Volume 125 — California Reports

William B. Daingerfield, Judge. The complaint is in the general form of assumpsit for goods, wares, and merchandise sold and delivered. There is no evidence in the record of any sale, but plaintiffs in support of their complaint, attempted to prove the taking by defendants of certain broken rock claimed to have been the property of plaintiffs.

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

<p>Action to Enforce Trust—Amendment to Complaint—Change of Action—Transfer of Community Property by Wife—Statute of Limitations.—A complaint by a husband and child to enforce a trust against his wife, and her grantees, based upon the theory that she took the legal title as trustee for the benefit of the husband, wife and child, in equal shares, and conveyed it in violation of the trust, and that her grantee and his successor were not innocent purchasers, cannot be amended so as to change the cause of action by averring that the property held in the name of the wife was community property, of which she could not transfer the title, if such new cause of action was barred by the statute of limitations at the time of the proposed amendment.</p> <p>Id.—Limitation of Past Cause of Action—Valid Amendment of Code. The - amendment of March 3, 1893, to section 164 of the Civil Code, providing that where married women conveyed real property acquired prior to May 19, 1889, the husband shall be barred from commencing any action to show that said real property was community property from and after July 1, 1894, is a valid statute of limitations, fixing the time within which an action to avoid such a past conveyance by the wife must be brought.</p> <p>Id.—Amendment After Bar of Action—Constitutional Law.—If the statute of limitations has barred the right to commence an action to set aside a conveyance, the title of the property is regarded as vested in the possessor, irrespective of the original right, and no subsequent amendment or repeal of the limitation can constitutionally have a retroactive effect so as to disturb the title.</p> <p>Id.—Findings—Payment by Husband—Trust.—A finding in the action to' enforce the trust that the husband paid for the property held in the wife’s name is not a finding that the property was community property, and does not warrant a judgment for the bus* band if the court finds that the wife did not hold the property in trust.</p> <p>-d.—Failure of Action—Omission to Find—Title of Intervenor.— Where, under the findings made, the judgment properly followed that the plaintiffs take nothing by their action, an omission to find determinately as to the title of an intervenor, who claimed to be a bona 'fide purchaser for value from the grantee of the wife, is immaterial, and cannot work an injury to the plaintiffs.</p>

<p>APPEALS from orders of the Superior Court of San Mateo County, refusing to vacate a judgment by default, and denying a new trial of the motion. George H. Buck, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Municipal Election—Closing of Polls—Construction of Charter.— In a city charter providing that all the provisions of law regulating elections for state and county officers shall apply so far as practicable to elections under the charter, and providing further specifically that the polls shall be opened at such hour as may be designated by the mayor and common council in. the notice of election, but in no case later than 2 o’clock P. M., and that they shall not be closed until sundown, the special provision for the time of closing of the polls will prevail over a general provision of the election laws referred to for closing polls at state and county elections at 5 o’clock P. M.</p> <p>Id.—Conflict between Special and General Law.—The charter being a law for a special case, is not in conflict with the general law providing otherwise; and an intent that the general law shall supersede the charter provision' as to the time for closing the polls cannot be inferred from a general law which by its terms is applicable to state and county elections only, and which is only made applicable generally so far as practicable by the same charter which specially provides differently therefrom, as to the time of opening and closing of the polls at municipal elections.</p> <p>Id.—Election of Mayor—Premature Closing of Polls—Rejection of Vote of Wards.—In determining the election of a mayor, under a charter providing for keeping open the polls until sundown, the vote of wards which closed the polls at 5 P. M. is properly rejected, although the majority of the voters of the city are thereby disfranchised. The election in such wards is to be treated as illegal and void, and as if no election was held therein; and the vote in a remaining ward, in which the polls were closed at sundown, must determine the election.</p>

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

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

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

<p>APPEAL from a judgment of the Superior Court of Monterey County, hi. A. Dorn, Judge.</p> <p>The main facts are stated in the opinion rendered upon the former appeal, reported in 113 Cal. 163. Further facts are stated in the opinion rendered upon this appeal.</p>

<p>Criminal Law—Homicide—Challenge to Jüror—Newspaper Reports— Private Statements.—A challenge to a juror upon the trial of a defendant accused of murder, for actual bias, should be sustained, where the juror upon his voir dire states that besides reading newspaper accounts of the killing, he had heard statements of persons whom'he had known for years, and who said they were true, and he believed them, though they might be mistaken, and that he would commence the trial of the case with an impressional opinion unfavorable to the defendant from what he had read and heard, subject to be changed upon the introduction of almost any evidence that would disprove it.</p> <p>Id.—Bight to Impartial Jury—Exception to Common-law Bule— Affirmative Showing.—The only exception to the common-law rule that the defendant is entitled to an impartial jury is declared in section 1076 of the Penal Code; and to sustain such exception the opinion of the juror must affirmatively appear tor be founded alone upon public rumors, statements in public journals, or common notoriety.</p> <p>[d.—Self-Defense—Necessity Induced by Fault—Use of Instruction Disapproved.—The instruction upon the law of self-defense, as to necessity induced by the fault of the defendant, taken bodily from the cases of People v. Kennett, 114 Cal. IS, and People v. Roemer, 114 Cal. 51, is unsound, aside from the qualification ■therein expressed; and though not erroneous, if given with that qualification, no good purpose can be subserved by giving it, and it should never be given.</p>

<p>Action for Breach op Contract—Counterclaim.—An action for the breach of a contract to deliver leather is an action “arising upon contract,” and a counterclaim may be set up by the defendants therein for goods sold and delivered; and it is immaterial whether such counterclaim arises out of the transaction set forth in the complaint under subdivision 1 of section 438 of the Code of Civil Procedure, or is founded upon an Independent contract, under subdivision 2 of that section.</p> <p>Id.—Allowance of Costs to Defendant.—Upon the failure of the plaintiff to recover in the action, costs are to he allowed as a matter of course to the defendant, notwithstanding the recovery, by the defendants of less than three hundred dollars upon their counterclaim.</p> <p>Motion for New Trial—Dismissal—Statement—Review upon Appeal. The dismissal of a motion for a new trial is, in legal effect, a denial of the motion, and when the motion was made upon the minutes of the court, a statement must be prepared by the moving party, in order that the motion may be considered upon its merits upon appeal from tbe order, upon other grounds than those specified in the order dismissing the motion.</p> <p>Id.—Notice of Intention—Receipt by Clerk—Nonpayment of Fees— Insufficient Filing.—A notice of intention to move for a new trial need not be filed by the clerk without the payment of the fees therefor in advance. The mere receipt of such a notice by the clerk on the last day for filing the same did not constitute a filing, where the clerk did not file it on account of nonpayment of the fees therefor; and a filing made three days thereafter, upon payment of such fees, though made as of the day of receipt of it by the clerk, at the request of the moving party, is too late, and cannot save the motion, and it is properly dismissed or denied.</p>

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

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

<p>Divorce—Maintenance of Children—Omission in Decree—Subsequent Order—Jurisdiction.—In an action for divorce, where the custody of the children was awarded to the wife without any provision in the decree for their maintenance, the court, though having no jurisdiction to act subsequently .under section 139 of the Civil Code, has jurisdiction, under section 138 of that code, to give a subsequent direction “for the custody, care, and education of the children,” and to provide for the expenses reasonably to be incurred for their “care and education.”</p> <p>Id.—Construction of Code—Prospective Action.—The provisions of section 13S of the Civil Code are in their nature prospective; and the use of the term “direction” implies that the action of the court is to he limited to the “care and education” which the children are subsequently to receive under its direction.</p> <p>Id.—Limited Power of Court—Benefit of Children—Reimbursement of Past Expenses.—The jurisdiction retained by the court under section 138 of the Civil Code is to he exercised only in behalf of the children; and if they have been already sufficiently cared for by the voluntary act of the mother, or of other persons, the court is not empowered, in an order made for the first time after judgment, to compel the father to reimburse them for these past expenses.</p> <p>Ld.—Voluntary Expenses by Stepfather—Presumption—Reimbursement not Required.—Where it appears that subsequently to the decree and to the remarriage of the divorced wife, the children were received into the family of the stepfather, and the expenses of their care and education were voluntarily incurred by him, it must be presumed, under section 209 of the Civil Code, that he supported them as a parent, and they are not liable to him for their support. The father is not bound to reimburse the stepfather therefor; and the court cannot order such reimburse-' ment under section 138 of the Civil Code.</p>

<p>Board of Education—Employment of Janitor—Preference of Ex-Union Soldiers—Mandamus.—An ex-Union soldier who was employed for one year as janitor by the board of education of a school district, and who, after the expiration of his term of employment, was superseded by another appointee, not preferred under the act of March 31, 1891, providing for the preference of honorably discharged ex-Union soldiers,, sailors, and marines of the war of the Rebellion, in appointments for public office, cannot maintain a proceeding in mandate to compel a preference of himself for the appointment without a showing that he was the only man coming under the provisions of the act who was desirous of the appointment.</p>

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

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

<p>FORECLOSURE OF MORTGAGE—SALE UNDER DECREE—APPEAL—MODIFICATION—EXCESS of Interest — Restitution—Where mortgaged property was sold under a decree of foreclosure, prior to an appeal therefrom which was taken one day before the time for redemption expired, without any stay bond, and the judgment was merely modified upon the appeal as to an excess of interest allowed, and affirmed in other respects, the defendant is not entitled to have the sale under the decree set aside, and is only entitled to restitution of the excess of interest</p> <p>Id.—Discretion as to Restitution—Setoff of Rents and Profits—The court has discretion in the matter of restitution; and where it appears that the defendant, after the sale, received rents and profits to which the purchaser was entitled, to an amount greater than the excess of Interest included in the judgment, the court may, in its discretion, allow such rents and profits as a setoff to such excess;</p>

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

<p>Cbiminad Law—Homicide—Self-Defeuse—Disputed Right to. Use of Road—Ovebt Act.—In case oí a homicide occasioned ky a dispute over the right to the use of a road across the premises of the deceased, where each of the parties was fully armed, and determined at all hazards to maintain his claim, the question of self-defense is independent of the respective rights of the parties to the road; and the one who by some overt act first caused a reasonable apprehension of danger of loss of life or limb to the other, must take the consequences.</p> <p>Id.—Conviction of Manslaughter—Support of Verdict.—Where there is evidence, in such a case, from which the jury might find that, at the time of the killing, the deceased had committed no overt act which justified the killing, a verdict convicting the defendants of manslaughter will not be disturbed upon appeal.</p>

