Volume 126 — California Reports

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

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

<p>Action upon Street Assessment—Insufficient Defense—Damage to Lot by Grading, Without Compensation.—An action by a contractor to enforce a street assessment cannot be defeated by the owner of the lot upon the ground that the contract contemplated the damaging of his lot by the grading of the street to its official grade, without compensation first made by the . supervisors, where it is not made to appear that the contractor knew that compensation had not been made, and where none had been demanded by the owner of the lot, and he did not object to the doing of the work, or endeavor to stop it.</p> <p>Id—Taxing Power—Eminent Domain—Setoff.—The right of the contractor to enforce an assessment grows out of the taxing power; and any right of action in favor of the owner of the lot assessed for damages against the city growing out of that part of the constitution which deala with the exercise of the power of eminent domain cannot render void the assessment made under the taxing power; nor can such right of action for damages be used as a defense, or as a setoff or counterclaim to the cause of action sued upon by the contractor.</p> <p>Id.—Second Assessment—Final Judgment of Superior Court-Abandonment of Appeal.—The judgment of the superior court declaring a first street assessment invalid for informality is a final judgment of a court of this state, within the meaning of section 9 of the street law of 1891, providing for the levying of a second assessment; and the application of the' contractor for the second assessment instead of appealing from the judgment substantially abandons an appeal therefrom, and he is not required to wait for the lapse of the time for appealing before making his application.</p> <p>Id.— Judgment Against Owner — Fictitious Defendants not Served.—The judgment in favor of the sole owners of the property is not less final because there is no judgment in reference to fictitious defendants not served, and who did not appear in the action.</p> <p>Id.—Certificate of City Engineer—Expiration of Office—Use of Data by Successor.—An assessment is not invalid because the one who was city engineer when the work was completed went out of office without making the certificate required by the street law. The person in office as city engineer at the time of making the certificate is the proper one to make it; and for that purpose a succeeding engineer may use the official data found in the office,</p>

W. H. Clark, Judge. The action was originally brought in the name of Ida M. Butler, an insane person, by Anna W. Jones, her guardian, to quiet her title to the homestead in controversy. Pending the action, Ida M. Butler died, and Anna M. Jones, as administratrix of the estate of Ida M. Butler, deceased, was substituted as plaintiff.

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

<p>Husband and Wife—Oontbaot—Change of Separate Estate to Community Property.—In this state, a husband and wife may, by contract between them, alter their relations as to property; and they may by a valid agreement transmute their separate estate into community property.</p> <p>Id.—Conveyance to Husband and Wife — Presumption as to Separate Estate—Transmuting Agreement — Survivorship of Husband.—Real property purchased with the separate estate of the husband, and conveyed to the husband and wife jointly, is presumed, under section 164 of the Civil "Code, to be the separate property of each, as tenants in common; but a valid agreement between them that it is community property transmutes the estate into community property, and, upon the death of the wife, the title to the whole property is vested in the husband as the survivor of the community.</p> <p>Id.—Finding as to Agreement — Construction — Written Contract.—A finding that the husband and wife agreed that the property standing in the name of either of them was community property, imports that the agreement between them was a valid written contract, duly executed.</p> <p>Id.—Foreclosure of Mortgage to Husband and Wife—Trust-Action to Quiet Title.—Where a mortgage made to the husband and wife jointly was foreclosed by the husband and the wife’s administrator, as coplaintiffs, and the title under foreclosure was taken in trust for the benefit of the husband and of the wife’s estate according to their respective interests in the decree, by one who afterward became administrator of the wife’s estate, the husband cannot maintain an action to quiet title against the trustee, either individually or as administrator of the wife’s estate. '</p> <p>Id.—Claim of Separate Property.—The fact that the consideration for the note was advanced out of the separate property of the husband cannot entitle him to maintain a suit to quiet title against the trustee individually or as administrator of the wife’s estate, it appearing that the estate of the wife has an interest in the decree at least to the amount of the expenditure made as coplaintiff in procuring it.</p>

<p>County Government Act—Fees of Surveyor in San Diego County-t-Repeal—Provision fob Salary.—Section 145 of the County Government Act of 1893, which was applicable to all of the counties of the state, fixing the fees of the county surveyor at ten dollars per day for all work performed, was repealed by section 165 of the County Government Act of 1897, as to the class of counties to which San Diego belonged, providing a salary for the county surveyor therein, in lieu of all fees and per diem theretofore allowed by law.</p> <p>Id.—Validity of County Government Act of 1897—Constitutional Law.—Section 165 of the County Government Act of 1897 providing for salaries in certain counties in lieu of fees and per diem allowed under section 145 of the County Government Act of 1893, and sections 283 and 234 of the act of 1897, providing that the changes made by that act from fees to salaries should take effect from a fixed date, and should not affect incumbents having existing fixed salaries, are valid and constitutional, and are not objectionable for want of uniformity of operation, nor as being special legislation affecting the fees or salaries of officers.</p> <p>Id—Uniformity of Operation of Statute.—A statute is uniform in its operation if it applies alike to all persons or objects within the class to which it relates.</p> <p>Id—Discretion of Legislature—Fees and Salaries of County Officers—Diverse Regulations—The legislature has peculiar discretion in determining the mode and measure of the compensation of county officers, and may provide that some officers may receive fees or per diem, and that others shall receive regular salaries, and may adopt diverse regulations applying severally to each class, and not to the other.</p> <p>Id—Reasonable Differences of Adjustment—Distinction between Incumbents—Special Legislation.—A statute conforming reasonably to the diverse circumstances of feed and salaried officers, and which does not proceed upon an arbitrary distinction, but upon intrinsic differences, suggesting the propriety of different adjustments relating to feed and salaried incumbents, is not special legislation within the prohibition of article IV of the constitution.</p>

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

<p>Chose in Action—Situs—A chose in action has no definite situs, but must follow the person of its owner.</p> <p>Id.—Debt from Residents to Foreign Corporation.—A debt due from residents of this state to a foreign corporation has no situs in this state, but is in contemplation of law in the state of its charter, and is there vested in the corporation, up to the time of a legal assignment thereof by the corporation.</p> <p>Id.—Assignment for Benefit of Creditors—Title of Assignee— Attachment.—A legal assignment by the foreign corporation for the benefit of its creditors, made in a state other than that of its charter, in which it was doing business, and made in conformity with the laws of that state, to a resident thereof, vests title in the assignee to a debt dug to the corporation from residents of this state; and such debt cannot thereafter be attached in this state by a creditor of the corporation.</p> <p>Id.—Conflict of Laws—Validity of Assignment—A contract, valid by the law of the place where it is made, is, as a general rule, valid everywhere; and a voluntary assignment, for the benefit of creditors, which is valid by the laws of the state where it is made, will operate to convey personal property not already subject to liens, in every state where it may be found.</p> <p>Id.—Notice of Assignment—Attachment.—Notice of the assignment for the benefit of the creditors of the foreign corporation need not be given to debtors of the assignor residing in this state prior to the service upon them of an attachment at suit of a creditor of the assignor; but it is sufficient if the debtors receive notice subsequently thereto in time to avail themselves of the assignment to defeat the claim of the attaching creditor against them.</p> <p>Id.—Presumptions—Place of Assignment—Validity—Conduct of Assignee—It is to be presumed that an assignment made by a Minnesota corporation for the Benefit of its creditors to an assignee residing in Illinois, where the corporation was doing business, and made in conformity with the laws of Illinois, and conducted by the assignee under the direction of a court in that state, was made in Illinois, and is valid in all respects, and that the law has been obeyed, and the ordinary course of business pursued by the assignee.</p> <p>Id.—Construction of Code as to Assignments.—The provisions of the Civil Code of this state, in relation to assignment for the benefit of creditors, apply to general assignments of property situated in this state; and, under section 3451 of that code, a person residing in another state or country is not prevented from making there, in good faith, and without intent to evade the laws of this state, a transfer of property situated in this state. But none of the provisions of our code have application to a general assignment for the benefit of creditors made in another state which includes only a chose in action against residents of this state, having no situs therein, and in respect to which no rights of any of the citizens of this state are involved prior to the assignment.</p>

<p>APPEAL from® a judgment of the Superior Court of San Rernardino County and from an order denying a new trial.</p> <p>The facts are stated in the opinion.</p>

<p>Appointment of Guardian — Vacating Ordbp. — Limitation of-Time—Jurisdiction.—An order appointing a guardian of the person and estate of a minor may be vacated at any time, if the-1 record of the appointment discloses affirmatively upon its face that the order was void for want of jurisdiction of the court to-mate it; otherwise, the order cannot be vacated after six months ■ from its date, whether the application to vacate is or is not made under section 473 of the Code of Civil Procedure.</p> <p>Id.—Notice to Person in Custody of Minor—Mandatory Statute.—Section 1747 of the Code of Civil Procedure, requiring the court to cause reasonable notice to toe given to any person having the care of the minor, before making an appointment of a. guardian, is mandatory; and such notice is necessary to give the court jurisdiction to make the order of appointment.</p> <p>Id.—Sufficiency of Record of Appointment—Lack of Jurisdiction not Appearing—Evidence Aliunde.—Where the record of the appointment of the guardian shows the consent of the relatives of the minor residing in the county, and does not af- • flrmatively show that notice had not in fact been served upon the person haying custody of the minor, the lack of jurisdiction does not appear from the record. The absence of. such service may be proved by evidence aliunde under an application made within six months to vacate the appointment; but, after the lapse of that period, the applicant can produce no evidence aliunde, and is conclusively hound by the record.</p> <p>Id.—Service, and not Proof, the Basis of Jurisdiction.—The' fact of service and not the proof of service, gives a court jurisdiction .. to hear and determine; and the absence of proof of service, does not affirmatively show a lack of jurisdiction upon the face of the record.</p>

