaries, but the title thereto remains in the trustee as a resulting trust for the benefit of the heirs-at-law of the testator.</p> <p>Id.—Object of Appraisement—Power of Court.—The provision directing an appraisement of the property is an administrative provision designed to carry out the obvious intention of the testator that an equal and just distribution of the trust property should be made. The trustee might properly resort to such an appraisement bad it not been mentioned in the will; and the court may compel it upon the proper application of any party interested. The provision can by no possibility create a perpetuity.</p> <p>Id.—Accumulations—Disteibution op Net Income.—“Accumulations” take place only where the rents, dividends, or other income is treated by the trustee as capital and invested as such, and cannot exist where the entire net income is distributed annually.</p>

<p>Vendor and Purchaser—Rescission of Purchase — Discovery of Fraud—Diligence.—A purchaser desiring to rescind the contract of purchase for alleged fraudulent representations of the vendor in inducing the purchase must do so promptly, upon discovery of the facts constituting the fraud, and as soon as reasonably possible thereafter should commence the proceedings for relief.</p> <p>Id.—Imputed Knowledge—Means of Knowledge—Putting upon Inquiry.—The purchaser must be held to have knowledge of the facts constituting the alleged fraud whenever the means of knowledge thereof existed, and the circumstances were such as to put him on inquiry.</p> <p>Id.—Acquiescence—Waiver of Relief.—Acquiescence by unnecessary delay after actual or imputed knowledge of the facts constituting the fraud, will defeat the equitable relief; and if, after discovery of the falsity of the representations, the purchaser conducts himself in reference to the transaction of purchase, as though it were still subsisting and binding, he thereby waives all relief for rescission thereof.</p> <p>Id.—Assumption of Mortgage—Mortgage to Vendor—Payments after Discovery of Fraud-—Waiver of Rescission.—Where the purchaser assumed a mortgage made by the vendor to a hank, and gave the vendor a mortgage for the unpaid residue of the purchase money, and after admitted discovery of the falsity of the alleged misrepresentations continued for many months to make payments to the bank and to the vendor, and took no steps for rescission otherwise than by cross-complaint in an action in which both mortgages were sought to be foreclosed, and which was brought more than sixteen months after the alleged discovery of fraud, he is chargeable with laches, acquiescence, and waiver of the right of rescission.</p>

<p>Liability of Municipal Corporation—Grading of Street—Obstruction of Surface Water.—A municipal corporation is not liable for damages resulting from the construction of an embankment in the grading of a street, which merely causes the surface water upon the lot of the plaintiff situated below the level of the graded street to accumulate thereupon, instead of flowing freely therefrom, as before the grading of the street, where it does not appear that the water flowed therefrom in a well-defined channel, or that accumulated surface waters were turned from other lands upon the lot of the plaintiff.</p>

Edward Sweeney, Judge. The facts are stated in the opinion of the court in this case, and upon the former appeal, reported in 117 Cal. 186.

<p>Execution—Supplementary Proceedings—Examination of Garnishee —Sufficiency of Affidavit.—An affidavit for an order o£ examination of a garnishee who had been served with a writ of execution, which states that the garnishee “has property of'said judgment debtor,” et cetera, is not insufficient under section 717 of the Code of Civil Procedure, because not describing the property. Such statement is not a statement of a mere conclusion of law.</p> <p>Id.—Waives of Objection—Appearance of Garnishee—Hearing upon Citation.—The appearance and answer of the garnishee, and his proceeding to thé hearing of the citation issued upon the affidavit, is a waiver of any objection to its insufficiency.</p> <p>Id.—Validity of Proceedings—Judgment Debtor not Notified—Constitutional Law.—Sections 717 and 719 of the Code of Civil Procedure, providing for proceedings under execution against persons having property of the judgment debtor, are not unconstitutional because not providing for notice to the judgment dpbtor, or giving Mm an opportunity to be beard.</p> <p>Id.—Jurisdiction of Proceeding—Civil Death of Defendant.—The jurisdiction of the court to enforce an execution against the property of a defendant in an action brought against him before his trial under a charge of murder is not divested or af- ; fected because the judgment was entered against him after his civil death by sentence to imprisonment foiv life in the state prison. Civil death is not identical in law with physical death; and, under our code, it does not interfere with the .disposition of the property of the life convict or the taking of it to pay his debts.</p> <p>Id.—Property Held by Chief of Police—Custody of Law—Bailment —Garnishment.—Property of a defendant charged with murder, the custody of wMch by the chief of police was not acquired from the person of the defendant, and had no connec; tion with the cause of his arrest, but was acquired by direction of the defendant and with his consent from the cabin occupied by the defendant, and the production of which upou his trial was not made, and was not necessary for any purpose, is held by the chief of police as a bailee of the defendant, and is not in the custody of the law, but may he reached by garnishment.</p>