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

<p>Action to Bnfoece Teust—Demubeee to Complaint—Sepaeate Counts as to Real and Pebsonal Pbopeety—A complaint in an action to enforce a trust in real and personal property is not demurrable on the ground that the facts concerning the trust as to the real estate, and as to the personal property, are separately set forth in two counts for one cause of action. No such ground of demurrer is specified in section 430 of the Code of Civil Procedure; and no ground of demurrer not specified in that section can be considered.</p> <p>Id.—Motion to Compel Election.—The defendant is not prejudiced by the arrangement of such complaint in two counts, where the facts as to the trust are fully set out; and the defendant cannot, by motion, compel the plaintiff to elect to proceed either upon the trust as to the real estate, or upon that as to the personal property.</p> <p>Id.—Sufficiency of Cause of Action—Donation in View of Death —Recobd of TJndelivebed Deed—Refusal of Retbansfeb.— A complaint showing that the plaintiff, in expectation- of immediate death, assigned to the defendant, who was his trusted sister, certain savings bank deposits, and further executed and acknowledged a deed of certain real estate to the defendant, which was never delivered; that the assignment and deed were made with the understanding that, after plaintiff’s death, the property should be disposed of by the defendant according to certain instructions given by the plaintiff; that there was no consideration for the transfer; that the defendant, without authority or knowledge of the plaintiff, obtained possession of the deed, and recorded it; and that, upon the recovery of the plaintiff, defendant refused to retransfer the real or personal property to plaintiff upon demand therefor, and claimed to own the entire property, states a cause of action to enforce a trust, both as to the real and as to the personal property.</p> <p>Id.—Ambiguity—Failure to Set Out Instructions—The complaint is not demurrable for ambiguity in failure to set out the instructions which were given in view of death, to be carried out after the death of the plaintiff. The instructions were wholly immaterial, in view of the fact that the plaintiff did not die, but lived to reclaim the property.</p> <p>Id.—Evidence—Danger of Death of Plaintiff—Leading Questions—Discretion.—The allowance of leading questions to the physician who attended the plaintiff during his illness, as to the danger of his death at the date when the deposits were transferred and the deed executed, was in the discretion of the trial court; and a judgment for the plaintiff will not be reversed upon that ground, there being no manifest abuse of discretion, and no error in regard to a material matter affecting the substantial rights of the parties.</p> <p>Id.—Res Gestae—Interview with Business Manager.—Evidence is admissible as part of the res gestae, to show that the plaintiff, when ill and not expected to live, sent for his business manager, and interviewed him, stating that he wished to make a will in favor of his sister, the defendant, and subsequently stated that he had concluded to make a deed, and informed the manager of what he wanted his sister to do with the property in case he should die.</p> <p>Id.—Motives and Intentions of Plaintiff—Declarations—Testimony of Plaintiff.—The issue being as to whether the alleged transfers were made without consideration in expectation of immediate death, plaintiff’s belief that death was impending, and his motives and intentions in making the transfers, were material to the issue, and his declarations then made, showing his belief, motives, and intentions, and his own testimony as to what his belief, motives, and intentions then were, are competent evidence.</p> <p>Deposition—Leading Questions—Waiver of Objection.—Where both parties were present at the taking of a deposition, the objection that questions were leading must be taken at the time of the interrogatory, and if no objection was then made to the form of the interrogatory, it cannot he urged at the trial.</p> <p>Id.—Power of Notary to Employ Shorthand Reporter — Transcript oe Testimony—Certificate.—The notary taking a deposition may either appoint a clerk or a shorthand reporter to take down the testimony; and the fact that such reporter was not appointed by the court, and that his transcript of the testimony into longhand was objected to by defendant’s counsel, is immaterial, if the certificate of the notary states that the transcription into longhand was by the notary carefully read to the witness, and, being by him first corrected, was subscribed by the witness in the presence of the notary.</p> <p>New Trial—Statement—Specifications—Insufficiency of Evidence.—Specifications in a statement on motion for new trial of the insufficiency of the evidence to justify the findings, must state the particulars in which the evidence is claimed to be insufiicienít, and a mere general statement that the evidence is insufficient to justify a finding should be disregarded.</p> <p>Appeal—Argument—Points not Urged in Brief.—Where the appellant does not point out in his brief any particular issue or, issues upon which the court omitted to find, or what particular finding or findings were unsupported by evidence, and the particulars in which they were unsupported, it is not the duty of the appellate court to investigate those questions.</p>

<p>Partnership—Incorporation of Firm—Action for Goods Bold and Delivered—Notice.—A corporation formed by members of a partnership firm, which took its assets, and continued to pay its debts, and to conduct the business as formerly, using its books, and continuing and extending the various accounts therein without break, is liable in an action for goods sold and delivered in the name of the firm by a former customer, who had no knowledge or notice of the incorporation until shortly before the commencement of the action, where it appears that the goods and bills therefor were received by the corporation, and the amounts thereof entered upon the books by it, and payments thereupon made by it without objection.</p> <p>Id.—Defense—Estoppel of Corporation.—The corporation, under the circumstances, is estopped from setting up a defense to such action, founded upon the change made from a copartnership to a corporation.</p> <p>Id.—Use of Goods bt Individuals.—The fact that a small part of the goods sold were used by some of the individual members of the original firm in improving certain real property is immaterial, the goods haying been ordered and sold and entered upon the books of both parties in the usual manner.</p> <p>Id.—Application of Payments.—Payments made by the corporation upon the running account of the plaintiff with the firm were properly applied to indebtedness on the account that had accrued prior to the date of the incorporation of the firm.</p>

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

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

<p>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 of the court.</p>

<p>APPEAL from orders of the Superior Court of the City and County of San Francisco, granting a new trial conditionally and for failure to comply with the condition. A. A. Sanderson, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Deed—Delivery to Third Person—Death of Grantor—Control of Deed.—In order to sustain the delivery of a deed to a third person, to be delivered to the grantee upon the death of the grantor, it must appear that the grantor parted with the possession and control of the deed for all time.</p> <p>Id.—Mutual Deeds of Husband and Wife—Escrow—Return of Deed of Survivor—Title not Vested.—Where a husband and' wife each executed a deed to the other, and both deeds were delivered to the cashier of a bank, with the understanding that upon the death, of either the deed to the survivor should he recorded, and the deed of the survivor returned as ineffective, noi escrow was created by the delivery of the deeds, though it was improperly called such, and no title vested under either of them.</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>Ejectment—Writ of Restitution—Authority of gnERiFF.—Under a writ of restitution issued upon a judgment for the plaintiff in an action of ejectment, the sheriff is authorized to remove from the land the defendants and all persons found thereon, whose possession was derived under the defendants or either of them.</p> <p>Id.—Presumption as to Possession Under Defendants—Burden of Proof—Possession Under 8tranger.—The burden of proof is upon all persons coming into possession subsequent to the commencement of the action of ejectment to show affirmatively that their possession is rightful, and under a title not determined in the action, and was not taken by collusion with the defendants: and, in the absence of a showing to the contrary, it will be presumed that they came in under the defendants. This presumption is not overthrown by showing that they came in under a stranger to the action, unless it is also shown that such stranger was in possession at or prior to the commencement of the action.</p> <p>Id.—Injunction Against Execution oe Writ—Absence of Title— Collusive Entry.—An injunction cannot be maintained to enjoin the execution of the writ of restitution, in favor of a possessor claiming under a deed from a third person dated prior to the commencement of the action of ejectment, where it appears that such third person had no title to the premises, and merely had a conveyance from a defendant in ejectment after he had parted with his rights, and which was intended as a security for indebtedness; and that the entry of the plaintiff in the injunction suit, after the commencement of the action of ejectment, was by collusion with the defendant in that action, with intent to deprive the plaintiff therein of the fruits of his judgment.</p> <p>Id.—Evidence—Possession of Grantor—Impeachment—Where the defendant in the ejectment suit testified for the plaintiff in the injunction suit that he had delivered the possession of the premises to the plaintiff’s grantor prior to the commencement of the ejectment suit, he may be impeached by proof that on the trial of the ejectment suit he testified that he himself had been in possession of the premises for about two years under a lease from the city, which lease described the premises in controversy, and was the only lease he had taken from the city.</p> <p>Id—Advisory Verdict of Jury—Instructions not Subject to Exception.—In an equitable action for an injunction, the verdict of a jury is merely advisory; and though the court, in its findings of fact, adopts the conclusion of the jury, its instructions to the jury are not the subject of an exception.</p>

<p>School Lands oe State—Conclusiveness oe Patent—Character oe Land—Collateral Attack by Mining Claimants—Where public land of the United States was surveyed and sectionized, and designated upon the survey as agricultural land, and was thereafter certified as such by the land department of the United States, and listed as such to the state for school purposes, under the grant of 1858, and was subsequently' patented, by the state as agricultural land, the investigation as to the character of the land is concluded, as against a collateral attack; and no persons subsequently intruding upon the patented land, for the purpose of mining, can assail the state patent by proof that the land was mineral at the time of the grant to the state, and was reserved as such from the grant.</p> <p>Id.—Grant of School Lands to State—Absence of Known Minerals.—The grant by Congress to this state of the sixteenth and thirty-sixth sections, by the act of 1853, was a grant in presentí, and if at that time there were no known minerals, or other exceptions noted in the grant, those sections then became the land of the state.</p> <p>Id.—Adjudication as to Character of Lands—Case Overruled.— The decisions of the land department of the United States as to the nonmineral character of a school section, and as to the absence of any exceptions or limitations contained in the act of 1853, and the subsequent patent of the state therefor, are conclusive adjudications as to the character and condition of the land, as against all third parties subsequently entering upon the land. Eermocilla v. Eubbell, 89 Gal. 5, overruled, on this point.</p>

<p>Contract—Validity—Influencing Patents from Secretary of Interior.—A contract by a person having timber-land entries, for the services of an attorney to influence the official action of the secretary of the interior favorably to the issuance of patents upon such entries, without any stipulation for the use of improper means or methods, and to pay for such services a per-centage of the value of the timber-lands, contingent upon success, is not void as against good morals or public policy.</p> <p>Id.—Contingent Fee—Securing Favorable Decision.—The contingent character of the fee fixed by the contract does not affect its validity; nor does the fact that the attorneys were retained to secure a favorable decision of the matters pending before the secretary of the interior taint the contract.</p> <p>Id.—Means and Manner of Employment—Presumption.—The means and manner of the employment are the factors which determine the validity or invalidity ol the contract; and in the absence of any showing that the means and methods to be used, or which were used, by the attorneys, were improper, it will be presumed that the contract is valid and enforceable.</p>

<p>Thresher’s Lien—Limitation oe Action.—The thresher’s lien, given by the act of 1885 (Stats. 1885, p. 109), for work done while a threshing machine is engaged in threshing, is purely statutory, and the right to the same cannot be extended beyond the limits prescribed by the plain language of the law. The lien expires by limitation, unless action is brought to recover the amount of the claim within ten days after the party ceases work.</p>

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

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

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

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

<p>Estates oe Deceased Persons—Compensation oe Executor Fixed by Will—Extea Services—Renunciation oe Will.—A will fixing the compensation of an executor in an amount in excess of Ms legal fees must be deemed to fix the measure of Ms compensation for all services of every kind to be rendered by Mm; and no claim for extra services, however beneficial to the estate, can be allowed to the executor, unless he has, by a written instrument, filed in court, renounced the provision of the will for compensation, as provided in section 1616 of the Code of Civil Procedure.</p>

<p>Contbact Pleaded in Answer—Admission of Genuineness and Due Execution—Evidence—Authority of Agent ob Pabtneb. —The genuineness and due execution of a contract, a copy of which is fully set forth in the answer, with the signatures thereto appended, must be deemed admitted for all the purposes of the trial, if not denied by affidavit, as provided in section 448 of the Code of Civil Procedure. Such contract need not be formally offered in evidence, nor its execution proved, nor need the authority be established of an agent or partner purporting to sign the names of the plaintiffs thereto.</p> <p>Id.—Action fob Legal Services—Genuineness of Contract in Former Firm Name—Dissolution of Firm—Obligation of Remaining Partners.—In an action by two partners, to recover for legal services, where the genuineness and due execution of a written contract pleaded in the answer, which was signed in the name of a former firm, of which they were members, by a former partner, is admitted by failure to deny the same by affidavit, the plaintiffs are bound thereby individually after dissolution of the former firm, and cannot charge for subsequent services contrary to its terms, in the absence of clear proof that the written contract was displaced by a second agreement.</p> <p>Id.—Performance of Services under Contract—Pleading—Evidence-Waiver of Objection.—Where the answer pleading the contract sets out matters fairly the equivalent of an allegation that the services of the plaintiffs were performed thereunder, and evidence to that effect was admittted without objection, the absence of a formal allegation to that effect is immaterial.</p>