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

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

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

<p>Malicious Prosecution—Suing out Warrant of Arrest—Husband and Wife—Joinder of Causes—Separate Actions.—■ Upon a malicious suing out of a warrant of arrest of a husband and wife, upon a criminal charge without probable cause, each has a separate right of action for the malicious prosecution, and they cannot unite their separate causes of action, in' one complaint, but each must bring a separate action for damages.</p> <p>Id.—Action by Wife—Husband a Necessary Party—Damages— Community Property—Joint Recovery.—The wife cannot sue alone for the malicious prosecution against her, her husband being a necessary party coplaintiff with her; and, as the damages recovered for the injury resulting to the wife are community. property, the verdict and judgment for such injury may properly be given in favor of the husband and wife jointly.</p> <p>Id.—Pleading—Joint Arrest—Matter of Inducement—Uncertainty.—Where the complaint by the husband and wife sufficiently shows that the injury sustained by the malicious prosecution of the wife is the basis of the action, the complaint may properly state the facts connected with the suing out of the warrant of arrest of the husband and wife, as matter of necessary inducement, and is not objectionable for uncertainty in so doing.</p> <p>Id.—Review dton Appeal—Uncertainty not Misleading.—The judgment will not be reversed upon appeal for uncertainty of the complaint alone, where- the answer and trial show that the defendant could not have been misled thereby to his injury.</p> <p>Id.—Demurrer for Uncertainty—Statement of Particulars.—A demurrer cannot be sustained for uncertainty as to any matter in reference to which no particular grounds of uncertainty are stated.</p> <p>Id.—Demurrer fob Misjoinder—Support of Ground not Alleged. The misjoinder of parties is a distinct ground of demurre'r from the misjoinder of causes of action; and when one of these grounds is stated alone, the demurrant will not be permitted to support the demurrer upon facts showing the ground of demurrer which is not alleged.</p> <p>Id.—Admission of Defendant—Testimony at Preliminary Examination-Mode of Proof.—An admission of the defendant, made in his testimony given at the preliminary examination of the plaintiffs after their arrest by him, may be proved by the evidence of anyone who heard the testimony, and need not be proved by the shorthand notes of the examination.</p> <p>Id.—Charge of Stealing Deeds—Evidence—Record of Deeds.— Where the defendant sued out a warrant for the arrest of the plaintiffs upon a charge of larceny in stealing deeds, evidence is admissible to show that the deeds were recorded at the request, of the defendant prior to the alleged larceny, as tending to show that the defendant acted maliciously in charging the larceny of deeds belonging to others and not to him.</p> <p>Id.—Delivery of Letter and Telegram Prior to Arrest—Decla- ■ ration of Telegraph Operator—Hearsay—Harmless Ruling.—Where the defendant testified that he sent a letter and telegram to the plaintiffs before suing out the warrant of arrest, informing them that he would act on their failure to reply, evidence that the operator informed him that the telegram had been delivered is admissible on the question of malice and probable cause, and should not be stricken out as hearsay; but its exclusion is not prejudicial error where plaintiffs testified that the letter and telegram were received before the arrest.</p> <p>Id.—Striking out Evidence—Presumption as to Ground.—Where a motion to strike out evidence is granted, it must be presumed to have been stricken out on the ground stated, and the ruling cannot be sustained upon a different ground not stated.</p> <p>Id.—Evidence of Another Offense—Remote Transactions.—Evidence of another offense cannot be given, unless there is some clear connection between the two offenses by which guilt of the one may be reasonably inferred from guilt of the other; and a defendant sued for a malicious arrest of the plaintiffs upon a charge of grand larceny cannot prove that, some ten years prior thereto, defendant had reason to suspect that plaintiffs took some of his property.</p> <p>Id.—Declarations of Defendant to His Attorney.—The attorney of the defendant cannot be permitted to testify to statements made to him by the defendant in the absence of the plaintiffs. Such declarations are self-serving and inadmissible.</p> <p>Id.—Instructions—Requests by Parties—General Exception.— A specific exception is only required to be taken to the charge of the judge given upon his own motion; and a general exception is sufficient in case of special instructions asked by the parties, and. given or refused by the court.</p> <p>Id.—Advice of Counsel—Subsequent Action in G6od Faith.—An instruction requiring that the defendant, in order to be shielded from a malicious prosecution by the advice of counsel, shall subsequently act in good faith upon the advice given, after having first fairly and fully stated to the attorney all the material facts then known to the defendant, is not erroneous in such requirement.</p> <p>Id.—Good Standing and Respectability of Counsel—Instruction not Prejudicial.—The requirement in an instruction as to the advice of counsel, that the facts must be stated “to a respectable attorney, in good standing,” is not prejudicial, when it appears that the facts were stated to a former district attorney, who must have been admitted to the bar upon strict examination and testimonials of good character, and who was proved, without conflict, to be a respectable attorney in good standing.</p> <p>Id.—Burden of Proof—Statement of Defendant to Counsel— Malice and Want of Probable Cause.—The burden of proof is upon the defendant to show that he fully, fairly, and in good faith stated to his counsel all the material facts; and there is no conflict between this rule and that requiring the plaintiff to show by a preponderance of evidence that the plaintiff was arrested maliciously and without probable cause.</p> <p>Id.—Advice of Police Judge—Frame of Instruction.—An instruction as to acting upon the advice of a police judge should be framed upon the same general lines as one relating to the advice of an attorney. A police judge need not be a lawyer in order that his advice may exonerate, nor should a requested instruction assume without proof that he was a practitioner of the law; but it must state that the advice must have been based upon a full, fair, and honest statement by defendant of all the material circumstances within his knowledge at the time, bearing upon the supposed guilt of the plaintiff.</p> <p>Id.—Excessive Verdict.—A verdict for the plaintiffs in the sum of two thousand dollars, in an action for malicious prosecution, cannot be set aside as excessive where it does not appear from the record to have been given under the influence of passion or prejudice, but the facts appearing show that the prosecution was malicious and unjustifiable.</p>

<p>APPEAL from a judgment of the Superior Court of Placer County and from an order denjúng a new trial. B. C. Bust, Judge Presiding.</p> <p>The facts are stated in the opinion.</p>

<p>Will—Contest — Forgery—Conflicting Evidence—Appeal.— A finding of the court that an alleged olographic will, which was refused admission to probate, upon a contest thereof, was a forgery, based upon conflicting evidence, which appears to preponderate in favor of the finding, cannot be disturbed upon appeal.</p> <p>Id.—Evidence—Testimony as to Handwriting—Opinion of Witness—Familiarity with Signature.—One who is proved to be familiar with the signature of the deceased is qualified under the law to give an opinion as to the genuineness of the will.</p> <p>Id—Use of Exemplars—Order of Proof.—The use of exemplars by the witness which had not, at that time, been directly proved to be genuine signatures, is not material, if the exemplars were subsequently proved to be genuine by uncontradicted evidence.</p>

<p>APPEAL from a judgment denying a petition for the revocation of the probate of a will and denying a new trial of the contest for such revocation. Edward A. Belcher, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from orders denying a new trial, and denying a motion to vacate the judgment for defendants, and to enter a judgment for the plaintiff. Walter Van Dyke, 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 for the payment of a tax upon collateral bequests. J. Y. Coffey, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

G. W. Hunter, Judge. The judgment appealed from, by its terms, expressly continued in force an order allowing temporary alimony in the sum of thirty dollars per month, “until the further order of this court, so that in the event of an appeal being taken, said allowance will be paid during the pendency of said cause on appeal.” Further facts are stated in the opinion of the court.

<p>APPEALS from a judgment of the Superior Court of Kern ■County. J. W. Mahon, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

APPEALS from a judgment of the Superior Court of Orange County, from an order denying a motion for new trial, and from parts of an order taxing costs. J. W. Towner, Judge. The facts are stated in the opinion.

<p>Drainage Act—Repeal not Effected.—The act of 1881, "to provide a system of drainage for agricultural, swamp, and overflowed lands,” was not superseded or repealed by .the act of 1885' “to promote drainage.” The latter act is not in its terms so repugnant to or inconsistent with the provisions of the former act that a repeal by implication must follow; and it is not designed to be revisory of the earlier act, and does not cover the same ground occupied thereby, and does not supersede it as-a later expression of the legislative will and intent upon the same subject matter.</p> <p>Id.—Condemnation of Land for Private Use—Act of 1881 Unconstitutional.—The drainage act of 1881 is unconstitutional, in permitting pi'ivate property to be taken or damaged for private use, and only-requiring that the condemnation of land for a ditch, drain, or watercourse thereunder shall “be conducive to the general welfare of the landowners petitioning therefor,” without requiring or intimating that the land is to be taken for any public use.</p> <p>Id.—Power of Legislature—Public Use—Legislative Question.—The legislature can take private property in this state only for public use, after just compensation made or paid, and cannot take or damage it at all for any private use. The legislature must, in the first instance, show that the consideration for the taking of private property is one of public necessity or convenience; and it is not a question for the courts to say whether a petition by any particular number of men indicates public necessity or convenience.</p> <p>. Id.—Former Decision not Binding.—The decision in the case of Holley v. County of Orange, 100 Cal. 420, in favor of the validity of the drainage act of 1881, as against certain specific objections urged thereto, was made upon points not here raised, and has no binding force in this action between other parties upon propositions not presented to nor considered in that case.</p>

<p>APPEAL from a judgment of the Superior Court of Monterey County and from an order denying a new trial. M. T. Dooling, Acting Judge.</p> <p>■The facts are stated in the opinion.</p>

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

<p>APPEAL from a judgment of the Superior Court of Kero County and from an order denying a new trial. J. W. Mahon, Judge.</p> <p>The facts are stated in the decision of the court upon the former appeal (116 Cal. 454), and in the opinion of the court rendered upon this appeal.</p>

<p>New Street Assessment—Final Judgment Invalidating Prior Assessment—Limitation.—A new street assessment cannot be made prior to a final judgment of a court defeating a prior street assessment for defects or illegality therein; and the special limitation of three months thereafter in which to make the new assessment begins to run from the entry of the final judgment invalidating the prior assessment.</p> <p>Id.—Decision upon Appeal—Award of New Trial—Invalid New Assessment.—A decision as to the -invalidity of a street assessment made upon- appeal from a .judgment of foreclosure, by which the judgment was reversed and a new trial awarded, has the legal effect to vacate the judgment and leave the case standing for trial in the superior court; and a new assessment made more than three months after the reversal, and prior to a dismissal or other final disposition of the cause pending in the superior court, is invalid.</p> <p>Id.—Pleading—Separate Defenses—Inconsistent Allegations.—An answer to the complaint for the foreclosure of the new assessment, setting up, in separate defenses, a denial of the assessment, a plea of a pending suit upon the prior assessment, and a plea of special limitation of the lapse of three months after rendition of final judgment in the supreme court before the new assessment was made, is not objectionable, because of inconsistency of the defenses; and the defendant cannot be deprived of the benefit of inconsistent allegations set up in the separate defenses.</p>

<p>Street Improvements—Assessment—Statutory Proceedings.—Proceedings for the improvement of streets are purely statutory. The right to an assessment and the lien created thereby can exist only hy virtue of the statute and in accordance with its terms; and the rights and .obligations of the parties are to be determined by the terms of the statute.</p> <p>Id.—Object of Amendment of Statute—Provision for New Assessment. The amendment of 1889 to section 9 of the street improvement act was designed to limit the time within which a second assessment might he made, and to prescribe the conditions under which the superintendent would be authorized to issue it. The right to a new assessment does not exist thereunder, unless it appears by the final judgment in a suit upon the prior assessment that the suit was defeated by reason of some infirmity in the assessment, or in the recording thereof, or in some matter connected with the return of the warrant.</p> <p>Id.—Construction of StItute—Absence of Certificate of Engineer— Validity of Lien.—The amendment of 1889 does not authorize the issuance of a new assessment in a case where the plaintiff was defeated in a suit upon the former assessment by reason of' the absence of a certificate of the city engineer and of the record thereof, or merely upon the ground that no lien had been created upon the property.</p> <p>Id.—Rights of Contractor—Enforcement of Complete Document— Acceptance of Less.—The contractor who has com Dieted his contract is not required to accept an incomplete or imperfect document from the superintendent of streets, and if it lacks the certificate of the engineer, or is otherwise incomplete, he may enforce the issuance of a document meeting all the requirements of the statute. But, if he accepts an incomplete document, and his lien is defeated thereby, he is not entitled to a second assessment, if the case does not fall within the terms of the amendment of 1889.</p> <p>Zn.—Pleading—Record of Documents—Conclusion of Law.—An allegation in the complaint upon a new assessment that the prior assessment, diagram, warrant, and purported engineer’s certificate were “never duly or properly or legally recorded” in the office of the superintendent of streets, is the averment of a legal conclusion, and not of a fact, and imports that the documents were recorded. The opinion of the plaintiff cannot be substituted for the judgment of the court; and the complaint should point out the defect in the record which is relied upon by the plaintiff.</p>

The complaint alleged that plaintiffs and defendant, on the nineteenth day of April, 1890, entered into a written contract, whereby defendant sold to plaintiffs the goodwill of a certain Avine and liquor business at Eo. 809 East Fourteenth street, city of Oakland, and then and there agreed in xvriting with the plaintiffs, buyers, to refrain from carrying on a' like business Avithin a radius of ten miles from said place of business in any direction within the county of…