<p>Trust under Will—Duty op Executor as Trustee—Investment op Funds—Burden op Proof—Presumption.—An executor who is made toy the will a continuing trustee of the estate, and who has in his hands a large sum of money belonging to the estate, • is in duty hound to keep the money invested for the benefit of . the beneficiaries; and to show an honest execution of the trust it is incumbent on him to show what he did with the money. In the absence of such showing, it mus^ be presumed that he did not use them for the advantage of the trust estate.</p> <p>Id.—Commingling op Trust Funds—Use por Private Purposes—Compound Interest.—Where it appears that the executor, as trustee, commingled the trust funds with his own in his private hank account, and used them for his own private purposes, whether to his personal advantage or not, and did not invest them for the benefit of the estate, he is properly chargeable with compound interest thereon.</p> <p>Id.—Death op Trustee—Funds not Earmarked—Estate not Chargeable with Interest.—After the death of the trustee, where the trust funds were not earmarked in the hands of his executrix, the executrix owed no duty to keep the funds invested, and could not pay the demand' therefor until presented as a . . claim and allowed and payment authorized by the court; and no interest thereupon is chargeable against the estate.</p> <p>Id.—Presentation op Claim after Suit Brought—Matter op Abatement—Waiver.—In an action to enforce the trust against the exec-"1 utrix of the deceased trustee, where the claim against the estate . was not presented until after suit brought, hut was in fact presented within the time allowed by law, and snch presentation was pleaded in a supplemental complaint, the failure to pre- ' "sent it before suit brought is mere matter in abatement of the action, which is not favored, and is waived if not set up in answer either to the original or to the supplemental complaint in proper time.</p> <p>Id.—Loss op Right to Present Claims—Supplemental Answer.—■ Where there is in fact no loss of right to present the claim, and a plea in abatement has been waived, the court would rarely be justified in permitting the defense to be made later; but if there has been a complete loss of such right by lapse of timé, the claim is forever barred, and the executor, in such case, has both the privilege and duty thereafter to urge the point, and is entitled of right to file a supplemental answer if the defense accrued after the issues were made up.</p> <p>Id.—Clerical Error in Judgment—Error in Caption—Representative Character op Plaintiffs.—Where there is an error in the caption of the complaint and of the judgment in describing the plaintiffs both as heirs and administrators, hut the body of the complaint shows that plaintiffs sue in their representative capacity, and that the estate is not distributed, which facts are admitted by the answer, an error in rendering judgment for the plaintiffs individually, instead of in their representative capacity, is a mere clerical error, apparent upon the face of the record, which might be corrected at any time.</p> <p>Id.—Signature to Judgment.—The signature of the judge to the judgment does not establish that the error in the judgment is not a clerical error.</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.</p>