<p>APPEAL from orders of the Superior Court of Contra Costa County imposing costs as the condition of vacating a judgment, denying the motion to vacate it for failure to comply with the condition, and refusing to strike out findings. Joseph P. J ones, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Attobney and Client—Authority of Attorney to Employ Assistant Counsel—An attorney-at-law has no general authority, by virtue of his retainer," to employ counsel or assistants at the expense of his client,"without the client’s previous authority or consent.</p> <p>Id.—Understanding of Assistant—Declarations of Attorney.— The liability of the client to compensate the assistant employed by his attorney cannot be established by the evidence of the assistant that it was his understanding that the attorney represented his client; nor can authority from the client, not in fact possessed by the attorney, be established by the declarations of the attorney.</p> <p>Id.—Acceptance of Services—Implied Obligation—Exception to Rule—Agreement of Attorneys to Pay Expenses.—The general rule that the acceptance of the services of another without objection implies an obligation to pay their reasonable value, is not uniform or absolute, but its application depends upon the circumstances of the case; and it does not apply in case of the mere acceptance of the services of assistant counsel, employed without the previous authority or consent of the client, by attorneys with whom the client has an agreement for compensation, covering the whole cause, and the payment of all the expenses of the litigation by them.</p> <p>Id.—Statement oe Assistant Counsel in Argument to Jury—Estoppel.—A statement made by the assistant counsel in the argument to the jury, in support of the contest of a will, that the contestant would pay all the attorneys’ fees in the case, did not call for the expression of any dissent, and could not create an estoppel by silence of the contestant, to dispute the obligation to pay the fees of the assistant counsel.</p>

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

<p>Teiae—Failube of Plaintiff to Appeab—Oounteeclaim—Dismissal—Judgment upon ¿Iebits.—Upon issue joined in an action to recover money, where the defendant has' set up a counterclaim, plaintiff is not entitled to a dismissal of the action, under section 581 of the Code of Civil Procedure, without the consent of the defendant; and, upon failure of the plaintiff to appear at the trial, the defendant is not bound to take a dismissal of the action, though he might do so, but he has the right, under section 581 of that code, to proceed with the case, in the absence of the plaintiff, unless the court for good cause otherwise directs, and , to have a judgment entered upon the merits finally disposing of the case; and it is not error for the court to grant such judgment.</p>

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

<p>Claim and Delivery—Insufficient 'Complaint—Past Ownership.—A complaint in an action of claim and delivery, which merely avers the past ownership hy the plaintiff of the personal property claimed, on the day of the seizure thereof by the defendant, and a demand of possession on that day, and does not aver any continued or present ownership or right of possession of the plaintiff, is not aided hy an averment that defendant “still unlawfully withholds and detains said goods and chattels,” and is insufficient to sustain a cause of action, or to support a judgment for the plaintiff.</p> <p>Id.—Ownership at Commencement of Action—Findings Outside of Issues.—Such complaint cannot he supported or cured by findings outside of the issues, setting forth the ownership and •right of possession of the plaintiff at the commencement of the action. Findings of fact must have a basis in the pleadings and be within the issues, and can never cure the absence of an essential allegation.</p>

<p>Action to Annul Contracts of Sale—Fraud—Recovery of Purchase Money—Equity Jurisdiction—Jury Trial.—In an action by a purchaser under contracts for the sale of lands, to have them annulled on the ground of false representations inducing the purchase, and to recover back the purchase money paid, the court, as a court of equity, has jurisdiction of the main action, and a general jury trial of all the issues cannot be demanded in the action. Where no issue is raised as to the amount of money paid, under the contract, and the answer merely denies the false representations, there is no issue upon which a jury trial can be demanded, and the court, upon determining the issues in favor of the plaintiff, may award full relief, to prevent further litigation.</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.</p>

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

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

<p>Judgment Unsuppobted by Findings—Motion—Cumulative Remedy—Appeal—Revebsal.—The remedy by motion in the superior court to set aside and vacate a judgment unsupported by the findings, and to enter another judgment in accordance therewith, provided for in the new sections 663 and 663% of the Code of Civil Procedure, is merely cumulative; and was not designed to supersede the remedy by appeal provided in section 963 of that Code. Upon such appeal, the judgment may be reversed, and the court below directed to enter the judgment required by the findings.</p>

<p>Estates of Deceased Persons—Final Account of Administrator—Debt Chargeable As Money—Liability of Sureties.—In the settlement of the final account of an administrator, he is to be charged with a personal debt due from him to the decedent, as money on hand; and his sureties are bound for so much of the debt as he has had the means to pay.</p> <p>Id.—Insolvency' of Administrator—Fiction of Law—Injustice not Allowed.—The debt due from an insolvent administrator is not for all purposes to be regarded as money on hand; but it is so regarded by a fiction of law, which can only subsist with justice, and should not be allowed to work injustice either by charging the administrator with contempt or embezzlement, in not paying over moneys not received, and which he was wholly unable to pay, or by charging the sureties with liability beyond the faithful discharge of the duties of the administrator.</p> <p>Id.—Form of Decree Settling Account—Showing as to Debt.—In case of insolvency of the administrator, and his inability to pay the debt to the estate, which has remained uncollected without his fault, the proper form of the decree in settling his final account is to charge him with the entire sum, including the debt due from himself, and then to show what portion of the amount consists of debts due from the administrator to himself.</p> <p>Id.—Offered Proof of Insolvency—Decree Settling Annual Account.—The rejection of offered proof of insolvency upon the settlement of the final account of the administrator, is without injury, where the decree settling the annual account offered by the contestant, shows that the administrator was charged therein, not for money actually received, but for a debt due from him to the estate. Either such offered proof, if admitted, or such decree, entitles the administrator to a final decree showing on its face what portion of the money charged against him is for such personal debt due.</p>

<p>Action to Foreclose Mortgage—Change oe Place oe Trial-Disqualification of Judge—Denial of Motion by Successor.—The ruling upon a motion to change the place of trial of an action to foreclose a mortgage on the ground of the disqualification of the judge, which was taken under advisement by the disqualified judge, and never passed upon, and was again called up for hearing before his successor, who was qualified to try the case, is to be tested by the conditions existing when the motion is passed upon, and the qualified judge may properly deny the motion.</p> <p>Id.—Duty op Judge—Jurisdiction op Court.—The mere fact that the disqualified judge had no discretion, and could not have retained the case, or have called in another judge, did not deprive the court of jurisdiction of the action to foreclose the mortgage which was not in fact removed;and when the judge of that court became qualified to try the action, before the motion to change the place of trial was passed upon, there was no longer any foundation for the motion, and it was the duty of the qualified judge to retain the case.</p>

APPLICATION in the Supreme Court for a stay of proceedings upon appeal from a judgment of imprisonment in the state's prison rendered in the Superior Court of the City and County of San Francisco. Frank H. Dunne, Judge. The facts are stated in the opinion of the court.

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

<p>Street Assessment—Judgment oe Foreclosure—Collateral Attack-Action to Quiet Title.—A judgment foreclosing the lien of an alleged street assessment upon certain lands rendered in an action in which the owners were made defendants, and were personally served, and appeared and contested the assessment, and failed to appeal from the judgment, is conclusive of the validity of the assessment, and cannot be collaterally attacked on account of invalidity of the assessment in a subsequent action by one claiming title under the sheriff’s deed, to ' quiet his title against subsequent grantees of the defendants in ■the foreclosure suit.</p>

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

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

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

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

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

<p>Compensation op Broker—Exchange op Lands—Bringing Parties Together—Double Employment.—A broker will not be allowed to act as agent of both parties, to a contract for the sale and ■purchase of real estate, and an agreement for compensation from both of them will not be recognized by the courts; but this rule has no application where the broker does not act as an agent, or represent conflicting interests, but acts- merely as a middleman to bring the parties to an exchange of lands together, and has nothing whatever to do with the trade between them. In such case, there is nothing in the relation of the parties to render the broker obnoxious to the charge of double employment; and he may receive compensation from both of the parties, if both agree to pay him.</p> <p>In—Question of Fact—Conflicting Evidence—Obdeb Granting New Trial,—The question whether the broker was merely a middleman, or was an agent of both parties, is one of fact to be determined by the trial court; and where there is conflicting evidence, from which the court might find either way, an order granting a new trial after rendering judgment in favor of the claim of the broker for compensation from one party, after having received compensation from the other party, if the new trial appears to have been granted for insufficiency of the evidence, will not be disturbed upon appeal.</p> <p>Id.—Pleading—Contract to Make a “Deal”—Procurement of Purchaser—Variance—A complaint alleging that under a contract with the defendant to make a “deal” for him respecting a certain piece of property, the plaintiffs procured a purchaser able and willing to purchase the land, is not at material variance with proof showing an exchange of lands, rather than a purchase, especially where the evidence of the exchange was received without objection.</p>

<p>Mechanics’ Liens—Retention oe Monet Due Contractor—Determination ■ oe Rights—Deposit in Court.—Under the statute providing for the retention of twenty-five per cent of the money to be paid by the owner of a building to a contractor for the construction or repair thereof, in order to pay off and discharge liens' filed thereupon, the owner has the right to retain the money to protect the property from valid liens; but he cannot pass upon their validity except at his own peril. He may protect himself by depositing the money in court, to await its determination of the validity of the liens, and of .the rights of the contractor, or of his assignee in insolvency.</p> <p>■In.—Voluntary Payment by Owner—Claim oe Assignee in Insolvency.—Where the owner made a voluntary payment of lien claimants so as to consume the whole of the twenty-five per cent reserved payment, acting upon his own judgment of their validity in so doing, after knowledge of a claim made to the whole of the reserved payment by the assignee in insolvency of the contractor, the owner is not protected by such payment, if the liens are in fact invalid; and, in such case, the assignee in insolvency may recover from him the amount of the claim.</p> <p>Id.—Invalid Notices of Lien—Terms of Contract not Truly' Stated.—Notices of claims of lien by materialmen which untruly state the terms and conditions of the contract as being “that claimant was to receive the reasonable market value of the materials so furnished,” whereas in fact the materials were furnished in each ease to the contractor at a fixed price, are invalid on account of the variance, and create no lien upon the premises.</p> <p>Id.—Hauling Slate for Roof.—Persons who did not furnish materials to be used on the building, nor perform any labor thereon, but who were merely engaged by the contractor to haul slate to the building and deliver it to the contractor for his use upon the roof, are not within the terms of the lien law, and are not entitled to a lien upon the building for such labor.</p> <p>Id.—Use of Materials—Findings—Support of Judgment.—In order to sustain a judgment in favor of the validity of liens of materialmen, the findings must show that the materials furnished by the lien claimants were furnished to be used, and that they were used in the construction of the building upon which the lien is claimed.</p>

<p>APPEAL from a decree of the Superior Court of the City and County of San Francisco settling, the final account of an executor and distributing the estate of a deceased person. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Action for Death—Negligence—Discharge of Pistol Carelessly Handled.—One engaged in manipulating a loaded pistol in presence of others should use great care in the manipulation; and in an action for a death caused by the discharge of a pistol carelessly handled, the negligence of the defendant is sufficiently shown by evidence that the loaded pistol was pointed by him in the general direction of the deceased, with knowledge thereof, and was being manipulated in a manner likely to cause it to be fired.</p> <p>Id.—Contributory Negligence—Position of Deceased—The position of the deceased, about forty feet off at an angle from a target, at which defendant and others had been firing, and about one hundred and fifty feet from the defendant, when the loaded pistol of the defendant, without being fired at the target, was negligently discharged, thereby causing his death, did not constitute contributory negligence per se; and the jury were justified in finding that his position when killed was not in itself a dangerous one, and that he was not guilty of contributory negligence in being at that point, at that time.</p>

<p>Tenancy in Common—Adverse Possession—Hostile Intent—In order to establish adverse possession by a tenant in common against his cotenants, clear and unequivocal proof is required of hostile intent on his part manifested to oust the cotenants.</p> <p>Id.—Presumptions—Father and Sons as Cotenants.—All presumptions of law, of fact, and of good morals are against an adverse holding by a father who became tenant in common with his sons as heirs of the deceased wife and mother, and who recognized their title by becoming guardian of their estate and maintained friendly relations with them until death, and devised his interest to them in one parcel of the inherited realty.</p> <p>Id.—Unsettled Guardianship—Lease—Insufficient Proof of Adverse Holding.—The mere facts, in such case, that the guardianship was never settled, and that the father executed a lease to one of the sons after he became of age, of another parcel of the inherited realty, which does not appear to have been devised by the father, are insufficient to evince a hostile intent as to such parcel, or to establish an adverse holding thereof by the father as against the sons.</p>