<p>Appeal prom Judgment—Stay of Proceedings—Relief Requiring no Proceeding.—When the existence of the judgment appealed from affords all the relief awarded, and there is no proceeding to be had under it, section 946 of the Code of Civil Procedure does not apply to it. That section does not provide that the judgment shall be suspended, but only that no further proceedings shall be had upon the judgment appealed from, or iipon the ''matters embraced therein.</p> <p>Id.—Injunction in Judgment—Operation not Suspended bv Appeal.— An Injunction embodied in a judgment, which imposes no condition upon the plaintiff "to make it operative, is in effect upon the rendition of the judgment; and the stay of proceedings pending appeal therefrom provided for in section 946 of the- * Code of Civil Procedure has no application to suspend the operation of the injunction, notwithstanding a provision in the judgment that the defendant may take steps to vacate the injunction upon complying with a specified condition on his part.</p> <p>Id. —Motion to Vacate Injunction—Condition and Permission in Judgment—Proceeding Pending Appeal—Mandamus.—A motion by the defendant to vacate the injunction, upon alleged compliance with a condition specified in the judgment to be performed by him, and in accordance with permission given to him therein to make such motion upon such compliance, is a proceeding upon the judgment and upon the matters embraced therein, within the meaning of section 946 of the Code of Civil Procedure, and cannot be entertained by the court pending an appeal by the plaintiff from the judgment, regardless of the construction to be given to such condition and permission. Mandamus will not lie to compel the court to act upon the motion pending such appeal.</p>

<p>Trust—Conveyance from Husband to Wife—Action by Heir—Insufficient Findings. — In an action by an heir, in the interest of . himself and coheirs made defendants, to enforce a trust in real and personal property conveyed by a deceased husband to his wife, by deed absolute in form, a finding that the transfer was made by the decedent when in failing health under an agreement with the wife “to take and hold the same in trust for her said husband, and not otherwise,” followed by a finding of law “that, after his death, she continued to hold, and now holds, the said real and personal property in trust for the heirs,” are not sufficient, treating the finding of law as one of fact, to establish a declaration of trust in favor of the heirs, or to sustain a decree enforcing a trust in their favor in such action.</p> <p>Id.—Trust in Favor of Heirs—Uncertainty—Omissions in Finding.— The finding of a trust in favor of the heirs is too uncertain, indefinite, and vague to be enforced, and fails- to find as to the duration of the estate of the trustee, as to the nature and quantity of the interests of the alleged beneficiaries, as to what duties were imposed upon the trustee, and as to the manner of the execution of the alleged trust.</p> <p>Id.—Trust as to Land—Written Instrument—Operation of Law.—A trust as to land cannot be established except by a written instrument, or by operation of law; and where the deed is an absolute conveyance, without any written condition or limitation, or declaration of trust, and there is no finding that the wife obtained the property by fraud, accident, mistake, or undue influence, or any other wrongful act, or of any facts which would constitute her an involuntary trustee, or a trustee by operation of law, no trust as to the land is established.</p> <p>Id.—Conveyance from Husband to Wife—Presumption.—In the absence of any proof of fraud or undue influence, no presumption arises from the mere fact of a deed from the husband to the wife that it was procured by fraud or undue influence.</p> <p>Id.—Parol Agreement of Trust—Degree of Proof Required—Insufficiency of Evidence.—A parol agreement of trust under which an absolute conveyance was received can only be established by clear, convincing, and conclusive evidence; and where the evidence introduced by the plaintiff fails to establish any agreement as to a trust, or any declaration of trust, at the time of the execution of the deed, and only shows a loose and indefinite statement previously made by the grantee, which is not sufficient to turn an absolute deed subsequently executed into a certain and definite trust, and which was contradicted by the grantee, it is insufficient to sustain a finding that any trust was created by the deed.</p> <p>Id.—Finding against Absolute Deed—Review upon Appeal—Enforcement of Rule as to Proof.—Where an absolute deed has been found to be something else, the sufficiency of the evidence to support the finding should be considered by the appellate court, t in the light of the rule which should govern the trial courts.</p>

John Reynolds, Judge rendering judgment; John Reynolds and W. G. Lorigan, Judges denying a new trial. The facts are stated in the case of Sheehan v. SulMvan, ante, p. 189.

<p>Mortgages—Renewal of Note—Statute of Limitations—Rights of Second Mortgagee.—A mortgagee may extend the statute oE limitations as to himself by the renewal of the note secured by the mortgage; hut the mortgagor and first mortgagee cannot thereby extend the statute so as to affect the rights of a second mortgagee, who may take advantage of the statute of limitations-as to the original note, although the debtor does not, or cannot, take such advantage.</p> <p>Id.—Foreclosure of Second Mortgage—Payment of First Mortgage: Immaterial—Bar of Statute.—In an action to foreclose the second mortgage, the question whether the original note secured by the first mortgage was, or was not, paid and discharged by new notes given in lieu thereof, by the mortgagor, is not material to the rights of the second mortgagee, if the right of action upon the first mortgage was barred when the action was brought to foreclose the second mortgage.</p>

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

<p>Action foe Services—Employment op Physicians — Statements by Father of Sick Adult—Findings—Support of Judgment.—In an action for the services of'physicians employed by an adult sick person, whose father was made a codefendant, where it is found that the physicians undertook the treatment on the employment of the sick person, a finding that the father afterward made statements which caused them to believe that he would pay for their services, which does not show that the statements would justify such belief, or that the father intended they should be so understood, or that the seryices would not have been rendered if the statements had not been made, is not inconsistent with a judgment in favor of the father, and cannot aid an appeal therefrom.</p> <p>Sd.—Oral Promise of Father—Presumption upon Appeal.—Upon appeal from the judgment in favor of the father, where it appears from the findings that during the treatment of the adult sick person by the physicians the father orally promised to pay for their services, but it does not appear that the sick person resided with his father, or what services were rendered after the promise was given, or what was the value thereof, it must be presumed, upon appeal from a judgment in the father’s favor, that there was no proof from which a finding could be made on those matters, and the judgment must be affirmed.</p> <p>Id.—Bill of Particulars—Judgment-roll—Authentication—Certificate of Judge—Filing.—A bill of particulars is no part of the judgment-roll, and can only be brought up upon appeal by a bill of exceptions; and, if not so authenticated, it is improperly printed in the transcript, and cannot be considered as any part of the record upon appeal. It cannot be authenticated by a mere certificate of the judge, that it is the only bill of particulars filed , in the case. The statute requires it to be delivered to the adverse party; and does not require or expressly authorize it to be filed; and such certificate does not constitute legal evidence that the bill was ever demanded by or delivered to the adverse party.</p>

<p>Negligence—Liability of Municipal Officers—Neglect of Duty.— Though an action will not lie against a municipal corporation for the misfeasance, malfeasance, or nonfeasance of its officers nor against its officers, if their powers are discretionary, yet, if their duty is plain, certain, and imperative, or ministerial in its nature, and is negligently performed or not performed at all, its officers are liable in damages to anyone specially injured as the result of their neglect of such duty.</p> <p>Id.—Neglect to Repair Streets—Injury from Dangerous Culvert— Liability of Town Trustees and Marshal.—Where the duty of town trustees to keep the streets in repair is correlative with the right accorded to them by the charter, and the marshal, as ex officio street commissioner, is charged with the duty of keeping the streets in repair, they are jointly chargeable for negligently permitting a culvert to remain in an open and dangerous condition, whereby the plaintiff was personally injured, from falling therein, in the dark.</p> <p>Id.—Joinder of Parties—Concurrent Negligence—Sureties on Bond' of Marshal.—Where direct personal injury to the plaintiff was-caused by the concurrent negligence of the town trustees and the town marshal, they are properly joined as codefendants;, and the sureties on the bond of the marshal may also be joined as codefendants, without awaiting the result of the action against the marshal.</p>

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

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

<p>Action upon Bond of Liquor Seller—Municipal Ordinance—Jurisdiction of Superior Court.—The superior court has jurisdiction of an action to recover the sum of one thousand dollars for breach of a bond for that sum, which was exacted as a condition of granting a license to sell liquors under a municipal ordinance, and which provided that the applicant should conduct the business in a quiet, orderly and reputable manner, and not permit any disturbance of the public order or decorum by any noisy, . riotous or disorderly conduct.</p> <p>Id.—Construction of Municipal Corporation Act—Jurisdiction of Recorder’s Court.—The action upon such bond is not an action to recover a fine, penalty or forfeiture for breach of the municipal ordinance, nor is it founded upon any obligation or liability created by the ordinance, nor is it a prosecution for the violation of the ordinance, within the provisions of section 806 of the municipal incorporation act, giving exclusive jurisdiction to the city recorder’s court in such cases.</p> <p>Id.—Constitutional Jurisdiction of Superior Court—Power of Legislature.—The jurisdiction iof the superior courts is conferred by the constitution, and cannot be taken away by any act of the legislature.</p> <p>In.—Test of Jurisdiction.—The amount claimed in the complaint is the test of the jurisdiction of the superior court.</p> <p>In.—Insufficient Pleading of Municipal Ordinance.—A complaint on a bond of a liquor seller, given in pursuance of a municipal ordinance, does not sufficiently plead the ordinance by merely describing it as a certain numbered ordinance of the city, without referring to It by its title, or the date of its passage, or setting it out, or giving the substance of it.</p> <p>Id.—Judicial Notice—Special Legislation—Constitutional Law.— The provision of section 765 of the municipal corporation act, to the effect that in cities of the fifth class it shall not be necessary in any action, civil or criminal, to plead or prove the existence or validity of any ordinance thereof, and that courts shall take judicial notice thereof without proof, is special legislation regulating the practice of courts of justice, and in a case where a general law can be made applicable, in violation of section 25 of article IV of the constitution.</p>

<p>APPEAL from an order of the Superior Court of Glenn County dismissing an action for want of prosecution. Frank Moody, Judge.</p> <p>The facts are stated in the opinion.</p>

PETITION for a writ of habeas corpus in thg Supreme -Court to release the petitioner from imprisonment for contempt hyorder of the Superior Court of the City and County of San Francisco. James M. Troutt, Judge. The facts are stated in the opinion of the court.

The petitioner, Annie Kline Rickert, was the president of the Stockton and Tuolumne Railroad Company, a Corporation, and Robert S. Clarke was its secretary. In the case of Charles Erieksen against that corporation, brought in the superior court of the city and county of San Francisco, Robert S. Clarke-was summoned as a witness for the plaintiff, and was ordered to produce in court all of the books of the corporation.