<p>Divorce—Alimony—Fraudulent Conveyance by Husband—Cancellation—Subjection to Lien of Wife.—In an action for a divorce and alimony, a conveyance by the husband found to have been made in fraud of the rights of the wife, should not he canceled by the decree, where it is not questioned by the parties thereto, but the interest of the grantees may be adjudged subject to the lien of the wife thereupon for alimony, counsel fees, and legitimate costs, and to her right to have the premises sold to pay the several sums found due to her by the decree.</p> <p>Id.—Claim Due to Builder—Agreement for Share of Net Income— Subordination to Wife’s Lien.—A builder, who, many years prior to the action for divorce and alimony, had erected a building and made other improvements upon the premises upon which the wife’s lien for alimony was adjudged, under a contract with the husband that the builder was to receive one-half of the net income of the property until paid, but without any reservation of right to remove the building, or the taking of any mortgage upon the property, has no interest therein or lien thereupon, and his claim for unpaid indebtedness against the husband, though not litigated or concluded by the enforcement of the wife’s lien for alimony upon the premises, is subordinate thereto, and cannot affect her rights.</p> <p>Id.—Homestead—Separate Property of Husband—Alimony in Lieu of Wife’s Claim—Lien.—Where the wife had declared a homestead upon the separate property of the husband, the court may set it apart to her for a limited period upon granting a divorce in her favor; hut it is not compelled to do so, and may, in lieu thereof, adjudge a specific sum for permanent alimony, and charge it as a lien upon the premises.</p> <p>Id.—Effect of Decree upon Title.—The effect of the decree awarding a sum of alimony in lieu of the wife’s interest in such homestead is to leave the title to the property in the husband freed from the homestead, though not specifically assigned to him under section 146 of the Civil Code.</p> <p>Id.—Enforcement of Lien—Receiver—Collection of Rents—Sale of Property.—Under sections 139 and 140 of the Civil Code the court may make the wife’s alimony a lien upon the husband’s estate, and may enforce the lien by appointing a receiver to collect the renits and profits, and to proceed to sell the property and pay the several sums adjudged to be due to the plaintiff.</p> <p>Id.—Notice of Appointment of Receiver—Presumption upon Appeal. The cases are exceptional in which a receiver may be appointed ex puric, and as a rule a receiver ought not to be appointed without notice, or without the clearest proofs of the propriety of the appointment. But where there is nothing in the transcript on appeal to show that the appointment of a receiver to enforce the judgment was made without an application or without notice, it must be presumed in support of the judgment that the court acted upon due application and after notice to the defendants.</p> <p>Id.—Costs—Former Appeal.—It is error in awarding judgment to the ■ plaintiff, after a second trial, to include the costs of a former appeal upon which costs were awarded to the defendant.</p> <p>Id.—Costs of Former Trial—Fees of Referee—Interest.—The costs incurred by the plaintiff upon the former trial, including the fees of a referee, which are properly part of the costs, should he allowed and form part of the final decree; but no costs of the former trial should carry interest.</p> <p>Id.—Interest upon Unpaid Alimony.—In the final decree, interest at the rate of seven per cent per annum, without compounding, upon unpaid alimony allowed in a former decree, may be allowed from the date of maturity of each installment, and upon unpaid counsel fees from the date of the former decree to the date of the final decree.</p>

<p>Contract to Crop upon Shares—Employment not Included—Breach— Action for Services.—A contract for the cropping of land upon shares does not include any element of a contract of employment; and there being no original employment by the terms of the contract, the cropper does not become a servant or employee by the breach thereof on the part of the owner of the land, and he cannot, on account of such breach, maintain an action upon a quantum meruit for the value of his services.</p> <p>Id. — Remedy for Breach — Value of Contract.—The remedy of the cropper against the owner of the land, for breach of the contract in refusing to permit him to perform, is to recover the value of the contract at the time of the breach, which may be more or less than the value of the labor performed.</p>

<p>Criminal Law—Homicide—Evidence—Opinion of Surgeon.—Upon the trial of a defendant'accused of murder, where it appeared that the fatal bullet passed through the left arm of the deceased, about five inches from the point of the shoulder, and, passing through his body, came out at the right arm-pit, opinion evidence of the surgeon performing the autopsy that the left arm of the deceased must have been hanging down by his side when the shot was fired is inadmissible, but not harmful, if not contradicting the evidence for the defendant; but his opinion that, when the deceased was shot, he could not have been standing erect, for which there was no ground, is harmful error, where it appears that the defendant testified that deceased, when shot, was standing up and striking at him with his knife.</p> <p>Id.—Erroneous Instruction—Self-defense—Provoking Quarrel—Necessity Brought About by Design or Fault.—An instruction to the effect that one who has provoked a quarrel cannot have a well-grounded apprehension of imminent danger to his person, and that a real or apparent necessity brought about by the design, contrivance, or fault of the defendant, cannot be availed of as a defense for the commission of a crime, is erroneous, and was . expressly disapproved in People v. OonUing, 111 Cal. 625.</p> <p>Id.—Irrelevant Threats of Deceased.—Threats of the deceased not communicated to the defendant, or not appearing to have related to the defendant, are irrelevant, and may properly be stricken out.</p>

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

<p>Divorce—Extreme Cruelty—Pleading—Ultimate Fact.—Under section 94 of the Civil Code extreme cruelty may consist of the infliction of grievous bodily injury or grievous mental suffering, « which is the ultimate fact, and must he alleged. A complaint which merely alleges that defendant has treated the plaintiff in a cruel and inhuman manner, that he has applied coarse epithets to her which are described, and has accused her of a want of chastity, without alleging either grievous bodily injury or grievous mental suffering as the result of the cruelty alleged, does not state a cause of action.</p> <p>Id.— Willful Neglect—Division of Community Property—Homestead—Discretion.—Where a divorce is properly granted to a wife for wdllful neglect of the husband to provide the necessaries of life, the court has power to divide the community property upon which a homestead has been declared, and it has a wide discretion in making the division. The homestead need not be divided in severalty.</p>