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

<p>APPEAL from an order of the Superior Court of Alameda County revoking letters testamentary. P. B. Ogden, 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. D. J. Murphy, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Public Lands—Contest Between Claimants—Jurisdiction of Land Department.—The land department has exclusive jurisdiction to determine all facts, and all inferences of fact, arising upon a contest between claimants of the public lands; and it is only where it is manifest that the land department decided the case upon an erroneous proposition of law, that its decision is reviewable by the courts.</p> <p>Id.—Homestead Claim—Claim Under Act to Quiet Land Titles — Conclusive Findings of Fact.—Upon a contest in the land department of the United States between a homestead claimant and a claimant under the act of July 23, 1866, to quiet land titles in California, claiming by virtue of a deed from the heirs of a Mexican grantee of lands excluded from the grant by the survey and patent, where there is nothing in the proceedings of the land department to show that its decision was • founded upon an erroneous view of the law, its findings of fact in favor of the homestead claimant, to whom the patent was issued, and-against the other claimants, that the land in controversy was never included within the boundaries of the Mexican grant, and was never so regarded, and that the grantee of the heirs, at the time of the deed to him, knew, or had reason to believe, that it was not so included, and that he was not a bona fide purchaser thereof, within the meaning of that act, are conclusive, and cannot be reviewed by the court.</p> <p>Id.—Patent Under Mexican Grant—Boundaries.—The United States patent to the heirs of a Mexican grantee is finally determinative of the boundaries of the grant.</p>

W. H. Grant, Judge, The action was for the foreclosure of two mortgages upon property of the defendants situated in Yolo county, executed by the defendants, husband and wife, to the Bank of Woodland, and acknowledged by both of the defendants November 7, 1893, before C. F. Thomas, notary public. The mortgages were made to secure an individual note of the husband; and were renewals of former mortgages executed several years previously by the husband alone.

<p>Criminal Law—Homicide—Instruction—Reasonable Doubt.— Upon the trial of a defendant charged with murder, where the court has given a full and correct instruction upon the subject of reasonable doubt, it is not erroneous, or objectionable as being argumentative in form, to instruct the jury that “the doubt which acquits a. defendant on trial on a charge of crime must be a reasonable doubt in the sense mentioned, and no other.”</p> <p>Id.—Instruction as to Distrust oe False Witness—An instruction “that a witness ascertained or appearing to be willfully false in one part of his testimony, as to the truth or falsity of a given proposition, is to be distrusted in other parts,” though somewhat out of the ordinary form, is not substantially objectionable.</p> <p>Ld.—Instruction as to Alibi—Defense—Proof—Reasonable Doubt—A statement in an instruction upon the subject oí alibi, that “such a defense is as proper and legitimate, if proved, as any other defense,” is not strictly correct. An alibi is not matter of defense; and the words, “if proved,” standing alone, would be misleading. But where such statement is immediately followed by the statement to the jury that if the evidence is sufficient to raise a reasonable doubt as to whether the defendant was in some other place when the crime was committed, or not present at the time and place of its commission, they should give him the benefit of the doubt and acquit him, the instruction, as a whole, is not misleading.</p> <p>Id.—Requested Instruction as to Alibi.—An instruction requested by the defendant upon the subject of alibi, which assumes to give defendant the benefit of any doubt raised, omitting the qualification of reasonable doubt, is properly refused.</p> <p>Id.—Argumentative Instruction—Identity of Defendant.—An argumentative instruction as to the identity of the defendant, based upon the facts, and not containing any proposition of law, is properly refused.</p> <p>Id.—Instruction as to Defendant’s Testimony—Province of Jury.—A requested instruction that the jury “are not permitted under the law to discredit or reject the testimony of the defendant, simply on the ground that he is accused and on trial on a criminal charge,” is properly refused, as being upon matter of fact, and not of law, and as invading the province of the jury, who are the sole judges of the credit to be given to the testimony of any witness.</p> <p>Id.—Continuance—Insufficient Showing.—A continuance on the ground of the absence of witnesses for the defendant is properly refused, where the affidavits therefor do not show that the defendant has used any diligence to secure their attendance, or that their attendance could be procured at a subsequent day, if the continuance had been granted.</p> <p>Id.—Evidence—Declarations of Goconspirator—Hearsay—Error Without Prejudice.—Declarations of a conspirator with the defendant, made after his arrest, and not in the presence of the defendant, as to whence he came, where he was going, and what was his business, are inadmissible hearsay, but if there is nothing in the declarations tending to implicate either the defendant or the declarant, the error in admitting them is without prejudice.</p> <p>Id.—Identification of Pistol Purchased by Defendant.—Where the homicide was in fact committed by the coconspirator, it is proper to identify a pistol found upon him as a pistol purchased by the defendant, as tending to connect the defendant with the commission of the crime.</p>

<p>Change of Place of Trial—Nonresident Defendant—Affidavit of Merits.—A nonresident defendant in an action to recover money, who, at the time of filing a demurrer to the complaint, filed a proper demand for the change of the place of trial to the county of his residence, and an affidavit of merits, showing the county of his residence, and that he has “fully and fairly stated the case in this cause” to his attorneys, naming them, and that, after such statement, he is by each of them advised, and verily believes, that he has “a good and substantial defense on the merits to said action,” makes a sufficient showing of merits to entitle him to the change demanded.</p> <p>Id.—Dehueeer to Complaint—Jurisdiction of Coubt—Invalid Obdeb.—Pending the hearing of a motion for the change of the place of trial by a nonresident defendant, and until it is passed upon, the court has no jurisdiction to hear and determine a demurrer to the complaint; and its order made in passing upon the same is a nullity. If the motion should be granted, the defendant is entitled to have the demurrer passed upon in the county of his residence.</p>

<p>Action upon Bond of Tax-Oollectob—Burden of Pboof—Default—Payment.—In an action against a tax-collector, on his official bond, to recover money collected and not paid over, the burden of proof for the plaintiff is sustained by showing that the tax-collector made default in failing to pay over, at the end of his term, moneys due the county; and the burden of proof is then on the defendants to show payment in full.</p> <p>Id.—Mode of Payment—Offeb of Proof.—A payment to the tax-collector in a mode other than that expressly provided by law, will not exonerate the tax-collector or his bondsmen from an action by the county, unless it is proved that the county actually received the money, as distinguished from a mere deposit thereof with the treasurer. . It is error to refuse an offer of proof that the county actually received the money, without proof first made of a compliance with the county government act by the tax-collector.</p> <p>Id.—Evidence—Receipts to Tax-Collectobt—Testimony of Treasures—Possible Amendment of Complaint.—It is error to exclude from evidence receipts given by the treasurer to the tax-collector, notwithstanding the evidence of the treasurer that a receipt for $3,000 was fraudulently obtained, and that no such payment was in fact made; nor can the exclusion be excused as without Injury, on the ground that the complaint might thereafter be amended by charging the tax-collector with what he showed by the receipts was paid above the amount alleged, and crediting him accordingly, still leaving the discrepancy of $3,000 to be accounted for by the tax-collector.</p>

<p>Cbiminal Law—Assault with Intent to Murder—Question of Fact.—Upon the trial of a charge of assault with intent to commit murder, the question as to the intent with which the acts were.done by the defendant, is one purely of fact, to be determined from all the circumstances of the case surrounding the assault.</p> <p>Id.—Assault with Deadly Weapon—Under a charge of assault with intent to commit murder, the defendant may, if the evidence justifies it, be convicted pursuant to section 245 of the Penal Code, of an assault with a deadly weapon, or by means and force likely to produce great bodily injury.</p> <p>Id.—Improper Omission in Instruction.—An instruction to the jury under a charge of assault with intent to commit murder, that the form of their verdict must be either not guilty, or guilty as charged, or guilty of an assault, is prejudicially erroneous in omitting the possibility of a conviction under section 245 of the Penal Code, where the evidence will justify such conviction. Such omission is the equivalent of a refusal to instruct that such conviction could be had under evidence justifying it.</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. A. A. Sanderson, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>■APPEAL from a judgment of the Superior Court of San Joaquin County. Edward I. Jones, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Action fob Death—Adult Colla tesad Heibs—Failure of Pboof —Nominal Damages—Instruction— In an action for a death brought by the adult collateral heirs of the deceased, the mere fact that they are such heirs does not tend to show pecuniary damage; and in the absence of other proof tending to .show actual, damages, or, at least, probable loss, resulting to them from the death, the jury should be instructed that their recovery must be limited to nominal damages.</p> <p>Id.—Speculative Possibilities of Benefits.—Mere speculative or conjectural possibilities of benefits to the parties complaining are not a proper basis for an estimate of damages resulting from a death.</p>

<p>Criminal Law—Forgery—Sufficiency of Information—Forging “Name” to Check.—An information for forgery which substantially conforms to the statute, and charges the forging of the “name” of a certain person to the check, a copy of which is set forth in the information, showing that such name was signed to the check, and also charges that the defendant falsely uttered and passed the check as true and genuine, with intent to defraud a third person named, knowing the same to be false, forged, and counterfeit, states facts sufficient to constitute a public offense in such manner as to enable the defendant, as a man of common understanding, to know what was intended, and to enable him fully to prepare for his defense; and a demurrer thereto is properly overruled.</p> <p>Id.—Defect in Form—Substantial Eight not Prejudiced.—Any defect in form in such information in not specifically averring, in the first part thereof, that the “check,” as an instrument, nr the “signature" thereof, was forged and counterfeited, is not such as tended to prejudice any substantial right of the defendant.</p>

<p>Mechanics’ Liens—Subcontract of Architect—Record—Presumption.—A subcontract in favor of the architect with the contractor,, which was attached to the original contract for the erection of a building, and recorded with it, must be presumed to have been made with the knowledge of the owner of the building; and, in the absence of fraud or deception, the mere dual position occupied by the architect does not ipso facto render either of the contracts void, or preclude the enforcement of liens in favor of persons performing labor and furnishing materials for the subcontractor.</p> <p>Id.—Completion of Building—Occupation by Owner—Subsequent Work—Construction of Code.—The occupation of the building by the owner is conclusive evidence of its completion, within the meaning of section 1187 of the Civil Code, only when it is open, entire and exclusive, and inconsistent with a continuance by the contractor in the completion of his contract, and such as to give notice that the building is accepted in satisfaction of the contract. If the contractor continues the work of construction, or labor is done and materials are furnished, pursuant to the contract, after the occupation by the owner, such occupation is not conclusive evidence of completion, and does not start the statute in motion as to the time when liens should be filed.</p>

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

<p>Action to Quiet Title—Boundary of Street—Oross-Oomplaint of City—Uncertainty.—In an action against a city to quiet title to a lot of land involving the boundary of a street, a cross-complaint by the city against the plaintiff and other defendants brought in as parties to quiet the title of the city to the street, which is alleged to have been encroached upon by their improvements, but which does not locate the boundaries of the street, nor show to what extent their improvements have encroached upon it, is demurrable for uncertainty in those particulars.</p> <p>Id—Evidence—Location of Boundary—Loss of Monuments—Conformity of Street Improvements to Lot Improvements.— Where it appeared in evidence that all of the monuments of the official survey of a street were lost, and the question of fact upon which the rights of appellants depended related to the location of the south boundary of the street, evidence that all of the improvements on such boundary conformed to the line of appellant’s improvements on a corner lot derived by deed from the city, and which had occupied that line for twenty-five years, and that during that period the sidewalk and street improvements were all made to conform to that line, is competent evidence to show the location of such boundary.</p> <p>Id—Incompetent Evidence of Engineers — Inaccurate Survey. Where it appears that the official survey of the street in controversy was inaccurate, and there was no proof as to the lines originally established by it, other than the line of improvements of the lots and sidewalks thereupon, the evidence and maps of engineers not based upon the official survey, but upon the assumed correctness of the line of improvements of another street, and upon the supposition of a uniform width of the streets, and involving the alteration of the length of lots shown by the official map, and constituting mere guesswork as to the location of the lines of the official survey of the street in question, is incompetent and inadmissible.</p> <p>Id.—Inaccuracy of Early Surveys—Common Knowledge—Judicial Notice.—The inaccuracy of the early surveys in this and other states is a matter of common knowledge of which the courts may take judicial notice.</p>