<p>PETITION for writ of prohibition from the Supreme Court to the Superior Court of the City and County of San Francisco» J. B. C. Hebbard, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Stanislaus County granting a petition for a partial distribution of the estate of a deceased person. William 0. Minor, Judge.</p> <p>The facts are stated in the opinion, and in Estate of Mitchell, 121 Cal. 391.</p>

<p>Dupont Street Bonds—Demand bob Payment—Pbeeerred Cdaim.— Under the act of" 1876 for the improvement of Dupont street, in San Francisco, a mere demand upon the county treasurer for the payment of bonds and coupons issued thereunder, which is not followed by any legal proceeding to enforce payment, whether there be, or be not, at the time money on hand to pay them, does not give to the person making the demand a preferred claim to moneys in the county treasury passed to the credit of the bond and coupon funds. [Beatty, C. J., Temple, J., and Henshaw, J., dissenting.]</p> <p>Id.—Application of Money in Treasury—Mandamus—Refusal of Prior Demands.—A holder of such bonds making demand for payment of money in the treasury applicable to the payment thereof is entitled to a writ of mandate against the treasurer; and payment thereof cannot properly be refused on the ground that prior demands had been made upon the treasurer by the holders of other bonds, to whom payment had been refused, and who had taken no steps to enforce their claims. [Beatty, C. J., Temple, J., and Henshaw, J., dissenting.]</p> <p>Id.—Moneys Held in County Treasury—Certificate of Auditor Essential.—No moneys held in the county treasury by the treasurer are subject to the payment of demands, unless received therein upon the certificate of the auditor required by sections 4145 and 4217 of the Political Code.</p> <p>Id.—Special Deposit in Sealed Bags—Settlement of Tax Collector with Auditor—Power of Treasurer.—Moneys collected by the tax collector applicable to Dupont street bonds and coupons, which are mingled with other tax moneys, and left in sealed bags with the treasurer, prior to the settlement of the tax collector with the auditor, are a quasi special deposit. The treasurer has no duty to investigate as to such moneys, and has no authority to pay out any part thereof on any demands until such settlement is made, and the moneys are placed to the credit of the proper funds upon the certificate of the auditor.</p> <p>Id.—Delay of Tax Collector—Rights of Bondholder.—The delaj' of the tax collector in making his settlement with the auditor cannot confer the right upon a bondholder to compel payment by the treasurer of bonds and coupons prior to the settlement. He should first compel such settlement before making his demand upon the treasurer.</p>

<p>Mexican Grant—Reservation—Rights of Indian Occupants.—A Mexican grant reserving roads and other usages does not include-the reservation or preservation of any possessory or other right, or supposed right, of Indian occupants of the granted premises, or forbid the molesting of the Indians established thereon. [Beatty, O. J., McFarland, J., and Temple, J., dissenting.]</p> <p>Id.—Oonclusiveness op Patent—Claims of Indian Occupants not Presented—Case Overruled.—A patent of the United States to a Mexican grantee is conclusive upon all persons not claiming: under a superior title, such as would enable them to resist successfully any action of the United States government in disposing of the property, and concludes all claims of mission or pueblo Indians to occupancy of the patented lands which were-not presented to the board of land commissioners for confirmation. The case of Byrne v. Alas, 74 Cal. 628, overruled.. [Beatty, C. J., McFarland, J., and Temple, J., dissenting.]</p> <p>Id.—Construction of Act to Quiet Land Titles—Third Persons— Trust.—Indian occupants of the granted lands are not “third persons” who are entitled to protection within the meaning of the fifteenth section of the act of 1851 to quiet land titles; and there is no privity between them and the grantee, from which a trust can arise in their favor as against his grant, or the patent issued thereon, but the grantee holds in hostility to their claims.</p> <p>Id.—Duty of Commissioners—Report as to Status of Indians—Presumption.—Under section 16 of the act of 1851 making it the duty of the commissioners to report the status of the mission Indians to Congress, that it might provide for their future government, the Indians were treated as dependent upon the care- and generosity of the government, and were not classed as. Mexican citizens, who held rights of property. The presumption is that the proper inquiry and report was made by the proper officers before the confirmation of a Mexican grant.</p> <p>Id.—Decision against Occupancy of Indians.—A decision of the land commissioners, and other appropriate officers of the government of the United States, holding to the effect that the land granted at the time it was granted was vacant and subject to absolute alienation, is conclusive against all Indian and other claimants thereto.</p>

■ PETITION for writ of mandate from the Supreme Court to the Treasurer of the City of San Luis Obispo. The facts are stated in the opinion of the court.

<p>APPEAL from an order of the Superior Court of Riverside County directing the sale of mortgaged premises, upon motion, after an original judgment. J. S. Noyes, 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,</p>

<p>Counterclaim Less than Three Hundred Dollars—Jurisdiction of Superior Court—Defense—Compensation of Cross-demands.— In an action arising upon contract of which the superior court has jurisdiction, though it has no jurisdiction, if the plaintiff’s cause of action is defeated, to render an affirmative judgment in favor of the defendant upon a counterclaim upon another contract for less than three hundred dollars, yet it has jurisdiction, if plaintiff’s cause of action is sustained, to allow such a counterclaim by way of partial defense, and as matter of compensation and extinguishment of the cross-demands between plaintiff and defendant, so far as they equal each other, under section 440 of the Code of Civil Procedure.</p> <p>Id.—Answer, how Treated.—The answer alleging a counterclaim less than three hundred dollars may be treated as a defense, or as a counterclaim, according to its nature, considering the facts alleged; and the prayer of the answer is not a very material part thereof, and does not necessarily preclude the treatment of the answer as a defense, in a proper case.</p> <p>Id.—Prayer of Answer, when Immaterial—Admission of Cause of Action—Demurrer to Counterclaim.—The prayer of the answer for judgment in favor of defendant on such counterclaim is immaterial, if the counterclaim can only operate by way of partial defense and extinguishment pro tanto of plaintiff’s cause of action; and where the answer admits the cause of action, and pleads a counterclaim upon another contract for less than three hundred dollars, existing in favor of the defendant at the commencement of the action, for which the defendant prays judgment, it is error to sustain a demurrer to such counterclaim for want of jurisdiction in the superior court of the subject matter thereof.</p> <p>Id.—Circuity of Action, when not Bbquired.—The law does not require circuity of action, and the risk of the collection or setoff of cross-judgments, where, in a plain ease, all matters of setoff between the parties may, in the same action between the same parties, by one judgment, be at once finally settled and determined.</p>

<p>APPEAL from an order of the Superior Court of Yuba County dismissing an action for want of prosecution. John C. Gray, Judge, presiding.</p> <p>The facts are stated in the opinion.</p>

APPEAL fro-m an order of the Superior Court of San Diego County, denying a motion for a change of judges or a change of the place of trial of an action. J. W. Hughes and E. S. Torrance, Judges. The facts are stated in the opinion.

<p>Injunction—Execution by Sheriff—Parties Defendant—Plaintiffs in Execution.—In an action to enjoin a sheriff from proceeding under a writ of execution to cut a hole in a water pipe belonging to plaintiff, who was not a party to the' suit in which the execution was issued, the plaintiffs therein, though not necessary parties defendant, under section 389 of the Code of Civil Procedure, may be allowed to appear as codefendants, to assist the sheriff in defending the injunction suit; and, so long as they make no defense which the sheriff could not make, the plaintiff is not prejudiced.</p> <p>Id.—Restriction of Rights of New Parties — New Defenses and Causes of ActiÓn.—As a general rule, a plaintiff is entitled to select the parties defendant, and new parties, not necessary, who are brought in as defendants against the will of the plaintiff, cannot be allowed to set up against him new defenses and affirmative causes of action which the original defendant could not have set up, especially if the granting of the relief sought by the complaint would not prejudice the new matters and causes of action set up by them.</p> <p>Id.—Cross-complaint by Hew Parties—Quieting Title to Water Eight.—In the injunction suit to restrain the sheriff from cutting the water pipe of plaintiff, the court could not properly permit the plaintiffs in execution, when made codefendants against the plaintiff’s objection, to set up by a cross-complaint a cause of action in their favor (which the sheriff could not set up, and which was not involved in the original action, and constituted no defense thereto), to quiet their title, under an alleged contract with a water company, to run forty inches of water through the pipe of the plaintiff; and it is error to refuse to strike out such cross-complaint.</p>

<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>Action to Redeem from Trust Deed—Pleading—Insufficient Connection of Title.—A complaint in an action to redeem land held under a deed of trust securing indebtedness, which merely avers that the plaintiff is now the owner of the land, upon which a former owner executed the deed of trust, without connecting the plaintiff with the title held by such former owner, or claiming a subsisting interest under him, as distinguished from a hostile interest, does not show any right to redeem, and does-not state a cause of action.</p> <p>Id.—Stranger to Title Not a Redemptioner.—A stranger to the title-of a mortgagor, or of the grantor of a trust deed, who claims no subsisting interest under him, and does not act by his authority, has no right of redemption, and cannot make a tender of the debt, or otherwise intermeddle in the relations created by the mortgage or deed of trust.</p> <p>Id.—Amount Due—Uncertainty in Complaint.—A complaint averring-that the deed of trust was made to secure the payment of a specified sum, “and interest and matters incidental to said trust,” and alleging that no other or different sum than the specified principal sum is, or ever has been, due or payable or chargeable against the land, without disclosing any fact showing why the “interest and matters incidental” are not also due, is demurrable for uncertainty.</p>