<p>Admission of Improper Evidence—Appeal—Reversal.—The admission of improper evidence, under objection, which tends in any degree to affect the final conclusion of the court, is ground for reversal of the judgment upon appeal, and for ordering a new trial, notwithstanding there may be sufficient other evidence in the record to support the findings of fact.</p> <p>Id.—Improper Impeachment—Specific Acts of Immorality.— Specific acts of immorality cannot be shown to impeach a witness; and where evidence thereof does not tend -to shed light upon the issues tried, and is calculated to besmirch the character of material witnesses, and to weaken their credibility, its admission is prejudicial error.</p> <p>Id.—Impeachment of Testimony as to Marriage—Immoral Book—Immoral Conduct of Alleged Wife.—Where a mother and daughter were sole witnesses to the marriage of the daughter with a deceased person, they cannot he impeached hy evidence of a highly immoral hook shown to have been written by the mother and read by the daughter, and to have been suppressed by the Society for the Suppression of Vice; nor is evidence admissible to show immoral conduct, on The part of the alleged wife with other men prior to the alleged marriage.</p> <p>Id.—Hearsay Evidence—Declarations of Relatives—Engagement op Marriage—Res Gestae.—Declarations of relatives oi the alleged wife, made after the death of the alleged husband, and not within her hearing, to the effect that she was engaged to he married to him at the time of his death, and offered to show the nonexistence of a marriage between them, relate to past matters, and are no part of the res gestae, hut are inadmissible hearsay, as against the alleged widow and child of the deceased. Declarations of members of a family, who are not parties to the litigation, as to such matters, are no more admissible than the declarations of strangers.</p> <p>Id.—Declarations as to Pedigree—Inapplicable Rule.—The rule as to the admissibility of declarations upon matters of family pedigree and kindred subjects cannot he invoked, where the parties making the declarations are neither deceased nor beyond the jurisdiction of the court.</p> <p>Id.—Declarations of Co-conspirators—Conspiracy not Shown.—The declarations of the relatives of the alleged wife are not admissible as those of co-conspirators with her to impose upon the estate of the deceased, where there is not sufficient evidence of a conspiracy between them to justify the admission of the evidence on that ground.</p> <p>Id.— Declarations of Deceased—Konmarriage—Physical Condition.—Voluntary declarations made by the deceased not long before his death that he was a widower, and that he had dropsy, catarrh, and symptoms of Bright’s disease, and was impotent, necessarily covered his condition for a past period, and are not admissible as res gestae; nor are they admissible as declarations of a member of a family to show nonmarriage to the alleged wife; but they are inadmissible hearsay as against her and an alleged posthumous child of the deceased by her.</p> <p>Id.—Expert Evidence—Medical Witnesses.—The expert evidence of medical witnesses based only upon the inadmissible declarations of the deceased as to his physical condition and symptoms, have no basis, and are wholly inadmissible.</p>

<p>Appeal—Sufficiency of Proof—Defective Complaint—Variance— Waiver of Objections.—Where the findings and judgment are supported by the evidence, and it appears that the case was decided correctly upon the merits, objections to a defective complaint, and to a variance between the complaint and the proof, not urged in the court below, and which might have been obviated by an amendment of the complaint, are waived, and cannot be urged upon appeal for the first time.</p> <p>Surface Water—Rights of Landowner.—A landowner cannot protect his own land to the injury of the land of another, by turning the storm or surface water which would naturally flow upon his land away therefrom, and onto the land of another.</p> <p>In.—Culvert Across Private Road—Obstruction—Injunction.—An action will lie to enjoin the obstruction and interference by ikedefendant with the repair of a culvert constructed by the plaintiff across a private road, the grade of which had been raised, the object of which culvert was to allow the storm water to flow from plaintiff’s land across defendant’s land, as it had been accustomed to flow through a natural depression, at the piase where the culvert was constructed, for many years prior to ikeraising of the grade of the private road, and the obstruction e£ which by the defendant caused great injury to the growing crops of the plaintiff by the accumulation of surface water upoa plaintiff’s land.</p>

<p>APPEAL from a judgment of the Superior Court of Colusa County and from an order denying a new trial. John E. Ellison, Judge.</p>

MOTION in the Supreme Court to dismiss appeals from an order of the Superior Court of the City and County of San Francisco, admitting a will to probate. J. Y. Coffey, Judge. The facts are stated in the opinion of the court.'