HABEAS' CORPUS in the Supreme Court, to review the legality of a commitment for contempt hy the Superior Court of the City and County of San Erancisco. James M. Troutt, Judge. The facts are stated in the opinion of the court.-

<p>Estates of Deceased Persons—Sale of Realty for Benefit of Heirs—Vested Rights—Constitutional Law.—Upon the death of the ancestor, the heiifS become at once vested with the full property in his real estate, subject only to liens or burdens then existing or created by statutes then in force; and the legislature has no constitutional power, by a subsequent enactment, to interfere with the vested rights of the heirs to dispose of their own property, by authorizing a sale of the realty to be made by an executor or administrator solely for the benefit of the heirs.</p>

<p>Action to Quiet Title—Boundary Between Sections—Former Judgment in Ejectment.—In an action to quiet title brought by a patentee of a quarter-section of land against a patentee of adjoining land in another section, involving the location of the boundary line of the government survey between the sections, a former judgment in an action of ejectment brought by the defendant against the plaintiff, settling the location of the same boundary line in favor of the defendant, is admissible against the plaintiff as a former adjudication of the subject matter, though at the time of the trial and judgment the plaintiff was not a patentee of the quarter-section, but held a pre-emption receipt therefor.</p> <p>Id.—Effect of Pre-emption Receipt—Boundaries not Affected by Patent.—One holding a quarter-section of surveyed government land, under a final pre-emption receipt entitling him to a patent- therefor, acquires no new or greater right by his patent describing the same land described in the receipt, so far as the boundaries of his land are concerned. His final receipt is prima facie evidence of ownership, and is a “certificate of purchase,” within the meaning of section 1925 of the Code of Civil Procedure.</p> <p>Id.—Certainty of Former Judgment—Extrinsic Evidence.—In order to the operation of the former judgment as an estoppel, it must appear either upon the face of the record or be shown by extrinsic evidence that the precise question involved was raised and determined in the former action; and where there is uncertainty in the record of the former action of ejectment, extrinsic evidence is admissible to show that the boundary lines involved in the present action were in fact fixed and determined in the former action.</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>

PETITION in the Supreme Court for a writ of mandate to the State Controller. The facts are stated in the opinion of the court.

<p>APPEAL from orders of the Superior Court of Napa County, settling the accounts of an assignee of an insolvent debtor,, and distributing the assets of the insolvent. A. J. Buckles, Judge, presiding.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Estates of Deceased Persons—Bight of Inheritance—Civil Death—Imprisonment for Life.—The right of inheritance is a civil right, existing only by virtue of the law, and the legislature may make the deprivation of this right a portion of the penalty to be imposed for the commission of a crime. Section 674 of the Penal Code, enacting that “a person sentenced to imprisonment in the state prison for life is thereafter deemed civilly dead,” has the effect to extingush his civil rights, generally, including the right of inheritance; and such a person cannot be a distributee of the estate of an intestate father who died subsequent to his sentence of imprisonment for life.</p> <p>Id.—Construction of Code—Exceptions Named Exclusive.—The ■ exceptions named in sections 675 and 676 of the Penal Code are exclusive, and the civil death of the felon destroys every civil right not expressly saved in those sections.</p>

<p>Easement for Ditch—Adverse User—Cessation op Use.—An easement for a ditch acquired by adverse user is lost and extinguished by complete disuse for the period prescribed for acquiring title by prescription.</p> <p>Id.—Patent to Successors op Mexican Grantee—Freedom prom Legad Easement—Equity.—A United States patent issued without reservation to the successors of a Mexican grantee, to whom the whole rancho was conveyed without reservation, does not inure to any person claiming under a grant of an easement of a ditch from the original grantee; but the patentee acquired the whole legal title free of every sort of legal servitude. The grantee of such easement has at most a mere equity, which must be alleged and proved as such.</p>

<p>Estates of Deceased Persons—Sale under Will—Quieting Title —Cross-complaint—Accounting—Receives.—In an action to quiet title against the executors and heirs of a deceased person, brought by a successor in interest of a purchaser who received possession under a sale of real estate and deed thereof made by the executors, pursuant to a power in the will to sell and convey without any order of court, the executors cannot, while their disputed title and right of possession are undetermined, maintain a cross-complaint in equity against the plaintiff and the purchaser, for an accounting of the rents and profits, and for the appointment of a receiver.</p> <p>Id—Validity of Sale—Duty of Executors to Report fob Confirmation.—The executors having made a valid contract of sale under the will, so far as they were able to bind themselves, were in duty bound to report it to the court for confirmation, which may be done at any time after the sale; and they cannot attack the validity of the sale, unless, after report thereof, the court refuses to confirm it.</p> <p>Id.—Estoppel of Executors.—The executors, having placed the purchaser in possession under the sale and deed made by them, and permitted him to make large improvements thereon, cannot, while refusing to report the sale to the court for confirmation, invoke the aid of a court of equity to compel an accounting of rents and profits or to place the property in the hands of a receiver.</p>

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

Walter Van Dyke, Judge. The facts are stated in the opinions in this case, and in the opinion of the court in the former ease, reported in 88 Cal. 68.

<p>Street Railroad Corporations—Creation of Bonded Indebtedness-Liability of Stockholders—Bonds issued by a street railroad corporation in part payment for the construction of its railroad, are for the creation of a bonded indebtedness within the provision of section 359 of the Civil Code, requiring the creation of the bonded indebtedness of any corporation to be approved by the vote of two-thirds of the entire capital stock; .and in default of such approval do liability is created upon such bonds against the stockholders.</p> <p>Id.—Construction of Code.—Section 456 of the Civil Code permitting railroad corporations to issue bonds in payment of any debts or contracts for constructing or completing their road is to be construed in connection with the general provisions of section 359 of the same code, requiring all corporations to give the stockholders a voice in saying whether or not a bonded indebtedness shall be created or increased.</p>

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

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

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

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

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

<p>Deed from Father to Daughter—Delivery— Support of Finding.—The evidence reviewed, and held sufficient to support a finding that a deed of the home place from a father to his daughter was delivered to her by him during his lifetime.</p> <p>Id.—Mode of Keeping Deed—Demand for Redelivery—Loss— Recovery after Death.—Such finding is not overcome by evidence that, after the delivery of the deed, it was kept in the usual manner among papers belonging to both father and daughter, which were subsequently placed together in her valise; that the father, some years thereafter, through opposition to his daughter’s marriage, demanded the deed back, and that she could not find the deed or valise containing it; that, after her father’s death, she did not set up a claim to the property when his will was read; and that the valise containing the deed and other papers was subsequently found, and the deed recovered by her.</p> <p>Id.—Joint Occupation—Adverse Holding by Father.—The fact that after the execution and delivery of the deed to his daughter, the father remained upon the home place, occupying it with her, did not constitute an adverse holding, prior to the time when he assumed a position hostile to her title.</p>

<p>Counties—División—Pbioe Railroad Taxes — Improper Reassessment—Recovert op Loss.—Upon the division of a county, with an agreed basis of apportionment of assets, which did not include prior unpaid railroad taxes, the validity of which was disputed, and which had not then been reassessed, but which were subsequently improperly reassessed for the previous years to each of the counties, upon the basis of their respective railroad mileage, and paid upon that basis, the original county may recover from the new county the difference between the amount of taxes received by the complainant, and the amount which it would have had, if the taxes had been wholly reassessed to it, and divided between them upon the agreed basis of apportionment, with interest upon such difference.</p> <p>Id.—Presentation of Claim.—The claim for reimbursement having been presented by the original county to the new county for allowance, and wholly rejected, it need not be again presented before bringing an action thereupon.</p> <p>Id.—Pleading—Invalidity of Original Assessments—General Demurrer.—Where the complaint showed that the railroad taxes were long delinquent, owing to a question as to their validity, and that reassessments made by the state board of equalization were accepted and acted upon by the railroad company by payment of the taxes, it cannot be objected upon general demurrer that the invalidity of the original assessments was not directly alleged.</p> <p>Id.—Duty of State Board of Equalization—Reassessment and Apportionment.—It is the duty of the state board of equalization, in making a reassessment of railroad taxes, to take the place of an invalid assessment of a previous year, to make their apportionment to the counties' as they existed at the time of the invalid assessment, and not at the time of the reassessment.</p> <p>Id.—Lien fob Taxes not Created by Assessment.—The lien for the taxes justly leviable upon the property of a railroad company attaches on the first Monday of March in each year, and is not created by the assessment, which is merely one of the steps for the enforcement of the lien; and whenever a valid assessment or reassessment is made for that year, the taxes become payable to the county in which the roadbed was included when the lien attached for the taxes of that year.</p> <p>Id.—Ambiguity of Complaint—Mistake in Figures.—The ambiguity of the complaint caused by a mistake in figures, causing a discrepancy of allegation as to the number of miles taxed in the new county, which may be corrected by other figures given in the complaint, cannot be reached upon general demurrer.</p> <p>Id.—Failure of Commissioners to Divide Unpaid Taxes—Error in Favor of Appellant.—The objection that the commissioners failed to divide the unpaid railroad taxes for previous years, the validity of which was disputed, and which had not then been reassessed, cannot preclude a recovery by the original county of its alleged proper proportion of the taxes received by the new county, when subsequently reassessed and paid. If such failure made a subsequent division impossible the original county would be entitled to recover and keep all the taxes for those years; and the new county, upon appeal, from a judgment for a portion of the taxes improperly received by it, cannot complain of error in its favor.</p>

<p>New Teial—Misconduct op Juby—Affidavits—Statement.—A motion for a new trial made solely on the ground of misconduct of the jury, must he made upon affidavits; and,. in such case, a statement is unauthorized, and must be disregarded.</p> <p>Id.—Deposition Taken in Coubt—The deposition of the deputy sheriff in charge of the jury, who refused to give a voluntary affidavit, must be regarded as an affidavit for the purposes of the motion.</p> <p>Id.—Ruling as to Evidence—Affidavit of Dissenting Juboe— Bill of Exceptions—Review upon Appeal.—The ruling of the court in disregarding the affidavit of a dissenting juror as to the misconduct of a juror assenting to the verdict, need not be specifically excepted to or appealed from; but if all of the affidavits and the ruling upon the motion are incorporated in a bill of exceptions, the appellate court may review the competency of the affidavit upon appeal from the order denying a new trial.</p> <p>Id.—Impeachment of Vebdict by Jubobs—Reasons fob Rule-Public Policy.—The rule that the affidavits of jurors are not admissible to impeach the verdict, is proved by the statutory exception in ease of a resort to chance. The rule is not based solely upon the estoppel of the assenting jurors, but is grounded upon public policy which forbids that the verdict should be imperiled by the evidence of jurors who may be tampered with to accuse themselves or other jurors, and which requires that the independence and freedom from Improper restraint of the jury in their deliberations and discussions should be secured.</p> <p>Id—Applicability of Rule to Dissenting'Jubobs—Declarations of Assenting Jubob.—The rule against the affidavits of jurors is not changed in its application by the amendment of the Code of Civil Procedure which permits a verdict by a specified majority of the jury; and the affidavit of a dissenting juror is not admissible to prove the declaration of an assenting juror whose vote was essential to the verdict, to the effect that he would rather agree to the verdict than lose his pay.</p> <p>Id.—Affidavit of Jubob to Sustain Verdict.—The affidavit of a juror is competent to sustain the verdict by explaining or denying alleged misconduct or interferences with the jury.</p> <p>Id.—Separation of Jury in Civil Case.—The mere separation of a jury in a civil case is not ground for a new trial, except under the general ground of misconduct of the jury “materially affecting the substitute rights of a party.”</p> <p>Id.—Separation against Instruction—Burden of Pboof.—The separation of- a juror from the jury against the instruction of the court, under such circumstances that improper influence might have been exerted upon him, puts upon him the burden of proving the contrary to sustain the verdict.</p> <p>Id.—Use of Telephone in Diningroom—Rebuttal of Presumption of Injury.—Where it is shown by the affidavits of the juror and of the deputy sheriff that the juror, though improperly allowed to separate himself from the body of the jurors in a diningroom, merely stepped to a telephone therein to communicate briefly on private business, and that he had no other communication, the presumption of injury is rebutted.</p> <p>Id—Permission of Court—Duty of Jubob and Deputy Sheriff.— It is improper for a juror to communicate by telephone without first obtaining the permission of the court to send a message, and the deputy sheriff in charge of the jury should be at the receiver.</p>