<p>Appeal from Judgment—Review—Absence of Exceptions—Objections to Evidence Waived—Admissibility under Pleadings.—Upon an appeal from the judgment without a bill of exceptions, appellants necessarily admit that there were no errors in the admission or rejection of evidence, and that the evidence sustains the findings; and it cannot be considered whether the failure of the plaintiff to file an amended or supplemental complaint was or was not a ground for excluding evidence of facts occurring after the commencement of the action. It cannot be objected upon appeal for the first time that evidence was inadmissible under pleadings which might have been amended to justify the evidence.</p> <p>Id.—Judgment-roll—Motions and Rulings as to Pleadings.—Motions to strike out parts of a pleading, and to make it more definite and certain, and the rulings thereon, are not part of the judgment-roll, and cannot be reviewed on appeal from the judgment, in the absence of a bill of exceptions.</p> <p>Pleadings—Relief under Issues—Prayer for General Relief—Construction of Code.—The provision of section 580 of the Code of Civil Procedure, that in case of an answer the court may grant “any relief consistent with the case made by the complaint and embraced within the issue,” is but a concise statement of the rule observed upon the subject of relief in courts of equity; and, under the prayer of the complaint for general relief, any relief may be granted which is not inconsistent with the pleadings and the issues actually tried.</p> <p>Action to Annul Contract for Waterworks—Municipal Bonds—Accounting—Judgment for Loss—Relief under General Prayer.— In an action by a taxpayer against a city and its officers, and other persons interested, the object of which, as disclosed by the complaint, was to annul a contract of the city for waterworks, to prevent their construction, and to compel a return to the treasury of municipal bonds delivered to the contractor, to be retained therein until properly sold for money, where it appears at the trial of the issues that the Ijonds were in the hands of purchasers in New York, and that the waterworks had been constructed at a loss to the city, the court, besides annulling the contract under the special prayer of the complaint, may, under the prayer for general relief, charge the defendants responsible for the loss with the value of the bonds, and order them to be credited, upon an accounting, with the ascertained value of the waterworks, and may render judgment for the difference.</p> <p>Id.—Alternative Judgment for Sale of Waterworks.—A clause in the judgment in such action giving to the city the alternative of refusing to consent to the value of the waterworks ascertained as the result of an accounting, and to compel a sale of the waterworks to ascertain such value, is improper, and should be stricken from the judgment.</p> <p>In.—Right of Taxpayer to Sue—Motives—Pleading—Real Party in Interest—Immaterial Issue.—A resident taxpayer of the city is qualified to bring an action to invalidate a contract with the city for the construction of waterworks, and to prevent improper action thereunder; and his ulterior motives cannot disqualify him. A plea that the taxpayer is not the real party in interest, and that the action was prosecuted in the interest of a private corporation supplying the city with water, and that the action is one of a series instituted to hinder and delay the construction of waterworks by the city, presents an immaterial issue, upon which no finding is required.</p> <p>Id.—Consent of City Attorney to Action by Taxpayer—Construction of Charter.—A provision in the city charter making it the duty of the city attorney to represent the city in all suits to which the city is a party, and giving him power to prosecute violations of city "ordinances, and to collect delinquent taxes, does not give him power upon his own motion to commence suits for the city in other matters, and an action by a taxpayer to annul a contract for city waterworks does not require the consent of the city attorney, or any previous request therefor.</p> <p>Id.—Demand by Taxpayer upon City Authorities.—A demand by the taxpayer complainant upon the mayor and common council of the city, who are made defendants, to bring suit in the premises, was not necessary, as a condition precedent to bringing the action, where the complaint shows that such demand would have been useless.</p> <p>Id.—Demand for Return of Bonds.—The failure to demand a return of the bonds before suit is not ground of reversal, where the answer shows that they were sold to purchasers out of the jurisdiction of the court, and that the complete construction of the waterworks had been paid for out of the proceeds of the sale.</p> <p>Id.—Parties—Bondholders Out of State.—The holders of municipal bonds are proper parties to an action to invalidate the contract under which they were issued, and to compel their return to the treasury; hut, where it appears that they were out of the state, and thus beyond the jurisdiction of the court, they are not indispensable parties to the action, especially where no fact is alleged in the pleadings that would affect their title to the bonds if they had been parties.</p> <p>In.—City Clerk and Auditor.—The city clerk and auditor is not a proper party to such action.</p> <p>Id.—Misjoinder of Parties and-Causes of Action—Equitable Suit.— There is no misjoinder of parties or causes of action in an equitable suit by a resident taxpayer against the city, the mayor, and members of the common council, the city treasurer, ' and the contractor, and the proposed constructor of city waterworks, to annul the contract, and prevent the construction of the works, and to compel the return to the treasury of bonds delivered to the contractor. The contract and all proceedings under it are but the constituent parts of one entire thing, and all of those defendants are connected with the proceedings, and adequate relief requires their presence.</p> <p>Id.—Relief in Equity against Acts of Municipal Officers.—Courts of equity will not enjoin municipal bodies from the passage of ordinances or resolutions; but, after their passage, they will, upon a proper case shown, prevent their enforcement, and enjoin proceedings thereunder which would otherwise result in irreparable injury. i</p> <p>Id.—Pleading—Description of Municipal Officers—Personal Liability for Misconduct.—The fact that the mayor, members of the common council, and other municipal officers made defendants, are described in the complaint in their official capacities, and that relief was sought and properly had against each of them in his official capacity, does not preclude a recovery against them personally and individually, for a wrongful exercise of their official functions in excess of their official powers and duties, on account of which the municipality has suffered loss.</p> <p>Id.—Violation of Official Duties—Relation of Pleading to Judgment—Descriptio Personarum.—The violation by the municipal officers of their official powers and duties could not be shown" without showing their official positions; and, where relief is also sought against them in their official capacities, they are properly sued as officers, and the judgment will show the character in which they are liable. In so far as relates to the judgment against them personally for official misconduct, their offi- ' cial designations will be regarded as descriptio personarum.</p> <p>Id.—Common-law Liability of Officers.—Public officers are liable at common law to respond in damages to the extent of the injury arising from them neglect or refusal to perform ministerial duties.</p> <p>Id.—Loss to City from Change of Plans—Issue under Pleadings.— Where the complaint to annul the contract for city waterworks, and to prevent its performance, set out the contract which provided for changes by the city authorities, and for an increase or diminution in cost resulting therefrom, to be agreed in writing in advance of the changes, and set out proposed changes by the city, not appearing to be accompanied or preceded by such agreement, and alleged a plan of the defendants to prevent competition and to exchange bonds for the work, and the answer filed long afterward took issue as to such plan, and alleged that the waterworks were substantially completed, and the city was entitled to possession thereof without interference, losses resulting to the city from the change of plans are within the issues raised by the pleadings.</p> <p>Id.—Striking Out Separate Answer of jSonappealing Defendant— Joint and Several Judgment.—The question whether the court erred in striking out the separate answer of a nonappealing defendant, and whether the judgment against him exceeded the prayer of the complaint, is immaterial; and the appellants cannot be injured by a joint and several judgment rendered against them together with such nonappealing defendant.</p>

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

<p>Trial—Instructions to Jury—Irrelevance.—Irrelevant instructions to the jury are not necessarily erroneous. It must appear that they, at least, tended to mislead the jury.</p> <p>Negligence—Injury to Minor—Accidental Fall in Grossing Track— Playing with Trailer-cars—Instructions Relating to Passengers. Where a minor was injured by reason of an accidental fall upon a street railway track while running across it in front of a trailer-car, with which he and other boys were playing, and from- which he jumped while it was moving, instructions that street railway companies are not bound to the same care to avoid injury to persons not passengers as to those who are such, and that plaintiff was not entitled to the rights of a passenger when injured, are incomplete in not setting forth defendant’s liability to passengers; but are not misleading or prejudicial, where it appears that, the jury were fully instructed as to the law applicable to the facts in the case.</p> <p>Id.—Contributory Negligence of Minor uniter Fourteen—Going in Front of Moving Oar—Question for Jury.—Where the plaintiff was mine years of age when so injured, it was proper to instruct the jury that there is no presumption of law that the plaintiff did not have capacity to understand that it was dangerous for him to go in front of a.moving car, and that, unless the evidence shows that he did not have such capacity, contributory negligence on his part, if shown by the evidence, is a good defense to the action. It was proper to leave the question of contributory negligence to the jury, free from any presumption of plaintiff’s incapacity, though under fourteen years of age.</p> <p>Jd.-Manner and Places of Leaving Trailer-cars—Question for Jury—Authority from City—Immaterial Question—Consistent Instructions.—An instruction to the jury that the manner and places of leaving the trailer-cars on the track were to be considered by them in determining the question of the defendant’s negligence, is not inconsistent with or weakened by an instruction that the question whether trailer-cars were permitted to stand upon the track when not needed for carrying passengers was to be determined by the city authorities, and was an irrelevant and immaterial question in the case.</p> <p>Id.—Obvious Danger—Security of Cars by Brakes—Attraction for Children—Inconsistent Instructions—Review upon Appeal.—An instruction for the defendant that, if the jury believed from the evidence that the danger connected with the trailer by which plaintiff was injured was open to observation, and could be-comprehended by a boy of average intelligence of plaintiff’s age, and that the trailer when left on the track was secured by brakes of the ordinary kind, which held it stationary, unless the brakes were loosened, the plaintiff cannot recover, is-correct; and the plaintiff cannot, upon appeal from a judgment for the defendant, complain that such instruction was inconsistent with a more favorable instruction given for the plaintiff, leaving it for the jury to determine whether the cars were-of a dangerous nature, and likely to attract children for amusement and play.</p> <p>In.—Secured Trailer-cars not Dangerous Machines—Rule in Turntable Cases not Applicable.—Trailer-cars standing upon a track when not in use, and secured in place by ordinary brakes, are not “dangerous machines,” within the meaning of the rule applied in certain turntable cases, the consequences of meddling with which are not supposed to be fully comprehended by infant minds; and the instruction given for the defendant in regard to plaintiff’s comprehension of the obvious danger connected with a trailer so fastened, when the brakes were loosened, takes the case out of the class to which the turntable cases belong.</p> <p>Jury Trial—General .Verdict—Special Interrogatories—Discretion. Upon a trial "by jury, the court is authorized to instruct the. jury to find upon particular questions of fact to be stated in writing, if the jury render a general verdict. The court is not required thus to submit all of the issues; and it is matter resting in its discretion what special interrogatories shall be submitted to the jury.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from orders denying a motion in arrest of judgment and denying a new trial. B. FT. Smith, Judge.</p> <p>The facts are stated in the opinion.</p>

APPEALS from an order of the Superior Court of Los Angeles County denying a motion to amend a judgment and from an order in probate rejecting-the judgment as a claim against the estate of a deceased person. W. H. Clark, Judge. The facts are stated in the opinion of the court.

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

<p>Change of Place of Trial—Residence of Defendant—Question of Fact—Conflicting Evidence—Review upon Appeal.—In an action to recover the rent of a hotel leased to the defendant in the ' county of the venue in which the defendant’s family were residing at the time of the commencement of the suit, the question whether the defendant had changed his residence to another county before the action -was commenced is one of fact; ana where there is a conflict in the evidence upon that question, the action of the court below in denying his application to change the place of trial to another county in which he was served with summons, upon the ground that that county was his place of residence, will not be disturbed upon appeal.</p>

<p>Criminal Law—Trial—Examination of Jurors—Private Right to Enforce Law—Bias.—At a trial upon a criminal charge which may involve the question, the jurors may be asked upon their vovdire whether they believe that a man has the right to take the law into his own hands, and thereby commit a crime; and one who answers the question affirmatively has a bias which in law disqualifies him as a juror, unless it is made to appear upon further examination that the case could not under any circumstances come within the class toward which the bias extended. If the question is answered in the negative, and the examination then closes, there can be no substantial error in allowing the question to be put.</p> <p>In.—Testimony Taken at Preliminary Examination—Affidavit of Death of Witness.—The death of a witness whose testimony was taken at the preliminary examination must be proved at the trial in the same manner that any other fact is proved, by relevant and competent evidence, with the right of cross-examination, and cannot be established by the ex parte affidavit of a relative of the witness.</p> <p>Id.—Reporter’s Notes of Evidence—Constitutional Law.—The statute allowing the reporter’s notes of the testimony of witnesses taken at the preliminary examination to be introduced at the trial, upon its being satisfactorily shown to the court that the witnesses are dead or insane, or cannot, after due diligence, be • found in the state, is constitutional and valid.</p> <p>Id.—Striking Out Evidence—Subsequent Admission—Waiver of Objection.—An objection to an order striking out evidence is immaterial, where the same evidence is subsequently given by the witness without objection.</p> <p>Id.—Insanity—Opinions—Circumstances—Preponderance of Evidence ■—Question for Jury.—Notwithstanding the expert evidence and the opinion evidence of the friends and acquaintances of the defendant may all have pointed toward the defendant’s insanity, still it was the right and duty of the jury to measure and weigh such evidence in connection with the conduct and acts of the defendant as disclosed by all the circumstances in evidence, and to determine whether or not the insanity of the defendant was proved by a preponderance of evidence.</p> <p>Id.—Instruction as to Justification—Matter of Fact.—An instruction that no evidence has been introduced tending to show any justification of the crime alleged in the. information is near the border line of error as Charging upon matter of fact, and should not be given.</p>