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

<p>APPEAL from an order of the Superior Court of Contra Costa County granting letters of administration and from an order denying a new trial of a contest for such letters. Joseph P. Jones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>High School Districts—Constitutional Law—Delegation of Power of Taxation—Advisory Estimate of Superintendent.— Section 1670 of the Political Code, as amended in 1895, providing for the organization of high schools in cities, towns, and school districts having a population of one thousand inhabitants or more, is not unconstitutional as delegating legislative power of taxation to the county superintendent. His estimate made to the board of supervisors is only advisory, and that board is authorized in its discretion to determine the amount of taxation and to levy a tax sufficient to maintain the high school for the current year, or to erect the necessary buildings, as the case may be.</p> <p>Id.—Power of Legislature—Special Tax—Submission to Vote.—The legislature may by general law authorize a tax for a special purpose, without submitting the proposition to a vote of the people; and when the people have voted to organize a high school district under a law which gives the supervisors power to levy a special tax to support the school, it is not necessary that the tax should he submitted to a vote of the people.</p> <p>Id.—Special Legislation—General Law — Classification.— Section 1671 of the Political Code, as amended in 1895, is not special legislation, but is general in its operation and purpose, and is based upon a reasonable classification of high schools, and gives to all inhabitants of the state similarly situated equal opportunity to avail themselves of the benefits of such schools.</p> <p>Id.—Special Power of Taxation—Authority of Legislature —The law is not special merely because it vests in the hoard of supervisors power to levy a tax for high schools which the general laws of the state do not give to the board, nor because it gives to the high school board initiatory powers with respect to taxation not possessed in other school districts. The legislature may constitute high schools, and provide for their support by methods different from those adopted for like purposes as to other schools.</p> <p>Id.— Proceedings for Organization — Sufficiency of Petition.— A petition for the organization of a high school district, directed, to the trustees of the school district, naming them, though not directed to the board of trustees, stating the population of the school district to be more than one thousand, and showing that the boundaries of the proposed high school district are the same as those of the school district, and to which is appended a certificate signed by the school census marshal, certifying that the petition contains the names of a majority of the heads of families in the school district, “as shown by the last school census report,” though that fact is not stated in the body of the petition, is a sufficient compliance with the law.</p> <p>Id.—Pboof of Signatube by Majobity of Heads of Families'—Census Sheets—Pbesumption upon Appeal.-—The original census sheets used by the census marshal, showing the last census made by him before the signing of the petition, furnish evidence from which the fact could be determined whether a majority of all the heads of families signed the petition, and where such sheets are not in the record upon appeal it will be presumed in support of the judgment that the evidence was sufficient.</p> <p>Id.—Petition of Tbustees to Call Election—Authentication.—The petition of the trustees of the school district to the county superintendent of schools to call an election need not be verified nor authenticated by the clerk, and, no form thereof having been prescribed by law, such a petition, beginning: “We, the undersigned trustees,” et cetera, and subscribed by them as trustees of the school district, and indorsed as a petition by them as such trustees, sufficiently indicates its purpose, and is prima facie authority to the county school superintendent.</p> <p>Id.—Nomination of Election Boabd—Filling Vacancy—Validity of Election.—The county superintendent is required to call the election, and to appoint three qualified electors to conduct the election; but where one of the electors so appointed was sick and could not attend, and the vacancy was filled by the appointment of another qualified elector in his stead by the remaining two appointees, such appointment, if irregular, did not affect the validity of the election, provided the result of the election was not thereby changed.</p> <p>Id.—Houbs of Opening Polls—Sufficiency of Notice.—Under section 1597 of the Political Code, providing that in such districts “the polls must not be opened before 9 o’clock A. M., nor kept open less than four hours,” a notice of election requiring the polls to be kept open from 2 o’clock P. M. until sunset of May 23d, is a sufficient compliance with the law.</p> <p>Id.—Posting of Notice—Sufficiency of Pboof.—Proof made that the notice of election was posted fifteen days before the election is sufficient to show a posting for fifteen days, as required by the law; and it is not necessary to prove that the notice remained posted each day after it was posted.</p>