<p>Vendor and Purchaser—Contract of Sale—Interest in Profits of Resale—Purchase of Vendee’s Interest—Consideration.— Under a purchase by the vendor and a third person of the interest of the vendee in a contract for the sale of land, upon which five thousand dollars had been paid by the vendee and which provided for an interest in the profits of the resale of the land by the vendor, out of which the remainder of the purchase money was to he paid, for which interest of the vendee, the purchasers paid five thousand dollars, subject to reimbursement out of the profits of the original five thousand dollars paid by the vendee, an agreement by the purchasers that whatever part of such original payment should not be repaid to the vendee out of the profits by a fixed date, should be paid by the purchasers to him, constitutes part of the consideration for the purchase of the contract, and is not an agreement for a penalty or liquidated damages.</p> <p>Id.—Action upon Contract—Amendment op Complaint.—In an action upon the contract to make good the unpaid portion of the original five thousand dollars of purchase money paid by the vendor, where the terms of the contract are set forth in the complaint, and issue has been joined by answer, the court may permit an amendment of the complaint to correct an inconsistency between the prayer of the complaint and the facts stated therein.</p> <p>Id.—Failure to Make Amendment Allowed—Correction op Record.—The failure to make the amendment allowed formally upon the record, does not necessitate a reversal of the judgment, but the record will be ordered to be corrected to conform with the order permitting the amendment.</p> <p>Id.—Agreement to Substitute Stock por Land — Payment — Pledge—Finding as to Value Immaterial.—Where there was a supplemental agreement that the land should be conveyed to a corporation, and that the stock should take the place of the land, under an allegation in the answer that plaintiff had accepted stock in payment of his obligations under the agreement and under the claim of plaintiff that the stock was received by way of pledge or collateral security for the contract sued upon, there is no issue authorizing a finding as to the value of the stock.</p> <p>Id.—Tender op Pledged Stock—Retention until Satisfaction of Judgment.—In an action upon a contract to pay a sum of money, stock held by way of pledge or collateral security for the obligation, need not be tendered by the plaintiff, but may be retained by him until satisfaction of the judgment in his favor; and it is not necessary that the judgment shall provide that the stock shall be surrendered, upon such satisfaction.</p> <p>Id.—Joint Obligation—Release of Oodbfendant—The release of a codefendant who was a joint obligor with the other defendant does not release the other defendant from his obligation to pay so much of the debt as was not paid by the codefendant released.</p>

<p>APPEAL from an interlocutory decree of the Superior Court of Orange County. J. W. Ballard, Judge.</p> <p>The facts- are stated in the opinion of the court.</p>

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

<p>Criminal Law—Evidence—Confessions of Defendant—Inducement—Burden of Proof.—The burden is on the prosecution to show that confessions of a defendant charged with crime were made voluntarily and without previous -inducement; and where it appears that the defendant at first denied his guilt, and afterward confessed to the sheriff under improper representations and inducements held out to him, it must be shown that confessions made to the deputy sheriff and to the jailer were not only without inducements held out by them, but also that they were not induced by those held out to him by the sheriff, in order to justify their admissibility.</p> <p>Id.—Sufficiency of Objections to Evidence—Motion to Strike Out.—Where the court refused to permit the defendant to show that confessions offered in evidence were made under promises of exemption from a heavy penalty, and overruled his objection that the state must show more than that no inducements were held out at a particular conversation, such rulings and exceptions were sufficient, without repetition, to cover ail confessions thereafter offered, and to justify a motion to strike out all evidence of confessions to various persons not shown to have been induced by representations which were proven to have been.held out by the sheriff.</p>

APPLICATION in the Supreme Court for writ of mandate to compel the respondent to admit the petitioner to office, pending an appeal from a judgment rendered in favor of the petitioner in an election contest • against the respondent in the Superior Court of Yuba County. E. A. Davis, Judge. The facts are stated in the opinion of the court.

E. B. Ogden, Judge. B'nder the lease sued upon the lessee was obligated to pay thirty-two dollars per day for the rent of a house on Rosalie Court, Chicago, for the month of May, 1893, and four dollars per day for each room retained thereafter in June. The sum of five hundred dollars was to be paid April 1st, the date of the execution of the lease, and the remaining four hundred and ninety-two dollars for the month of May was to be paid May 15, 1893.

<p>Statutory Construction.—A statute relied upon as conferring rights to a governmental gratuity is to he strictly construed.</p> <p>San Francisco “Hospital Lot”—Dedication to Public Use—Original Possessor not Entitled to Compensation.—One claiming under an original possessor of pueblo land which was more than one-twentieth part of the lot designated on the Van Ness map as a “hospital lot,” and which was dedicated to public use under the ordinances ratified by the act of March 11, 1858, and the confirmatory act of Congress of July 1, 1864, has no title or estate in the lot which could be asserted against the United States, the state or the city, and is not entitled under section 6 of the Van Ness ordinance to any compensation as a condition precedent to the quieting of the title of the city to such “hospital lot.”</p> <p>Id.—Terms of Ordinance No. 822 Superseded by Ratification of Van Ness Map.—The terms of section 6 of the Van Ness ordinance were superseded so far as inconsistent with the Van Ness map showing the reservation of lots, blocks, and squares for public use, and with the order adopting said map, and the legislative ratification thereof, which operated immediately to dedicate the lots to public use.</p>

M0T10H to dismiss an appeal from an order of the Superior Court of the City and County of San Francisco confirming a sale by an executor. J. V. Cofiey, Judge. The facts are stated in the opinion of the court.

MOTIOUS to dismiss appeals from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. J. M. Seawell, Judge. The facts are stated in the opinion of the court. .

Lucien Shaw, Judge. The note in suit was dated January 3, 1896,- and the plaintiff and Frank Q. Dock testified that it was then signed by both oi the makers, Tom Sue and Ham Gee, in Dock’s restaurant in Bakersfield, and that five hundred dollars was then counted out and Tom Sue put it in a handkerchief and carried it away. Joseph 0.

<p>Subscription for Entertainment of Delegates—Oonsideration— Obligations Incurred at Subscribers’ Request.—Under a subscription to a fund to be paid to a committee of a Parlor of Native Sons toward the expense of entertaining delegates to a meeting of the Grand Parlor, the request of subscribers, upon demand of payment, that the committee should regard their subscription as cash, and proceed with their arrangements, and the action of the committee in incurring obligations on the faith of the request, was a sufficient consideration to fix the liability of the subscribers.</p> <p>Id.—Time of Request.—It is not necessary that such request should be made at the time of the subscription.</p> <p>Id. — Subscription by Hotelkeepers — Contract — Compliance with Conditions.—A subscription by hotel-keepers under an agreement with the committee that either a ball or a banquet should be given to the delegates at their hotel, and, in case neither was given, the subscription should be reduced one-half, is converted by such agreement into a contract, and the giving of a ball thereat in compliance with the condition of the agreement is a good consideration for the promise to pay the full amount of the subscription; and no question can be raised as to any reduction of the liability.</p> <p>Id.—Subscription for “Entertainment” of Delegates—Construction.—A subscription for the entertainment of a large number of strangers coming as delegates to the meeting of an organized body is not to be construed as limiting the entertainment to board or to the ordinary necessaries of life, and all reasonable expenditures made and liabilities incurred in connection with the entertainment of such a body, including the expenses of a ball and banquet given for their enjoyment, are fairly within the meaning and intent of the subscription.</p> <p>Id.—Action by Members oe Committee—Parties—Trustees oe Express Trust—Pleading—Defective Title to ■ Complaint.—In an action upon a subscription payable “to the subscription committee of Los Osos Parlor,” brought by the individuals constituting such committee, if the body of the complaint shows that they constituted and acted as such committee, and were the trustees of an express trust, the Parlor which was the beneficiary of the trust need not be joined as a party; and a defect in the title in not showing the trust relation of the plaintiffs cannot be objected to otherwise than by special demurrer.</p> <p>Id.—Defense—Payment of Expenses by Committee—Borrowed Money.-It is no defense to such action that the expenses of the entertainment of the delegates were paid by the committee, where it appears that a deficiency greater than the amount of the subscription sued upon was met by borrowing the amount from one of the funds of the Parlor, not intended to be used for such entertainment.</p>

<p>Judgment Upon Admissions op Answer — Relief Must be Warranted by Complaint.—In case of a judgment rendered upon an answer admitting all of the averments of the complaint, and presenting no issue, whether it is in effect the same as a judgment hy default or not, the relief granted to the plaintiff cannot exceed that which the law awards as the legal conclusion from the facts alleged, or he inconsistent with the case made by the complaint.</p> <p>Id.—Complaint fob Specific Performance—Improper Relief.— Under a complaint for the specific performance of a contract to convey a half interest in a mine in consideration of the building of a mill hy plaintiff, and to work the mine upon equal shares, alleging interference by defendant with the performance of the contract by plaintiff, and his ejection of plaintiff from the mine, a judgment directing specific performance by the defendant, and not by the plaintiff, and enjoining the defendant from conveying any part of the mine to anyone other than plaintiff, and from working the mine, without reference to any performance of the contract hy the plaintiff, is improper, and grants relief inconsistent with the case made by the complaint.</p> <p>Id.—Judgment fob Co-Plaintiff—Insufficient Allegation.—a judgment in favor of a co-plaintiff is not authorized or sustained by an allegation that plaintiffs are informed and believe that such co-plaintiff has or claims to have some interest in the mining property.</p> <p>Id.—Indefinite Judgment—Refebence to Exhibit of Contbact.— A decree^ enforcing a contract should be definite as to the things to be performed by each of the parties, and as to the acts enjoined; and a decree enjoining a defendant from doing any act whatever which will in any way interfere with the rights of the plaintiff under an exhibit of the contract attached to the complaint, is too uncertain and indefinite to be enforced.</p>

<p>Criminal Law—Charge to Jury—Conditions and Limitations.— Each sentence of a charge to the jury in a criminal case need not contain all the conditions and limitations to be gathered from the entire text.</p> <p>Id.—Burglary—Charge as to Possession oe Stolen Property-Matter of Pact.—A charge to the jury upon the trial of an accusation of burglary with intent to commit larceny, in reference to the possession of stolen goods, which at the outset showed that it was based hypothetically upon the fact of such possession being established beyond a reasonable doubt, does not proceed to charge the jury upon matters of fact, because such hypothesis is not repeated in the subsequent discussion of the effect of evidence of such possession, and as to when it is to be considered as a circumstance in connection with other circumstances in the case in arriving at a verdict.</p> <p>Id.—Caution to Juey.—Such charge could not mislead the jury when they were in a subsequent part of the charge expressly cautioned against understanding the court as intimating any opinion upon any fact in the case, or upon the weight of the evidence.</p>