<p>Freeholders’ Charter of San Francisco—Validity—Injunction— Election under Charter. — The recently adopted freeholders’ charter of the city and county of San Francisco is valid, and was constitutionally adopted; and the board of election commissioners and other municipal officers thereof cannot be restrained by injunction at the suit of a taxpayer from the expenditure of public moneys for the conduct of an election held in the city and county of San Francisco in pursuance of such charter.</p> <p>Id.—Constitutionality of “Charter Election Act.”—The act of 1897, called the “charter election act,” in relation to elections held under section 8 of article XI of the state constitution, to elect boards of freeholders, or to vote upon proposed charters, et cetera, does not violate section 6 of that article, and is not special legislation or wanting in uniformity of operation, but is constitutional and valid. [Per Garoutte, J., Van Dyke, J., and McFarland, J.]</p> <p>Id.—Construction of Constitution—“Municipal Affairs”—Charter Elections.—The election of a board of freeholders to frame a charter, and the election at which a vote is had to confirm the charter, are not “municipal affairs” within the meaning of the exception to section 6 of article XI of the constitution, and such elections may be subject to and controlled by a general law. [Temple, J., dissenting.]</p> <p>Id.—Meaning of “ Municipal Affairs.”—“ Municipal affairs,” as those words are used in the - organic law, refer to the internal business affairs of a municipality; and the constitution indicates that there is a large amount of legislation pertaining to cities and towns which does not come under the classification of “municipal affairs.” [Per Garoutte, j., Van Dyke, J., and McFarland, J.; Temple, J., dissenting.]</p> <p>Id.—Distributive Construction—Silence of Charter.—Section 6 of article XI of the constitution is to be construed distributively, as applying to “any city or town, et cetera, except in its municipal affairs,” et cetera, and as allowing the municipality to be controlled by general laws upon all municipal matters in respect to which the provisions of its charter are silent. [Per Harrison, J., Beatty, C. J., and Henshaw, J.; Temple, J., dissenting.]</p> <p>Id.—Charter Elections in San Francisco—Power to Consolidate Election Precincts—Operation of Political Code.—The special act of 1878 regulating elections in San Francisco is superseded to the extent of its inconsistency with subsequent amendments of the Political Code, by the operation of section 6 of article XI of the constitution; and under the amendments of sections 1127 and 1129 of the Political Code, the board of election commissioners of San Francisco had authority to consolidate established election precincts for the purposes of the election of a board of freeholders, and of the election to vote upon the charter framed by them. [Per Harrison, J., Beatty, C. J., and Henshaw, J.]</p> <p>Id.—Precinct Registration—Special Elections—Regulations of Election Commissioners.—The act of 1878 does not provide for or authorize precinct registration at special elections; and any required changes in the precinct registers for a special election may be had at the office of the registrar, under the regulations of the board of election commissioners. The rights of the registered voters are subject to the power of the election commissioners to consolidate precincts and to change polling places for a special election. ■ [Per Harrison, J., Beatty, O. J., and Henshaw, J.]</p> <p>Id.—Officers of Election—Omission of Election Commissioners— Harmless Irregularity.—The omission of the election commissioners to appoint as many officers of election as they were authorized to appoint does not authorize the election to be set aside, where the irregularity is not shown to have had any effect upon the election in any manner. [Per Harrison, J., Beatty, C. J., and Henshaw, J.]</p> <p>Id.—Approval of Charter by Legislature.—The approval of the charter of San Francisco by the legislature is conclusive of its validity. [Per Temple, J.]</p>

<p>City and County of San Francisco—Effect of Consolidation Act— Merged and Consolidated Municipal Government—Cessation of-County.—The city and county of San Francisco were merged and consolidated into one municipal government by the consolidation act, and since its passage the city and county of San Francisco has been organized and existing as one body politic and corporate by that name and style, and the county of San Francisco has ceased to exist as a body politic or corporate, independently of and separate from the municipal corporation created by that act.</p> <p>Id.—Freeholders’ Charter—Regulation of County Officers.—The city and county of San. Francisco, as a merged and consolidated municipal government, was authorized, under sections 7 and 8 of article XI of the constitution, to adopt a freeholders charter; and under section 8% of that article, adopted in 1896", was authorized to fix in such charter the manner in which, the times at which, and the terms for which the several county officers shall be elected or appointed.</p> <p>Td.—Adoption of Constitutional Amendments—Submission under General Law.—There is no constitutional objection to the validity of the act of March 7, 1883, providing generally for the Submission of constitutional amendments to the people; and it is not necessary that an amendment to the constitution be submitted specially by the legislature proposing the amendment.</p> <p>Jd.—Construction of Constitution—Special and General Provisions. In the construction of the constitution, special provisions control the more general provisions; and the general and special provisions operate together, neither working the repeal of the other. Section 8% of the constitution is valid and operative as to the cases therein specially provided for, notwithstanding the general provision of the constitution for laws establishing a uniform system of county and township government.</p> <p>Id.—Operation of County Government Act.—The county government act does not apply, and never has applied, to the city and county of San Francisco, nor to the county of San Francisco, which has had no property, and has performed no functions or acts of a corporate body, since the passage of the consolidation act.</p> <p>Id.—Effect of Freeholders’ Charter—Superseding of Inconsistent Laws.—The freeholders’ charter of the city and county of .'an Francisco operates under section 8 of article XI, as amended, to' supersede all laws inconsistent therewith, whether special or general.</p>

<p>Savings and Loan Corporations—Power to “Invest” Funds.—The power given to savings and loan corporations in section 571 of the Civil Code to “invest” their funds includes the power to put out money so as to produce a revenue, either by way of loan upon interest or by the purchase of stocks, securities, notes, and mortgages, or any income-producing property.</p> <p>Id.—Power to Purchase Mortgages.—Under subdivision 4 of section 354 of the Civil Code, construed with subdivision 5 of section 574 of the same code, savings and loan corporations have the implied power to purchase mortgages on real estate and the obligations secured thereby.</p> <p>Id.—Purposes of Corporation—Power of Directors.—The question whether the purchase of a particular note and mortgage by a savings and loan corporation was “such as the purposes of the corporation required,” is to be determined by its board of directors, and is not» open to investigation at the instance of the mortgagor.</p> <p>Id.—Mortgage to Savings Bank—Consideration—Return of Purchased Note and Mortgage.—A mortgage to a savings bank executed in consideration of the surrender and return to the mortgagor of a prior note and mortgage executed to a third party, and purchased by the bank, which the bank as owner could have enforced against the mortgagor, is supported by a sufficient consideration.</p> <p>Id.—Loan by Bank—Handling of Money not Essential.—It is not necessary in such case, in order to constitute a loan by the bank, that money should have been handled and actually passed between the parties. The law does not require idle acts. 9</p> <p>Id.—Sale under Foreclosure — Time for Redemption — Effect of Amendment to Code.—The amendment of section 702 of the Code of Civil Procedure, extending the time for redemption from sales under execution to one year, has no application, to sales under the foreclosure of a mortgage executed prior to its enactment.</p> <p>Id.—Pleading—Defect in Complaint Obviated by Answer—Nature of Incorporation of Plaintiff.—In an action by a savings bank to foreclose a mortgage, where the complaint was demurred to on the ground that it did not disclose on its face the class of corporations to which the plaintiff belonged, an answer showing that it was a savings and loan corporation organized under the laws of the state applicable to such corporations obviates the defect in the complaint to which a demurrer was directed.</p>

APPEALS from a judgment of the Superior Court of Riverside County, from a judgment, and from orders refusing to set the judgment aside. John L. Campbell, Judge, presiding. The facts are stated in the opinion of the court.

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

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

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

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

MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County and from orders denying a new trial and denying a motion to amend the statement. Waldo M. York, Judge. The facts are stated in the opinion of the court.

<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>

MOTION to dismiss an appeal from an order of the Superior Court of Santa Clara County requiring an administrator of an alleged deceased person to return to him the estate administered upon. M. H. Hyland, Judge. The facts are stated in the opinion of the court.

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

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

MOTION in the Supreme Court to dismiss an appeal from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. James M„ Troutt, Judge. The facts are stated in the opinion of the court.

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

<p>APPEAL from a judgment of the Superior Court of Riverside County. J. W. Hughes, Judge, presiding.</p> <p>The facts are stated in the opinion of the court. '</p>

<p>Partition—Estates of Deceased Persons—Administrator not Entitled to Sue.—The administrator of the estate of a deceased person has no such interest in the land of the deceased as to entitle him to institute partition proceedings, unless power is expressly given him by statute; and no such power is conferred upon him in this state.</p> <p>Id.—Construction of Code—Rights of Heirs and Devisees-—Possession of Administrator.—The land of a deceased person vests immediately upon his death in his heirs and devisees, subject to the payment of his debts; and the intent of section 1581 of the Code of Civil Procedure is not to give the administrator the right to sue for partition of the estate, but to give to the heirs and devisees the benefit of the administrator’s possession for the purpose of their maintaining the actions described in that section, including suits by them for partition of the estate.</p> <p>Id.—Case Questioned—Obiter Dictum.—The language used in the case of Bath v. Tables. 70 Cal. 350, as to the right of an administrator to sue for partition of the estate, was not necessary to the decision of the case, and is obiter dictum.</p>

The notice of appropriation of the Azusa Water and Development Company was posted at a point which became the mouth of a “development tunnel,” and claimed “the water here flowing in the channel of the San Gabriel river to the extent of five thousand inches,” et cetera, and stated that “the means by which it is intended to divert said water is by bedrock and surface dam, or both, tunnel, ditch, iron pipe, and flume, or any or other of such means as may be found most…

<p>Life Insurance—Fraud of Agent—Return of Policy—Action for Damages—Erroneous Nonsuit.—One who was defrauded into giving his note for the first premium, upon a policy of life insurance, by the misrepresentations of the agent of the insurance company as to the conditions of the policy to he issued, and who was compelled to pay the note to an innocent holder, notwithstanding a prompt return of the policy, and demand of return of the note, may maintain an action for the recovery of damages for the fraud; and, where the evidence showed a fraud of the agent for which the company was responsible, it was error to grant a nonsuit in such action.</p> <p>Id.—Fraud in Securing Application—Filling Signed Blank—Author- . ity of Agent.—An agent of a life insurance company authorized to negotiate applications for policies, who made fraudulent misrepresentations to an applicant not proficient in the English language as to what would be the conditions of a policy to be issued under a blank application, which he induced the applicant to sign, without knowledge of the meaning of the terms used, acted, in filling up the blank application, not as the agent of the applicant, but within the scope of his authority as agent of the company; and the fraud thereby practiced by the agent to the injury of the applicant must be treated as the fraud of the company.</p> <p>Id.—Validity of Signed Blank — Authority from Applicant—Oral Agreement.—A signed blank is not an application before it is filled; and an agent of the insurance company who' fills a blank which an applicant has signed, can have no authority from the applicant to insert in the form any proposal different from the oral agreement made between them; and if different proposals therefrom are inserted, the instrument is not the application of the ■party who signed the blank.</p> <p>Id.—Provision as to Unwritten Statements by Agent.—The application, as completed by the agent, having been fraudulently obtained from the applicant, the insurance company can derive no advantage from a stipulation therein that the company should not be affected by unwritten statements or promises made by the agent, of which stipulation the applicant had no knowledge, and which was fraudulently procured.</p> <p>Id.—-Failure to Read Application—Negligence.—Upon the facts appearing in this case, the applicant was not chargeable with negligence in failing to read the application either before or after the agent filled the blanks therein.</p> <p>Id.—Return of Policy—Consent of Beneficiary' not Required.—The fact that the. wife of the applicant, who was named as beneficlary in the policy, did not join in the offer to surrender it, does not affect the applicant’s right of action for the fraud practiced upon him. Having never applied for the policy which the company assumed to issue, and which he did not accept nor agree to accept, his wife had no interest therein.</p>

<p>Criminal Law—Trial for Murder—Harmless Remarks of District Attorney.—Remarks made by the district attorney in his argument to the jury, upon a trial for murder, which are. in accordance with .the evidence and pertinent to the issues, are not harmful.</p> <p>Id.—Range of Discussion before Jury.—The range of discussion, illustration, and argumentation of counsel before a jury is wide. Matters of common knowledge and historical facts may be referred to, and interwoven in the argument, and allusion may be made to the prevalence of crime, and to the duty of the jury.</p> <p>In.—Presumption upon Appeal—Charge to Jury—Disregard of Objectionable Remarks.—Where neither the evidence given at the trial, nor the instructions to the jury, nor what action was taken by the court, appears in the record upon appeal in a criminal case, it must be presumed that the court corrected any objectionable remarks made by the district attorney in the course of his argument, and instructed the jury to disregard them.</p>