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

<p>Chattel Mortgages—Foreclosure of Second Mortgage—Value of Property—Power of Commissioner.—A commissioner appointed to make sale of chattels under a decree of foreclosure of a second chattel mortgage thereupon, is clothed with executive powers only, and cannot judicially determine that the property is not of sufficient value to meet the prior mortgage, nor certify a deficiency without having made sale of the property as directed.</p> <p>Id.—Return Without Sale—Deficiency Judgment Vacated—Execution Quashed.—The return hy the commissioner without sale cannot warrant the docketing of a deficiency judgment; and a judgment so docketed, upon which execution is issued, is properly vacated hy the court, and the execution quashed.</p> <p>Id.—Power of Court—Case Considered.—It seeing that under the equitable construction given to the statute in Toby v. Oregon etc. Co., 98 Cal. 490, the court may have the power, upon proper proof that the mortgage was valueless, on account of the insufficiency of the property to pay and discharge the prior mortgage, to find that fact, and direct a deficiency or personal judgment against the defendants without selling the mortgaged property.</p>

<p>Dedication oe Street—Intention Essential—Insueeicient Findings—Probative Facts—User oe Way—License.—The intention of the owner of land to dedicate part thereof as a public street is essential to a dedication; and findings of mere probative facts, without the finding of a dedication or of an intent to dedicate, and which are not inconsistent with the absence of such intention, and may indicate a mere license to the public to use an open passageway for travel, without adverse user thereof by the public, are insufficient to establish the dedication of the way as a public street.</p> <p>Id.—General Finding.—A general finding that the way was a public street, placed among the conclusions of law, and evidently intended as a deduction from previous probative facts found, cannot prevail, if not sustained by the probative facts.</p> <p>Id—Adverse User by Public.—Where the dedication of a highway is sought to be established by user by the public, it must be shown that the user was adverse with the knowledge of the owner; and the user must be of such duration that the public interest and private right would be materially impaired if the dedication were revoked and the use by the public discontinued.</p> <p>Id.—Making and Piling of Map—Offeb of Dedication—Acceptance—Revocation.—The making and filing of a map designating certain streets thereon, is only an offer to dedicate such streets to the public, and unless the offer is accepted by the public within a reasonable time, the owner may resume possession and control of the property, and thereby revoke his offer.</p> <p>Id.—Insufficiency of Evidence.—Evidence showing that since the opening by adjoining owners of a strip used as a passageway, it was cultivated by the owners almost every year, that fruit and other trees were placed thereon by them, that taxes were paid by them to the city upon the land, that on an assessment map of another street the strip was shown to be private land, and not a street, and was assessed to the owners thereof, and that the strip had never been improved, graded, or accepted as a street by the public authorities, is wholly insufficient to support a finding that the strip was dedicated or abandoned to the public as a street.</p>

order of the Superior Court of Inyo County denying a new trial. George M. Gill, Judge. The facts are stated in the opinion of the court.

MOTION in the Supreme Court for a writ of supersedeas to stay execution upon the judgment pending an appeal from an order of the Superior Court of the City and County of San Francisco, denying a new trial. John Hunt, Judge. The facts are stated in the opinion of the court.

<p>MOTION in the Supreme Court for a writ of supersedeas to stay execution upon the judgment pending an appeal from an order of the Superior Court of the City and County of San Francisco, denying a new trial. John Hunt, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

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

Lucien Shaw, Judge. The household goods in controversy were sold at auction by the defendant for seventy-five dollars, to pay storage charges of nineteen dollars and fifty cents. The plaintiff recovered six hundred dollars, with interest and costs, for the conversion thereof. Further facts are stated in the opinion.

<p>Estates of Deceased Persons—Will—Decree of Distribution to Widow—Execution Sale of Son’s Interest—Void Title.— A decree of distribution of the estate of a deceased person, distributing the whole of the residue of the estate in fee to the widow, unappealed from, is conclusive upon the question that upon his death she was the owner of the whole of his estate; and the sale under execution of the interest of a son under a will purporting to give a life estate to the widow while remaining such, and the residue to his lawful heirs at her death, and the • deed thereof to the purchaser at such sale, pending administration, conveyed no title to the purchaser.</p> <p>Id.—Disteibution of Estate of Widow — Deed of Son—After-Acquired Title.—The deed of the son. pending the administration of his father’s estate, of his interest therein, not purporting to convey title in fee, will not carry an after-acquired title distributed to the son under a decree of distribution of the estate of his mother who, as widow, was the sole distributee in fee of the father’s estate.</p>

<p>Estates of Deceased Persons—Administrator’s Account—Sale of Personal Property—Redemption from Lien—Loss Without Negligence.—An administrator is not liable to be charged in the settlement of his account for a loss on the sale of personal property, by reason of having paid a lien thereon in good faith, believing that the property was worth more than the amount of the lien, but which was sold without negligence on his part for less than that amount. It is only in circumstances where the court can say, as matter of law, that a reasonably prudent man might not make the honest mistake of paying out more to free the property from a lien than the property would sell for, after the lien was extiguished, that the administrator can be charged with the loss.</p> <p>Id—Foreclosure of Mortgage of Decedent—Collateral Attack for Errors—Liability of Administrator—Proof of Negligence Required.—The amount of the judgment rendered upon the foreclosure of a mortgage executed by the decedent, cannot he collaterally attacked for the purpose of charging the administrator with errors therein, without proof of negligence upon his part.</p> <p>I d.—Inclusion of Taxes—Waiver of Objection—Pleading—Presumption.—The technical objection that an amount of taxes included in the decree as having been paid by the mortgagee upon the mortgaged property was not supported by the pleadings, is waived if not urged prior to the decree, and the administrator cannot be charged therewith in his account, where it appears that the amount allowed was correct in fact, and accorded with a stipulation in the mortgage. Negligence cannot he imputed to the administrator by presumption for failure to object to proof of the taxes actually paid by the mortgagee; but it must be presumed, in support of the decree, that the question as to the amount of taxes was heard and determined by the court upon the theory that the complaint was sufficient, and the issue properly before the court.</p> <p>Id.—Amount op Interest in Decree—Insolvency op Estate— Objection by Devisees.—Devisees, who, if the estate is insolvent, can have no interest in the question, cannot object that the administrator should be charged with an excess of interest allowed in the decree of foreclosure, according to the terms of the note, above the legal rate, after notice to creditors, on account of the insolvency of the estate, where no creditors appear to object thereto. The devisees can raise no objection to the amount of the decree, where it appears that, if the amount of error therein claimed to be charged to the administrator were allowed, there would not be sufficient on hand to pay the creditors.</p> <p>Id.—Failure to Appraise Mortgaged Property — Useless Expense.—Where there is no evidence that the real estate of the decedent subject to mortgage could, at any time during the administration of the estate, have been sold for enough to pay off the mortgage upon it, and there is evidence to indicate that in the condition of the real estate market it could not have brought the amount of the mortgage, and that it would have been a useless expense for the administrator to have it appraised, he cannot be charged with negligence in failing to do so.</p> <p>Id.—Negligence in Settlement op Estate—Interest, with Annual Rests.—Where the administrator has been negligent in failing to settle the estate, he is properly chargeable with legal interest on the balance in his hands, with annual rests, until the allowance of his account.</p>

<p>Fire Insurance—Delivery oe Policy After Fire—Prior Agreement eor Effective Policy.—A fire insurance policy may be delivered after the occurrence of a fire, if it purports to take effect prior to occurrence, and is the memorial of a prior parol contract for such a policy agreed to in its essentials, and which the parties intended should take effect as stated in the' policy. In such case, it seems that the policy may have taken effect without actual delivery to the insured or his agent.</p> <p>Id.—Absence of Prior Agreement—Nonliability for Premium.— In the absence of such a prior agreement as would bind the insurance company and render the insured person liable for the premium, the delivery of the policy after the building bad been destroyed by fire, to the knowledge of the parties, could not give any effect to the instrument.</p> <p>Id.—Action Upon Policy—Evidence—Acts and Declarations of Agents—Res Gestae.—In an action upon such policy, all of the acts and declarations of the agents of the fire insurance company which might characterize their intent while they were engaged in the business of the insurance, and until the delivery of the policy, are admissible against the insurance company as part of the res gestae.</p> <p>Id.—Subsequent Narrations—Hearsay.—The declarations of the agents of the defendant, made at a time subsequent to the delivery of the policy or when they were not acting for the defendant in any business connected therewith, and which were not part of the res gestae, but are mere narration or illustration of their past conduct, are incompetent hearsay.</p>

<p>Foreign Corporation—Power of Local Manager—Assignment of Check for Collection.—The power of a local manager of a foreign corporation to sell chattels and receive the price, with a special direction from the corporation to collect a dishonored check given to the corporation, upon a sale of goods by the local manager, does not carry with it the power to assign such check to another person for collection against the drawer of the check. And the person to whom such manager assumes to assign the check cannot maintain an action thereon in virtue of such assignment.</p>

A. S. Kittredge, Judge. The pleadings and findings disclose that oh the thirteenth day of December, 1897, plaintiffs executed a written lease of a tract of eighteen thousand two hundred and fifteen acres of agrieultural land in the Rancho Yerba Buena in Santa Clara county to the defendant, for a fixed term ending October 1, 1898; that the lease did not provide expressly for a re-entry; that defendant held possession during the term, and continued to hold possession…

<p>Fstates of Deceased Persons—Action Upon Rejected Note-Evidence— Nonpayment — Prima Facie Case — Burden of Proof.—In an action against the administrator of a deceased person upon a rejected note a prima facie case of nonpayment of the note is made by the introduction of the note in evidence, with the indorsements thereon, and proof of the signature of the decedent thereto, and of the due presentation of the claim and its rejection; and the burden of proof was thereby cast upon the defendant to prove by competent evidence that the note had been paid; or to raise a legal presumption of payment sufficient to rebut the prima facie case made by the plaintiff.</p> <p>Id.—Prior and Subsequent Notes Secured by Mortgage—Presumptions.—Mere proof that a note secured by mortgage had been executed by the deceased prior to the note in suit, and that a subsequent note and mortgage had been executed about a year and a half thereafter, for about the amount then due on the old mortgage and the note in suit, without any evidence that the new note and mortgage was in payment of the old, or as to the consideration thereof, or any evidence that either of the mortgages had any connection with the note in suit, cannot raise any presumption of payment of the note sued upon; but it must be presumed that if the note had been paid, it would have been delivered up, and it being found at the death of the decedent in possession of the plaintiff, it must be presumed that it had not been paid by the decedent.</p> <p>id.—Subsequent Payments by Deceased.—The note in suit having been indorsed with numerous payments in the handwriting of the deceased subsequently to the execution of the last mortgage, it cannot be presumed that the note was included in the last mortgage and settled thereby in the ordinary course of business.</p> <p>Id—Receipts for Money not Indorsed.—Receipts given to the plaintiff by the deceased for money not indorsed on the note, should be such in their contents as to raise a presumption that the money included therein was money paid on the note.</p>

<p>Municipal Corporations—Waterworks—Vold Bonds—Control of Bunds Raised by Taxation.—Money raised by taxation toward the payment of void municipal bonds voted for the construction of waterworks by the city, is free from the direction of the statute, and need not be kept in a water-bond fund; but, - if free from the claims of the taxpayers who paid it, it may be transferred by the city authorities to the general fund, and may be used by them in proper expenditures to secure plans and estimates of cost from an engineer for proposed waterworks, ■before submitting the question of bonds again.to the people.</p> <p>Id—Injunction—Suit by Resident Property-holder.—An elector and resident property-holder of the city, who does not seek to recover any part of the taxes paid to the city upon void water-bonds, cannot maintain a suit in equity for an injunction to restrain the city authorities from transferring the money raised by taxation therefor to another fund, to be used for a lawful purpose by the city.</p> <p>Id.—Remedy at Law for Persons Aggrieved.—A court of equity will not restrain the officers of a municipality from doing an act •which will not injure the complainant, and in a matter where there is an adequate remedy at law given to persons aggrieved.</p>