<p>i Criminal Law—Grand Larceny—Indictment—Time op Ownership.— " An indictment charging the larceny of money and purses stolen from the person and immediate possession of another person named, “the same being the money and property” of said person, although it would be improved if the words “then and there” were inserted before the word “being,” is not rendered void by their omission. The indictment is to be reasonably and fairly construed, under our statute, as intended to charge the ownership of the property at the time it was stolen; and the defendant could not be misled by the form of the allegation.</p> <p>Id.—Form op Averring Ownership.—The form of averring ownership by, the use of the word “being,” instead of by positive averment, though not favored, is not substantially objectionable, and is ample to support a verdict and judgment. ¡</p> <p>Id.—Evidence—Declarations op Prosecuting Witness.—Declarations of the prosecuting witness in reference to the fact of robbery by the defendant and a codefendant, made at the time of the taking of purses of money from him, and while he had hold of both of them, in their presence and hearing, are admissible against the defendant.</p> <p>Id.—Harmless Evidence op Declarations.—Where the defendant testified that he told the prosecuting witness that he did not have his pocketbook, and the latter testified that the defendant was the man who stole the money, the defendant cannot be prejudiced by evidence of any declaration made by the prosecuting witness at the time of or immediately after the theft.</p> <p>Id.—Poese Dropped by Codefendant.—One of the stolen purses dropped by a codefendant, containing thirty dollars, which there was evidence tending to show had been passed by the defendant to the codefendant, was admissible in evidence, as part of the res gestae.</p> <p>Id.—Money Found in Defendant’s Stockings—Habit of Defendant— Rebuttal—Prior Searches by Police.—Where one of the stolen purses contained five twenty-dollar pieces, and five twenty-dollar pieces were found concealed, in defendant’s stockings, upon search at the city prison after his 'arrest, the testimony of the defendant that he placed the money there previous to the alleged larceny, and was always in the habit of so carrying his money, may be rebutted by proof that the police detectives had searched the defendant many times, and had found money on his person, but never in his stockings, although they had examined them.</p> <p>Id.—Habit of Carrying Money not Collateral Matter—Reference to Previous Arrests—Harmless Evidence.—Evidence as to the ■ habit of the defendant in carrying money in his stockings was not as to a collateral matter, but was direct and material evidence upon an issue in the case. The prosecution might have proved in chief that the defendant was not in the habit of so carrying his money; and the incidental reference to previous arrests by the police, in connection with proof of their searches, was not ground for rejecting their testimony in rebuttal of defendant’s evidence. The testimony as to such previous arrests was harmless, where the defendant showed upon cross-examination of witnesses that he had been arrested eighteen or twenty times upon criminal charges.</p> <p>Id.—Refusal of Instruction to Acquit.—An instruction requested by the defendant, which, in substance, told the jury to acquit the defendant for want of any evidence tending to convict him of the larceny charged is properly refused, where the prosecuting witness testified that defendant was the man who stole his money.</p>

<p>Action against Railroad Company—Death of Animals—Uncertainty of Complaint.—In an action against a railroad company to recover the value of animals killed by Its train, a complaint which alleges that they were killed as the ‘ result of the careless running and management of the cars and locomotive of the defendant, and also alleges possession and control by plaintiff of the land where the animals were killed, and that the same was not fenced, is uncertain as to the cause of action relied upon.</p> <p>Id.—Failure to Fence Railroad—Connection of Occupant with Title. Where the plaintiffs rely for recovery for the loss of animals, upon the failure of the railroad company to fence its road, the plaintiffs must show connection with the title to the land on. which the animals were killed. If there is a failure of proof as to the ownership of such land, and an utter failure of evidence to show that plaintiffs were tenants or licensees of the owners thereof, there can be no recovery upon the ground of a failure to fence the railroad.</p>

<p>APPEAL from a judgment of the Superior Court of San Luis Obispo County and from an order denying a new trial. J. E. Prewett, Judge.</p> <p>The facts are stated in the opinion of the court, upon this and upon the former appeals, reported in 37 Pac. Rep. 652, and 115 Cal. 29.</p>

<p>APPEAL from a judgment of the Superior Court of San. Bernardino County. Frank F. Oster, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

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

<p>Dedication—Estoppel of Corporation.—Dedication of land to a public use is a conclusion of fact to be drawn from the circumstances of each case, and a corporation as well as an individual maybe bound by its acts so as to estop it from disputing or denying the fact of dedication. It is not necessary that a formal act of dedication should be passed by the board otf directors of the corporation or entered in its minutes.</p> <p>Id.—Acts Showing Dedication—Acceptance.—Where a land improvement corporation, after laying out and recording a map of a proposed townsite, held out, by itself and' its agents, to the purchasers of lots in the town and to others, that it would construct a bridge and open a public highway across the same, leading to the town, and such bridge was subsequently constructed and the road opened, such acts, in connection with such declarations, sufficiently show an intention to appropriate the land and bridge to public use, and upon acceptance by the public the dedication becomes complete.</p> <p>In.—Adverse Possession—Inconsistent Findings.—In an action against a county to quiet title to a certain road and bridge, findings in favor of the defendant, in conformity with separate defenses set up in the answer, that the road and bridge had been dedicated by the plaintiff and its predecessors to public use, and that the public had acquired a prescriptive right thereto by adverse possession, even if conflicting, are without prejudice1 to the plaintiff, as the judgment in favor of the plaintiff would be supported by the finding of dedication.</p>

<p>APPEAL from a judgment of the Superior Court of Los Angeles County and from orders refusing a new trial and to strike out portions of a cost bill. Lucien Shaw, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>APPEAL from an order of the Superior Court of Biverside County granting a new trial. J. S. Noyes, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Mortgage—Note—Maturity of Principal—Default in Interest.—A mortgage and a contemporaneous promissory note recited therein, for the security of which it was given, should be construed together; and a provision in the mortgage that upon default being made In the payment of the principal or Interest of the note the mortgagee might sell the mortgaged premises, in the • manner prescribed by law, and out of the proceeds retain said principal and interest, makes the principal become due upon default in the payment of the interest, and justifies a foreclosure for such sum.</p> <p>Id.—Costs—Percentage—Judgment.—An allowance to the plaintiff, in the judgment of foreclosure, of an aggregate amount for “costs, percentage, and necessary disbursements,” must be presumed, in the absence from the record of the evidence on which the court acted, to be entirely composed of items which were proper costs of the suit.</p> <p>Appeal—Point First Raised in Closing Brief.—A point raised by the appellant for the first time in his closing brief, to which the respondent has had no opportunity to reply, is properly overruled.</p>

<p>Landlord and Tenant—Unlawful Detainer—Pleading.—A complaint in an action for an unlawful detainer by a tenant after the expiration of his term need not allege the specific amount of the rent agreed- to be paid. An allegation that the lease was •given for a “certain- yearly rent” which had been paid is sufficient.</p> <p>Id.—Finding—Judgment—End of Term.—A 'judgment in favor of the plaintiff in such an action is sustained by a finding that the term of the lease had terminated, although the court further finds that the defendant is still a tenant of the plaintiff, as the relation of landlord and tenant still continues until the tenant surrenders possession.</p>

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

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

<p>Negligence—Release in Full Obtained by Fraud—Return of Consideration.—A document purporting on its face to be a full Settlement and discharge of the defendants from all claim of damages to the plaintiff resulting from personal injuries caused by their negligence, which was signed by the plaintiff, a foreigner, speaking English imperfectly and not able to read it at all, at the instigation of his physician, who was in the. employ of and acted as agent for the defendants in procuring the settlement, and who represented to the plaintiff that the document was a mere receipt for any claim he might have for loss of time, is not a bar to an action for the injuries suffered by the plaintiff to his person, although the plaintiff never returned or offered to return the consideration for the alleged settlement.</p> <p>Id.—Construction of Contract of Settlement.—Under such circumstances, the contract must be construed as a mere settlement of those matters as to which the minds of the parties met, and not in satisfaction of anything which the plaintiff never consented that it should satisfy.</p>

<p>Mechanics’ Liens — Minino Claim—Leased Machinery—Personal Property.—Under section 1183 of the Code of Civil Procedure, a person performing labor on a mining claim, for one having a contract of purchase thereof, to which the latter has affixed mining machinery leased by him, under a lease the terms of which were sufficient, as between himself and the lessor, to continue the identity of the machinery as the personal property of the lessor, is not entitled to a lien upon such machinery.</p> <p>Id.—Notice of Exemption.—To secure such exemption, the lessor of the machinery is not required to give the notice provided for by section 1192 of the Code of Civil Procedure, as he was not the owner of the mine and had no interest in it.</p>

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

<p>Estates of Deceased Persons—Order Setting Apart Estate Less than Fifteen Hundred Dollars—Title—Tenancy in Common.—Under the amendment of 1880 to section 1469 of the Code of Civil Procedure, construed in connection with section 1468 of the same code, an order setting apart the estate of a deceased person of less value than fifteen hundred dollars vested title to an undivided half thereof in the widow, and to the other undivided half thereof in the minor children, as tenants in common.</p> <p>Ejectment—Action by "Widow and Children—Deed of Widow—Mortgage—Dismissal as to Widow—Jurisdiction.—In an action of ejectment brought by the widow and children of a deceased person to recover real property set apart to them under section 1469 of the Code of Civil Procedure, where the defendant claimed under a deed from the widow, the fact that the widow ceased to be a party to the action did not deprive the court of jurisdiction to determine that the deed was intended as a mortgage, rather than a conveyance, in so far as that question was material to the issues made between the defendant and the children.</p> <p>Id.—Statute of Limitations—Mortgagee in Possession.—The widow having permitted the defendant to enter into possession of her interes* in the estate for the puipose of paying a debt due from her to him from the rents, under the deed intended as a mortgage, the statute of limitations could not begin to run in his favor ■prior to the date of an actual ouster and denial of her title by him.</p> <p>Id.—Right of Possession by Mortgagee—Adverse Claim—Trespass— Recovery by Children as Tenants in Common.—The deed of the widow intended as a mortgage, of its own effect, conveyed no right of possession upon the defendant; and where the defendant claimed absolute title under the deed, and denied any tenancy as mortgagee in possession under the widow, and claimed to hold adversely to the widow and children, he mhy be treated as a trespasser, and the children, as the owners of an undivided half of the premises, may recover from him the possession of the entire property.</p> <p>Id.—Recovery of Rents.—The widow being entitled to one-half of the rents of the real property so set apart, the minor children cannot recover from a trespasser in possession more than one-half of the rents. The defendant remains liable to an action by the widow «in relation to her portion of the rents.</p>

<p>¡Public Highway—Action to Establish—Contbadictoby Findings.— In an action by a road commissioner, under section 2731 of the Political Code, to abate an encroachment upon an alleged public highway, which highway the defendants denied was a public highway or ever dedicated to public use, findings in favor of the plaintiff, which in one place describes the highway by metes and hounds, showing it to he sixty-six feet in width, and in another place as being of the uniform width of forty feet, without a definite location of such forty feet, are contradictory, and will mot support a judgment establishing the highway and abating the encroachment.</p>

W. (X Minor, Judge. The action was tried in the county of Merced before the- ' judge of the superior court of Stanislaus county, who. sat thereim at the request of the judge of the superior court of Merced! county and by stipulation of the parties. The decision and decree herein were signed by the trial judge in Stanislaus county, and were forwarded by him to the clerk of the superior court of Merced county, who filed and entered them.

<p>Negligence—Master and Servant—Defective Appliance—Proximate Cause.—An employee can recover for personal injuries sustained by -him by reason of the defective condition of the appliances furnished to him by the employer only when the defective machinery or appliance was the proximate cause of the injury. Ordinarily, this question is one of fact for the jury under proper instructions, but where the facts are not in dispute it may become a question of law for the court.</p> <p>Id.—Railroad—Negligence of Fellow-servant—Instruction.—Where a brakeman in a railroad yard, while riding on a switch engine, is crushed by a water-tank of the engine, which became un-^ fastened as the result of a collision which was caused by the negligence of another brakeman in manipulating a switch, such negligence is the proximate cause of the injury, and, being the act of a fellow-servant, prevents any recovery therefor, notwithstanding any defect that there might have been in the fastening of the water-tank. Where such facts appear from the evidence without conflict, it is error to charge the jury, in effect, that if the injury resulted by reason of the defective fastening of the water-tank, the plaintiff was entitled to recover.</p>

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

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

<p>Practice—Nonreturn' of Summons—Appearance by Demurber—Dismissal.—Under section 581 of the Code of Civil Procedure, an action to quiet title to and recover the possession of land, commenced against a number of defendants, some of whom had appeared by filing a demurrer to the complaint, which had never been acted upon by the court, cannot be dismissed as to them, at the instance of the other defendants who have not appeared, on the ground that the summons had not been returned within three years after the commencement of the action. The failure to so return the summons authorizes a dismissal as'to those defendants who have not appeared, and the action may he prosecuted against those who have made such appearance, if the court would he authorized to render a judgment against them in the absence of the other defendants.</p> <p>Id.—Quieting Title—Plaintiff as Special Administratrix—Abatement.—An action to quiet title to and recover the possession of land, alleged to belong to the estate of a deceased person, which is brought by the special administratrix of the estate of such deceased, does not abate by the revocation of the special letters of administration.</p> <p>Id.—Dismissal—Appeal—Representative Capacity.—Where a judgment dismissing an action brought by a special administratrix is made on the motion of defendants, for failure to return the summons within the time limited by law, after her powers as special administratrix have been revoked, an appeal therefrom, taken by her in her representative capacity, cannot be dismissed on the ground that at the time of taking the appeal she had ceased to be such special administratrix.</p> <p>Judgmext-boll—Service of Notice of Appeal.—Proof of the service of the notice of appeal is not a part of the judgment-roll.</p> <p>Id.—Appeal — Quieting Title—Defendants not Appearing.—On an. appeal from a judgment dismissing an action brought against several defendants to quiet title to land and recover the possession thereof, defendants who had not been served with the summons and who had not appeared need not be served with the notice of appeal. '</p>

<p>Sale—Stock of Stobe—Change of Possession.—A sale by a husband to his wife of an undivided interest in a tract of land upon which a store stood, together with an undivided interest in the stock of go-ods therein, but which is not accompanied by any change of possession of any of such property, or any change in the management thereof, is void as to the contents of such store, as against the attaching creditors of the husband.</p> <p>Pabtnership—Evidence of. Belation.—Partnership is a relation which grows out of a contract, either express or implied, between the parties; and, in the absence of any evidence of such contract, the mere testimony of one person that another was his partner in a particular business is not conclusive thereof.</p>

<p>APPLICATION to the Supreme Court for a writ of prohibition.</p> <p>The facts are stated in the opinion. '</p>

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

<p>Action fob Deceit—Exchange of Land—Misrepresentations of Fact— Opinion as to Value—Findings—Admission of Answer.—Upon appeal by plaintiffs from a judgment rendered in their favor in an action for deceit, based upon misrepresentations of fact by the defendant which fraudulently induced the plaintiffs to exchange land in another state for land of much less value in. this state, where it is urged, as ground for reversal of the judgment, that the value of the property in this state, if defendant’s representations had been true, was, by the admission of the answer, eighteen thousand dollars in excess of that found by the court upon the same supposition, if it appears that the representation upon which the increased valuation was based was denied by the answer, and was a mere expression of opinion by his agent as to the value of the property, which could not constitute the basis of an action for deceit, the admission of the answer cannot control the partial finding of the court against the appellant.</p> <p>Id.—Trial of Issue as to Value—Objection upon Appeal.—The trial in the superior court having proceeded upon the theory that the value of the defendant’s land was in issue, and evidence having been adduced thereupon by both parties, it cannot be objected by the plaintiffs upon appeal, for the first time, that there was no such issue to he tried.</p> <p>Id.—Recoupment by Defendant.—In an action of damages for fraudulent representation of the defendant as to facts concerning the value of his property exchanged for property of the plaintiff, the defendant may recoup by showing that the plaintiff’s property was worth less than the plaintiff represented it to be.</p> <p>Id.—Exchange in Name of Wife—Parol Trust—Joint Use of Husband and Wife—Joint Judgment.—Where the exchange of the lands was effected in the name of the wife, parol evidence is admissible to show a trust of the wife for the joint use of herself and husband; and where the defendant dealt with the husband as owner, or part owner, of the property exchanged for that of the defendant, and the parol trust was proved, the defendant cannot be prejudiced by a joint judgment for damages in favor of the husband and wife.</p> <p>Id.—Action for Damages—Rescission—Cancellation of Note and Mortgage.—In an action for damages for deceit in respect of an exchange of property, the rules as to rescission are not applicable; and the plaintiff may be allowed, as part of his damages, the cancellation of a note and mortgage executed by the plaintiffs upon the property received from the defendant in exchange for that of the plaintiffs, and such allowance is not an attempt to rescind the exchange in part.</p> <p>Id.—Law and Equity—One Form of Action—Note and Mortgage Part of Damages.—In this state there is but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs. The distinction between •strict law and equity is not permanent or unchangeable; and the ■cancellation of a note and mortgage representing actual damages ■caused by fraud may not only be made matter of defense in an action to foreclose the mortgage, but may also be allowed as damages in an action for deceit, where the facts entitling the plaintiffs to such relief are clearly stated and found.</p> <p>Id.—Finding against Defendant—Recovery by Plaintiff.—If the court finds that plaintiffs made no misrepresentation of fact in regard to their property, and that defendant, before closing the trade, caused plaintiffs’ property to be carefully examined, the defendant cannot object to the recovery by plaintiffs of the damages found to have been caused to them by the misrepresentations ■of fact made by him in regard to his property, which the plaintiffs had no opportunity to examine, and to the cancellation of a note and mortgage included in such damages.</p> <p>Id.—Interest upon Canceled Note and Mortgage not Allowable. The defendant cannot be allowed interest upon the canceled note and mortgage to be deducted from the amount of plaintiffs’ damages found by the trial court. The note and mortgage, having been obtained by defendant through his fraud and deceit and without consideration, should be treated as never having been given, and as not entitled to draw interest.</p>

<p>Appeal—Nonsuit—Dismissal—Omission oe Judgment.—An appeal, purporting to be from a judgment entered after a nonsuit granted in favor of the defendants, will be dismissed, if the judgment-roll embodied in the transcript,- as certified to by the clerk, fails to show that any judgment has been given and entered in the action.</p>

<p>Insolvency—Husband and Wife—Property Purchased by Wife—Deed by Husband to Wife—Consideration.—Where a married woman purchased real estate with her own funds, assuming the payment of an existing encumbrance thereon, and the deed therefor was made to her and her husband, upon his agreement to assume and pay such encumbrance, and. upon his refusal to make such payment, she paid the same, the husband became a debtor to his wife, and his subsequent conveyance to her of his interest in the land, in discharge of such obligation, when he was insolvent and within one month prior to his filing of a petition in insolvency, but without knowledge by her of his insolvency or reasonable cause for believing him to be insolvent, is based upon a valuable consideration, and is not void as to existing creditors. within the meaning of section 3442 of the Civil Code or of section 56 of the Insolvent Act (Stats. 1895, p. 131).</p>

<p>Water Rights—Contract to Supply Water—Legal Abatement of Ditch.—A water company which contracted to supply water to the plaintiff from an open canal constructed in part upon a county highway and in part upon a public street of a municipality, under contracts which relieved it from liability for nondelivery of the water in case it should be lawfully or forcibly restrained from such delivery, or in case such delivery were prevented by hostile diversion or obstruction, is not liable for damages for nondelivery of the water which was caused by reason of the filling up of its canal by the road authorities and injunctions issued against both parties to the contract restraining the further maintenance of the defendant’s canal and the plaintiff’s receiving ditch in such highway and street</p>

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

<p>MOTION to dismiss an appeal from a judgment of the Superior Court of Los Angeles County. Lueien Shaw, Judge.</p> <p>The facts are stated in the opinion of the court.</p>

<p>Specific Performance—Mutuality of Remedy.—A contract cannot be specifically enforced if it has not heen performed by the plaintiff, and does not allow of a mutuality of the remedy of specific performance, and is not in its nature a contract which a court of equity would undertake to enforce against the plaintiff. [Per McFarland, J., Temple, J., and Henshaw, J.]</p> <p>Id.—Vague and Uncertain Contract.—A vague and uncertain contract will not be specifically enforced, even though it may not be void for uncertainty, and might sustain an action for damagés for its breach. [Per McFarland, J., Temple, J., and Henshaw, J.]</p> <p>Id.—Performance Involving Possession, Labor, and Skill.—An unperformed contract on the part of the plaintiff, the specific performance of which requires that he be let into possession, under the contract, for the purpose of performing labor provided for therein, and for the erection of a quartz-mill and the opening and developing of a quartz mine therein provided for, the complete performance of which, under the direction of the court, would require constant and continuous supervision, with the exercise of special knowledge, skill, or judgment, in the oversight thereof, will not he specifically enforced. [Per McFarland, .T„ Temple, J., and Henshaw, J.]</p> <p>Id.—Nonexecution of Contract by Cotenant.—Where the contract named a cotenant of the defendants as a party of the first part, and was unexecuted by him or on his behalf, his right of possession cannot be disturbed by placing the plaintiff in possession to allow the completion of performance on his part. [Per McFarland, J., Temple, J., and Henshaw, J.]</p> <p>Id.—Failure to Offer Due Performance.—Where the plaintiff never offered to perform the contract according to its true construction, and subject to its stipulated conditions, the remedy of specific performance cannot he said to have become mutual. [Per Beatty, C. J.)</p> <p>Id.—Offer upon Improper Condition—Contract not Executed by Co-tenant.—An offer of performance made by the plaintiff, .conditioned upon a conveyance of an interest which, by the terms of the contract, was to be made by three tenants in common, named as o parties of the first part, one of whom never executed the contract, and which interest the two parties signing the contract did not agree to convey, is an insufficient offer, • [Per Beatty, C. J.]</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>Public Highway—License to Collect Tolls—Determination of Necessity.—Under subdivision 41 of section 25 of the County Government Act of 1895, the determination by the board of supervisors that in its judgment the necessary expense in operating a public highway was too great to justify the county in so operating it, is prerequisite to its power to confer a license or franchise upon anyone to collect tolls over such public highway, and such determination must appear from the records of the board.</p> <p>Jurisdiction—Inferior Court—Record.—When the jurisdiction of an inferior court or tribunal depends upon facts to be ascertained by such tribunal, its record must affirmatively show the existence and determination of such facts.</p>

PETITION for mandamus from the Supreme Court to compel the Superior Judge of Orange County to settle a statement on motion for a new trial. J. W. Ballard, Judge. The facts are stated in the opinion of the court.

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

G. W. Nicol, Judge. The plaintiffs were laborers upon a quartz mining claim, under a per diem contract for wages payable at the end of each month. The claims of lien were filed thirty days after the cessation of labor of each claimant. Further facts are stated in the opinion of the court and in the opinion rendered upon the former appeal. (Hines v. Miller, 122 Cal. 517.)