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

<p>Conversion of Personal Property—Findings—Damages—Necessary Implication.—In an action for damages for the conversion of personal property, findings in favor of plaintiff’s ownership and possession, and that the defendant sheriff took the property and sold the same as alleged in the complaint, that it was of the value of seven hundred dollars, and that by virtue of the levy and sale said property was entirely lost to the plaintiff, followed by a conclusion of law that plaintiff is entitled to recover of the defendant the said sum of seven hundred dollars with interest, though informally drawn, necessarily imply that plaintiff was thereby damaged in the amount of the value of the property, and are sufficient to support the judgment without an express finding to that effect.</p> <p>Id.—Finding of Probative Facts.—Where probative facts are found from which the court can declare that the ultimate facts necessarily result, the finding is sufficient.</p> <p>Id.—Demand Upon Sheriff—Ownership of Property—Cause of Action.—The demand upon the sheriff is no part of the cause of action for conversion of the property, but is a mere statutory requirement for the benefit of the sheriff; and it is not necessary that the findings should specifically show that plaintiff was the owner of and entitled to the property at the time of such demand.</p>

<p>Opening of Street—Award of Damages to Estate of Decedent —Void Deed of Administrator.—Upon the opening of a street by a city, and the award of damages therefor to the estate of a deceased person, a deed to the city by the administrator of the land of the estate taken by the city for the street, executed without an order of court authorizing it, is void.</p> <p>Id.—Use of Damages for Benefit of Estate—Consent of Heib— Action by Grantee.—Where the damages awarded to the estate were paid to the administrator and used for the benefit of the estate, which was settled with the full consent of the sole heir, after knowledge of all the. facts, his grantee, with like knowledge, cannot maintain an action to recover the damages a second time from the city.</p> <p>Id.—Action for Damages—Title not Involved.—In an action by the grantee of an heir to recover damages for the taking of land of the estate by the city, under a void deed of the administrator, the title to the land, or the right of the city to retain possession of it as against the heir, is not involved.</p> <p>Id.—Possession and Payment by City under Mistake of Law-Trespass—Duty of Administrator to Collect Damages.— The taking of possession of the street by the city and the payment of the damages, under a mistake of law as to the unauthorized deed of the administrator, has no other effect upon the claim for damages than if the city had taken possession by trespass, without the knowledge or consent of the administrator; and the claim for damages being an asset of the estate, it was the duty of the administrator to collect the damages for its benefit.</p> <p>Id.—Statutes as to Sales of Land Inapplicable.—The statutes relating to sales of land by an administrator, compliance with which is essential to a valid sale, have no application to claims for damages accruing to the estate by reason of acts of trespass upon the land.</p> <p>Id.—Effect of Distribution to Heir.—The heir having consented to the settlement of the estate with the claim for damages included therein by the administrator to his knowledge for the benefit of the estate, took the estate on distribution freed from any claim against the city on account of the damage to the land taken for the street; and his grantee stands in his shoes in relation thereto.</p>

John Reynolds, Judge. The facts are stated in the opinion rendered upon this appeal, and in those rendered by the court upon former appeals, 93 Cal. 237, and 104 Cal. 672.

<p>New Trial — Excessive Damages fob Seandeb — Conditional Obdeb—Power of Coubt.—Upon a motion for new trial upon the ground that excessive damages were awarded by the jury to the plaintiff in an action for slander, under the influence of passion or prejudice, the court has power to make a conditional order granting a new trial, unless the plaintiff shall remit the portion of the judgment for damages deemed by the court to be excessive.</p> <p>Id.—Damages fob Personal Tort—Duty of Court—Discretion-Review upon Appeal.—In an action for damages for a personal tort, the court should not substitute its judgment for that of the jury, and should not grant a new trial for excessive damages, unless it is so excessive as to indicate that it was given under the influence of passion or prejudice. But the action of the court in granting a new trial upon that ground will not be disturbed upon appeal where it does not clearly appear that its discretion to grant it has been abused.</p> <p>Id.—Order Granting New Trial—Review of Grounds of Motion. An order granting a new trial upon any ground may be sustained by the respondent upon any point involved in the motion.</p>

Stanton L. Carter, Judge. The complaint alleged title in plaintiff, and set forth facts leading to the allegation that the title of plaintiff was clouded and menaced by the sheriff’s deed to the defendant Deuel, and prayed that the judgment under which the sale was made be declared void, that the sheriff’s deed be canceled and declared void, and that the writ of assistance and all acts done thereunder be declared void.

<p>Fbaudulent Conveyance—Findings—Considebation— Sufficiency of Evidence—Review upon Appeal.—Where a conveyance by an insolvent debtor to his brother, antedating an attachment and execution sale of the interest of the debtor, was assailed as fraudulent by the execution purchaser, a finding that the conveyance was executed for a valuable consideration in payment of large indebtedness of the debtor to his brother, is sufficiently supported by their testimony to such consideration, if not contradicted or impeached otherwise than by its own weakness, though it may seem in some respects inherently improbable to the appellate court, which cannot substitute its opinion upon the weight of testimony for that of the trial court sitting as a jury to try the case.</p> <p>Id.—Deliveby of Deed to Attobney of Geantbe.—A finding that ■the deed was delivered to the brother as grantee is sufficiently supported by testimony that it was drafted by his attorney at his request, and forwarded to the grantor for execution, and was returned to the attorney and held by him for the grantee after its execution.</p> <p>Id.—Pbesumption of Title—Bubden of Pboof as to Fbaud.—The deed having been executed for a valuable consideration and delivered to the grantee, the law presumes that the title was rightfully acquired by him; and the burden of proof is upon the execution purchaser to show that it was conveyed with fraudulent intent on the part of the grantor, and that the grantee purchased with knowledge of such fraudulent intent, or under such circumstances as to put him upon inquiry as to the fraud of the grantor, and was not taken by him in good faith.</p> <p>Id.—Goon Faith op Grantee—Support op Finding—Absence op Proop.—A finding in favor of the good faith of the grantee as a purchaser for value without notice of fraud on the part of the grantor, is supported by the absence, of proof of facts and circumstances putting him on inquiry as to such fraud.</p> <p>Id.—Circumstantial Proop op Fraud—Suspicion Insufficient.— Fraud may be proved by circumstantial evidence, but evidence of the facts and circumstances from which fraud may be inferred must amount to proof of fraud; and to create a mere suspicion thereof is not sufficient to overcome the presumption of law in favor of the fair dealing of the parties.</p> <p>Id.—Immaterial Finding—Intent of Grantor.—Where the court finds that the grantee was a bona fide purchaser for value without notice of any fraud on the part of the grantor, a finding as to the intent of the grantor in making the conveyance is immaterial.</p> <p>Id.—Issue as to Consideration—Conjunctive Denial—Trial op Issue—Objection upon Appeal.—The objection that no issue was raised upon an averment as to want of consideration for the deed in controversy, by reason of a conjunctive denial in an answer, cannot be urged for the first time upon appeal, where the case was tried in the superior court upon the theory that the denial was sufficient to raise an issue as to the consideration, and the answer might have been amended to meet the objection if raised in the superior court.</p> <p>Id.—Conveyance by Bona Fide Purchaser—Protection op Grantee.—A conveyance by a bona fide purchaser without notice of the fraud of his grantor passes a perfect title to his grantee, as against an execution purchaser claiming under the original grantor, and it is immaterial whether any consideration was paid therefor, or whether the conveyance was intended as a mortgage as between the parties, or whether the grantee was a bona fide purchaser, or had or had not notice of the fraud of the original grantor.</p> <p>Id—Action to Quiet Title—Possession—Immaterial Finding.— Possession is not essential to the maintenance of an action by the owner of land to quiet his title thereto; and a finding upon that question is immaterial, and it is immaterial whether it is supported by the evidence.</p> <p>Id.—Evidence—Repetition op Examination op Witness.—It is not prejudicial error for the court to disallow questions asked of a witness upon a third cross-examination, which were merely in repetition of questions previously asked of the witness, and answered by him.</p> <p>Id.—Leading Questions—Discretion.—It is in the discretion of the trial court to permit a party to ask leading and suggestive questions of his witness, and a case will not be reversed on that ground, unless there is a manifest abuse of discretion.</p> <p>Id.—Letter erom Stranger—Advice to Insolvent to Convey to Writer.—A letter from a stranger addressed to the insolvent debtor, and advising him to make a conveyance to the writer to prevent a threatened attachment, which was not acted upon by the insolvent, nor consénted to by any of the parties or their privies, is inadmissible in evidence.</p> <p>Id.—Evidence oe Consideration—Borrowing oe Money Given-Payment oe Debt by Deed.—Upon the issue as to the consideration of the conveyance by the insolvent to his brother, evidence is relevant and admissible to show that at 'a time when the debtor was not insolvent he gave two thousand dollars to his brother from the proceeds of land deeded to him by his father, and that the money thus paid to his brother was afterward borrowed by him, and that the payment of the debt for such borrowed money was the consideration for the deed. He had a right, then, to make such gift; and the payment of the indebtedness to his brother for the borrowed money was a consideration sufficient to support the deed.</p>

APPEAL írom a judgment of the Superior Court of the City and County of San Francisco and from an order denying a motion to vacate the judgment and to render judgment for the plaintiffs. J. 0. B. Hubbard, Judge. The facts are stated in the opinion of the court,

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

<p>Tender Pending Appeal from Judgment—Stoppage of Interest.— A tender by the defendant, to the plaintiff, pending an appeal by the plaintiff from a judgment in his favor, of the full amount of the judgment, with all costs, and interest to the date of the tender, if refused, stops interest from the date of the tender.</p> <p>Id.—Tender to Client Pending Suit—Authority of Attorney.—A tender pending suit is properly made to the opposite party personally, and need not be made to his attorney, whose authority to control the suit does mot preclude such tender. It primarily rests with the client, and not with his attorney, to decide whether or not the amount tendered shall be accepted in full satisfaction of his claim for money due.</p> <p>Id.—Refusal of Tender—Release of Interest.—The refusal by a plaintiff pending his appeal from a judgment of a valid tender made to him by the defendant, operates as a release by the plaintiff as judgment creditor of all interest which would otherwise have accrued thereon after the date of the tender.</p> <p>Id.—Conditional Tender—Demand for Receipt.—In this state, under section 1499 of the Civil Code, a debtor has a right to demand a written receipt from his creditor of any property delivered in performance of his obligation; and a valid tender of a sufficient amount may be properly conditioned upon a written receipt for the money tendered as payment in full of a judgment with interest and costs.</p> <p>Id.—Deposit of Money Tendered.—The money tendered need not be deposited in court, when it is not sought to extinguish the obligation, but merely to stop the running of interest.</p> <p>Id.—Interest upon Judgment—Stay of Execution—The stay of execution upon a judgment for the plaintiff pending an appeal therefrom by the plaintiff does not operate to suspend the running of interest, or preclude a tender by the defendant for the purpose of stopping interest thereon.</p> <p>Id.—Application to Supreme Court—Jurisdiction.—The respondent was not bound to make any application to the supreme court pending the appeal by the plaintiff for leave to make the tender. The supreme court took the case as made up in the trial court, and had no jurisdiction to examine into the merits of the tender.</p> <p>Id.—Remittitur—Payment of Money Tendered—Duty of Superior Court.—Upon the going down of the remittitur, the defendant had the right to bring the money tendered into court, and it then became the duty of the superior court to inquire into the effect of the tender, and to determine the amount required to satisfy the judgment.</p>